Acme Immigration Consultancy Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 967/DEL/2011

• Counselvise Citation: 96720114 RSA 2011
• Duration Of Justice: 2 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 18-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Bogus Share capital; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.967/DEL/2011 967/DEL/2011 967/DEL/2011 967/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2007 2007 2007 2007- -- -08 0808 08 M/S ACME IMMIGRATION M/S ACME IMMIGRATION M/S ACME IMMIGRATION M/S ACME IMMIGRATION CONSULTANCY PVT.LTD., CONSULTANCY PVT.LTD., CONSULTANCY PVT.LTD., CONSULTANCY PVT.LTD., 13 1313 13- -- -NFS, NFS, NFS, NFS, VISHAL ENCL VISHAL ENCL VISHAL ENCL VISHAL ENCLAVE, AVE, AVE, AVE, DELHI. DELHI. DELHI. DELHI. PAN : AAECA1976A. PAN : AAECA1976A. PAN : AAECA1976A. PAN : AAECA1976A. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1(2), 1(2), 1(2), 1(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN, FCA. RESPONDENT BY : MS.Y.KAKKAR, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-IV, NEW DELHI DATED 10 TH DECEMBER, 2010 FOR THE AY 2007-08. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS. HOWEVER, THEY ARE ALL AGAINST THE ADDITION OF ` 79,30,000/- MADE BY THE ASSESSING OFFICER FOR UNEXPLAINED SHARE CAPITAL. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE ASSESSING OFFICER MADE THE ADDITION OF ENTIRE SHARE CAPITAL OF ` 79,30,000/- WHILE THE FRESH SHARE APPLICATION MONEY R AISED ITA-967/DEL/2011 2 DURING THE YEAR UNDER CONSIDERATION WAS ONLY ` 14,00,000/- AND THE SUM OF ` 65,30,000/- WAS THE OPENING BALANCE. HE STATED THAT THE ABOVE FACT CLEARLY PROVES THAT THE ASSESSING OFFICER MADE THE ADDITION WITHOUT APPLICATION OF MIND. HE ALSO STATED THAT ADE QUATE OPPORTUNITY OF BEING HEARD WAS NOT ALLOWED TO THE ASSESSEE. THEREFO RE, IT WAS REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION ON THIS ISSUE. 4. LEARNED DR OBJECTED TO SETTING ASIDE OF THE MATTER TO THE FILE OF THE ASSESSING OFFICER ON THE GROUND THAT ADEQUATE OPPOR TUNITY OF BEING HEARD WAS ALLOWED. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERI AL PLACED BEFORE US. THE ADDITION UNDER SECTION 68 FOR UNEXPL AINED CASH CREDIT CAN BE MADE ONLY FOR THE CREDIT IN THE ASSESSEES BOOKS O F ACCOUNT DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT Y EAR UNDER CONSIDERATION. THERE CANNOT BE ANY ADDITION FOR OPE NING CAPITAL. FROM THE BALANCE SHEET OF THE ASSESSEE, COPY OF WHICH IS PLACE D BEFORE US, IT IS EVIDENT THAT THE SHARE APPLICATION MONEY AS ON 31 ST MARCH, 2006 WAS ` 65,30,000/- WHILE THE SHARE APPLICATION MONEY AS ON 3 1 ST MARCH, 2007 WAS ` 79,30,000/-. THUS, OBVIOUSLY, DURING THE PERIOD 1 ST APRIL, 2006 TO 31 ST MARCH, 2007, WHICH IS THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, ONLY THE SUM OF ` 14,00,000/- WAS RECEIVED BY THE ASSESSEE. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMEN T WITHOUT PROPER APPLICATION OF MIND. WE, THEREFORE, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION IN ACCORDANCE WITH LAW. SINCE WE ARE SETTING ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER, W E DEEM IT PROPER ITA-967/DEL/2011 3 TO DIRECT HIM TO ALLOW FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER, HE WILL READJUDICATE THE ISSUE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2013. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 06.09.2013 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S ACME IMMIGRATION CONSULTANCY PVT. LTD., M/S ACME IMMIGRATION CONSULTANCY PVT.LTD., M/S ACME IMMIGRATION CONSULTANCY PVT.LTD., M/S ACME IMMIGRATION CONSULTANCY PVT.LTD., 13 1313 13- -- -NFS, VISHAL ENCLAVE, DELHI. NFS, VISHAL ENCLAVE, DELHI. NFS, VISHAL ENCLAVE, DELHI. NFS, VISHAL ENCLAVE, DELHI. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -1(2), NEW DE 1(2), NEW DE 1(2), NEW DE 1(2), NEW DELHI. LHI. LHI. LHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR