JCIT, Ghaziabad V. M/s. SRCM Co-Operative Housing Society Ltd., Ghaziabad

ITA 532/DEL/2012

• Counselvise Citation: 53220114 RSA 2012
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 04-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Section: 133(6); 68; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI H. S. SIDHU, JUDICIAL MEMBER I .T.A .NO. - 532/DEL/2012 (ASSESSMENT YEAR - 2008 - 09) JCIT VS. M/S SRCM CO - OPERATIVE RANGE - 2, HOUSING SOCIETY LTD., GHAZIABAD. SJ - 1, SHASTRI NAGAR, GHAZIABAD. PAN: AACAS4666H (APPELLANT) (RESPONDENT) REVENUE BY: - SH. B. R. R. KUMAR, SR. DR. ASSESSEE BY: - SH. AKHILESH KUMAR, ADV. DATE OF HEARING: 04/06/2015 DATE O F PRONOUNCEMENT: 05 /06/2015 ORDER PER R. S. SYAL, AM : THIS APPEAL BY THE REVENUE EMANATES FROM THE ORDER PASSED BY THE CIT(A) ON 30.11.2011 IN RELATION TO THE ASSESSMENT YEAR 2008 - 09. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION OF RS. 1,36,25,630/ - MADE BY THE A SSESSING O FFICER (AO) U/S 68 OF THE INCOME - T AX ACT , 1961 (HEREIN A FTER ALSO CALLED `THE ACT ) . 3 . BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS CO - OPERATIVE HOUSING SOCIETY . I T RECEIVED A SUM OF RS.2,07,01,120/ - DURING THE YEAR FROM ITS M EMBERS AS ADVA NCE AGAINST FLATS/ LAND . THE I.T.A .NO. - 532/DEL/2012 2 AO CALLED UPON THE ASSESSEE TO FURNISH NAMES AND COMPLETE ADDRESSES OF THE MEMBERS/PERSONS FROM WHOM THE SE ADVANCES AMOUNTING TO RS.2.07 CRORE WERE RECEIVED. SUCH AMOUNT O F RS.2.07 CRORE WAS STATED BY THE ASSESSEE TO HAVE BEEN RECEIVED FROM 94 PERSONS WHO WERE MEMBERS OF THE SOCIETY. THE ASSESSEE ALSO FURNISHED DETAILS IN RESPECT OF THESE PERSONS. THE AO ISSUED NOTICES U/S 133(6) ON 25 PERSONS. OUT OF NOTICES TO SUCH 25 PER SONS WHO HAD CONTRIBUTED MORE THAN RS.3 LAC, THREE NOTICES WERE RETURNED UNSERVED. IN ELEVEN CASES THE NOTICES WERE SERVED BUT NO COMPLIANCE WAS MADE BY THE INDIVIDUAL MEMBERS. THE DETAILS WERE SUBMITTED A S REGARDS THE REMAINING 11 MEMBERS. THE AO OBSERVED THAT THE ASSESSEE FAIL ED TO PRO VE THE GENUINENESS OF THE TRANSACTIONS IN RESPECT OF 14 CASES. WHEN POINT ED OUT TO THE ASSESSEE ABOUT NON - COMPLIANCE BY THESE 14 PERSONS, T HE ASSESSEE SUBMITTED THEIR M EMB ERSHIP APPLICATIONS, PAN CARDS AND O THE R DETAILS AS R EQUIRED. THE AO DREW A CHART OF 10 PERSONS ON PAGE 7 OF THE ASSESSMENT ORDER WITH A TOTAL OF RS.41,40,000/ - IN RESPECT OF WHICH THE NECESSARY DETAILS WERE NOT SUBMITTED. HE HOWEVER, MADE ADDITION OF I.T.A .NO. - 532/DEL/2012 3 RS. 1,38,25,650/ - . THE ASSESSEE MOVED RECTIFICATION APPLICATION U/S 154 OF THE ACT POINTING OUT SEVERAL MISTAKES IN THE ORDER. THE AO PASSED AN ORDER U/S 154 ACCEPTING THE CLAIM OF THE ASSESSEE , INTER ALIA , TO THE TUN E OF RS.2 LAC AND RESTRICTED THIS ADDITION T O RS.1.36 CRORE. THE LD. CIT(A) , ON APPRECIATION OF THE ENTIRE MATERIAL BEFORE HIM , CAME TO THE CONCLUSION THAT THE ASSESSEE HAD RIGHTLY DISCHARGED THE ONUS CAST UPON IT. HE THEREFORE, ORDERED FOR THE DELETION OF THIS ADDITION, AGAINST WHICH THE REVENUE HAS COME UP IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ASSESSEE RECEIVED ADVANCES FROM 94 M EMBERS FOR FLATS/ LAND TO BE ALLOTTED BY THE ASSESSEE SOCIETY . THE ASSESSEE FURNISHED NECESSARY DETAILS IN RESPECT OF ALL THE 94 PERSONS. THE AO CHOSE TO PICK UP 25 CASES FROM WHOM FLAT APPLICATION MONEY ABOVE RS.3 LAC. W AS RECEIVED. HE GET SATISFIED WITH THE EXPLANATION TENDERED BY THE ASSESSEE IN RESPECT OF 15 PER SONS AND ACCORDINGLY TABULATED 10 PERSONS FROM WHOM TOTAL RECEIPT OF ADVANCE WAS TO THE TUNE OF RS. 41.40 LAC ON WHICH HE WAS I.T.A .NO. - 532/DEL/2012 4 NOT SATISFIED. HOWEVER, AT THE TIME OF COMPUTING TOTAL INCOME , HE MADE AN ADDITION OF RS.1.38 CRORE. HOW THIS MAGICAL FIGURE OF RS. 1.38 CRORE WAS DETERMINED , IS NOT BORN E OUT OF THE ASSESSMENT ORDER. THE LD. DR, IN ALL FAIRNESS RESTRICTED HIS ARGUMENTS IN RESPECT OF 10 PERSONS FROM WHOM THE ASSESSEE HAD RECEIVED ADVANCE S OF RS.41.40 LAC . HERE IS A CASE IN WHICH THE ASSESSEE IS A CO - O PERATIVE HOU SING SOCIETY , WHICH RECEIVED A DVANCES FROM THE PROSPECTIVE BUYERS OF FLATS/HOUSES . COMPLE TE DETAILS OF ALL THE 94 PERSONS WERE FURNISHED WHICH CONTAIN ED ORIGINAL APPLICATIONS, IDENTITY PROOFS AND EVEN IN SOME CASES COPIES OF BANK STATEMENTS OF THE PERSONS AND THE INCOME TAX RETURNS. IT CAN BE OBSERVED THAT OUT OF 10 PERSONS LISTED BY THE AO IN THE T ABLE, THE ASSESSEE FURNISHED BANK ACCOUNT/ITR S IN CASE OF SHRI HARSHIL GUPTA, SHRI JITENDRA KUMAR, SHRI KAPIL GUPTA, SHRI MADAN LAL AND SHRI TARNI PRASAD MISHRA . THE AO DID NOT FIND ANY FAULT WITH THE M EM BERS FILE S PRODUCE D BY THE ASSESSEE BEFORE HIM ALONG WITH THE NECESSARY DETAILS ABOUT THE RECEIPT OF ADVANCE AGAINST ALLOTMENT OF FLATS/HOUSE . THE LD. CIT(A) HAS RE CORDED A CATEGORICALLY FINDING THAT 90 % OF THE AMOUNT WAS RECEIVED THROUGH BANKING TRANSACTIONS. I.T.A .NO. - 532/DEL/2012 5 DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE EXPRESSED ITS INABILITY TO PRODUCE ALL MEMBER S BEFORE THE AO, BUT NO ACTION WAS TAKEN BY THE OFFICER FOR ENFORCING THEIR ATTENDAN CE . IF THE AO WAS NOT SATISFIED WITH THE INFORMATION MADE AVAILABLE BY THE ASSESSEE QUA THESE M EMBERS, HE OUGHT TO HAVE GIVEN A LOGICAL CONCLUSION TO THE INQUIRY DIRECTLY I NITIATED BY HI M FROM THESE PERSONS. NOTHING OF THE SORT HAS BEEN DONE IN THE INSTANT CASE. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES IN THE INSTANT CASE, WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING THIS ADDITION. WE T HEREFORE, UPHOLD THE ASSESSMENT ORDER ON THIS SCORE. 5 . IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON /06/2015. SD/ - SD/ - (H. S. SIDHU) (R. S. SYAL) JU DICIAL MEMBER ACCOUNTANT MEMBER DATED: 05/ 06/2015 *AK VERMA* COPY FORWARDED TO: I.T.A .NO. - 532/DEL/2012 6 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 04/06/2015 PS 2. DRAFT PLACED BEFORE AUTHOR 0 5 /06/2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 05/06/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 05/06/2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 05/06/2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. *