Lancer Telecom India (P) Ltd., New Delhi V. ACIT, New Delhi

ITA 5611/DEL/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8551 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 31-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E V BHASKAR
• Assessee Lawyers: V K TULSIAN
• Keywords: Unexplained cash credit; Accommodation entries
• Section: 143(1); 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, D: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.5611/DEL/2016 [ASSESSMENT YEAR: 2004-05] LANCER TELECOM INDIA (P) LTD. 483, YOJNA VIHAR, VIKAS MARG EXTN., NEW DELHI-110092 ACIT, CIRCLE-4(1), NEW DELHI-110002 PAN-AAACL5240J ASSESSEE REVENUE ASSESSEE BY SH. V.K. TULSIAN, ADV. REVENUE BY SH. E.V. BHASKAR, SR. DR DATE OF HEARING 09.08.2021 DATE OF PRONOUNC EMENT 09.08.2021 ORDER PER R.K. PANDA, AM, THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 28.02.2014 OF THE LEARNED CIT(A)-VIII, NEW DELHI, RELATING TO ASSESSMENT YEAR 2004-05. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS A PRIVATE LIMITED COMPANY, ENGAGED IN THE BUSINESS OF TELECOMMUNICATION. IN THIS CASE, THE ORIGINAL ASSE SSMENT WAS 2 ITA NO.5611/DEL/2016 COMPLETED U/S 143(1) OF THE ACT ON 01.03.2005 AT IN COME OF RS.25,81,000/-. SUBSEQUENTLY, THE CASE OF THE ASSE SSEE WAS REOPENED U/S 148 OF THE ACT AFTER RECORDING FOLLOWI NG REASONS:- ASSESSMENT IN THIS CASE WAS COMPLETED AT AN INCOME OF RS.25,81,000/- ON 01.03.2005. AS PER THE INFORMATI ON RECEIVED FROM INVESTIGATION WING, INCOME TAX DEPART MENT, NEW DELHI REGARDING LIST OF ACCOMMODATION ENTRIES, THE ABOVE MENTIONED ASSESSEE WAS FOUND TO HAVE TAKEN ACCOMMODATION ENTRIES AMOUNTING TO RS.30,03,390/- F ROM THE FOLLOWING PARTIES. I. SWETU STONE PVT. LTD. AMOUNTING TO RS.15,01,875/- II. SEKHAWA FINANCE PVT. LTD. AMOUNTING TO RS.15,01,515 /- DURING THE COURSE OF SEARCH/SURVEY ON THE ABOVE PAR TIES, IT HAS BEEN PROVED THAT SAID COMPANIES/PARTIES ARE INV OLVED IN GIVING ACCOMMODATION ENTRIES TO VARIOUS INDIVIDUALS/COMPANIES. IN VIEW OF THE ABOVE, I HAV E REASONS TO BELIEVE THAT THE INCOME OF RS.30,03,390/ - CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147/148 OF THE INCOME TAX ACT, 1 961. 3. NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 30.03.2011. SINCE, THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE A NOTICE WAS ISSUED U/S 144 OF THE ACT ON 01.09.2011. SUBSEQUENTLY, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FILED CERTAIN DETAILS. D URING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION R EGARDING THE RECEIPT OF SHARE APPLICATION MONEY AMOUNTING TO RS.30,03,390/- FROM VARIOUS PARTIES BY PROVING THE IDENTITY AND 3 ITA NO.5611/DEL/2016 CREDITWORTHINESS OF THE SHARE APPLICANTS AND GENUIN ENESS OF THE TRANSACTIONS. IN ABSENCE OF ANY SATISFACTORY EXPLAN ATION GIVEN BY THE ASSESSEE, THE AO, INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT, MADE ADDITION OF RS.30,03,390/- TO THE TOT AL INCOME OF THE ASSESSEE. 4. SINCE, THE ASSESSEE DID NOT APPEAR BEFORE THE L EARNED CIT(A) DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE LEARNED CIT(A) IN THE EX-PARTE ORDER PASSED BY HIM UPHELD T HE ADDITION MADE BY THE AO. 5. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISIN G FOLLOWING GROUNDS:- 1. WHETHER THE LD. CIT( A) WAS JUSTIFIED BY UPHOLDING THE ORDER OF LD. A.O. ON THE PREMISES THAT NO WRITTEN SUBMISSION OR EVIDENCE FILED AND THEREFORE, CONFIRM THE ADDITIONS EVEN WITHOUT CONSIDERING THE GOA. 2. WHETHER THE LD. CIT( A) WAS JUSTIFIED BY UPHOLDING THE ORDER OF LD. A.O. THAT THEY IS NO INFIRMITY / ILLEG ALITY BY ASSUMING THE JURISDICTION U/S 147 AND THERE ARE NO DIFFERENCE EVEN IF ALLEGATION BASED UPON THE STATEM ENT OF COMPANY I.E. THE PROVIDER THAT TRANSACTION ENTERED ARE IN THE NATURE OF ACCOMMODATION ENTRIES. 3. WHETHER THE LD CIT( A) WAS JUSTIFIED BY HOLDING TH AT THERE IS NO ILLEGALITY BY ISSUING NOTICE U/S 148 BECAUSE THE SAME HAVE BEEN ISSUED AFTER PROPER APPROVAL AS REQUIRED U/S 151(2). 4. WHETHER THE LD CIT( A) WAS JUSTIFIED BY HOLDING TH AT THERE IS NO ILLEGALITY BY MAKING ADDITIONS U/S 68 ON ACCO UNT OF 4 ITA NO.5611/DEL/2016 UNEXPLAINED CREDIT EVEN WITHOUT BROUGHT ON RECORD A NY ADVERSE MATERIAL. 5. WHETHER THE LD CIT( A) WAS JUSTIFIED BY HOLDING TH AT ADDITION U/S68 ON ACCOUNT OF CREDIT OF RS. 30,03,39 0/- RECEIVED THE DURING THE YEAR FORM THE TWO COMPANY A S UN EXPLAINED U/S 68. 6. WHETHER THE LD CIT(A) WAS JUSTIFIED BY HOLDING THAT THE STATEMENTS RECORDED BY INVESTIGATION WING ARE SUFFI CIENT EVIDENCE TO DISREGARD THE SUBMISSIONS OF THE APPELL ANT EVEN IF NEITHER FRESH STATEMENT RECORDED DURING ASSESSMENT PROCEEDINGS NOR A OPPORTUNITY PROVIDED T O APPELLANT TO CROSS-EXAMINATION THE SAME. 6. THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIM E OF HEARING SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE ITS CASE SINCE THERE WAS NO PROPER REPRESENTATION MADE BEFORE THE LEARNED CIT(A). 7. THE LEARNED DR ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE AO AND THE CIT(A) AND SUBMITTED TH AT DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE ASSESSEE DID N OT AVAIL OF THE OPPORTUNITIES, THEREFORE, THE ORDER OF THE LEAR NED CIT(A) SHOULD BE UPHELD AND THE APPEAL FILED BY THE ASSESS EE SHOULD BE DISMISSED. 8. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE LEARNED CIT(A) AND THE PAPER BOOK FILED ON BEHALF O F THE 5 ITA NO.5611/DEL/2016 ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECI SIONS CITED BEFORE US. IT IS AN ADMITTED FACT THAT DUE TO NON - SUBSTANTIATION OF THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS AND GENUINENESS OF THE TRANSACTIONS, THE AO INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT MA DE ADDITION OF RS.31,03,390/-. WE FIND DUE TO NON-APPEARANCE O F THE ASSESSEE BEFORE THE LEARNED CIT(A) DESPITE NUMBER O F OPPORTUNITIES GRANTED, THE LEARNED CIT(A) IN THE EX -PARTE ORDER PASSED BY HIM SUSTAINED THE ADDITION MADE BY THE AO . IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE BE GIVEN AN OPPOR TUNITY TO SUBSTANTIATE ITS CASE BEFORE ANY OF THE LOWER AUTHO RITIES. CONSIDERING THE TOTALITY OF FACTS OF THE CASE AND I N THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE LEARNED CIT(A) WITH A DIRECTION TO GRANT ONE FI NAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CAS E BY FILING REQUISITE DETAILS AND THE LEARNED CIT(A) SHALL DECI DE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIREC TED TO APPEAR BEFORE THE LEARNED CIT(A) WITHOUT SEEKING ANY ADJOU RNMENT UNDER ANY PRETEXT FAILING WHICH THE LEARNED CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND D IRECT 6 ITA NO.5611/DEL/2016 ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. THE ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE T IME OF HEARING ITSELF I.E. ON 09/08/2021. SD/- SD/- [SUCHITRA KAMBLE] [R.K.PA NDA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 09/08/2021. F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI