DCIT, New Delhi V. M/s Valuefirst Messaging Pvt. Ltd., New Delhi

ITA 4234/DEL/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65993 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 27-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS MEETA SINHA SENIOR
• Assessee Lawyers: K P GANGULY
• Keywords: Opportunity of being heard
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) SHRI R.P. TOLANI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4234/DEL./2009 (ASSESSMENT YEAR : 2005-06) DCIT, CIRCLE 17 (1), VS. M/S. VALUEFIRST MESSAGING PVT. LTD., NEW DELHI. 1E/18, 4 TH FLOOR, NOBEL HOUSE, JHANDEWALAN EXTENSION, NEW DELHI 110 055. (PAN : AABCV8400B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.P. GANGULY, ADVOCATE REVENUE BY : MRS. MEETA SINHA, SENIOR DR O R D E R PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF CIT (APPEALS)-XIX, NEW DELHI DATED 17.08.2009 FOR THE A SSESSMENT YEAR 2005- 06. 2. THE ASSESSEE COMPANY WAS INCORPORATED ON 27.10.2 003. THE MAIN BUSINESS OF THE ASSESSEE IS TO PROVIDE MESSAGING PR ODUCT, SERVICES AND VALUED ADDED SERVICES FOR VARIOUS COMMUNICATION MEDIA AND TO PROVIDE SERVICES ENABLING MOBILE MESSAGING VIA SOFTWARE DEVELOPMENT AND SALES FOR MANAGING INBOUND AND OUTBOUND SMS, MMS AND EMS. ITA NO.4234/DEL./2009 2 3. THE ONLY ISSUE INVOLVED IN THE APPEAL IS AGAINST THE DELETION OF ADDITION OF RS.16,21,902/- MADE U/S 68 OF THE INCOME-TAX ACT , 1961. 4. LD. DR HAS SUBMITTED THAT THE ADDITION WAS DELET ED WITHOUT PROVING THE IDENTITY, CREDITWORTHINESS OF THE PERSON AND ALSO G ENUINENESS OF THE TRANSACTION. HE SUBMITTED THAT THE CIT(A) ACCEPTED THE ASSESSEES CONTENTION THAT ASSESSING OFFICER HAS NOT VERIFIED THE DETAILS FURNISHED BY THE ASSESSEE AND INCOME-TAX RECORD OF THE SHARE APPLICANTS. WHI LE THE ASSESSING OFFICER HAS CATEGORICALLY STATE IN THE ORDER THAT NO CONFIR MATIONS FROM PERSONS ON ACCOUNT OF SHARE APPLICATION MONEY HAD BEEN FILE. THE ASSESSING OFFICER ALSO TRIED TO CROSS VERIFY THE GENUINENESS OF THE MONEY RECEIVED AS SHARE APPLICATION MONEY, BY ISSUING LETTERS U/ 133(6). T HE ASSESSEE FAILED TO DISCHARGE THE INITIAL ONUS CASTED UPON IT TO PROVE IDENTITY, CREDITWORTHINESS OF SHARE APPLICANT AND GENUINENESS OF THE TRANSACTION. 5. ON THE OTHER HAND, THE LD. AR RELIED ON THE ORDE R OF THE CIT (A). 6. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. THE ASSESSEE HAS FILED ONLY THE COPY OF ACKNOWLEDGEMENT OF INCOME-TAX RETURN IN RESPECT OF SHRI PANKAJ SAXENA BUT NOTHING IS FILED IN RESPECT OF SHRI VISH WADEEP BAJAJ FROM WHOM THE MONEY WAS RECEIVED. THE ONUS WAS ON THE ASSESS EE TO PROVE THE IDENTITY, CREDITWORTHINESS OF THE SHARE APPLICANTS AND ALSO T O PROVE THE GENUINENESS OF THE TRANSACTION. THE ASSESSING OFFICER HAS ALSO TR IED TO CROSS VERIFY THE GENUINENESS OF THE MONEY RECEIVED BY WAY OF ISSUING LETTERS U/S 133(6) OF THE ITA NO.4234/DEL./2009 3 INCOME-TAX ACT, 1961. THE CIT (A) HAS RECORDED THE FINDING THAT ASSESSING OFFICER HAS NOT VERIFIED THE DETAILS FILED BY ASSES SEE AND INCOME-TAX RECORDS OF THESE SHARE APPLICANTS ARE NOT COMING OUT OF THE FA CTS ON RECORD. IN OUR CONSIDERED VIEW, THE ASSESSEE HAS NOT DISCHARGED TH E ONUS CASTED UPON IT. THE CIT (A) IS NOT JUSTIFIED IN RECORDING THAT ASSESSIN G OFFICER HAD NOT BROUGHT OUT ANYTHING ON RECORD TO DISPUTE THE FACTS/DETAILS FURNISHED BY THE ASSESSEE AS NO SUCH DETAILS WERE FILED. IN VIEW OF THESE FACTS , WE FIND IT APPROPRIATE TO SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICE R FOR DECIDING DE NOVO AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. WE ORDER ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF NOVEMBER, 2012. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 NOVEMBER, 2012 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XIX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.