ACIT, New Delhi V. M/s. Shalimar Town Planners (P) Ltd., New Delhi

ITA 713/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82119 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: V S RASTOGI
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G, NEW DELHI) BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 713/DEL/2013 ASSESSMENT YEAR : 2003-04 ACIT, CENTRAL CIRCLE -23, VS. SHALIMAR TOWN PLANNER S (P) LTD., NEW DELHI M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI-110 001 GIR / PAN: AABCS5851R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAMESH CHANDRA, CIT DR RESPONDENT BY : SHRI V S RASTOGI, ADV. ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) DATED 21.11.2012. THE REVENUE HAS RAISED ONLY ONE GROUND OF ITS GRIEVANCE WHICH IS WITH THE ACTION OF LD. CIT(A) BY WHICH HE HAD DELETED THE ADDITION OF RS.33LACS MADE BY A.O. U/S 68 OF THE I. T. ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AN D SEIZURE OPERATION WAS CARRIED OUT ON 15.11.2007 ON BPTP LTD AND SOME OF I TS GROUP COMPANIES. DURING THE COURSE OF SEARCH OPERATION, CERTAIN DOCU MENTS BELONGING TO THE ASSESSEE WERE FOUND AND, THEREFORE, PROCEEDINGS U/S 153C OF THE ACT WERE INITIATED AGAINST THE ASSESSEE. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUIRED TO FURNISH DETAILS IN RESPECT OF SHARE APPLICATION MONEY RECEIVED DURING THE YEAR. AFTER ALLOWING 2-3 ADJOU RNMENTS AS SOUGHT BY ASSESSEE, THE A.O. OBSERVED THAT ASSESSEE DID NOT F URNISH ANY CONFIRMATION FROM M/S. GIANNA FISSORE IN RESPECT OF SHARE APPLIC ATION MONEY OF RS.33 LACS. HE FURTHER OBSERVED THAT HER BANK ACCOUNT AN D COPY OF INCOME TAX ITA NO.713/DEL/2013 2 RETURNS WERE ALSO NOT FURNISHED. HOWEVER, IN LATER HEARING, THE ASSESSEE CLAIMED BEFORE THE A.O. THAT COPY OF BANK STATEMENT OF GIANNA FISSORE IS BEING FILED AND SUBMITTED THAT CONFIRMATION WAS NOT AVAILABLE AS THE SHARE APPLICANT WAS AN NRI. HOWEVER, THE A.O. OBSERVED T HAT THE ASSESSEE DID NOT FILE COPY OF BANK STATEMENT OF GIANNA FISSORE AS CL AIMED BY IT AND IT HAD FURNISHED ONLY COPY OF LEDGER ACCOUNT OF GIANNA FIS SORE IN ITS BOOKS OF ACCOUNTS. THE A.O. FURTHER OBSERVED THAT DESPITE A PERIOD OF THREE MONTHS THE ASSESSEE COULD NOT GET CONFIRMATION AND THEREFO RE, THE TREATED THE AMOUNT AS UNEXPLAINED MONEY AND MADE ADDITION THEREOF. O PERATIVE PORTION OF THE ASSESSMENT ORDER IS REPRODUCED BELOW: 2.3 THE ASSESSEE COMPANY DID NOT FILE THE COPY OF BANK STATEMENT OF MS. GIANNA FISSORE, AS CLAIMED BY IT. IT HAS ONLY FURNISHED THE COPY OF LEDGER ACCOUNT OF GIANNA FISSORE IN ITS BOOKS OF ACCOUNTS. CONFIRMATION IN RESPECT OF SHARE APPLICATION MONEY ADVANCED BY HER WAS ALSO NOT FURNISHED. THE PLEA OF THE ASSESSEE T HAT IT NEEDS MORE TIME TO GET THE CONFIRMATION AS MS. GIANNA FISSORE IS AN NRI IS NOT JUSTIFIED BECAUSE THE ASSESSEE COMPANY HAS HAD AMPL E TIME TO GET HER CONFIRMATION. THE FIRST QUESTIONNAIRE WAS ISSUED O N 29.09.2009 AND THE SAID CONFIRMATION WAS ALSO CALLED FOR VIDE THAT QUESTIONNAIRE. THUS, THE ASSESSEE COMPANY WAS HAVING ALMOST THREE MONTHS TIME TO GET THE CONFIRMATION. HER BANK STATEMENT WAS ALSO NOT FILED. DESPITE AVAILING NUMEROUS OPPORTUNITIES, AS MENTIONED ABOVE , THE ASSESSEE DRAGGED THE ASSESSMENT PROCEEDINGS IN THE FAG END O F LIMITATION OF PERIOD BUT STILL IT DID NOT FURNISH THE COMPLETE DE TAILS / CONFIRMATIONS / BOOKS OF ACCOUNTS FOR THE REASONS BEST KNOWN TO IT. THUS, THE GENUINENESS OF THE SHARE CAPITAL OF RS.33 LACS CLAI MED TO HAVE BEEN RECEIVED FROM MS. GIANNA FISSORE HAS NOT BEEN PROVE D. UNDER THESE CIRCUMSTANCES, THE CREDIT OF RS.33 LACS IN THE BOOK S OF THE ASSESSEE ALLEGED TO HAVE BEEN RECEIVED FROM MS. GIANNA FISSO RE REMAINED UNEXPLAINED AND