Gaps Power and Infrastructure Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 5920/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52517 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 24-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RANO JAIN CAS; VED JAINR C KAP OOR
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C DELHI BEFORE SHRI I.P. BANSAL AND SHRI K.G. BANSAL ITA NO. 5920(DEL)/2010 ASSESSMENT YEAR: 2007-08 GAPS POWER & INFRASTRUCTURE IN COME-TAX OFFICER, PVT. LTD., 1E/5, JHANDEWALAN VS. WAR D 12(1), NEW DELHI. EXTENSION, NEW DELHI. PAN: AACCG4550G (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI VED JAIN,R.C. KAP OOR, & MS. RANO JAIN, C.AS REVENUE BY : NONE ORDER PER K.G. BANSAL : AM THE ASSESSEE HAS TAKEN UP FOLLOWING GROUNDS IN THE APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN C ONFIRMING THE ADDITION OF RS. 2,11,03,472/- BEING THE SHARE CAP ITAL RECEIVED FROM THE FOLLOWING PERSONS BEING THE PROMOTERS OF THE COMPANY:- NAME AMOUNT (RS.) PRAVEEN NINDRAJOG 10,00,000/- SUMEET NINDRAJOG 56,75,200/- AMARJEET SINGH CHAWLA 33,83,560/- HAMPTON INVESTMENT GROUP 1,10,44,712/- TOTAL: 2,11,03,472/ - ITA NO. 5920(DEL)/2010 2 (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ABOVE ADDITION HAS BEEN MADE IGNORING THE EXPLANATION AND EVIDENCES SUBMITTED BY THE APPELLANT. 3(I) THAT THE LD. CIT(A) HAS ERRED IN NOT DELET ING THE ADDITION DESPITE THE FACT THAT THE APPELLANT HAV E ESTABLISHED THE IDENTITY OF THE SHAREHOLDERS. (II) THE ABOVE SAID ADDITION ON ACCOUNT OF SHAR E CAPITAL UNDER SECTION 68 IS LEGALLY UNTENABLE IN VIEW OF T HE JUDICIAL PRONOUNCEMENTS BY THE APEX COURT AS WELL AS THE JURISDICTIONAL HIGH COURT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) ERRED IN REJECTING THE ADDITIONAL EV IDENCES SUBMITTED BY THE APPELLANT IN SUPPORT OF ITS CONTE NTION DESPITE COMPLYING WITH THE CONDITIONS PRESCRIBED UNDER RULE 46A OF INCOME-TAX RULES, 1962. 2. THE CASE WAS FIXED FOR HEARING ON 01.03.2011 . ON THIS DATE, IT WAS ADJOURNED TO 13.06.2011 AT THE REQUEST OF THE L D. COUNSEL FOR THE ASSESSEE. THE BENCH DID NOT FUNCTION ON 13.06.2011, THEREFO RE, THE CASE WAS FIXED FOR HEARING ON 02.08.2011. ON THIS DATE, THE LD. CIT, DR SOUGHT ADJOURNMENT ON THE GROUND SOME MORE TIME IS REQ UIRED (UNQUOTE). THE LD. COUNSEL OPPOSED THE ADJOURNMENT AND MENTIONED THAT HE IS NOT SEEKING FINAL DETERMINATION OF THE APPEAL AND MERELY REQ UESTING FOR RESTORING THE MATTER TO THE FILE OF THE AO. THE REASON IS THA T THE ASSESSEE HAD FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(APPEALS), AND THE EVIDENCE WAS NOT ADMITTED ON THE GROUND THAT SUFFICIENT OPPO RTUNITY HAD BEEN GRANTED. ITA NO. 5920(DEL)/2010 3 THE ASSESSEE WANTED TO FILE CONFIRMATION LETTERS FROM THE PERSONS WHO CONTRIBUTED TO THE CAPITAL OF THE COMPANY AND TH E BANK ACCOUNT OF HAMPTON INVESTMENT GROUP LTD. THE ADDITION IS IN RESPECT OF CONTRIBUTION TO THE CAPITAL AND THE ONLY BURDEN ON THE ASSESSE E IS TO PROVE THE IDENTITY OF THE CONTRIBUTORS AS PER DECISION IN THE CAS E OF CIT VS. LOVELY EXPORTS (P) LTD., (2008) 216 CTR 195 (SC). HOWEVER, THE L D. CIT(APPEALS) DID NOT ACCEPT THE ADDITIONAL EVIDENCE, WHICH WAS AL SO OPPOSED BY THE AO ON THE GROUND THAT SUFFICIENT TIME WAS ALLOWED TO THE ASSESSEE TO FILE THE EVIDENCE. ACCORDINGLY, IT IS REQUESTED THAT THE EVIDENCE MAY BE ADMITTED AND THE MATTER MAY BE RESTORED TO THE FILE OF THE LD. CIT(A) OR THE AO FOR VERIFICATION OF THE EVIDENCE. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE FIND THAT THE REASON MENTIONED BY THE LD. CIT, DR FOR SEEKING ADJOURNMENT IS VAGUE. THE DR PRESENT I N THE COURT DID NOT TAKE UP THE MATTER WAS IT WAS NOT IN HIS JURISDICTION. THEREFORE, THE SAME IS NOT ALLOWED. COMING TO THE ADMISSION OF ADDITIONAL EVIDENCE, IT MAY BE MENTIONED THAT THE REQUIREMENT OF THE LAW IN CAS E OF CAPITAL CONTRIBUTION IS ONLY TO ESTABLISH THE IDENTITY OF THE CONTRIBUTOR. THIS CAN BE DONE ONLY AFTER PLACING ON RECORD THE CONFIRMATION LETTERS FROM THE CONTRIBUTORS AND ITA NO. 5920(DEL)/2010 4 THE BANK ACCOUNT. THEREFORE, IT IS IN THE INTE REST OF JUSTICE TO ENTERTAIN ADDITIONAL EVIDENCE FOR PROPER DETERMINATION OF TH E ISSUE AT HAND. THE SAME IS ADMITTED. THIS EVIDENCE HAS NOT BEEN EXAMINED EITHER BY THE AO OR THE LD. CIT(APPEALS). THEREFORE, THE MATTER IS RESTORED TO THE FILE OF THE AO FOR HEARING THE ASSESSEE ON THE EVIDENCE AND DECIDING THE MATTER AFRESH AS PER LAW. 4. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWE D FOR STATISTICAL PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 5 AUGUST, 2011. SD/- SD/- (I.P. BANSAL) (K.G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 5TH AUGUST,2011. SP SATIA COPY OF THE ORDER FORWARDED TO:- GAPS POWER & INFRASTRUCTURE PVT. LTD., NEW DELHI. ITO, WARD 12(1), NEW DELHI. CIT CIT(APPEALS) THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.