The ITO, Ward-5(3), Ahmedabad V. Robinson Impex (I) Pvt.Ltd., Ahmedabad

ITA 811/AHD/2006

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57001 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2012
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 03-04-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K SRIVASTAVA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Opportunity of being heard; Principle of natural justice; Opportunity of cross examination; Block assessment
• Section: 43B; 133(6); 131; 68

Judgement Text

ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, A HMEDABAD (BEFORE SHRI G.C. GUPTA,VICE PRESIDENT AND SHRI B. R. BASKARAN,AM) I.T.A. NO. 81 1/AHD/2006 (ASSESSMENT YEAR: 2002-2003) INCOME TAX OFFICER, WARD 5(3), 2 ND FLOOR, C.U.SHAH COLLEGE BUILDING,ASHRAM ROAD, AHMEDABAD. (APPELLANT) VS. ROBINSON IMPEX (INDIA) LTD., 403, SANJAY TOWER, OPP.C.N.VIDYALAYA, AMBAWADI, AHMEDABAD. (RESPONDENT) C.O. NO.138/AHD/2006 (ARISING OUT OF I.T.A . NO. 811/AHD/2006) (ASSESSMENT YEAR: 2002-2003) ROBINSON IMPEX (INDIA) LTD., 403, SANJAY TOWER, OPP.C.N.VIDYALAYA, AMBAWADI, AHMEDABAD. (APPELLANT) VS. INCOME TAX OFFICER, WARD 5(3), 2 ND FLOOR, C.U.SHAH COLLEGE BUILDING,ASHRAM ROAD, AHMEDABAD. (RESPONDENT) ON BEHALF OF THE REVENUE. MR. P.K. SRIVASTAVA, SR. D.R. ON BEHALF OF THE ASSESSEE. MR. S.N.SOPARKAR, SR.AD VOCATE. ( )/ ORDER DATE OF HEARING : 16-1-2012 DATE OF PRONOUNCEMENT : 19-1-2012 PER: SHRI B.R. BASKARAN, A.M. THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 24.01.2006 PASSED BY LD CIT (A)-XI, AHMEDABAD AND THEY RELATE TO THE ASSESSMENT YEAR 2002-03. ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 2 2. IN THE APPEAL OF THE REVENUE, FOLLOWING T HREE ISSUES ARE CONTESTED. (A) DELETION OF RS.69,75,846/- RELATING TO COMMIS SION EXPENSES. (B) DELETION OF RS.51,36,721/- RELATING TO FINAN CE CHARGES. (C) DELETION OF RS.36,60,925/- RELATING TO CALL M ONEY RECEIPTS. 3. THE FACTS OF THE CASE ARE STATED IN BRIEF. THE ASSESSEE IS ENGAGED IN VARIOUS BUSINESS ACTIVITIES LIKE (A) MANAGING HEALTH CARE B USINESS, (B) EXPORTS, (C) TRADING AND (D) BINARY MARKETING. IT FILED ITS RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION DECLARING A LOSS OF RS.27,64,190/-. T HE SAID RETURN OF INCOME WAS TAKEN UP FOR SCRUTINY AND THE ASSESSING OFFICER MAD E VARIOUS ADDITIONS. IN THE APPEAL FILED BEFORE THE LD CIT (A), THE FIRST APPEL LATE AUTHORITY DELETED THE ADDITIONS STATED IN PARA 2 SUPRA. HENCE THE REVENU E IS IN APPEAL BEFORE US ASSAILING THE DECISION OF LD CIT (A) IN GRANTING THE RELIEF S TATED ABOVE. 