Achievers Marketing Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5613/DEL/2014

• Counselvise Citation: 561320114 RSA 2014
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 01-09-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 16-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KHANNA
• Assessee Lawyers: AJAY KUMAR DUDEJA
• Keywords: Additional evidence
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-I NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER ITA NO. 5613/DEL/2014 ASSTT. YRS: 2003-04 ACHIEVERS MARKETING PVT. LTD., VS. INCOME-TAX OFF ICER, 3, DR. G.C. NARANG MARG, WARD 1(1), NEW DELHI. DELHI-110007. PAN: AADCA 7227 P ( APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI AJAY KUMAR DUDEJA CA RESPONDENT BY : SHRI V. K. KHANNA ADDL. CIT(DR) DATE OF HEARING : 01/09/2015. DATE OF ORDER : 09/11/2015. O R D E R PER S.V. MEHROTRA, A.M.. : THIS APPEAL, BY THE ASSESSEE , HAS BEEN PREFERRED AGAINST THE ORDER DATED 06- 12-2012, PASSED BY THE CIT(A)-IV, NEW DELHI, IN APP EAL NO. 95/10-11, RELATING TO A.Y. 2003-04. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE C OMPANY WAS INCORPORATED ON 20-7-2001. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE COMPANY DID THE TRADING ACTIVITIES. IT FILED ITS RETURN OF INCOME O N 27-11-2003 DECLARING NET LOSS OF RS. 45,540/-. ASSESSMENT WAS REOPENED U/S 148 AND A FTER CONSIDERING THE ASSESSEES SUBMISSIONS, THE AO MADE ADDITION OF RS. 4,25,000/-, RECEIVED FROM DIVYA SECFIN P:VT. LTD., AS ACCOMMODATION ENTRY U/S 68 OF THE INCOME-TAX ACT, 2 ITA 5613/DEL/2014 ACHIEVERS MARKETING PVT. LTD. 1961 AND RS. 31,637/- PAID FOR INCREASE IN AUTHORIZ ED SHARE CAPITAL, THEREBY DETERMINING THE TOTAL INCOME AT RS. 4,11,097/-. 3. BEFORE LD. CIT(A), THE ASSESSEE HAD SUBMITTED AS UNDER: 6.2 BEFORE ME, THE ID. AR FOR THE APPELLANT HAS SUB MITTED THAT TO AUGMENT ITS CAPITAL, THE ASSESSEE COMPANY INCREASED ITS AUTHORIZED CAPITAL FROM RS.5,00,0001- TO RS.90,00,0 001- AND PAID ROC FEE OF RS.1,30,5001- FOR INCREASING THE CA PITAL. THE ASSESSEE COMPANY RECEIVED SHARE APPLICATION MONEY F ROM 35 APPLICANTS FOR SUBSCRIPTION OF 1,42,000 SHARES. ONE SUCH APPLICANT WAS M/S DIVYA SECFIN PVT. LTD. WHICH APPL IED FOR 42,500 SHARES OF RS.101- EACH. IT WAS SUBMITTED .TH AT THE ABOVE SHARE APPLICANT COMPANY SUBMITTED A CHEQUE NO.70257 2 DATED 14.02.2003 DRAWN ON CORPORATION BANK, KAROL BAGH, N EW DELHI ALONG WITH SHARE APPLICATION FORM AND A COPY OF BOARD RESOLUTION. IT WAS SUBMITTED THAT SHARES WERE ALLOT TED ON 31.03.2003 AND RETURN OF ALLOTMENT IN FORM NO. 2,WA S FILED WITH ROC ON 30.04.2003. IT WAS SUBMITTED THAT THE S UMMONS WERE SENT BY SPEED POST AS WELL AS THROUGH INCOME T AX INSPECTOR OF THE WARD. IT WAS SUBMITTED THAT THE SU MMONS WERE ISSUED ON 29.11.2010 BY SPEED POST AND INCOME TAX I NSPECTOR SUBMITTED HIS REPORT ON 30.11.2010 IN WHICH THE INS PECTOR HAS REPORTED THAT NO COMPANY IN THE NAME OF M/S DIVYA S ECTION PVT. LTD. EXISTS. IT WAS FURTHER SUBMITTED THAT THE VERY FACT THAT THE AO SENT THE SUMMON BY POST TO THAT VERY ADDRESS SHOWS THAT THE AO HIMSELF DISBELIEVED THE REPORT OF THE INSPEC TOR. YET THE AO RELIED ON THAT VERY REPORT TO THE PREJUDICE OF T HE ASSESSEE. 4. THESE SUBMISSIONS WERE FORWARDED TO AO, WHOSE RE PORT HAS BEEN REPRODUCED IN PARA 6.3 OF LD. CIT(A)S ORDER, IN W HICH PRIMARILY IT IS POINTED OUT 3 ITA 5613/DEL/2014 ACHIEVERS MARKETING PVT. LTD. THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO ASSESSE E BUT THE SAME WERE NOT AVAILED BY ASSESSEE. 5. LD. CIT(A), AFTER CONSIDERING THE DETAILED SUBMI SSIONS AND REPORT OF AO OBSERVED THAT THE SUMMONS SENT BY THE AO TO THE DIV YA SECFIN PVT. LTD. ON THE ADDRESS PROVIDED BY THE ASSESSEE COMPANY WERE RETUR NED UNSERVED BY THE POSTAL AUTHORITIES. THE ADDITIONAL EFFORTS MADE BY AO BY D EPUTING THE INSPECTOR OF INCOME-TAX TO MAKE SPOT VERIFICATION ALSO DID NOT Y IELD ANY RESULT. THUS, THE ONUS SHIFTED FROM THE AO TO THE ASSESSEE COMPANY. HE FUR THER OBSERVED THAT THE LD. AR WAS ASKED BY HIM (LD CIT(A), DURING HEARING OF THE APPEAL TO PRODUCE THE PRINCIPAL OFFICER OF SHARE APPLICANT COMPANY DIVYA SECFIN PVT . LTD. BEFORE HIM, BUT THE LD. AR EXPRESSED HIS INABILITY TO PRODUCE THE SHARE APP LICANT AT THE APPELLATE STAGE ALSO. LD. CIT(A), ACCORDINGLY, DISMISSED THE ASSESS EES APPEAL. BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION HAS BEEN MADE BECAUSE THE SUMMONS ISSUED U/S 131, SENT BY SPEED P OST WERE RETURNED UNSERVED BY POSTAL AUTHORITIES. BEFORE ME, THE ASSESSEE HAS FI LED PAPER BOOK CONTAINING ADDITIONAL EVIDENCE OF ADDRESS CHANGE ALONGWITH T HE PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE. IT IS, INTER ALIA, STATED THAT THE SAME COULD NOT BE PRODUCED DUE TO NEGLIGENCE OF AR OF THE ASSESSEE. 4 ITA 5613/DEL/2014 ACHIEVERS MARKETING PVT. LTD. 7. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND HAVE PERUSED THE RECORD OF THE CASE. IT IS WELL SETTLED LAW THAT FOR THE NEGLIGENCE OF COUNSEL, THE ASSESSEE SHOULD NOT BE MADE TO SUFFER. I, THEREFORE, ADMIT THIS ADDITIONAL EVIDENCE FROM PAGES 1 TO 71 OF THE PB AN D RESTORE THE MATTER BACK TO THE FILE OF AO TO EXAMINE THE ISSUE DE NOVO. I M AY CLARIFY THAT THE AO WILL, AFTER EXAMINING THE ADDITIONAL EVIDENCE, SEND THE SUMMONS AT GIVEN ADDRESS. IF STILL THE SUMMONS ARE NOT SERVED ON ASS ESSEE, THEN THE ADDITION WILL STAND CONFIRMED. IF THE SUMMONS ARE SERVED AND PRINCIPAL OFFICER APPEARS THEN AO WILL DECIDE THE ISSUE ON MERITS. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN TERMS OF AFOREMENTIONED OBSERVATIONS. ORDER PRONOUNCED IN OPEN COURT ON 09/11/2015. SD/- (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 09/11/2015. *MP* COPY OF ORDER TO: 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. 5 ITA 5613/DEL/2014 ACHIEVERS MARKETING PVT. LTD. - + DATE INITIAL 1. DRAFT DICTATED ON 06 - 11.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 09.11.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 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.