KABEER KHAN COLD STORAGE PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER, ITO-5(2)(2), MUMBAI

ITA 4484/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0750 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 19-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Keywords: Unexplained cash credit; Revised return
• Section: 133(6); 68; 63

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL H BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 4484/MUM/2017 (ASSESSMENT YEAR 2012-13 ) SHRI KABEER KHAN COLD STORAGE PVT LTD. 33, JASMINE VILLA, OPPOSITE, YMCA GROUND , MUMBAI-400008. PAN: AAECK3490K VS. INCOME TAX OFFICER 5(2)(2) MUMBAI APPELLANT RESPONDE NT APPELLANT BY : NONE RESPONDENT BY : SHRI B. SRINIVAS CIT-DR DATE OF HEARING : 08.08.2019 DATE OF PRONOUNCEMEN T : 08.08.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF COMMISSIONER (APPEALS)-10, MUMBAI DATED 24 TH MARCH 2017, WHICH IN TURN ARISES FROM ASSESSMENT ORDER DATED 30 TH MARCH 2015 PASSED UNDER SECTION 143 (3) OF THE INCOME TAX ACT (ACT) FOR ASSESSMENT YEAR 2012 - 13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN ADDING THE SHARE CA PITAL MONEY OF 63 CRORE UNDER SECTION 68 OF THE INCOME TAX ACT 1961, WITHOUT CONSIDERING THE FACTS OF THE CASE. (II) THE APPELLANT CRAVES, LEAVES TO ADD, ALTER, AMEND I S OR DELETES ANY GROUNDS OF APPEAL AT THE TIME OF HEARING . 2. BRIEF FACTS OF THE CASE AS GATHERED FROM THE ORDER OF LOWER AUTHORITIES ARE THAT ASSESSEE IS A COMPANY ENGAGED IN THE BUSINESS OF DEVELOPMENT OF ITA NO. 4484/ MUM/2017(AY-2012-13) KABEER KHAN COLD STORAGE PVT LTD. 2 COLD STORAGE AND WAREHOUSE, FILED ITS RETURN OF INC OME ON 12 TH SEPTEMBER 2012, DECLARING TOTAL INCOME OF RS. NIL A ND CURRENT YEAR LOSS OF 5640/. THEREAFTER, ASSESSEE FILED REVISED RETURN ON 31 ST MARCH 2014, DECLARING NIL INCOME AND LOSS OF CURRENT YEAR OF 9475/-. THE ASSESSMENT WAS COMPLETED ON 30 TH MARCH 2015 DETERMINING TOTAL INCOME AT 63 CRORE BY MAKING ADDITION UNDER SECTION 68. THE ASSESSING OFFICER MADE ADDITION UNDER SECTION 68 BY TAKING HIS VIEW THAT THERE WAS NO BANKING TRANSACTION OF SHARE APPLICATION MONEY RECEIVED FROM 44 PARTIES . DURING THE ASSESSMENT THE ASSESSEE WAS ASKED TO EXPLAIN THE MO DE OF RECEIPT OF SHARE APPLICATION FROM 44 PARTIES. IT WAS EXPLAINED ON BE HALF OF ASSESSEE THAT NONE OF THE PARTIES HAS GIVEN ANY CHEQUE FOR PURCHA SE OF SHARES FROM THE ASSESSEE COMPANY AND THAT THE SHARES WERE BOUGHT FR OM THE SHARES TRANSFER FROM DIFFERENT COMPANIES. THE ASSESSEE ALS O FILED THE COPY OF AGREEMENT FOR TRANSFER OF SHARES AND CONSIDERATION OF ALLOTMENT OF SHARES ON PREMIUM. AFTER PERUSAL OF THOSE AGREEMENTS AND D ETAIL OF INVESTMENT, THE ASSESSING OFFICER TOOK HIS VIEW THAT THE AGREEM ENTS WERE MADE AT CALCUTTA AND THE COMPANIES ARE FROM THE DELHI, HARY ANA AND FROM CALCUTTA. THE AGREEMENTS ARE NOT AUTHENTIC; ALL THE SE AGREEMENTS ARE MADE ON PLAIN PAPERS AND ARE SIGNED BY ONE OF THE DIRECT OR OF ASSESSEE COMPANY OR BY AUTHORISED SIGNATORY OF THE OTHER COM PANIES. THE ASSESSEE ALSO FILED TWO DIFFERENT AUDIT REPORT. THE ASSESSIN G OFFICER ALSO ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT. THE NOTICES WERE RETURNED BACK BY ITA NO. 4484/ MUM/2017(AY-2012-13) KABEER KHAN COLD STORAGE PVT LTD. 3 THE POSTAL AUTHORITIES WITH THE REMARK LEFT OR N OT KNOWN. THE ASSESSING OFFICER HAS RECORDED THESE CATEGORICAL FINDING FROM PARA 5 TO 10 OF THE ASSESSMENT ORDER. ON APPEAL BEFORE COMMISSIONER (AP PEALS) THE ACTION OF ASSESSING OFFICER WAS CONFIRMED. THUS, FURTHER A GGRIEVED BY THE ORDER OF COMMISSIONER (APPEALS) THE ASSESSEE HAS FILED PR ESENT APPEAL BEFORE TRIBUNAL. 3. THIS APPEAL WAS FIXED ON 8 TH AUGUST 2019, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR IS ANY APPLICATION FOR SEEKING ADJOURN MENT FILED. PERUSAL OF RECORD REVEALS THAT THE NOTICES SENT THROUGH REGIST ERED POST WERE RETURNED BACK BY THE POSTAL AUTHORITIES WITH THE REMARK OF P OSTAL AUTHORITIES LEFT. NOTICE FOR HEARING FIXED ON 8 TH AUGUST 2019, WAS ALSO DIRECTED TO BE SERVED THROUGH LEARNED DEPARTMENTAL REPRESENTATIVE (DR). A REPORT OF WARD INSPECTOR, WHO WAS DEPUTED TO SERVE THE NOTICE , WAS FURNISHED BY LD. DR FOR THE REVENUE. PERUSAL OF REPORT OF INSPECTOR REVEALS THAT NO SUCH ADDRESS BELONGING TO THE ASSESSEE COMPANY COULD BE FOUND AT THE GIVEN ADDRESS, THE WATCHMAN OF SOCIETY CONFIRMED THAT THE RE IS NO SUCH ASSESSEE COMPANY AVAILABLE ON THE GIVEN ADDRESS. IN THESE CI RCUMSTANCES, WE LEFT NO OPTION EXCEPT TO HEAR THE SUBMISSION OF LEARNED DR FOR THE REVENUE AND TO DECIDE THE CASE ON THE BASIS OF MATERIAL AVA ILABLE ON RECORD. 4. THE LEARNED DR FOR THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER. THE LEARNED DR FURTHER SUBMIT THAT DURING THE ASSES SMENT AS WELL AS BEFORE FIRST APPELLATE AUTHORITY THE ASSESSEE FAIL ED TO PROVE THE TRANSACTION ITA NO. 4484/ MUM/2017(AY-2012-13) KABEER KHAN COLD STORAGE PVT LTD. 4 OF ALLEGED SHARE APPLICATION MONEY. THE ASSESSEE FA ILED TO PROVE THE IDENTITY OF PARTIES, CREDITWORTHINESS AND THE GENUI NENESS OF TRANSACTION. THE ASSESSEE HAS RECEIVED HUGE AMOUNT BY WAY OF SHA RE APPLICATION MONEY ON THE BASIS OF SELF-SERVING AGREEMENTS, SINC E ASSESSEE FAILED TO DISCHARGE THE ONUS LIES ON THE ASSESSEE, THE ASSESS ING OFFICER MADE ADDITION UNDER SECTION 68, WHICH WERE CONFIRMED BY LEARNED FIRST APPELLATE AUTHORITY. BEFORE, TRIBUNAL THE ASSESSEE HAS NEITHER FILED ANY DOCUMENTARY EVIDENCE NOR ANY SUBMISSION TO SUBSTANT IATE THEIR CONTENTION. THEREFORE, THE ORDER OF LEARNED COMMISS IONER (APPEALS) IS LIABLE TO BE SUSTAINED. 5. WE HAVE CONSIDERED THE SUBMISSION OF LEARNED DR FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON ACCORD. WE HAVE N OTED THAT DURING THE ASSESSMENT THE ASSESSING OFFICER NOTED THAT THE ASS ESSEE HAS RECEIVED SHARE APPLICATION MONEY FROM 44 PARTIES. ALL THE SHARE AP PLICATION MONEY WAS RECEIVED WITHOUT ANY BANKING CHANNEL. WHEN THIS FAC T WAS CONFRONTED TO THE ASSESSEE THE ASSESSEE FILED COPY OF VARIOUS AGR EEMENTS. THE ASSESSING OFFICER EXAMINED THOSE AGREEMENTS. AND SCANNED THE COPY OF ONE OF SUCH AGREEMENT IS REFERRED AT PAGE 4 OF THE ASSESSMENT O RDER. THE ASSESSING OFFICER NOTED THAT THE SIMILAR AGREEMENTS WERE EXHI BITED WITH OTHER REMAINING 43 PARTIES. THE ASSESSING OFFICER HAS REC ORDED THE DETAILS OF ALL SHARE REPLICA AND IN PARA 7 OF THE ASSESSMENT ORDER . THE ASSESSING OFFICER ISSUED NOTICE TO VARIOUS SHARE APPLICANTS COMPANIES UNDER SECTION 133(6). ITA NO. 4484/ MUM/2017(AY-2012-13) KABEER KHAN COLD STORAGE PVT LTD. 5 NONE OF THE PARTIES WERE SERVED WITH THE NOTICE OF ASSESSING OFFICER. THE NOTICES WERE WRITTEN BACK WITH THE REMARK OF PROPOS AL AUTHORITIES THAT NO SUCH PERSON EXISTS OR LEFT. THE ASSESSING OFFICE R TREATED THE ENTIRE AMOUNT AS UNEXPLAINED CASH CREDIT UNDER SECTION 68. 6. DURING THE FIRST APPELLATE STAGE THE ASSESSEE MADE SIMILAR SUBMISSIONS AND FURNISHED SIMILAR DOCUMENTS, AS FURNISHED TO THE AS SESSING OFFICER. THE ASSESSEE ALSO RELIED UPON THE DECISION OF HONBLE B OMBAY HIGH COURT IN VODAFONE INDIA SERVICES PRIVATE LIMITED (368 ITR 1 BOMBAY). THE CONTENTION OF ASSESSEE WAS ACCEPTED BY LEARNED COMM ISSIONER (APPEALS) HOLDING THAT PREMIUM RECEIVED IN THE TAXABLE UNDER THE HEAD INCOME FROM OTHER SOURCES AFTER AMENDMENT BY FINANCE ACT, 2012 UNDER SECTION 56(2)(VII) OF THE ACT, IF THE SHARES EXCEED THE FAI R MARKET VALUE. HOWEVER, LEARNED COMMISSIONER (APPEALS) ACCEPTED THE CONTENT ION OF ASSESSEE THAT THE AMENDMENT MADE BY WAY OF FINANCE ACT IS NOT APP LICABLE FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE SAME CAN BE BRO UGHT TO THE TAX AS DEEMED RECEIPT UNDER SECTION 68, IF THE CREDIT IN THE BOOKS OF ACCOUNT IS NOT EXPLAINED BY THE ASSESSEE BY FULFILLING THE ING REDIENTS OF SECTION 68; WITH REGARD TO IDENTITY OF PARTIES, CREDITWORTHINES S AND GENUINENESS OF TRANSACTION. SINCE THE ASSESSEE FAILED TO SUBSTANTI ATE ITS CONTENTION, THEREFORE, THE APPEAL OF ASSESSEE WAS DISMISSED. BE FORE, US NEITHER THE ASSESSEE HAS FILED ANY WRITTEN SUBMISSIONS NOR ANY DOCUMENTARY EVIDENCE OR ANY WRITTEN SUBMISSION NOR COME TO EXPLAIN THE F ACTS BEFORE US. THERE ITA NO. 4484/ MUM/2017(AY-2012-13) KABEER KHAN COLD STORAGE PVT LTD. 6 IS NO MATERIAL BEFORE US TO SUBSTANTIATE THE GROUND S OF APPEAL RAISED BY ASSESSEE. THEREFORE, WE DO NOT FIND ANY REASONS TO INTERFERE WITH THE FINDING OF LEARNED COMMISSIONER (APPEALS), WHICH WE AFFIRM. IN THE RESULT THE GROUNDS OF APPEAL RAISED BY ASSESSEE ARE REJECTED. 7. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 8 TH AUGUST 2019 IN THE OPEN COURT WHILE HEARING THE APPEAL. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 08.08.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR H BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR TAT, MUMBAI