4. THE FIRST ISSUE RELATES TO THE DELETION OF R S.69,75,846/- RELATING TO COMMISSION EXPENSES. THE ASSESSEE CLAIMED A SUM OF RS.84,47,84 5/- AS DEDUCTION TOWARDS COMMISSION PAYMENTS, OUT OF WHICH A SUM OF RS.79,46 ,846/- WAS CLAIMED TO HAVE BEEN PAID TO SHRI SANDEEP MEHTA, PROPRIETOR OF M/S SAFAL INC., MUMBAI. WHEN ENQUIRED ABOUT THIS PAYMENT, THE ASSESSEE FILED COP IES OF AGREEMENT ENTERED BETWEEN IT AND M/S SANDEEP MEHTA AND ALSO COPIES OF LEDGER ACCOUNTS. ACCORDING TO THE ASSESSEE, IT HAS PAID COMMISSION TO SHRI SAN DEEP MEHTA IN THE FORM OF COMMISSION AS WELL AS REIMBURSEMENT OF EXPENSES. A CCORDINGLY, THE ASSESSEE STATED THAT IT COULD NOT PRODUCE VOUCHERS OR BILLS RELATING TO THE EXPENSES INCURRED ON BEHALF OF SHRI SANDEEP MEHTA. THE ASSESSING OFF ICER CALLED FOR DETAILS OF SAID COMMISSION FROM SHRI SANDEEP MEHTA U/S 133(6) OF TH E ACT, TO WHICH HE REPLIED THAT HE HAS RECEIVED ONLY A SUM OF RS.9,71,000/- FR OM THE ASSESSEE COMPANY. THE ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 3 AO ALSO RECORDED A STATEMENT U/S 131 OF THE ACT FRO M SHRI SANDEEP MEHTA AND IN THE SAID STATEMENT ALSO HE AVERRED THAT HE HAS RECE IVED ONLY RS.9,71,000/- FROM THE ASSESSEE COMPANY. THE ASSESSING OFFICER HAS EXTRAC TED RELEVANT PORTIONS OF THE STATEMENT RECORDED IN THE ASSESSMENT ORDER. SHRI S ANDEEP MEHTA ALSO DENIED THAT THE ASSESSEE COMPANY HAS INCURRED ANY EXPENSE ON HI S BEHALF AND ALSO FURNISHED A COPY OF LEDGER ACCOUNT OF THE ASSESSEE COMPANY AS A VAILABLE IN HIS BOOKS OF ACCOUNT, WHICH DEPICTED RECEIPT OF RS.9,71,000/- ON LY. BY FULLY PLACING RELIANCE ON THE SAID STATEMENT OF SHRI SANDEEP MEHTA, THE AO PR OCEEDED TO DISALLOW THE ALLEGED EXCESS COMMISSION PAYMENT OF RS.69,75,846/- . 5. IT IS VERY PERTINENT TO NOTE THAT THE AO DEN IED THE OPPORTUNITY OF CROSS EXAMINATION OF SHRI SANDEEP MEHTA BY STATING THAT T HE SAID PERSON IS ACTUALLY A WITNESS OF THE ASSESSEE COMPANY. BEFORE THE AO, TH E ASSESSEE STRONGLY STOOD BY ITS BOOKS OF ACCOUNT AND ACCORDINGLY CATEGORIZED THE ST ATEMENT OF SHRI SANDEEP MEHTA AS BLATANT LIES. IN THE APPELLATE PROCEEDING, THE LD CIT (A) FOUND FAULT WITH THE AO IN NOT CONFRONTING THE TERMS OF AGREEMENT WITH S HRI SANDEEP MEHTA AND ALSO IN NOT AFFORDING OPPORTUNITY OF CROSS EXAMINATION TO T HE ASSESSEE. SINCE THE IMPUGNED ADDITION WAS MADE BY PLACING RELIANCE ON T HE STATEMENT OF SHRI SANDEEP MEHTA ONLY, THE CIT (A) DID NOT FIND MERIT IN THE I MPUGNED ADDITION AND ACCORDINGLY DELETED THE SAME. AGGRIEVED, THE REVEN UE IS IN APPEAL BEFORE US. 6. THE LD D.R STRONGLY SUPPORTED THE ORDER OF T HE A.O AND STATED THAT THE ASSESSING OFFICER HAS TAKEN PAINS TO INVESTIGATE IN TO THE ISSUE AND HAS FOUND OUT THAT THE COMMISSION EXPENSES ACCOUNTED BY THE ASSESSEE A RE IN EXCESS. ON THE CONTRARY, THE LD A.R CONTENDED THAT THE IMPUGNED ADDITION COU LD NOT BE MADE AS THE ASSESSEE WAS DENIED OPPORTUNITY OF CROSS EXAMINATIO N. IN THIS REGARD, HE RELIED ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 4 UPON THE DECISION DATED 13.4.2010 PASSED BY HONBLE HIGH COURT OF GUJARAT IN THE CASE OF D.C.I.T VS. MAHENDRA AMBALAL PATEL IN TAX A PPEAL NO.462 OF 1999. 7. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS ISSUE. IT IS VERY IMPORTANT TO NOTE THAT THE AO HAS PLACED FULL RELIANCE ON THE CONFIRM ATION LETTER OF SHRI SANDEEP MEHTA AND ALSO THE STATEMENT TAKEN FROM HIM TO COME TO THE CONCLUSION THAT THE COMMISSION PAID BY THE ASSESSEE TO SHRI SANDEEP MEH TA IS ONLY RS.9,71,000/- AND NOT RS.79,46,846/- AS ACCOUNTED FOR IN THE BOOKS OF THE ASSESSEE COMPANY. IT IS SETTLED POSITION OF LAW THAT AN ASSESSEE COULD NOT BE PUT IN A DISADVANTAGEOUS POSITION ON THE BASIS OF EVIDENCES COLLECTED BEHIND HIS BACK WITHOUT CONFRONTING THE SAME WITH HIM. TO THIS EXTENT, WE DO NOT FIND ANY JUSTIFICATION IN THE ACTION OF THE ASSESSING OFFICER IN NOT AFFORDING THE OPPORTUN ITY OF CROSS EXAMINATION OF SHRI SANDEEP MEHTA TO THE ASSESSEE. 8. THE LD A.R PLACED RELIANCE ON THE DECISION OF HONBLE JURISDICTIONAL GUJARAT HIGH COURT IN THE CASE OF MAHENDRA AMBALAL PATEL, R EFERRED SUPRA, TO CONTEND THAT THE IMPUGNED ADDITION IS LIABLE TO BE DELETED IN TH E ABSENCE OF CROSS EXAMINATION. WE HAVE CAREFULLY CONSIDERED THE SAID DECISION AND NOTICE THAT THE SAID DECISION HAS BEEN RENDERED IN THE CONTEXT OF CHAPTER XIV-B O F THE ACT RELATING TO BLOCK ASSESSMENT. THERE CANNOT BE ANY DISPUTE THAT THE P ROVISIONS OF THE ACT RELATING TO THE BLOCK ASSESSMENT IS A SEPARATE CODE BY ITSELF, WHEREIN THE EVIDENCES FOUND DURING THE COURSE OF SEARCH ARE THE ONLY BASIS FOR MAKING THE BLOCK ASSESSMENT. IN THE ABOVE SAID CASE, THE AO THEREIN MADE THE ADDITI ON IN THE HANDS OF THE ASSESSEE M, ON THE BASIS OF STATEMENTS RECORDED FROM S A ND M.V. HOWEVER, THE TRIBUNAL NOTICED THAT THE OTHER RECORD AVAILABLE WI TH THE DEPARTMENT CLEARLY PROVED THAT THE SAID STATEMENTS ARE NOT CORRECT. SINCE TH E SAID STATEMENTS WERE NOT CORROBORATED WITH ANY OTHER EVIDENCE FOUND DURING T HE COURSE OF SEARCH AND FURTHER ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 5 THE FACTS PREVAILING IN THE RECORD OF THE DEPARTMEN T WERE OTHERWISE, THE TRIBUNAL TOOK THE VIEW THAT THE ADDITION COULD NOT HAVE BEEN MADE ONLY ON THE STRENGTH OF THE STATEMENT ALONE AND ACCORDINGLY THE SAID ADDITI ON WAS DELETED. THE SAID VIEW OF THE TRIBUNAL WAS UPHELD BY THE HONBLE HIGH COUR T. THUS, WE NOTICE THAT THE DECISION IN THE ABOVE SAID CASE HAS BEEN RENDERED I N THE CONTEXT OF CHAPTER XIV-B OF THE ACT ON THE BASIS OF FACTS AND CIRCUMSTANCES PREVAILING IN THAT CASE. ACCORDINGLY, IN OUR VIEW, THE ASSESSEE COULD NOT TA KE SUPPORT OF THE SAID DECISION IN THE REGULAR ASSESSMENT PROCEEDING. 9. TURNING TO THE FACTS OF THE INSTANT CASE, THE C ONTENTION OF THE ASSESSEE IS THAT STATEMENT MADE BY SHRI SANDEEP MEHTA IS TOTALLY AGA INST THE FACTS AND EVIDENCES AVAILABLE WITH IT. FURTHER, IT WAS POINTED OUT THA T THE AO HAS FAILED TO CONFRONT THE AGREEMENT ENTERED BY IT WITH SHRI SANDEEP MEHTA, WHICH IS THE SOLE BASIS FOR INCURRING THE IMPUGNED COMMISSION EXPENSES. THE ASS ESSEE HAS ALSO POINTED OUT THAT THE SAID PERSON HAD STATED IN HIS STATEMENT TH AT HE PROVIDED SERVICE TO THE ASSESSEE ONLY UP TO MAY, 2001. HOWEVER, WE NOTICE THAT THE ASSESSEE HAS PRODUCED CERTAIN VOUCHERS TO PROVE THAT THE SAID SHRI SANDEE P MEHTA WAS PROVIDING SERVICES TO THE ASSESSEE BEYOND THAT DATE ALSO, WHICH FACT W AS NOT PROPERLY APPRECIATED BY THE A.O. FURTHER, THE AO HAS ALSO FAILED TO APPRECI ATE THE CONTENTION OF THE ASSESSEE THAT THE IMPUGNED COMMISSION PAYMENTS CONS ISTED OF TWO COMPONENTS VIZ., THE COMMISSION PAID TO SHRI SANDEEP MEHTA AND THE REIMBURSEMENT OF EXPENSES. IN OUR VIEW, THE AO WAS MORE INFLUENCED BY THE STATEMENT GIVEN BY SHRI SANDEEP MEHTA. THE ACTION OF THE AO IN NOT AFFORDI NG THE OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE IS AGAINST THE PRINCIPL ES OF NATURAL JUSTICE. IN VIEW OF THE ABOVE DISCUSSIONS, WE ARE OF THE VIEW THAT THE IMPUGNED ISSUE REQUIRES RE- CONSIDERATION AT THE END OF THE ASSESSING OFFICER, IN WHICH THE AO SHOULD INVARIABLY PROVIDE OPPORTUNITY OF CROSS EXAMINATION OF SHRI SA NDEEP MEHTA TO THE ASSESSEE. ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 6 ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD CIT ( A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH A DIRECTION TO CONS IDER THE ISSUE BY DULY CONSIDERING THE AGREEMENT, BOOKS OF ACCOUNT, THE NA TURE OF COMMISSION EXPENSES AND OTHER EVIDENCES THAT MAY BE PRODUCED BEFORE HIM BY THE ASSESSEE. MORE IMPORTANTLY, THE AO SHOULD PROVIDE THE OPPORTUNITY OF CROSS EXAMINATION AND ALSO SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 10. THE NEXT ISSUE IN THE APPEAL OF THE REVENUE RELATES TO THE DISALLOWANCE OF RS.51,36,721/- RELATING TO THE FINANCE CHARGES CL AIMED BY THE ASSESSEE. THE FINANCE CHARGES CLAIMED BY THE ASSESSEE RELATED T O INTEREST PAYABLE ON LOANS TAKEN FROM THE FOLLOWING BANKS:- (A) AHMEDABAD PEOPLES CO-OP BANK LTD ACCOUNT NO.5 1 (B) AHMEDABAD PEOPLES CO-OP BANK LTD ACCOUNT NO.5 4 (C) AHMEDABAD PEOPLES CO-OP BANK LTD ACCOUNT NO.1 004 (D) AHEMADABAD PEOPLES CO-OP BANK LTD VEHICLE LOA N (E) PRAGATI CO-OP BANK, AHMEDABAD (F) ANDHRA BANK THE AO NOTICED THAT THE INTEREST PAYABLE ON THE SAI D BANK LOANS WERE SHOWN AS OUTSTANDING AS AT THE YEAR END, TO WHICH THE PROVIS IONS OF SEC.43B ARE ATTRACTED UNLESS THE ASSESSEE MAKES PAYMENT OF THE SAME BEFOR E THE DUE DATE FOR FILING RETURN OF INCOME. ACCORDINGLY, THE AO ISSUED SHOW CAUSE N OTICE TO THE ASSESSEE PROPOSING DISALLOWANCE AS PER THE PROVISIONS OF SEC .43B OF THE ACT. HOWEVER, THE ASSESSEE SOUGHT TIME TO FURNISH ITS REPLY, BUT ULTI MATELY DID NOT FILE REPLY BEFORE FINALIZING THE ASSESSMENT ORDER. SINCE THE ASSESSE E FAILED TO FURNISH ITS REPLY, THE AO DISALLOWED THE SUM OF RS.51,36,721/- STATED ABOV E U/S 43B OF THE ACT. 11. BEFORE LD CIT (A), IT WAS SUBMITTED THAT TH E INTEREST PAYABLE TO ANDHRA BANK WAS PAID BEFORE THE DUE DATE FOR FILING THE RE TURN OF INCOME. IN RESPECT OF THE INTEREST PAYABLE TO THE CO-OPERATIVE BANKS CITED AB OVE, IT WAS SUBMITTED THAT THEY ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 7 DO NOT FALL IN THE CATEGORY OF SCHEDULED BANK AS DEFINED IN SEC.11(5)(III) OF THE ACT AND HENCE THE PROVISIONS OF SEC.43B OF THE ACT SHALL NOT APPLY TO THE SAID INTEREST CLAIM. ACCEPTING THE CONTENTIONS OF THE A SSESSEE, THE LD CIT (A) DELETED THE IMPUGNED ADDITION. AGGRIEVED, THE REVENUE IS I N APPEAL BEFORE US. 12. BEFORE US, THE ASSESSEE DID NOT FILE ANY EV IDENCE TO SHOW THAT THE ABOVE CITED CO-OPERATIVE BANKS WOULD NOT FALL IN THE CATEGORY O F SCHEDULED BANK AS DEFINED IN SEC. 11(5)(III) OF THE ACT, MORE PARTICULARLY THE C OPY OF SECOND SCHEDULE TO THE RESERVE BANK INDIA ACT, 1934. THE LD D.R ALSO SUBM ITTED THAT THE SAID CLAIM OF THE ASSESSEE NEEDS VERIFICATION. WE ALSO NOTICE TH AT THE CLAIM OF PAYMENT OF INTEREST PAYABLE TO THE ANDHRA BANK BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME HAS BEEN ACCEPTED BY THE LD CIT (A) WITHOUT CONFRONTING THE SAME WITH THE AO. THE LD A.R SUBMITTED THAT HE COULD FURNISH THE COPY OF SECOND SCHEDULE TO THE RESERVE BANK OF INDIA ACT EXISTED AT THE REL EVANT POINT OF TIME. EVEN IF THE RELEVANT SCHEDULE IS SUBMITTED BEFORE US, THE SAME IS REQUIRED TO BE EXAMINED AT THE END OF THE AO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD CIT (A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE AO WITH A D IRECTION TO VERIFY THE CLAIM OF THE ASSESSEE IN THIS REGARD AND TAKE APPROPRIATE DECISI ON IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO FILE NECESSARY DOCUMEN TS TO SUPPORT ITS CONTENTIONS. 13. THE NEXT ISSUE IN THE APPEAL OF THE REVENUE RELATES TO THE ADDITION MADE U/S 68 OF THE ACT IN RESPECT OF SHARE APPLICATION MONEY . DURING THE YEAR UNDER CONSIDERATION THE SHARE CAPITAL OF THE COMPANY GOT INCREASED BY RS.36,60,925/- ON RECEIPT OF SHARE APPLICATION MONEY/FRESH ALLOTMENT OF SHARES. THE AO CALLED FOR DETAILS OF THE SHARE HOLDERS WHO HAVE MADE FRESH CO NTRIBUTIONS IN CERTAIN FORMAT. HOWEVER, THE ASSESSEE SUPPLIED THOSE DETAILS WHICH WERE AVAILABLE WITH IT AND IN PARTICULAR, IT COULD NOT FURNISH THE PERMANENT ACCO UNT NUMBER OF SHARE HOLDERS ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 8 WHOSE CONTRIBUTION WAS MORE THAN RS.50,000/-. THE AO ISSUED NOTICES TO THOSE SHARE HOLDERS, NUMBERING 13, CALLING FOR DETAILS. HOWEVER, SIX SHARE HOLDERS DID NOT RESPOND AND THE LETTERS ISSUED TO OTHER SHARE H OLDERS WERE RETURNED WITH REMARKS INCOMPLETE ADDRESS OR LEFT. HENCE THE AO ADDED THE ABOVE SAID SUM OF RS.36,60,925/- TO THE TOTAL INCOME OF THE ASSESS EE U/S 68 OF THE ACT. THE LD CIT (A) DELETED THE SAID ADDITION BY PLACING RELIANCE O N THE FOLLOWING DECISIONS:- (A) INTERLINK PETROLEUM LTD VS. DCIT (2004)(83 TTJ 274 (AHD). (B) CIT VS. STELLER INVESTMENT LTD (2000) (DELHI) (C) CIT VS. SOPHIA FINANCE CO. (205 ITR 98). AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 14. THE LD D.R SUBMITTED THAT THE ASSESSEE HAS FAI LED TO DISCHARGE THE BURDEN PLACED UPON IT U/S 68 OF THE ACT, I.E. IT HAS FAILE D TO PROVE THE IDENTITY AND CREDIT WORTHINESS OF THE CREDITORS AND ALSO THE GENUINENES S OF THE TRANSACTIONS. FURTHER THE NOTICES ISSUED TO THE SHARE HOLDERS WERE EITHER NOT RESPONDED OR RETURNED UNSERVED. ACCORDINGLY, HE SUBMITTED THAT THE IMPUG NED AMOUNT OF RS.36.60 LAKHS IS LIABLE TO BE ADDED U/S 68 OF THE ACT. ON THE OT HER HAND, THE LD A.R SUBMITTED THAT THE ASSESSEE HAS FURNISHED TO THE AO ALL THE D ETAILS THAT WERE AVAILABLE WITH IT. SINCE IT IS A SHARE APPLICATION MONEY RECEIVED FROM THE PUBLIC AND THE ASSESSEE IS PUBLIC LIMITED COMPANY, IT COULD NOT HAVE CONTROL O VER THE SHARE HOLDERS. ACCORDINGLY, THE LD A.R SUBMITTED THAT THE ASSESSEE COULD NOT BE PENALIZED FOR NON-COMPLIANCE OF THE NOTICES BY THE CONCERNED SHAR E HOLDERS. IN THIS REGARD, HE RELIED UPON THE DECISION DATED 06-08-2010 RENDERED BY THIS BENCH OF TRIBUNAL IN THE CASE OF BELGIUM GLASS CERAMICS (P) LTD IN ITA N O.552/AHD/2008, WHEREIN THE TRIBUNAL HAS TAKEN THE DECISION IN FAVOUR OF THE AS SESSEE UNDER IDENTICAL FACTS BY DULY CONSIDERING THE DECISIONS RENDERED BY VARIOUS COURTS AND TRIBUNAL, INCLUDING THE ORDER OF HONBLE SUPREME COURT IN THE CASE OF L OVELY EXPORTS (P) LTD. ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 9 15. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS ISSUE. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE IMPUGNED AMOUNT OF RS.3 6.60 LAKHS PERTAINS TO SHARE APPLICATION MONEY AND THE ASSESSEE HAS FURNISHED TH E NAMES AND ADDRESSES OF THE SHARE HOLDERS ALONG WITH OTHER DETAILS THAT WERE AV AILABLE WITH IT. HENCE THE DECISION RENDERED IN THE CASE OF BELGIUM GLASS CERA MICS (P) LTD BY DULY CONSIDERING THE VARIOUS DECISIONS INCLUDING THE DEC ISION OF HONBLE DELHI HIGH COURT IN THE CASE OF M/S DIVINE LEASING & FINANCE L TD (299 ITR 268) AND THE ORDER OF HONBLE APEX COURT IN THE CASE OF M/S LOVELY EXP ORTS (P) LTD SQUARELY COVERS THE ISSUE UNDER CONSIDERATION. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD CIT (A) ON THIS ISSUE. 16. THE LD A.R DID NOT PRESS THE CROSS OBJECTIO N FILED BY THE ASSESSEE AND HENCE THE GROUNDS RAISED IN THE CROSS OBJECTION ARE DISMI SSED AS NOT PRESSED. 17. IN THE RESULT, THE APPEAL OF THE REVENUE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 19- 1 - 2012. SD/- SD/- (G. C. GUPTA) (B.R. BASKARAN) VICE PRESIDENT ACCOUNTANT MEMBE R AHMEDABAD. S.A.PATKI. ITA NO.811/A HD/2006 WITH C.O.NO.138/A HD/2006 A.Y.2002-03. 10 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 17 - 1 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 17 / 1 / 2012 MEMBER.OTHER MEMBER . 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..