AJANTA INFRABUILD (P) LTD., BULANDSHAHR V. ITO, WARD- 3(1), BULANDSHAHR

ITA 5441/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5623 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Corroborative evidences
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.5441/DEL/2017 ASSESSMENT YEAR: 2012-13 M/S. AJANTA INFRABUILD (P) LTD., 100, KAKA BUILDING, SATHA, BULANDSHAHR V. ITO, WARD-3(1), BULANDSHAHR. TAN/PAN: AACCR 8432Q (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SOMIL AGGARWAL, ADV. RESPONDENT BY: SHRI S.L. ANURAGI, SR.D.R. DATE OF HEARING: 15 11 2018 DATE OF PRONOUNCEMENT: 30 01 2019 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 02.03., PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), GHAZIABAD FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) OF THE IT A CT, FOR THE ASSESSMENT YEAR 2012-13. IN THE GROUNDS OF APPE AL, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.5 LAC MA DE U/S.68 ON ACCOUNT OF SHARE APPLICATION MONEY. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE-COMP ANY IS ENGAGED IN THE BUSINESS OF COMMISSION AS WELL AS IT IS MEMBER OF TWO AOPS, NAMELY, CLASSIC COUNTRY LIQUOR AND REGAL FOREIGN LIQUOR. THE ASSESSEE IN ITS BALANCE SHEET HAS DISCLOSED SHARE APPLICATION MONEY RECEIVED DURING T HE YEAR OF RS.5 LAC FROM M/S. BANNEY KHAN. THE ASSESSEE WAS RE QUIRED BY THE ASSESSING OFFICER TO PROVE THE IDENTITY, GEN UINENESS AND CREDITWORTHINESS OF ALL THE PERSONS WHO HAVE CO NTRIBUTED I.T.A. NO.5441/DEL/2017 2 TOWARDS SHARE APPLICATION MONEY. IN RESPONSE, THE A SSESSEE FILED THEIR CONFIRMATION AND ID PROOF. IN SO FAR AS THE SHARE APPLICATION MONEY OF RS.5 LAC RECEIVED FROM M/S. BA NNEY KHAN, ASSESSEE FILED HIS CONFIRMATION AND INCOME TA X PARTICULARS AND ALSO BROUGHT ON RECORD THAT HE WAS MEMBER IN AOP, M/S. AHMAD TRADERS, FROM WHERE HE HAS WITHD RAWN THE AMOUNT OUT OF HIS CAPITAL AND INVESTED THE SAME AS SHARE APPLICATION MONEY WITH THE ASSESSEE COMPANY. NOT ON LY THAT, HE WAS ALSO PRODUCED BEFORE THE ASSESSING OFFICER. HOWEVER, THE LD. ASSESSING OFFICER HELD THAT SHARE APPLICATI ON MONEY OF RS.5 LAC IS NOT GENUINE, ON THE GROUND THAT THE ASS ESSEE COMPANY DID NOT PRODUCE SUPPORTING EVIDENCE AND SHR I BANNEY KHAN ACCEPTED THAT HE HAS MADE PAYMENT IN CA SH IN FINANCIAL YEAR 2011-12 FOR SHARE APPLICATION MONEY AND HE COULD NOT PROVE THE GENUINENESS OF THE TRANSACTION AS M/S. AHMAD TRADES HAD NO ANY BUSINESS ACTIVITIES. 3. LD. CIT (A) HAS CONFIRMED THE SAID ADDITION AFTE R OBSERVING AND HOLDING AS UNDER: 5.3 GROUND NO. 2: THE APPELLANT HAS CHALLENGED ADD ITION OF RS. 5,00,000/- ALLEGEDLY SHARE APPLICATION MONEY RECEIV ED BY THE APPELLANT FROM SHRI BANNEY KHAN U/S 68. ACCORDING T O THE APPELLANT IT HAD FURNISHED IDENTITY, CREDITWORTHINE SS AND GENUINENESS OF THE TRANSACTION BY FURNISHING THE CO PY OF AADHAR CARD, COPY OF ITR AND STATEMENT OF AFFAIRS AND CONF IRM COPY OF ACCOUNT IN SUPPORT OF THE ABOVE THREE MENTIONED TEN ETS OF SECTION 68. EXAMINATION OF FACTS REVEAL THAT APPELLANT HAD SUBMITTED DURING ASSESSMENT PROCEEDINGS THAT HE HAS WITHDRAWN THE AB OVE SAID AMOUNTS OUT OF HIS CAPITAL ACCOUNT IN M/S AHMED TRA DERS. DURING APPELLATE PROCEEDINGS APPELLANT ENCLOSED THREE DOCU MENTS I.E. COPY OF ACKNOWLEDGEMENT OF ITR FOR AY 2012-13, UNSIGNED COPY OF I.T.A. NO.5441/DEL/2017 3 ACCOUNT OF SHRI BANNEY KHAN IN THE BOOKS OF 'AHMAD TRADERS 09- 10' AND A LETTER WRITTEN TO AO ON 12.01.2015. THE C OMPUTATION OF INCOME ATTACHED WITH THE ACKNOWLEDGEMENT FOR ITR OF SHRI BANNEY KHAN REFLECTED A PROFIT OF RS.75 FROM AHMED TRADERS . THE APPELLANT CONTENDED THAT CREDITWORTHINESS OF SHRI BANNEY KHAN WAS PROVED. 5.3.1. HOWEVER THE CONTENTION OF THE APPELLANT WAS NOT SUP PORTED BY AFFAIRS OF M/S. AHMED TRADERS AS STATED BY AO IN THE ASSESSMENT ORDER AND SINCE THE TRANSACTION WAS MADE IN CASH THUS NEITHER DURING ASSESSMENT PROCEEDINGS NOR DURING AP PELLATE PROCEEDINGS APPELLANT COULD FURNISHED THE GENUINENE SS OF TRANSACTION AND CREDITWORTHINESS OF THE INVESTOR WI THIN THE PROVISIONS OF SECTION 68. KEEPING IN VIEW THE ABOVE FACTS IT IS HELD THAT MERE FURNISHING OF COPY OF RETURN/STATEMENT OF AFFAIRS DOES NOT PROVE THE CREDITWORTHINESS OF APPELLANT TO THE SATI SFACTION OF THE AO WITHIN THE PROVISION OF SECTION 68. THUS, ACTION OF THE AO MAKING AN ADDITION OF RS.5,00,000/- U/S.68 IS UPHELD AND GROU ND OF APPEAL IS DISMISSED. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE RELEVANT MATERIAL PLACED BEFORE US, I FIND T HAT SOLE ADDITION IS MADE ON ACCOUNT OF SHARE APPLICATION MO NEY OF RS.5 LAC RECEIVED BY THE ASSESSEE FROM SHRI BANNEY KHAN. THE ASSESSEE TO PROVE THE NATURE AND SOURCE OF SHARE AP PLICATION MONEY HAS DISCHARGE OF ITS ONUS, BY FURNISHING THE IDENTITY OF THE SAID PERSON BY PRODUCING HIS AADHAR CARD, COPY OF ACKNOWLEDGMENT OF HIS INCOME TAX RETURN FOR THE ASS ESSMENT YEAR 2012-13, STATEMENT OF AFFAIRS, CONFIRMED COPY OF ACCOUNT AND ALSO TO PROVE THE CREDITWORTHINESS AND GENUINEN ESS OF THE TRANSACTION, IT WAS BROUGHT ON RECORD THAT THE SAID PERSON HAS WITHDRAWN THE AMOUNT OF RS. 5,00,000/-OUT OF HI S CAPITAL ACCOUNT IN M/S. AHMAD TRADERS ALONGWITH COPY OF ACC OUNT OF I.T.A. NO.5441/DEL/2017 4 SHRI BANNEY KHAN IN THE BOOKS OF M/S. AHMAD TRADERS . ALL THESE DETAILS WERE DIRECTLY GIVEN TO THE ASSESSING OFFICER BY THE SAID PERSON VIDE LETTER DATED 12.01.2015. THE R ETURN OF INCOME OF SHRI BANNEY KHAN REFLECTED THE PROFIT OF RS.75 LAC FROM M/S. AHMAD TRADERS. ALL THESE DOCUMENTS HAVE B EEN FILED IN THE FORM OF PAPER BOOK, WHICH HAS BEEN EXT ENSIVELY REFERRED AT THE TIME OF HEARING. FROM THE PERUSAL O F THESE DETAILS, I FIND THAT SHRI BANNEY KHAN IN RESPONSE T O NOTICE U/S. 133(6) BY THE ASSESSING OFFICER HAS DULY CONFI RMED THAT HE HAS INVESTED SUM OF RS.5 LAC IN THE ASSESSEE-COM PANY ON ACCOUNT OF SHARE APPLICATION MONEY AND ALSO GIVEN T HE DETAILS OF HIS INCOME TAX PARTICULARS ALONG WITH COMPUTATIO N OF INCOME AND BALANCE SHEET WHEREIN HE HAS SHOWN AMOUN T OF RS.5 LAC INVESTED IN THE SAID COMPANY TOWARDS SHARE APPLICATION MONEY. APART FROM THAT, THE COMPUTATION OF INCOME OF SHRI BANNEY KHAN SHOWS THAT HE HAS A CAPI TAL OF RS.14,02,925/-. ONCE, ALL THESE DOCUMENTS HAVE BEEN FILED ALONG WITH LEDGER ACCOUNT OF SHRI BANNEY KHAN IN M/ S. AHMAD TRADERS CLEARLY SHOWING THAT HE HAS WITHDRAWN SUM OF RS.5 LAC AND SAME HAS BEEN INVESTED IN THE ASSESSEE COMPANY AS SHARE APPLICATION MONEY. IN WAKE OF THESE DOCUME NTS IT CANNOT BE HELD THAT SHARE APPLICATION MONEY REMAINS UNEXPLAINED OR IS ANY UNACCOUNTED MONEY OF THE ASSE SSEE. THE ONUS CAST UPON THE ASSESSEE STANDS DULY DISCHAR GED. THUS, ADDITION MADE BY THE AO CANNOT BE SUSTAINED. SIMPLY BECAUSE THE PAYMENT OF SHARE APPLICATION MONEY HAS BEEN MADE IN CASH, IT DOES NOT MEAN THAT SAID TRANSACTIO N IS NOT GENUINE ESPECIALLY WHEN THE SHARE APPLICANT HAS SHO WN TO HAVE WITHDRAWN THE MONEY FROM HIS FIRM OUT OF HIS C APITAL IN I.T.A. NO.5441/DEL/2017 5 CASH AND THE SAME HAS BEEN ADVANCED AND GIVEN TO TH E ASSESSEE; AND NOT ONLY THAT HE HAS DULY REFLECTED T HIS AMOUNT IN HIS BALANCE SHEET FILED ALONG WITH RETURN OF INC OME. ACCORDINGLY, I DELETE THE ADDITION OF RS. 5,00,000/ - AND CONSEQUENTLY THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2019. SD/- [AMIT SHUKLA] JUDICIAL MEMBER DATED: 30 TH JANUARY, 2019 PKK