ITO, New Delhi V. M/s. GTX Realtech Pvt. Ltd., New Delhi

ITA 3921/DEL/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2288 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 05-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Keywords: Unexplained cash credit; Opportunity of being heard; Source of fund; Assessment record
• Section: 133(6); 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI C BEN CH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. SUCHITRA KAMBLE, JUDICIAL M EMBER ITA NO. 3921/DEL/2016 [A.Y 2012-13] THE INCOME TAX OFFICER VS. M/S GTX REALT ECH PVT LTD WARD 10(4) D-38, SOUTH EXTENSION, NEW DELHI PART II, NEW DELHI PAN: AADCG 1922 D (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI P.C. YAD AV, ADV SHRI ROHIT TIWARI, ADV DEPARTMENT BY : SHRI S.N. MEENA, SR. DR DATE OF HEARING : 04.12.2019 DATE OF PRONOUNCEMENT : 05.12.2019 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 4, NEW DELHI DATED 8.04.2016 PERTAINING TO ASSESSMENT YEAR 2012-13. 2 2. THE SOLITARY OF THE GRIEVANCE OF THE REVENUE REA DS AS UNDER: ON THE FACT AND CIRCUMSTANCES OF THE CASE IN LAW T HE ID. CIT (A) ERRED IN DELETING THE ADDITION U/S 68 AMOUNTING TO RS. 2,71,00,000/- MADE BY THE AO ON ACCOUNT OF SHARE AP PLICATION MONEY WITHOUT APPRECIATING THE FACT THAT DURING THE COURSE OF ASSESSMENT, NO BALANCE SHEET WAS FURNISHED OF M/S U RBANA PROJECTS INDIA PVT. LTD. AND M/S PRAGTI ENTERPRISES FURTHER, THE COPY OF BANK STATEMENT OF M/S URBANA PROJECTS I NDIA WAS PROVIDED FOR THE PERIOD 5-9-02011 TO 6-09-2011, WHI CH DOES NOT ESTABLISH THE SOURCE OF FUND AND CREDITWORTHINE SS OF THE PAYER. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF RESIDENTIAL HOUSES, COMMERCIAL BUILDINGS, FLATS AND FACTORYS S HEDS AND BUILDINGS IN OR OUTSIDE OF INDIA AND TO ACT AS BUILDERS, COLONIZ ERS AND CIVIL AND CONSTRUCTIONAL CONTRACTORS. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON PERUSAL OF THE BALANCE SHEET, DETAILS OF SHARE APPLICATION MON EY WERE CALLED FOR AND THE ASSESSEE , VIDE ITS LETTER DATED 03.12.2014 , HAS STATED THAT THE 3 SHARE APPLICATION MONEY IS OUTSTANDING AS PER THE D ETAILS GIVEN BELOW: SL . NO. NAME & ADDRESS OF THE PARTY DATE OF TRANSACTION AMOUNT OUTSTANDIN G AS ON 31.03.2011 AMOUNT OUTSTANDING AS ON 31.03.2011 1 . APG HOTEL PVT. LTD. 07.09.2011 NIL 1,04,00,000 2. LUCKY STRIKE RESORTS PREVIOUS BAL. 50,00,000 50,00,000 3. 1 MAHAGAURI BUILDTECH PVT.LTD. PREVIOUS BAT. 25,00,0 00 9,70,000 4. PRAGATI ENTERPRISES 16.01.2012 NIL 25,00,000 5. PREM KUMAR GUPTA 29.08.2011 NIL 20,00,000 6. URBANA PROJECTS INDIA LTD. 05.09.2011 NIL 2,46,00,000 7 VIKAS TELECOM LTD. PREVIOUS BAL., 3,50.00,00 NIL 8. SUMAN SHARMA 02.09.2011 NIL 20,00,000 5. THE ASSESSING OFFICER MADE ENQUIRIES FROM THE PA RTIES BY ISSUING NOTICES U/S 133(6) OF THE ACT. HOWEVER, THE ASSESS ING OFFICER DID NOT RECEIVE ANY PLAUSIBLE REPLY FROM M/S URBAN PROJECTS INDIA LTD AND PRAGATI ENTERPRISES. THE ASSESSING OFFICER WAS OF THE FIRM BELIEF THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST UPON IT BY PROVISIONS OF SECTION 68 OF THE ACT AND COMPLETED ASSESSMENT B Y MAKING ADDITION OF RS. 2.71 CRORES. 