M/s. Sarvottam Appliances Pvt. Ltd., Faridabad v. ITO, Faridabad

CO 372/DEL/2010 | 2002-2003
Pronouncement Date: 03-12-2010 | Result: Allowed

Appeal Details

RSA Number 37220123 RSA 2010
Assessee PAN AABCS9106K
Bench Delhi
Appeal Number CO 372/DEL/2010
Duration Of Justice 18 day(s)
Appellant M/s. Sarvottam Appliances Pvt. Ltd., Faridabad
Respondent ITO, Faridabad
Appeal Type Cross Objection
Pronouncement Date 03-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 03-12-2010
Assessment Year 2002-2003
Appeal Filed On 15-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI I.P.BANSAL JM AND SHRI A.K.GARODIA AM ITA NO.1307/DEL/2010 ASSESSMENT YEAR : 2002 - 03 INCOME TAX OFFICER WARD-11(1) FARIDABAD. VS. M/S SARVOTTAM APPLIANCES PVT.LTD. PLOT NO.98 SECTOR-25 FARIDABAD. PAN NO.AABCS9106K. (APPELLANT) (RESPONDENT) CROSS - OBJECTION NO.372/DEL/2010 ASSESSMENT YEAR : 2002 - 03 M/S SARVOTTAM APPLIANCES PVT.LTD. PLOT NO.98 SECTOR-25 FARIDABAD. PAN NO.AABCS9106K. VS. INCOME TAX OFFICER WARD-11(1) FARIDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI PEEYUSH SHANKAR DR. ASSESSEE BY : SHRI A.K.GUPTA ADVOCATE. ORDER PER A.K.GARODIA AM : THIS APPEAL OF THE REVENUE AND CROSS-OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) F ARIDABAD DATED 21.1.2010 FOR THE AY 2002-03. FOR THE SAKE OF CONV ENIENCE BOTH ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. THE CROSS-OBJECTION FILED BY THE ASSESSEE WAS LA TE BY 96 DAYS. LEARNED AR OF THE ASSESSEE HAS SUBMITTED AN APPLICA TION FOR CONDONATION OF DELAY IN FILING THE CROSS-OBJECTION. IT HAS BEEN SUBMITTED IN THIS APPLICATION OF THE ASSESSEE THAT THE CROSS-OBJECTION WAS PREPARED IN TIME BUT BECAUSE DURING THOSE DAYS THE OFFICE OF LEARNED AR OF THE ASSESSEE WAS BUSY IN FINALIZATION WORK OF THE COMPANY AUDITS AND TAX AUDITS THE STAFF OF THE LEA RNED AR OF THE ITA-1307/D/2010 & CO-372/D/2010 2 ASSESSEE FORGOT TO FILE THE CROSS-OBJECTION AND HEN CE THE DELAY IN FILING THE CROSS-OBJECTION WAS DUE TO MISTAKE IN THE OFFIC E OF THE ATTORNEY OF THE ASSESSEE AND NOT FOR ANY MISTAKE OF THE ASSESSE E AND HENCE THIS SMALL DELAY IN FILING THE CROSS-OBJECTION SHOULD BE CONDONED. 3. LEARNED AR OF THE ASSESSEE REQUESTED FOR CONDONA TION OF DELAY WHEREAS LEARNED DR OF THE REVENUE OBJECTED BUT CONS IDERING THE FACTS OF THE PRESENT CASE WE CONDONE THE DELAY IN FILING THE CROSS-OBJECTION BY THE ASSESSEE. 4. THE GROUNDS RAISED BY THE ASSESSEE IN THE CROSS- OBJECTION ARE AS UNDER:- 1. THE LEARNED CIT(A) ERRED IN NOT DISPOSING OFF G ROUND NO.2 CHALLENGING THE LEGALITY OF PROCEEDINGS U/S 1 47/148 OF THE INCOME TAX ACT 1961. 2. THE PROCEEDINGS U/S 147/148 WERE ILLEGAL. 5. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELE TING THE ADDITION OF RS.9 45 000/- MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF ACCOMMODATION ENTRIES OF RS.9 00 000/- OBTAINED BY THE ASSESSEE IN THE GARB OF SHARE APPLI CATION MONEY FROM TWO ENTRY OPERATORS APART FROM COMMISSIO N @ 5% AMOUNTING TO RS.45 000/- FOR OBTAINING THE SAID ACCOMMODATION ENTRIES BY MERELY RELYING ON THE SUBMISSIONS OF THE ASSESSEE AND EVEN NOT SUPPORTED BY REASONS AND WITHOUT CONTROVERTED THE OBSERVATIONS O F THE ASSESSING OFFICER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD.CIT(A) HAS ERRED ON FACTS AND IN LAW IN DELE TING THE ADDITION OF RS.9 45 000/- MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF ACCOMMODATION ENTRIES AND COMMISSION THEREON WITHOUT APPRECIATING THE FACT THAT THE ASSE SSEE HAD FAILED TO PROVE THE GENUINENESS OF TRANSACTIONS OF ITA-1307/D/2010 & CO-372/D/2010 3 CREDIT OF RS.9 00 000/- AS THE ONUS WAS UPON THE AS SESSEE WHICH IT FAILED TO DISCHARGE. 6. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESS EE THAT GROUND WAS RAISED BY THE ASSESSEE BEFORE LEARNED CIT(A) WI TH REGARD TO VALIDITY OF THE REASSESSMENT PROCEEDINGS BUT THIS G ROUND WAS NOT DECIDED BY THE CIT(A). OUR ATTENTION WAS DRAWN TO PARA 5 OF THE ORDER OF CIT(A) WHEREIN IT HAS BEEN STATED BY HIM THAT WI THOUT ADJUDICATING ON THE TECHNICAL OR LEGAL ASPECTS AS ARGUED BY THE LEARNED AR HE PROCEEDED TO DECIDE THE CASE ON MERITS AS PER GROUN D NO.3. IT WAS SUBMITTED THAT SINCE THE TECHNICAL ASPECT WAS NOT D ECIDED BY THE CIT(A) THE MATTER SHOULD GO BACK TO THE FILE OF TH E CIT(A) FOR DECIDING THIS TECHNICAL ASPECT. LEARNED DR OF THE REVENUE S UBMITTED THAT THE ENTIRE MATTER MAY BE RESTORED BACK TO THE FILE OF T HE CIT(A) FOR FRESH DECISION BECAUSE AS PER THE STATEMENT OF SHRI DEEPA K GUPTA APPEARING ON PAGES 21 TO 25 OF THE PAPER BOOK THE NAMES OF B OTH THE COMPANIES I.E. M/S AMBA ALLOYS PVT.LTD. AND M/S ENPOL PVT.LTD . ARE STATED BY HIM AS HIS BANK ACCOUNTS AND THIS FACT HAS NOT BEEN CON SIDERED BY THE LEARNED CIT(A) WHILE DECIDING THE ISSUE IN THE PRES ENT CASE AT PARA 6 OF HIS ORDER. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RELEVANT MATERIAL ON RECORD AND HAVE GONE THROUGH T HE ORDERS OF THE AUTHORITIES BELOW. WE ARE IN AGREEMENT WITH THE LE ARNED AR OF THE ASSESSEE THAT THE ASSESSEE HAS VERY MUCH RAISED HIS OBJECTIONS REGARDING VALIDITY OF THE REASSESSMENT PROCEEDINGS AND THESE OBJECTIONS WERE NOT DECIDED BY THE CIT(A) AND HENCE THIS MATTER HAS TO GO BACK TO THE FILE OF THE CIT(A) FOR FRESH DECI SION ON THIS TECHNICAL ASPECT REGARDING VALIDITY OF REASSESSMENT PROCEEDIN GS. ON MERITS OF THE ADDITION ALSO WE FIND THAT CIT(A) HAS DECIDED THE ISSUE AT PARA 6 OF HIS ORDER WITHOUT DELIBERATING UPON THIS ASPECT THA T THESE TWO BANK ACCOUNTS OF TWO COMPANIES FROM WHOM THE ASSESSEE HA S RECEIVED THE AMOUNT IN QUESTION OF ` 9 LAKHS I.E. M/S AMBA ALLOY S PVT.LTD. AND M/S ITA-1307/D/2010 & CO-372/D/2010 4 ENPOL PVT.LTD. WERE ALSO STATED BY SHRI DEEPAK GUPT A AS HIS BANK ACCOUNTS. LEARNED CIT(A) SHOULD FIRST DECIDE THE T ECHNICAL ASPECT I.E. REGARDING THE VALIDITY OF REASSESSMENT PROCEEDINGS AND IF ON THIS ASPECT IT IS HELD BY HIM THAT THE REASSESSMENT PRO CEEDINGS ARE VALID THEN HE SHOULD DECIDE THE ISSUE ON MERIT AFRESH AND WHILE DOING SO HE SHOULD DELIBERATE UPON THIS ASPECT ALSO THAT THESE BANK ACCOUNTS OF M/S AMBA ALLOYS PVT.LTD. AND M/S ENPOL PVT.LTD. WER E ALSO STATED TO BE THE BANK ACCOUNTS OF SHRI DEEPAK GUPTA IN HIS STATE MENT RECORDED ON OATH ON 25.9.2004 COPY OF WHICH IS AVAILABLE AT PA GES 21 TO 25 OF THE PAPER BOOK. IT HAS ALSO BEEN STATED BY HIM THAT HE RECEIVED CASH WHICH IS DEPOSITED IN THIS BANK ACCOUNTS AND THE CH EQUES ARE ISSUED AND HE GETS COMMISSION OF 0.25% TO 0.50% ON THIS AC COUNT AND THERE IS NO ACTUAL BUSINESS IN THESE COMPANIES. THIS ASP ECT SHALL ALSO BE CONSIDERED WHILE DECIDING THE ISSUE ON MERITS. IF REQUIRED THE ASSESSEE MAY BE ALLOWED AN OPPORTUNITY TO CROSS-EXA MINE SHRI DEEPAK GUPTA AND THEREAFTER THE ISSUE SHOULD BE DECIDED A FRESH BY THE LEARNED CIT(A). NEEDLESS TO SAY HE SHOULD ALLOW R EASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 8. IN THE RESULT THE CROSS-OBJECTION OF THE ASSESS EE AND THE APPEAL OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES . DECISION PRONOUNCED IN THE OPEN COURT ON 3 RD DECEMBER 2010. SD/- SD/- (I.P.BANSAL) (A.K.GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 03.12.2010. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ITA-1307/D/2010 & CO-372/D/2010 5 ASSISTANT REGISTRAR