ITO, New Delhi V. M/s. Konika Finvest Securities (P) Ltd., New Delhi

ITA 4138/DEL/2010

• Counselvise Citation: 413820114 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 07-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: G N GUTPA
• Keywords: Accommodation entries
• Section: 69C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.D. RANJAN ITA NO. 4138/DEL/2010 ASSESSMENT YEAR: 2002-03 INCOME-TAX OFFICER, VS. M/S. KONIKA FINVEST SECUR ITIES WARD 5(3), (P) LTD., RSN ARCADE, 6, LSC NEW DELHI. NEAR PRINCE & KOTHARI, CGHS LTD. IP EXTN. PATPARGANJ, NEW DELHI-92 (PAN: AAACK5033A) (APPELLANT) (RESPONDENT) DEPARTMENT BY: MS. Y. KAKKAR, SR.DR. ASSESSEE BY: SH RI GN GUTPA, ADV. DATE OF HEARING : 03.01.2012 DATE OF PRONOUNCEMENT : 13 .01.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 22.07.2010 PASSED FOR ASSESSMENT YEAR 2002-03. THE SOLITARY SUBSTANTIAL GRIEVANCE OF THE REVENUE IS TH AT LEARNED CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.15,15,000. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME ON 29.10.2002 DECLARING AN INCOME OF RS.10,2 01. LEARNED ASSESSING OFFICER HAD RECEIVED AN INFORMATION THAT ASSESSEE H AS RECEIVED ACCOMMODATION ENTRY OF RS. 5 LACS AND RS. 10 LACS F ROM M/S. GARG FINVEST 2 (P) LTD. RESPECTIVELY AND M/S. PARTICULAR MANAGE FI NLEASE (P) LTD. THEREFORE, HE REOPENED THE ASSESSMENT BY ISSUANCE O F A NOTICE UNDER SEC. 148 ON 20.3.2008. THE CASE OF THE ASSESSING OFFICER IS THAT ASSESSEE HAS MADE PAYMENT OF CASH TO THESE TWO CONCERNS, WHO HAV E APPLIED SHARES OF THE ASSESSEE AFTER RECEIPT OF CASH. IN OTHER WORDS, ASS ESSEE HAS ARRANGED THESE TWO ACCOMMODATION ENTRIES ON PAYMENT OF COMMISSION. THE ASSESSEE ON THE OTHER HAND SUBMITTED THAT COPY OF THE SHARE APPLICA TION, CONFIRMATION FROM THESE TWO PARTIES, THE NOTE OF THE DIRECTOR, PHOTOC OPY OF THE CHEQUE, BANK STATEMENT OF THE APPLICANT COMPANY AND IT HAS ALSO PRODUCED SHRI SUNIL KUMAR, DIRECTOR OF M/S. PARTICULAR MANAGE FIN LEASE LTD. WHO CONFIRMED THE TRANSACTION. ASSESSING OFFICER DID NOT ACCEPT T HE CONTENTIONS OF THE ASSESSEE ON THE GROUND THAT SHRI SUNIL KUMAR WAS UN ABLE TO MADE A COMMITMENT ABOUT FILING OF COMPLETE COPY OF HIS ITR AND BANK ACCOUNT. IN THIS WAY, LEARNED ASSESSING OFFICER HAS MADE AN ADD ITION OF RS.15,000/- UNDER SEC. 69C OF THE ACT. HE FURTHER ADDED A SUM O F RS. 15 LACS ON ACCOUNT OF DISALLOWANCE OF ALLEGED COMMISSION PAID BY THE A SSESSEE FOR ARRANGING THESE ENTRIES. 3. ON APPEAL, LEARNED FIRST APPELLATE AUTHORITY HAS DELETED THE ADDITION ON THE GROUND THAT ASSESSEE HAS PRODUCED ALL NECESS ARY EVIDENCE. LEARNED 3 CIT(APPEALS) MADE REFERENCE TO THE DECISION OF HON' BLE DELHI HIGH COURT IN THE CASE OF CIT VS. STELLAR INVESTMENT REPORTED IN 192 ITR 287 AS WELL AS THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF LO VELY EXPORTS REPORTED IN 299 ITR 268. 4. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT AN IDENTICAL ISSUE WAS CONSIDERED BY THE HON'BLE DE LHI HIGH COURT IN THE CASE OF CIT VSL OASIS HOSPITALITY REPORTED IN 333 I TR 119, IN THE CASE OF CIT VS. DWARKADHIS INVESTMENT P. LTD. REPORTED IN 3 30 ITR 298. HE POINTED OUT THAT ASSESSEE HAS PRODUCED PRINCIPAL OF FICER FROM M/S. PARTICULAR MANAGE FINVEST (P) LTD. FROM WHOM A SUM OF RS.10 LA CS HAS BEEN RECEIVED AS SHARE APPLICATION MONEY. THE ASSESSEE HAS FILED CONFIRMATION, PAN AND ALL OTHER NECESSARY DETAILS IN RESPECT OF BOTH THE SHARE APPLICANTS. THERE IS NO EVIDENCE WITH THE ASSESSING OFFICER TO REBUT THE EV IDENCE SUBMITTED BY THE ASSESSEE. LEARNED DR ON THE OTHER HAND HAS POINTED OUT THAT ASSESSING OFFICER HAS RELIED UPON THE INFORMATION GIVEN BY TH E ADIT WHICH SUGGESTS THAT BOTH THE SHARE APPLICANTS WERE INVOLVED IN PRO VIDING ACCOMMODATION ENTRIES. 4 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. ON DUE CONSIDERATION OF THE RECOR D IN THE LIGHT OF AUTHORITATIVE PRONOUNCEMENT OF HON'BLE DELHI HIGH C OURT IN THE CASE OF OASIS HOSPITALITY (SUPRA), WE ARE OF THE VIEW THAT ASSESSEE HAS PROVED THE IDENTITY OF THE SHARE APPLICANT. IT HAS FILED THE C ONFIRMATION. IT HAS PRODUCED THE PRINCIPAL OFFICER OF THE ONE OF THE MAJOR SHARE APPLICANTS. CONTRARY TO THE EVIDENCE PRODUCED BY THE ASSESSEE, ASSESSING OFFICE R IS NOT POSSESSING ANY MATERIAL EXCEPT THE INFORMATION SUPPLIED BY THE ADI T WHICH COULD BE THE STARTING POINT OF THE INVESTIGATION. THUS, TAKING I NTO CONSIDERATION THE WELL REASONED ORDER OF THE LEARNED FIRST APPELLATE AUTHO RITY, WE DO NOT FIND ANY MERIT IN THIS APPEAL OF THE REVENUE. IT IS DISMISSE D. DECISION PRONOUNCED IN THE OPEN COURT ON 13.01.201 2. SD/- SD/- ( K.D. RANJAN ) ( R AJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 /01/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR