M/s. Shark Communication Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 3211/DEL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0006 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 30-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 21-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDER
• Keywords: Search and seizure
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI I.C. SUDHIR , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO . 3211 /DEL / 2012 ASSESSMENT YEAR: 2006 - 07 M/S SHARK COMMUNICATION PVT. VS. A.C.I.T., LTD., H - 108, IIND FLOOR, CENTRAL CIRCLE - 9, NEW ASIATIC BLDG. CONNAUGHT NEW DELHI PLACE, NEW DELHI (PAN: AAACS4876P ) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. K. SAMPATH, ADV. RESPONDEN T BY: SH. RAMESH CHANDER, CIT(DR) DATE OF HEARING: 30.04.2015 DATE OF PRONOUNCEMENT: 06.05.2015 ORDER PER INTURI RAMA RAO, A.M. : THIS IS AN APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2006 - 07 IMPUGNING THE ORDER OF THE LEARNED CIT(A) - XXXII, DELHI, DATED 05.03.2012 RAISING THE FOLLOWING GROUNDS OF APPEAL: THAT ON THE FACTS AND IN THE CIRCUMSTANCES AND IN THE LAW THE AUTHORITIES BELOW ERRED IN: I. DETERMINING TAXAB LE INCOME OF RS. 3,62,230/ - AS AGAINST THE RETURNED INCOME OF RS. 4,674/ - II. PASSING ORDER U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 RELYING ON THE ESTIMATES AND NOT ON THE BASIS OF SEIZED MATERIAL: III. IN APPLYING PROVISIONS OF SECTION 145(3) OF THE ACT EVEN THOUGH BOOKS OF ACCOUNT WERE NEVER PRODUCED BEFORE THE AUTHORITY AND NO MATERIAL DEFECTS WERE POINTED OUT THEREION; IV. IN ESTIMATING UNDISCLOSED INCOME OF SUM OF RS. 12,050/ - AND RS. 3,45,511/ - BASED FIGURE APPEARING IN BALANCE SHEET DESPITE THE FACTS T HAT SUCH BOOKS OF ACCOUNT WERE NEVER RELIED UPON; 2 ITA NO. 3211/DEL /2012 ASSESSMENT YEAR: 2006 - 07 ALL THE ABOVE ACTIONS BEING MOST ARBITRARY, ERRONEOUS, UNTENABLE AND UNLAWFUL, IT IS PRAYED THAT SAME MUST BE QUASHED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT IS ONE OF THE AOP CONCERN OPERATED AND CONTROLLED BY ONE SH. S.K. GUPT A, CHA RTERED ACCOUNTANT BY PROFESSION, FROM HIS OFFICE SITUATED AT H - 108, 2 ND FLOOR, NEW ASIATIC BUILDING, CONNAUGHT PLACE , NEW DELHI . A SEARCH AND SEIZURE OPERATION UNDER SECTION 132 OF THE INCOME - TAX ACT, 1961 (FOR SHORT THE ACT ) WAS CONDUCTED ON 12.12.2006 AT THE BUSINESS AND RESIDENTIAL PREMISES OF SH. S.K. GUPTA ALONG WITH HIS VARIOUS CONCERNS. A NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED TO THE ASSESSEE COMPANY ON 25.02.2008. DURING THE COURSE OF SEA RCH OPERATION, IT WAS REPORTED BY THE INVESTIGATION WING THAT A LARGE NUMBER OF COMPANIES WERE BEING OPERATED AND CONTROLLED BY SH. S.K. GUPTA FROM HIS MAIN OFFICE INDULGED IN THE BUSINESS OF ENTRY PROVIDER . SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND FINALLY THE ASSESSMENT ORDER CAME TO BE PASSED ON 29.12.2008 AT A TOTAL INCOME OF RS. 3,62,235/ - AFTER MAKING ADDITIONS OF RS. 3,45,511/ - ON ACCOUNT BOGUS FRESH INVESTMENT ENTRIES AND RS. 12,050/ - ON ACCOUNT OF ACCOMMODATION SALE BILLS/TURNOVER. AGGRIEVED BY THIS ORDER, AN APPEAL WAS PREFERRED BEFORE THE LEARNED CIT(A) WHO VIDE ORDER DATED 05.03.2012 CONFIRMED THE ADDITION MADE BY THE ASSESSEE AND DISMISSED THE APPEAL. AGGRIEVED, THE PRESENT APPEAL OF THE ASSESSEE IS BEFORE US. 3. LEARNED AUTHO RIZED REPRESENTATIVE HAS PLACED RELIANCE ON FOLLOWING CASES: 3 ITA NO. 3211/DEL /2012 ASSESSMENT YEAR: 2006 - 07 I. M/S KONICHIVA BUILDERS PVT. LTD. VS. ACIT, IN ITA NOS. 3213 - 3214 & 3856/DEL/2012 AND 1080/DEL/2013 FOR A.YS 2004 - 05, 2005 - 06, 2007 - 08 & 2006 - 07 , DATED 14.02.2014. II. ERA ADVERTISING & MARKETING LTD. VS. ACIT, IN ITA NOS. 3046 - 3049/DEL/2012 & 3069/DEL/2012, DATED 28.01.2015 III. CAMSOFT INDIA PVT. LTD. VS. ACIT IN ITA NOS. 1070 & 1074/DEL/2013, DATED 20.04.2015 4. ON THE OTHER HAND, THE LEARNED DR PLACED RELIANCE ON THE ORDER OF LEARNED CIT(A). 5. AFTE R HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE AND THE DECISIONS CITED SUPRA, WE ARE OF THE CONSIDERED OPIN ION THAT SINCE THE ASSESSEE COMPANY ALSO RELATE S TO THE SAME GROUP. ACCORDINGLY, W E ALSO RESTORE THE MATTER TO THE FILE OF ASSES SING OFFICER FOR DE NOVO ASSESSMENT TO EXAMINE THE ISSUE OF ALLOWABILITY OF EXPENDITURE IN THE LIGHT OF THE ORDER S CITED SUPRA BY AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 6. IN THE RESULT, THE APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES . THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 6 T H MAY , 2015. S D / - S D / - ( I.C. SUDHIR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 6 T H MAY , 2015. RK/ - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI