JAGDAMBA COMPLEX PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER WARD -12(3)(1), MUMBAI

ITA 5513/MUM/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5654 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NEERAJMANGLAAR
• Section: 133(6); 143(1); 147; 68; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT,AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.5513/MUM/2017 ASSESSMENT YEAR: 2009-10 JAGDAMBA COMPLEX PRIVATE LIMITED, SHOP NO. A-123, 1 ST FLOOR, A-WING, SIDDHI SLOPI COMPLEX, H.NO. 983/124, TALUKA WADA, KUDUS, MAHARASHTRA-421312 / VS. INCOME TAX OFFICER, WARD- 12(3)(1) MUMBAI !'#$ % /ASSESSEE) ( ' / REVENUE) P.A. NO.AABCJ9074F !'#$ % / ASSESSEE BY SHRI NEERAJMANGLA-AR ' / REVENUE BY SHRI RAJEEV GUBGOTRA-DR ( !') * % + / DATE OF HEARING : 28/11/2018 * % + / DATE OF PRONOUNCEMENT 19/12//2018 / O R D E R PERJOGINDER SINGH (VICE PRESIDENT) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 02/03/2017 OF THE FIRST APPELLATE AUTHORITY, MUMBAI , ITA NO.5513/MUM/2017 JAGDAMBA COMPLEX PRIVATE LIMITED 2 CONFIRMING THE ADDITION OF RS.7,60,94,400/- MADE UN DER SECTION 68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) WITH RESPECT TO SHARE APPLICATION MONEY. 2. DURING HEARING, SHRI NIRAJ MANGLA, LD. COUNSEL FOR THE ASSESSEE, CONTENDED THAT THE ADDITION HAS BEEN WRONGLY MADE AND THE ASSESSEE IS IN A POSITION TO EXPLAIN T HE ADDITION WITH DOCUMENTARY EVIDENCE AND EVEN READY TO PRODUCE THE CONCERNED PARTIES. ON THE OTHER HAND, SHRI RAJEEV G UBGOTRA, LD. DR, DEFENDED THE ADDITION MADE BY THE LD. ASSES SING OFFICER BY INVITING OUT ATTENTION TO THE FINDING RE CORDED BY THE LD. ASSESSING OFFICER AS WELL AS BY THE LD. COMMISS IONER OF INCOME TAX (APPEAL). 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE DECLARED INCOME OF RS.31,060/ - IN ITS RETURN FILED ON 29/09/2009, WHICH WAS PROCESSED UND ER SECTION 143(1) OF THE ACT. THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE ACT WITH RECORDIN G OF REASONS AND THUS NOTICE UNDER SECTION 148 OF THE AC T WAS ITA NO.5513/MUM/2017 JAGDAMBA COMPLEX PRIVATE LIMITED 3 ISSUED AT THE ADDRESS AVAILABLE WITH THE DEPARTMENT . THE NOTICE WAS RETURNED UNSERVED BY THE POSTAL AUTHORIT IES WITH THE REMARK NOT KNOWN, HOWEVER, LATER ON IT WAS SE RVED BY A FIXTURE AND ALSO BY E-MAIL OF THE AUTHORIZED REPRES ENTATIVE. TO VERIFY THE DETAILS OF THE ASSESSEE, NOTICE UNDER SE CTION 133(6) OF THE ACT WERE ISSUED TO THE KOTACK MAHINDRA BANK HAVING ACCOUNT AS PER AIR INFORMATION. THE BANK ALSO INFOR MED THAT THE ACCOUNT OF THE ASSESSEE HAS BEEN CLOSED ON 12/0 8/2011. THEREAFTER NOTICES WERE ISSUED TO THE REPRESENTATIV E OF THE ASSESSEE AND THE AUTHORIZED REPRESENTATIVE ATTENDED THE PROCEEDINGS AND FURNISHED PART DETAILS. FROM THE RE CORD, IT WAS FOUND THAT THE ASSESSEE INTRODUCED SHARE CAPITA L WITH A PREMIUM TOTALING AT RS.7,92,65,000/- AND THE ASSESS EE ISSUED 3,17,060/- SHARES OF THE FACE VALUE OF RS.10 EACH AT A PREMIUM OF RS.240 ON 31/03/2009. TO VERIFY THE GENUINENESS OF THE CREDIT OF RS.7,60,94,400/-, NOTI CE UNDER SECTION 133(6) WERE ISSUED TO 22 SUBSCRIBERS TO WHI CH ALSO NO PROPER COMPLIANCE WAS RECEIVED, THEREAFTER SHOW CAU SE NOTICES WERE ISSUED TO 22 SUBSCRIBERS, THE DETAILS OF WHICH ARE AVAILABLE IN THE ASSESSMENT ORDER. THE LD. ASSE SSING ITA NO.5513/MUM/2017 JAGDAMBA COMPLEX PRIVATE LIMITED 4 OFFICER FOUND THAT THERE WAS NO TRACK RECORD/FINANC IAL STATUS OF THE ASSESSEE FOR CHARGING ANY PREMIUM. THE ASSES SEE DID NOT EARN SUBSTANTIAL PROFIT OR PAID TAXES AND THUS THE PREMIUM WAS HELD TO BE NOT JUSTIFIED, CONSEQUENTLY, THE PROVISIONS OF SECTION 68 WAS INVOKED. ON APPEAL, BE FORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), VARIOUS DE CISIONS WERE CONSIDERED AND ULTIMATELY, THE APPEAL OF THE A SSESSEE WAS DISMISSED. CONSIDERING THE TOTALITY OF FACTS, A ND AS PER THE MANDATE OF ARTICLE-265 OF THE CONSTITUTION OF I NDIA, ONLY DUE TAXES HAS TO BE LEVIED/COLLECTED AND SINCE THE ASSESSEE CLAIMS THAT THE ASSESSEE IS IN A POSITION TO SUBSTA NTIATE ITS CLAIM AND READY TO PRODUCE THE PARTIES, THEREFORE, WE DEEM IT APPROPRIATE TO REMAND THIS APPEAL TO THE FILE OF TH E LD. ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE AND TO VERIFY THE GENUINENESS OF THE TRANSACTION, INVESTIG ATE/ EXAMINE THE PARTIES/SHARE SUBSCRIBERS/SHARE PREMIUM , ETC. TO HIS SATISFACTION AND DECIDE AFRESH. THE ASSESSEE IS DIRECTED TO PRODUCE ALL THE PARTIES BEFORE THE LD. ASSESSING OFFICER ALONG WITH NECESSARY DOCUMENTARY EVIDENCE. THUS, TH E APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES ONLY. ITA NO.5513/MUM/2017 JAGDAMBA COMPLEX PRIVATE LIMITED 5 FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 28/11/2018. SD/- (G.MANJUNATHA) SD/- (JOGINDER SINGH) / ACCOUNTANT MEMBER / VICE PRESIDENT ( ) MUMBAI; 0 ! DATED : 19/12//2018 F{X~{T? P.S / !1' !'#$%&'&($ / COPY OF THE ORDER FORWARDED TO : 1. 234 / THE APPELLANT 2. 5634 / THE RESPONDENT. 3. 7 7 ( 8% , ( 2 ) / THE CIT, MUMBAI. 4. 7 7 ( 8% / CIT(A)- , MUMBAI 5. :';5 % !' , 7 2+2' . , ( / DR, ITAT, MUMBAI 6. <# / GUARD FILE. ! / BY ORDER, / (DY./ASSTT.REGISTRAR) , ( / ITAT, MUMBAI