Deputy Commissioner of Income Tax, Circle- 3, Guwahati V. M/s. Satyam Ispat (North East) Limited, Banderdewa

ITA 85/GTY/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0519 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP SENGUPTA
• Assessee Lawyers: SHRI; RAMESH GOENKA
• Section: 133(6); 132; 15

Judgement Text

ITA NO.85/GAU/2017 M/S SATYAM ISPAT (NE)LTD. AP 1 IN THE INCOME TAX APPELLATE TRIBUNAL, GUWAHATI BENC H GUWAHATI [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SHRI A.T.VA RKEY, JM ] ITA NO.85/GAU/2017 ASSESSMENT YEAR : 2009-10 D.C.I.T., CIRCLE-3, -VERSUS- M/S SATYAM ISP AT (NE) LTD. GUWAHATI ARUNACHAL PRADESH (PAN: AAICS9640K) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI SANDEEP SENGUPTA, JCIT FOR THE RESPONDENT: SHRI RAMESH GOENKA, SR. ADVOCAT E & SHRI AMIT GOENK A,ADVOCATE DATE OF HEARING : 17.08.2018. DATE OF PRONOUNCEMENT : 17.08.2018. ORDER PER A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER-2, GUWAHATI DATED 23.02.2017 FOR A.Y.2009-10. 2. THE ONLY GRIEVANCE OF THE REVENUE IS AGAINST TH E ACTION OF THE LD CIT(A) IN DELETING THE ADDITION OF RS.65,00,000/-, WHICH WAS MADE BY THE ASSESSING OFFICER IN RESPECT OF THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE. 3. THE BRIEF FACTS OF THE CASE IS THAT A SEARCH AN D SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 (THE ACT ) WAS CONDUCTED I N THE CASE OF SATYAM GROUP OF INDUSTRIES/RATAN SHARMA GROUP OF CASES ON 06.12.201 2 AND SUBSEQUENT DATES. DURING THE COURSE OF SEARCH IN THE GROUP, THE RESIDENCE OF SHRI PUROSHOTTAM MURARKA, SON OF MADAN GOPAL MURARKA OF 5A, PARK VIEW, NILOMANI PHUK AN PATH, CHRIATIAN BASTI, GUWAHATI WAS COVERED U/S 132 OF THE ACT WHO HAPPENS TO BE ONE OF PARTY TO THE SAID GROUP. FROM HIS RESIDENCE CERTAIN EVIDENCE REGARDI NG UNDISCLOSED CASH TRANSACTIONS IN THE NAME OF THE PRESENT ASSESSEE (SATYAM ISPAT NORT H EAST LTD.) CAME INTO LIGHT WITH ITA NO.85/GAU/2017 M/S SATYAM ISPAT (NE)LTD. AP 2 AN UNEARTHED E-MAIL COMMUNICATIONS DURING THE COURS E OF SEARCH OPERATIONS AND ACCORDINGLY THE ASSESSEE HAS BEEN COVERED U/S 153C OF THE ACT. 4. IT IS NOTED THAT IN THE ORIGINAL RETURN OF INCOM E FILED BY THE ASSESSEE U//S 139 WAS ON 30.09.2009 SHOWING TOTAL INCOME OF RS.44,72, 227/- AND LOSS OF RS.1,88,72,330/- THEREBY EVIDENT LOSS CARRIED FORWA RD TO RS.1,44,00,103/-. THEREAFTER THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY. THE AO NOTES THAT THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE SO THE AO IS SUED ON 11.02.2015 TO SHOW CAUSE AS TO WHY ASSESSMENT SHOULD NOT BE COMPLETED U/S 15 3C/144 OF THE ACT. THEREAFTER THE ASSESSEE PRESENTED ITSELF THROUGH ITS AUTHORISED RE PRESENTATIVE BEFORE THE AO AND THE ASSESSMENT WAS FRAMED AGAINST THE ASSESSEE COMPANY. IN THIS APPEAL, WE ARE ONLY DEALING WITH THE ADDITION MADE BY AO OF RS.65 LAKHS AGAINST THE ASSESSEE WHICH THE AO HAS MADE AFTER PERUSAL OF THE BALANCE SHEET. IT WAS NOTICED BY HIM THAT DURING THE YEAR AN AMOUNT OF RS.65 LAKHS HAS BEEN RECEIVED BY THE ASSESSEE AS SHARE APPLICATION MONEY. WHEN THE DETAILS WERE CALLED FOR THE ASSESSE E REPLIED THAT IT HAD RECEIVED SHARE APPLICATION MONEY FROM GARUK DOLO FOR RS.15,00,000/ -, MAYA DOLO FOR RS.25,00,000/- AND JULIE MARY WALLANG FOR RS.25,00, 000/- TOTALLING THE SUM TO RS.65,00,000/-. THE AO ISSUED NOTICE U/S 133(6) TO THOSE PERSONS ON 10.03.2015 AND SINCE NO REPLIES WERE RECEIVED, THE AO PASSED THE A SSESSMENT ON 31.03.2015 MAKING AN ADDITION OF RS.65 LAKHS. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) WHO WAS PLEASED TO DELETE THE SAME. AGGRIEVE D BY THE DECISION OF THE LD. CIT(A) THE REVENUE IS BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE NOTE THAT THE ASSESSEE HAD DISCLOSED IN ITS BALANCE SHEET AN AMOU NT OF RS.65 LAKHS AS SHARE APPLICATION MONEY FROM THREE PARTIES NAMED IN THE F ACTS OF THE CASE (SUPRA). SINCE THE SHARE SUBSCRIBERS HAD NOT RESPONDED TO HIS NOTICE U /S 133(6) OF THE ACT DATED 10.03.2015 THE AO MADE AN ADDITION OF RS65 LAKHS WI THIN 20 DATES OF SENDING THE NOTICE. THE MAIN CONTENTIONS OF THE ASSESSEE BEFORE THE LD. CIT(A) WAS THAT THE ASSESSEE HAD MADE DISCLOSURE OF RS.65 LAKHS IN THE RETURN OF INCOME FILED U/S 153C OF THE ACT FROM OTHER INCOME . THE LD. SENIOR COUNS EL APPEARING FOR THE ASSESSEE DREW ITA NO.85/GAU/2017 M/S SATYAM ISPAT (NE)LTD. AP 3 OUR ATTENTION TO PARA 8.3 OF THE ASSESSMENT ORDER W HEREIN THE AO HAS RECORDED HIS SATISFACTION IN RESPECT TO THE DISCLOSURE OF RS.65 LAKHS. THE AO NOTES THAT THEREFORE THE DISCLOSURE FOR THE PARTICULAR A.Y.2009-10 IS CO NSIDERED TO BE PROPER . WE NOTE THAT THE AO HAS TAKEN NOTE OF THE ASSESEES DISCLOS URE OF RS.65 LAKHS AS OTHER INCOME AND HAS CONSIDERED THAT THE DISCLOSURE TO B E PROPER. WE NOTE THAT THE LD. CIT(A) HAS MADE A CATEGORICAL FINDING THAT THE DISC LOSURE OF ASSESSEE WAS MADE ON ACCOUNT OF SHARE APPLICATION MONEY IN PARA 13.3 OF THE IMPUGNED ORDER WHICH FACT HAS NOT BEEN ASSAILED BY THE REVENUE AS A QUESTION OF F ACT IN THE GROUNDS RAISED BEFORE US. THEREFORE THIS FINDING OF THE LD. CIT(A) GET CRYSTA LLISED. MOREOVER OUR ATTENTION WAS DRAWN TO THE STATEMENT OF FACTS FILED ALONG WITH TH E GROUNDS OF APPEAL BEFORE US BY THE AO I.E. DCIT, CIRCLE-3, GUWAHATI WHEREIN THE AO IN HIS OWN WORDS STATED THE ABOVE DECISION OF THE LD. CIT(A) APPEARS PRIMA FACIE TO B E ACCEPTABLE. HOWEVER THE ISSUE OF TELESCOPING WAS NOT RAISED BY THE ASSESSEE DURING T HE COURSE OF ASSESSMENT AND HENCE THE AO HAD NOT RIGHTLY GIVEN BENEFIT TO THE ASSESSE E . SO WE NOTE THAT THE AO HAS PRIMA FACIE ACCEPTED THE DECISION OF THE LD. CIT(A ). HOWEVER HIS GRIEVANCE IS THAT THE ASSESSEE HAS NOT RAISED BEFORE THE AO DURING THE AS SESSMENT PROCEEDINGS ABOUT TELESCOPING OF THE AMOUNT I.E. RS.65 LAKHS (WHICH T HE ASSESSEE HAS MADE DISCLOSURE OF AN AMOUNT OF RS.65 LAKHS). WE NOTE THAT THE LD. CIT (A) WHO ENJOYS CO-TERMINUS POWERS AS THAT OF THE AO HAS FOUND THAT THE ASSESSE E HAS MADE A DISCLOSURE OF RS.65 LAKHS AS SHARE APPLICATION MONEY RECEIVED DURING TH E YEAR AND WHICH FACT HAS BEEN ACCEPTED BY THE AO, SO ANY ADDITION MADE WILL AMOUN T TO DOUBLE ADDITION. BE THE CASE AS IT MAY BE, SINCE THE AO HAS ACCEPTED RS.65 LAKHS WHICH THE ASSESSEE MADE IN THE DISCLOSURE MADE ALONG WITH THE RETURN, THE LD. CIT( A) GIVING THE BENEFIT OF TELESCOPING AND DELETED THE ADDITION OF RS.65 LAKH S IS A JUST AND PROPER ACTION. SO WE DO NOT FIND ANY JUSTIFYING REASON TO INTERFERE IN T HE REASONED ORDER PASSED BY THE LD. CIT(A). THEREFORE THE REVENUES APPEAL IS DISMISSED . ITA NO.85/GAU/2017 M/S SATYAM ISPAT (NE)LTD. AP 4 6. IN THE RESULT THE REVENUES APPEAL IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 17 TH AUGUST, 2018. SD/- SD/- [P.M.JAGTAP] [ A.T.VARKEY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17.08.2018. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S SATYAM ISPAT (NORTH EAST) LIMITED, NH-52, BAN DERDEWA, DIS. PAPUMPARE, ARUNACHAL PRADESH-791123. 2. DCIT, CIRCLE-3, GUWAHATI. 3. C.I.T.(A)-2, GUWAHATI 4. C.I.T-2, GUWAHATI 5. CIT(DR), GUWAHATI BENCH, GUWAHATI TRUE COPY BY ORDER, SENIOR PRIVATE SECRETARY ITAT GUWAHATI BENCH, GUWAHATI