ITO, New Delhi V. M/s. Upyogi Finvest Pvt. Ltd, New Delhi

ITA 3026/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9701 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 25-01-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 30-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Keywords: Opportunity of being heard; Accommodation entries
• Section: 68

Judgement Text

ITA NO. 3026/DEL/2009 A.Y. 2002-03 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH D: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 3026/DEL/2009 A.Y. : 2002-03 INCOME TAX OFFICER, VS. M/S UPYOGI FINVEST PVT LTD. WARD-18(1), 147-D, POCKET-I, MAYUR VIHAR, ROOM NO. 247, CR BUILDING, PHASE-I, NEW DELHI NEW DELHI [PAN : AABCV1597M] (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI B.K. GUPTA, SR. DR O R D E R PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDERS OF THE LD. CIT(A) DATED 27.04.2009 PERTAINING TO ASSESSMENT YEAR 2002 -03. 2. THE ISSUES RAISED READ AS UNDER:- ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ADMITTING FRESH EVIDENCE U/R 46A OF THE IN COME TAX RULES, 1962. ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 39,00,000/- M ADE BY THE AO U/S 68 OF THE IT ACT, 1961. ITA NO. 3026/DEL/2009 A.Y. 2002-03 2 3. IN THIS CASE DURING THE COURSE OF ASSESSMENT AO OBSERVED AS UNDER:- AS THE ASSESSEE FAILED TO PROVE THE IDENTIFICATION , GENUINENESS AND CREDITWORTHINESS OF ETHNIC CREATIONS (P) LTD., FAIR N SQUARE EXPORTS (P) LTD AND MV MARKETING (P) LTD. FROM WHOM A SUM OF RS . 39 LAKHS HAVE BEEN RECEIVED ON DIFFERENT DATES, I HELD THAT THE WHOLE OF THE AMOUNT OF RS. 39,00,000/- RECEIVED FROM THE ABOVE PARTIES IS OF THE ASSESSEE COMPANY THROUGH ACCOMMODATION ENTRIES WHICH WAS NOT DISCLOSED TO THE DEPARTMENT. ACCORDINGLY, AO MADE THE ADDITION AMOUNTING TO R S. 39,00,000/-. 4. BEFORE THE LD. CIT(A), ASSESSEE SUBMITTED WRITT EN SUBMISSIONS ALONGWITH CONFIRMATION AND BANK ACCOUNT OF THE FOUR PARTIES. IT WAS SUBMITTED THAT THAT THESE DOCUMENTS COULD NOT BE SUBMITTED BEFORE THE A O AS THE SAME COULD NOT BE OBTAINED DURING THE AVAILABLE SHORT PERIOD. LD . CIT(A) ACCEPTED THE SAID DOCUMENTS AND FORWARDED THE SAME TO THE AO FOR HIS COMMENTS. HOWEVER, THE LD. CIT(A) NOTED THAT DESPITE REMINDERS AO COU LD NOT SUBMIT THE REPORT. LD. CIT(A) FURTHER OBSERVED THAT COUNSEL OF THE ASS ESSEE HAS ARGUEND THAT ASSESSEE COMPANY HAS SUBMITTED THE VARIOUS DETAILS OF THE PERSONS INCLUDING THE BANK ACCOUNT, PAN; ADDRESS ETC. LD. CIT(A) PL ACING RELIANCE UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CA SE OF CIT VS. DIVINE LEASING AND FINANCE LTD. AND LOVELY EXPORTS PVT LTD. AS REP ORTED IN (2008) 299 ITR 268, GRANTED THE RELIEF TO THE ASSESSEE. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD LD. DR AND PERUSED THE RECORDS. NONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE SERVICE OF THE NOT ICE. UPON CAREFUL CONSIDERATION, IN THIS CASE WE FIND THAT THE INFORM ATION AND DETAILS AS REQUIRED WERE NOT SUBMITTED BEFORE THE AO. SOME DETAILS WE RE SUBMITTED BEFORE THE CIT(A), WHO MENTIONED THAT AO HAS NOT SUBMITTED HI S REPORT IN THIS REGARD. IT IS NOT THE CASE THAT THE LD. CIT(A) HAS HIMSELF VE RIFIED THESE DETAILS. UNDER ITA NO. 3026/DEL/2009 A.Y. 2002-03 3 THE CIRCUMSTANCES, IN OUR OPINION, THE RATIO EMANAT ING FROM THE HONBLE APEX COURT DECISION IN THE CASE OF KAPURCHAND SHRIMAL VS . CIT, 131 ITR 451 IS APPLICABLE HERE, WHEREIN IT WAS HELD THAT THE APPE LLATE AUTHORITY HAS JURISDICTION AS WELL AS THE DUTY TO CORRECT THE ERR ORS IN THE PROCEEDINGS UNDER APPEAL. ACCORDINGLY, WE REMIT THI S ISSUE TO THE FILES OF THE AO TO CONSIDER THE SAME AFRESH IN THE LIGHT OF THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/01/2010. SD/- SD/- [C.L. SETHI) [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 25/01/ 2010 SRB COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES