ITO, New Delhi V. M/s Shiv Ganga Impex (P) Ltd., New Delhi

ITA 4284/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9794 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 05-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BHARATI
• Assessee Lawyers: PAWAN KUMAR MAHESWARI
• Section: 133(6); 68

Judgement Text

ITA NO. 4284/DEL/2009 A.Y. 2006-07 1 IN THE INCOMETAX APPELATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4284/DEL/2009 A.Y. : 2006-07 INCOME TAX OFFICER, VS. M/S SHIV GANGA IMPEX (P) LTD. WARD 8(2), ROOM NO. 197-A, 29-A, KEWAL PARK EXT ENSION, CR BUILDING, IP ESTATE, NEW DELHI-92 OPP. OUT G ATE SUBZI MANDI, AZAD PUR, DELHI-33 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PAWAN KUMAR MAHESWARI, CA DEPARTMENT BY : SHRI S.K. BHARATI, SR. DR O R D E R PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDERS OF THE LD. CIT(A) DATED 10.8.2009 PERTAINING TO ASSESS MENT YEAR 2006-07. 2. THE ISSUE RAISED IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 25 LACS MADE BY THE AO UNDER SECTIO N 68 OF THE IT ACT. 3. IN THIS CASE DURING THE COURSE OF ASSESSMENT THE AO NOTED THAT ASSESSEE COMPANY WAS INCORPORATED ON 11.8.2005 . DURING THE ITA NO. 4284/DEL/2009 A.Y. 2006-07 2 YEAR UNDER CONSIDERATION THE ASSESSEE HAD RECEIVED A SUM OF RS. 56 LACS FROM FOLLOWING PARTIES AS SHARE APPLICATION MO NEY INCLUDING SHARE PREMIUM MONEY:- I) PAWAN KUMAR GOEL RS. 10,20,000/- II) JAI PRAKASH GOEL RS. 10,20,000/- III) RAKESH KUMAR GOEL RS. 10,20,000/- IV) VIPIN GOEL RS. 20,000/- V) NITIN GOEL RS. 20,000/- VI) ADITYA ANTIBIOTICS (P) LTD. RS. 25,00,000/- RS. 56,00,000/- 3.1 AO ACCEPTED THE SHARE APPLICATION MONEY FOR PAR TIES LISTED FROM SERIAL NO. (I) TO (V) WHO WERE DIRECTORS OF TH E COMPANY. AS REGARDS THE SHARE APPLICATION MONEY FROM ADITYA ANT IBIOTICS (P) LTD, CONFIRMATION AND BANK STATEMENT WERE FILED. THE AO ISSUED NOTICE UNDER SECTION 133(6) TO THE SAID PARTIES BUT THE SA ME WAS RECEIVED BACK UNDELIVERED. ASSESSEE WAS ASKED TO PRODUCE THE DIRECTORS OF THE COMPANY FROM WHOM THE MONEY WAS RECEIVED BUT NO NE WAS PRODUCED. UNDER SUCH CIRCUMSTANCES, AO OPINED THA T ADDITION UNDER SECTION 68 WAS TO BE MADE FOR A SUM OF RS. 25 LACS IN THIS REGARD. ITA NO. 4284/DEL/2009 A.Y. 2006-07 3 3.2 UPON ASSESSEES APPEAL THE LD. CIT(A) GAVE DIRE CTIONS TO THE ASSESSEE TO PRODUCE THE RELEVANT DOCUMENTS BEFORE T HE AO AND IT WAS ALSO ASKED TO PRODUCE THE MANAGING DIRECTOR/DIR ECTOR OF THE SAID COMPANY BEFORE THE AO FOR EXAMINATION. THE R EMAND REPORT WAS FILED BY THE AO VIDE LETTER NO. 206 DATED 02/06 /09. IN THE SAID REPORT, THE AO STATED THAT SHRI RAJEEV SHARMA S/O S HRI RAMESH CHANDRA SHARMA, ONE OF THE DIRECTORS OF AAPL APPEAR ED BEFORE HIM AND HIS STATEMENT WAS RECORDED ON OATH. THE DIRE CTOR ADMITTED THAT M/S AAPL HAS APPLIED FOR SHARE AND GIVEN SHAR E APPLICATION MONEY OF RS. 25,00,000/- TO THE APPELLANT COMPANY. IN SUPPORT OF SUCH CLAIM SHRI SHARMA HAS FILED NECESSARY DOCUMENT S. CONFIRMATION LETTER, STATEMENT OF ACCOUNTS OF THE A PPELLANT AS APPEARING IN THE BOOKS OF HIS COMPANY, COPY OF THE APPLICATION OF SHARE, COPY OF THE BANK ACCOUNT ETC. NO DISCREPANC Y IN THIS REGARD WAS HIGHLIGHTED IN THE REMAND REPORT OF THE AO DATE D 02/06/09. 4. IN THE LIGHT OF THE AFORESAID REMAND REPORT LD. CIT(A) HELD THAT ADDITION UNDER SECTION 68 WAS NOT SUSTAINABLE. HENC E, HE DELETED THE ADDITION. 5. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. ITA NO. 4284/DEL/2009 A.Y. 2006-07 4 6. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS. WE FIND THAT IN THIS CASE THE ADDITION WAS MADE BY THE AO ON ACCOUNT OF THE FACT THAT LETTER SENT TO ADITYA ANTI BIOTICS (P) LTD. HAS RETURNED AS UNSERVED AND ASSESSEE HAD NOT BEEN ABLE TO PRODUCE THE DIRECTOR OF THE SAID COMPANY BEFORE THE AO FOR EXAMINATION. HOWEVER IN THE REMAND PROCEEDINGS THE NECESSARY DET AILS WERE SUBMITTED AND ONE OF THE DIRECTORS OF THE SAID COM PANY ALSO APPEARED BEFORE THE AO. MOREOVER, NECESSARY DETAI LS IN THIS REGARD REGARDING THE RESOLUTION, STATEMENT OF ACCOUNT, COP Y OF APPLICATION FOR SHARES, COPY OF BANK ACCOUNT OF THE COMPANY AND PROOF OF FILING OF RETURN WERE SUBMITTED BEFORE THE AO. AO DID NO T FIND ANY ANOMALY IN THIS REGARD. UNDER THE CIRCUMSTANCES, T HE POINT ON WHICH THE AO HAD MADE THE ADDITION HAS BEEN DULY ME T IN THE REMAND PROCEEDINGS. AFTER THIS IN OUR CONSIDERED O PINION THERE CANNOT BE ANY REASON TO SUSTAIN THE ADDITION. 6.1 IN THIS REGARD, IT WOULD BE APT TO REFER THE D ECISION OF THE HON'BLE APEX COURT DELIVERED IN THE CASE OF CIT VS . LOVELY EXPORTS 216 CTR 195. IN THIS CASE IT WAS HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLE GED BOGUS ITA NO. 4284/DEL/2009 A.Y. 2006-07 5 SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE ASSESSIN G OFFICER, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR I NDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT B E REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE. 7. IN THE BACKGROUND OF AFORESAID DISCUSSION AND PR ECEDENT, WE DO NOT FIND ANY ILLEGALITY OR INFIRMITY IN THE ORDE R OF THE LD. CIT(A). HENCE, WE UPHOLD THE SAME. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/01/2010. SD/- SD/- [RAJPAL YADAV] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE:08/01/ 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