4 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND ONCE AGAIN EXPLAINED THE GENUINENESS OF THE TRANSACTIONS . IT WAS STRONGLY CONTENDED THAT THE ASSESSEE HAS DISCHARGED THE INIT IAL ONUS CAST UPON IT BY PROVISIONS OF SECTION 68 OF THE ACT. 7. AFTER CONSIDERING THE FACTS AND SUBMISSIONS, THE LD. CIT(A) HELD AS UNDER: 4. THE GROUND NO. 1,2 AND 3 ARE GENERAL IN NATURE. THE GROUND NO. 4 IS W.R.T THE ADDITION OF RS 2,71,00,00 0/-U/S 68. THE AO HAS TREATED THE SHARE APPLICATION MONEY RECE IVED DURING THE YEAR AS UNEXPLAINED CASH CREDIT U/S 68 A ND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE APPELLANT AND I FIND TH AT DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAD FILED CONFIRMATIONS FROM THE SHARE APPLICANTS ALONGWITH T HEIR BANK ACCOUNT STATEMENTS AND THE IT RETURNS. ON BEING ASK ED U/S 133(6) M/S URBANA PROJECTS INDIA PVT. LTD. WHO HAS GIVEN RS 2,46,00,000/- AS SHARE APPLICATION MONEY, HAD REPLI ED CONFIRMING THE TRANSACTION. AS PER THE AO NO SUCH R EPLY WAS RECEIVED WHEREAS THE APPELLANT HAS TAKEN EVEN THE C OPY OF THE SAME FROM THE ASSESSMENT RECORDS. NOW SUCH AN O MISSION ON THE PART OF THE AO IS UNDESIRABLE. IN CASE OF TH E SECOND PARTY I.E. M/S PRAGATI ENTERPRISES PVT. LTD. WHO HA D GIVEN A 5 SHARE APPLICATION MONEY OF RS 25,00,000/-, THE AO S ENT THE NOTICE U/S 133(6) ON A WRONG ADDRESS OF DELHI WHERE AS THIS COMPANY IS HAVING THE ADDRESS OF MUMBAI, WHICH WAS AVAILABLE ON RECORD WITH THE AO. SINCE THE NOTICE U/S 133(6) WAS NEVER RECEIVED BY THIS PARTY AND THEY COULD NOT REPLY AND THE AO ALSO ADDED THIS AMOUNT U/S 68. THE CONCLUSIONS DRAW N BY THE AO ARE NOT WELL SUPPORTED. THE APPELLANT HAD DISCHA RGED THE ONUS BY PROVIDING IDENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS AND ALSO GENUINENESS OF THE TRANSA CTION BY GIVING THE DETAILS SUCH AS NAMES, ADDRESSES, PANS, ASSESSING OFFICER OF THE CREDITORS AND DETAILS OF THE BANK AC COUNTS SHOWING THE TRANSACTIONS. NOW AFTER THIS THE ONUS S HIFTED UPON THE AO TO CONCLUSIVELY PROVE THAT SUCH PARTIES DID NOT EXIST. IN VIEW OF THE SUBMISSIONS MADE BY THE APPEL LANT, I HEREBY DELETE THIS ADDITION OF RS 2,71,00,000/- U/S 68. 8. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. 9. THE LD. DR VEHEMENTLY STATED THAT THE LD. CIT(A) DELETED THE ADDITIONS WITHOUT EXAMINING THE BASICS OF THE LENDE R COMPANIES URBANA PROJECTS INDIA PVT LTD AND PRAGATI ENTERPRISES. TH E LD. DR FURTHER STATED THAT THE COMPLETE BANK STATEMENTS WERE ALSO NOT EXAMINED. 6 10. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE RE ITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. IT IS TH E SAY OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAS FURN ISHED ALL THE NECESSARY DETAILS BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER CHOSE NOT TO EXAMINE THE SAME. 11. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT THE ASSESSING OF FICER SOUGHT INFORMATION FROM THE ASSESSEE IN RESPECT OF TWO COM PANIES NAMELY, URBAN PROJECT INDIA PVT LTD AND PRAGATI ENTERPRISES . IT IS EQUALLY TRUE THAT THE LD. CIT(A) DELETED THE ADDITIONS WITHOUT E XAMINING THE BASIC FINANCIALS OF THE TWO CONCERNS. WE ARE OF THE CONS IDERED VIEW THAT THE IMPUGNED ISSUE NEEDS EXAMINATION AT THE ASSESSMENT STAGE. WE, ACCORDINGLY, RESTORE THE ISSUE TO THE FILE OF THE A SSESSING OFFICER. THE ASSESSEE IS DIRECTED TO FURNISH THE FINANCIAL STATE MENTS OF URBAN PROJECT INDIA PVT LTD AND PRAGATI ENTERPRISES ALONG WITH COMPLETE BANK STATEMENTS WITH THEIR RETURNS OF INCOME AND THE ASS ESSING OFFICER IS DIRECTED TO EXAMINE THE SAME AND DECIDE THE ISSUE A FRESH AS PER PROVISIONS OF LAW AND AFTER AFFORDING REASONABLE AN D SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 12. IN THE RESULT, THE APPEAL OF THE REVENUE IN ITA NO. 3921/DEL/2016 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05.12. 2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 05 TH DECEMBER, 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 8 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER