M/s. Express Towers Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5076/DEL/2011

• Counselvise Citation: 507620114 RSA 2011
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 14-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NANDITA KANCHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NO. 5076(DEL)/2011 ASSESSMENT YEAR: 2005-06 M/S EXPRESS TOWERS PVT. LTD., I NCOME-TAX OFFICER, M-33, 2 ND FLOOR, VS. WAR D 11(2), NEW DELHI. GREATER KAILASH-I, NEW DELHI-48. PAN: AAACE0005E (APPELLANT) (RESPOND ENT) APPELLANT BY : SHRI R.S. SINGHVI, A DVOCATE RESPONDENT BY: SMT. NANDITA KANCHAN, DR DATE OF HEARIN G : 17.04.2012 DATE OF PRONOUN CEMENT: 17.04.2012 ORDER PER K.G. BANSAL : AM ALTHOUGH THE ASSESSEE HAS TAKEN UP FIVE GROUND S IN THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE PRESSED ONLY GROUND NO. 1(III) THAT THERE IS NO CASE OF CONCEALMENT IN RESPECT OF ADDITION U/S 2(22)(E) AND THE SAME IS WITHOUT PROPER APPRECIATION OF THE FACTS. IN T HIS CASE, THE AO HAD MADE ADDITION OF RS. 1,35,421/- IN RESPECT OF LOAN OF RS. 65.00 LAKH TAKEN FROM RAJ HANS TOWERS PVT. LTD. IT WAS FOUND THAT R.C. GOEL, NEELAM GOEL AND S.K. GUPTA ARE COMMON SHAREHOLDERS. THIS ADDIT ION HAS BEEN ACCEPTED BY THE ASSESSEE. SUBSEQUENTLY, PENALTY OF RS. 49 ,564/- HAS BEEN LEVIED U/S ITA NO. 5076(DEL)/2011 2 271(1)(C) BY RECORDING A FINDING THAT THE ASSES SEE HAS NOT BEEN ABLE TO SUBSTANTIATE ITS EXPLANATION. THIS PENALTY HAS BEEN CONFIRMED BY THE LD. CIT(APPEALS) BY MENTIONING THAT ALL FACTS RELATIN G TO COMPUTATION OF INCOME HAD NOT BEEN DISCLOSED IN THE RETURN OF INCO ME. 2. THE LIMITED CASE MADE OUT BY THE LD. COUNSEL IS THAT THE ASSESSEE COMPANY IS NOT A SHAREHOLDER IN RAJ HANS TOWER (P) LTD. AND, THEREFORE, THE LOAN COULD NOT HAVE BEEN TREATED AS DIVIDEND AS HELD IN THE CASE OF CIT VS. ANKITECH (P) LTD. (2012) 340 ITR 14 (DEL) AND ASSISTANT CIT VS. BHAUMIK COLOUR (P) LTD. (2009) 313 ITR (AT) 146 (MUM.)(SB). THEREFORE, THE LEVY OF PENALTY IS NOT JUSTIFIABL E EVEN THOUGH THE ADDITION HAS BECOME FINAL. IN REPLY, THE LD. DR RELIED ON THE PENALTY ORDER AND THE IMPUGNED ORDER. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND S UBMISSIONS MADE BEFORE US. IN VIEW OF THE DECISIONS CITED BY THE LD. COUNSEL IN THE CASE OF ANKITECH (P) LTD. AND BHAUMIK COLOUR (P) LTD. (SUP RA), IT IS CLEAR THAT ANY PART OF THE LOAN TAKEN BY THE ASSESSEE FROM RAJ HANS TOWER (P) LTD. COULD NOT BE DEEMED AS INCOME U/S 2(22)(E) BECAU SE THE ASSESSEE- COMPANY IS NOT A SHAREHOLDER THEREIN. THEREFORE, THE EXPLANATION ITA NO. 5076(DEL)/2011 3 FURNISHED BY THE ASSESSEE IS BONA FIDE. ACCORDI NGLY, IT IS HELD THAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY. 4. IN THE RESULT, THE APPEAL IS ALLOWED. SD/- SD/- (R.P. TOLANI) (K .G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- M/S EXPRESS TOWERS PVT. LTD., NEW DELHI. ITO, WARD 11(2), NEW DELHI. CIT(A) CIT, THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.