Versa Buildwell India Pvt. Ltd., New Delhi V. ACIT, Faridabad

ITA 5526/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82069 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 01-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Assessee Lawyers: DEEOESG ANEJA
• Keywords: Unexplained investment; Search and seizure; Documents seized
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D : NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI A.T . VARKEY , JUDICIAL MEMBER ITA NO . 5526 /DEL/ 2013 ASSESSMENT YEAR : 2007 - 08 M/S. V A RSA BUILDWELL INDIA PVT. LTD., VS. ACIT, A - 16/B1, MOHAN CORPORATIVE CENT RAL CIRCLE1 INDUSTRIAL ESTATE, FARIDABAD. MAIN MATHURA ROAD, NEW DELHI. AACCV2714R (APPELLANT) (RESPONDENT) & ITA NO. 5527/DEL/2013 ASSESSMENT YEAR: 2006 - 07 PIYUSH BUILDWELL INDIA LTD., VS. DCIT, A - 16/B1, MOHAN CORPORATIVE CENTRAL CIRCLE 1, INDUSTRIAL ESTATE, MAIN MATHURA FARIDABAD. ROAD, NEW DELHI. AADCP7767M (APPELLANT) (RESPONDENT) APPELLANT BY: SH. DEEOESG ANEJA, ADV. RESPONDENT BY: MS. SULEKHA VERMA, CIT(DR) ORDER PER A.T. VARKEY, J.M. ITA NO. 5526/D/2013 : THIS APPEAL ARISES FROM AN ORDER OF CIT(A), GURGAON DATED 23 RD JULY, 2013 AND RELATES TO A.Y. 2007 - 08. 2. BRIEFLY STATED THE FACTS THAT THERE WAS A SEARCH AND SEIZURE OPERATION CONDUCTED ON 16 TH JANUARY, 2008 AT THE BUSINESS PREMISES OF P IYUSH GROUP OF COMPANIES. A SURVEY U/S 133A OF THE INCOME TAX ACT , 1961 (HEREIN AFTER THE ACT) WAS CONDUCTED AT THE PREMISES OF THE ASSESSEE COMPANY. PURSUANT TO THE SAID OPERATION, NOTICE U/S 153C OF THE ACT WAS ISSUED ON 30 TH NOVEMBER, 2009. AND IN RESPONSE RETURN WAS FILED ON 7 TH DECEMBER, 2009, DECLARING AN ITA NO. 5526/D/ 2013 VERSAM BUILDWELL INDIA P. LTD. 2 INCOME OF RS. 28,787/ - . THE SAID RETURN CULMINATED INTO AN ORDER OF ASSESSMENT DATED 29 TH DECEMBER, 2009 AT AN INCOME OF RS. 1,28,790/ - WHICH HAS BEEN UPHELD IN APPEAL AND IS IN CHALLENGE BEFOR E US. 3. GROUND NO. 1 & 2 PERTAINS TO ASSUMPTION OF JURISDICTION U/S 153C OF THE ACT. 4. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT THE SEARCH AND SEIZURE OPERATION WAS CARRIED OUT AT THE OFFICES PIYUSH GROUP AND NOT OF THE ASSESSEE. IT WAS CONTENDED THAT NO DOCUMENTS RELATABLE TO THE ASSESSEE HAVE BEEN SPECIFIED OR EVEN HAVE BEEN HANDED OVER TO THE AO, HAVING JURISDICTION. IT WAS FURTHER SUBMITTED THAT THE ADDITION WAS BASED ON SHARE CAPITAL AND THAT TOO IS NOT BASED ON ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF SEARCH. IT WAS FURTHER SUBMITTED THAT NO SATISFACTION WAS RECORDED BEFORE INITIATING ACTION U/S 153C OF THE ACT. THE CIT(A) UPHELD THE ASSUMPTION OF JURISDICTION FOLLOWING THE ORDER OF THE COORDINATE BENCH IN THE CASE OF PIYUSH INFRASTRUCTURE PVT. LTD. FOR A.Y. 2008 - 09, IN ITA NO. 1072/2011 DATED 25 TH OCTOBER, 2012, WHEREIN IT WAS HELD THAT SATISFACTION WAS DULY RECORDED U/S 153C OF THE ACT ON THE BASIS OF THE DOCUMENTS SEIZED AND NOTED IN THE ORDER OF ASSES SMENT. LD. COUNSEL RELIED UPON THE SUBMISSIONS BEFORE THE CIT(A) AND THE LD. DR SUPPORTED THE ACTION OF THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND WE FIND THAT AS CORRECTLY HELD BY THE CIT(A), THE COORDINATE BENCH IN THE GROUP CASE OF PIYU SH INFRASTRUCTURE INDIA LTD. (SUPRA) HAD UPHELD THE JURISDICTION. BEFORE US NO OTHER EVIDENCE HAS BEEN LED SO AS TO FORM A DIFFERENT OPINION ON THE FACTS OF THE ASSESSEE. IN VIEW OF THE ABOVE, WE FIND NO MERIT IN THE SAID GROUNDS RAISED AND SO THE SAME A RE REJECTED. 6. GROUND NO. 3 TO 5 RELATES TO ADDITION OF RS. 1 LAKH REPRESENTING SHARE CAPITAL RECEIVED BY THE ASSESSEE COMPANY. 7. THE FACTS PERTAINING TO THIS ASPECT IS THAT A SEARCH OPERATION WAS CONDUCTED ON THE PIYUSH GROUP OF COMPANIES, INCLUDING T HE ASSESSEE COMPANY ON 16.1.2008. THE AO PROCEEDED TO REFER THE SHARE CAPITAL INTRODUCED OF RS. 1 LAKH BY THE DIRECTORS OF THE COMPANY SHRI ARUN KUMAR BANSAL AND SHRI VIJAY GUPTA, BASED ON THE STATEMENT RECORDED ON 21.2.2008 OF THE FORMER, AND THEREAFTER AS THE ASSESSEE COULD NOT FURNISH CONFIRMATIONS IN THIS ITA NO. 5526/D/ 2013 VERSAM BUILDWELL INDIA P. LTD. 3 RESPECT. IN THE STATEMENT ON OATH, SHRI ARUN KUMAR BANSAL CATEGORICALLY DENIED MAKING ANY INVESTMENT IN THE COMPANY AND ADMITTED TO BEING MERELY A BENAMI, AND STATED THAT THE INVESTMENT WAS MADE BY T HE PIYUSH GROUP MEMBERS. SHRI BANSAL ALSO STATED THAT HE RESIGNED IN NOVEMBER, 2007 FROM DIRECTORSHIP OF THE COMPANY A PART FROM 3 - 4 OTHER COMPANIES. THEREFORE THE AO MADE AN ADDITION OF RS.1,00,000/ - TO THE DECLARED INCOME AS UNEXPLAINED INVESTMENT IN SHAR E CAPITAL UNDISCLOSED INCOME OF THE ASSESSEE. 7.1 THE CIT(A) HAS CONFIRMED THE ADDITION. 8. THE LD. AR RELIED UPON THE JUDGMENT OF THE APEX C OURT IN CIT VS. LOVELY EXPORTS PVT. LTD. 216 CTR 195 TO CONTEND THAT THE ADDITION MADE OF SHARE CAPITAL RECEIVED FROM SUBSCRIBERS TO THE MEMORANDUM IS NOT TENABLE. THE LD. DR RELIED UPON THE FI NDINGS OF THE AUTHORITIES BELO W. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSION, CASE CITED AND PERUSED THE RECORDS. WE FIND THAT IN THE INSTANT CASE, SHARE CAPITAL WAS RECEIVED FROM SH. ARUN BANSAL AND VIJAY GUPTA OF RS. 50,000/ - EACH AGGREGATING TO RS. 1 LAKH. PURSUANT TO THE SEARCH ON 21/02/2008, SH. ARUN BANSAL CATEGORICALLY ASSERTED THAT HE WAS MERELY A NAME LENDER AND NO AMOUNT WAS ACTUALLY INVESTED BY HIM, NO CONFIRMATION OR ANY OTHER EVIDENCE HAS BEEN PLACED ON RECORD TO DISCHARGE THE BURDEN. THE CONTENTION THAT SAID PERSON WAS SUBSCRIBER TO THE MEMORANDUM OF ASSOCIATION HAS BEEN CORRECTLY REJECTED BY THE AO, BY OBSERVING THAT SAID SUBSCRIPTION ONLY SHOWS THE DESIRE TO M AKE INVESTMENT, BUT DOES NOT CONFIRM INVESTMENT. IN SUCH CIRCUMSTANCES WE ARE IN AGREEMENT WITH THE CONCLUSION OF THE CIT(A) WHO HAS HELD AS UNDER: THE FACT THAT A STATEMENT ON OATH WAS RECORDED JUST A MONTH AFTER THE SEARCH OPERATION, WHEREIN SH. ARUN KUMAR BANSAL DISCLOSED IN AS MUCH THAT HE WAS JUST A NAME - LENDER AND THAT NO INVESTMENT HAD BEEN MADE BY HIM TOWARDS THE INITIAL SHARE CAPITAL. THESE ENUNCIATIONS CANNOT BE DISREGARDED. HE HAS NOT DENIED BEING A DIRECTOR OR HAVING SUBSCRIBED TO THE SHARE . BUT HE ACTED IN THE CAPACITY OF A BENAMI ONLY. AS PER DOCUMENTS FURNISHED IN APPEAL, THE COMPANY WAS INCORPORATED ON 1.6.2007. SHRI BANSAL HAS RESIGNED SINCE, I FIND TH AT THE AO DURING THE ASSESSMENT PROCEEDINGS PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO FILE CONFIRMATIONS FOR THE SHARE CAPITAL WHICH WAS NOT DONE. IN OTHER WORDS THE AO SOUGHT TO GO BEYOND THE STATEMENT RECORDED. I ALSO FIND THAT ASSESSEE DOES NOT APPEAR TO HAVE ASKED THE AO FOR CROSS EXAMINATION EITHER. THE IDENTITIES OF THE TWO PERSONS ARE NOT IN DISPUTE, BUT WHAT IS GERMANE TO THE ISSUE IS THE GENUINENESS OF THE ITA NO. 5526/D/ 2013 VERSAM BUILDWELL INDIA P. LTD. 4 TRANSACTION AND THE CREDITWORTHINESS OF THE TWO PERSONS CONCERNED. ASSESSEE HAS NOT BEEN ABLE TO FURNISH ANY MATERIAL WHICH CAN DISLODGE THE ACTION OF THE AO. THE CASE LAWS CITED DO NOT COME TO HIS RESCUE CONSIDERING THE FACTS OF THE CASE. THUS, I HAVE NO HESITATION IN UPHOLDING THE ADDITION MADE BY THE AO. THE ASSESSEE FAILS ON THIS GROUND. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 5527/D/2013 : 11. THIS APPEAL ARISES FROM AN ORDER OF THE CIT(A) DATED 23 RD JULY, 2013, CIT(A), GURGAON RELATES TO A.Y. 2006 - 07. 12. GROUND NO. 1 & 2 IS NOT PRESSED AND SO DISMISSED. 13. THE REMAINING GROUNDS ARE IN RESPECT OF ADDITION OF RS. 1 LAKH, WHICH IS IDENTICAL TO THE ADDITION MADE OF LIKE AMOUNT IN ANOTHER CASE OF V A RSA BUILDWELL PVT. LTD. IN ITA NO. 5526/D/2013 (SUPRA) AS IS ALSO HELD BY CIT(A). THE LD. COUNSEL ALSO DID NOT MAKE ANY FRESH ARGUMENT VIS - - VIS THE AFORESAID ADDITIONS. WE HAVE HELD I N THE ORDER OF EVEN DATE IN THE CASE OF V A RSA BUILDWELL PVT. LTD. (SUPRA) AS UNDER: 9. WE HAVE CONSIDERED THE RIVAL SUBMISSION, CASE CITED AND PERUSED THE RECORDS. WE FIND THAT IN THE INSTANT CASE, SHARE CAPITAL WAS RECEIVED FROM SH. ARUN BANSAL AND VIJAY GUPTA OF RS. 50,000/ - EACH AGGREGATING TO RS. 1 LAKH. PURSUANT TO THE SEARCH ON 21/02/2008, SH. ARUN BANSAL CATEGORICALLY ASSERTED THAT HE WAS MERELY A NAME LENDER AND NO AMOUNT WAS ACTUALLY INVESTED BY HIM, NO CONFIRMATION OR ANY OTHER EVIDENCE HAS BEEN PLACED ON RECORD TO DISCHARGE THE BURDEN. THE CONTENTION THAT SAID PERSON WAS SUBSCRIBER TO THE MEMORANDUM OF ASSOCIATION HAS BEEN CORRECTLY REJECTED BY THE AO, BY OBSERVING THAT SAID SUBSCRIPTION ONLY SHOWS THE DESIRE TO MAKE INVESTMENT, BUT DOES NOT CON FIRM INVESTMENT. IN SUCH CIRCUMSTANCES WE ARE IN AGREEMENT WITH THE CONCLUSION OF THE CIT(A) WHO HAS HELD AS UNDER: - THE FACT THAT A STATEMENT ON OATH WAS RECORDED JUST A MONTH AFTER THE SEARCH OPERATION, WHEREIN SH. ARUN KUMAR BANSAL DISCLOSED IN AS MUCH THAT HE WAS JUST A NAME - LENDER AND THAT NO INVESTMENT HAD BEEN MADE BY HIM TOWARDS THE INITIAL SHARE CAPITAL. THESE ENUNCIATIONS CANNOT BE DISREGARDED. HE HAS NOT DENIED BEING A DIRECTOR OR HAVING SUBSCRIBED TO THE SHARE. BUT HE ACTED IN THE CAPACITY OF A BENAMI ONLY. AS PER DOCUMENTS FURNISHED IN APPEAL, THE COMPANY WAS INCORPORATED ON 1.6.2007. SHRI BANSAL HAS RES IGNED SINCE, I FIND THAT THE AO DURING THE ASSESSMENT PROCEEDINGS PROVIDED SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO FILE CONFIRMATIONS FOR THE SHARE CAPITAL WHICH WAS NOT DONE. IN OTHER WORDS THE AO SOUGHT TO GO BEYOND THE STATEMENT RECORDED. I ALSO FIN D THAT ASSESSEE DOES NOT APPEAR TO HAVE ASKED THE AO FOR CROSS ITA NO. 5526/D/ 2013 VERSAM BUILDWELL INDIA P. LTD. 5 EXAMINATION EITHER. THE IDENTITIES OF THE TWO PERSONS ARE NOT IN DISPUTE, BUT WHAT IS GERMANE TO THE ISSUE IS THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE TWO PERSONS CON CERNED. ASSESSEE HAS NOT BEEN ABLE TO FURNISH ANY MATERIAL WHICH CAN DISLODGE THE ACTION OF THE AO. THE CASE LAWS CITED DO NOT COME TO HIS RESCUE CONSIDERING THE FACTS OF THE CASE. THUS, I HAVE NO HESITATION IN UPHOLDING THE ADDITION MADE BY THE AO. TH E ASSESSEE FAILS ON THIS GROUND. 14. FOLLOWING THE SAME, THE GROUNDS RAISED ARE REJECTED AND THESE APPEAL S ARE DISMISSED. 15. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 .11.2014 - SD/ - - SD/ - ( R.S. SYAL ) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28. 11.2014 * AJAY KEOT/KAVITA . COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI TRUE COPY BY ORDER ASSISTANT REGISTRAR