S SUCH IS ADDED TO THE INCOME OF TH E ASSESSEE COMPANY U/S 68 AS UNEXPLAINED CASH CREDIT. I AM SA TISFIED THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS TO TH E EXTENT OF RS.33 LACS AND CONCEALED ITS INCOME FOR THAT PENALTY PROC EEDINGS U/S 271(1)(C) HAVE BEEN INITIATED SEPARATELY. ITA NO.713/DEL/2013 3 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND MADE VARIOUS SUBMISSIONS. LD. CIT(A) ON THE BASIS OF SUBMISSIONS AND ON THE BASIS OF INVESTIGATION BY A.O., DELETED THE ADDITIO N BY HOLDING AS UNDER: I HAVE . CONSIDERED THE ASSESSMENT ORDER, SUBMISSI ON OF LD. AR, REPORT OF A.O. ON ADDITIONAL EVIDENCES. DURING ASSE SSMENT PROCEEDINGS, APPELLANT COMPANY ALLEGES THAT THE COP Y OF BANK STATEMENT OF SHARE APPLICANT WAS PRODUCED WHICH IS DISPUTED BY A.O. DURING APPELLATE PROCEEDING, THE LD. AR HAS PRODUCE D THE FOLLOWING DOCUMENTS: 1. P AN CARD OF MRS. GIANNA FISSORE 2. BANK STATEMENT OF MRS. GIANNA FISSORE EVIDENCING THE TRANSACTION OF IMPUGNED SHARE APPLICATION MONEY OF RS. 33,00,000/- 3. COPY OF SHARE APPLICATION 4. CONFIRMATION OF ACCOUNTS BY MRS. GIANNA FISSORE THESE DOCUMENTS WERE FORWARDED TO A.O. TO MAKE FURT HER ENQUIRY S DISCUSSED SUPRA. A.O. HAS ISSUED SUMMONS TO MRS. GI ANNA FISSORE. A.O. REPORTED THAT MRS. GIANNA FISSORE THROUGH AR H AS SUBMITTED COPY OF PAN CARD, COPY OF BANK STATEMENT EVIDENCING PAYMENT OF RS. 33 LACS ON 10-06-2012, COPY OF LEDGER A/C OF MRS. G IANNA FISSORE IN THE BOOKS OF ACCOUNTS OF M/S EASTERN EXPORTS. THE S OURCE OF RS. 33 LACS AS STATED LD. AR IS REMITTANCE FROM ITALY IN H ER NRI ALC. A.O. HAS NOT COMMENTED ANYTHING ADVERSE AFTER THE ENQUIRY RE GARDING IDENTITY OF MRS. GIANNA FISSORE, GENUINENESS OF TRANSACTION & CREDIT WORTHINESS OF THE CREDITOR. IN VIEW OF THE ABOVE I AM OF THE OPINION THAT THE REQUIREMENTS OF SECTION 68 ARE MET & THERE IS NO CASE FOR ADDITION U/S 68 OF I.T. ACT. ACCORDINGLY I DIRECT A .O. TO DELETE THE ADDITION OF RS. 33,00,000 U/S 68 IN FORM OF SHARE A PPLICATION MONEY IN THE NAME OF MRS. GIANNA FISSORE. 3.1 AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4. AT THE OUTSET, LD. D.R. READ FORM THE RELEVANT P ART OF ASSESSMENT ORDER AND ARGUED THAT DESPITE A NUMBER OF OPPORTUNITIES, THE ASSESSEE DID NOT FILE CONFIRMATION AND BANK STATEMENTS, IT WAS SUBMITTED THAT THOUGH ASSESSEE ITA NO.713/DEL/2013 4 CLAIMED TO HAVE FILED COPY OF BANK ACCOUNT BUT IN F ACT, IT WAS NOT FILED. IT WAS SUBMITTED THAT THE ORDER PASSED BY LD. CIT(A) W AS PERVERSE AND NEEDS TO BE REVERSED. 5. LD. A.R. ON THE OTHER HAND SUBMITTED THAT SHARE APPLICANT WAS LIVING IN ITALY AND IT WAS NOT EASY TO CALL HER FOR PERSON AL DEPOSITION AND LD. CIT(A) AFTER OBTAINING REMAND REPORT FORM A.O., HAS GIVEN RELIEF TO THE ASSESSEE AFTER EXAMINING ALL THE FACTS AND CIRCUMST ANCES OF THE CASE. 6. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND THAT BEFORE LD. CIT(A), FRESH E VIDENCE WAS FILED, SO AS PER THE PROVISION OF RULE 46A, LD. CIT(A) HAD OBTAI NED REMAND REPORT FROM THE A.O. LD. CIT(A) HAS OBSERVED THAT IN THE REMAN D REPORT, THE A.O. HAS NOT REPORTED ANYTHING ADVERSE IN RESPECT OF GENUINE NESS AND CREDITWORTHINESS OF THE CREDITOR. HE HAS PASSED A SPEAKING AND DETA ILED ORDER AFTER OBTAINING REMAND REPORT AND WE ARE IN AGREEMENT WITH HIS FIND ING AND WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A). 7. IN VIEW OF ABOVE, APPEAL FILED BY THE REVENUE IS DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH NOV., 2014. SD./- SD./- (I. C. SUDHIR) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 14 TH NOV., 2014 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). ITA NO.713/DEL/2013 5 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER