M/s. B.S. Colonizers & Developers Pvt. Ltd., Meerut v. ACIT, Meerut

ITA 2468/DEL/2010 | 2005-2006
Pronouncement Date: 07-01-2011 | Result: Allowed

Appeal Details

RSA Number 246820114 RSA 2010
Bench Delhi
Appeal Number ITA 2468/DEL/2010
Duration Of Justice 7 month(s) 13 day(s)
Appellant M/s. B.S. Colonizers & Developers Pvt. Ltd., Meerut
Respondent ACIT, Meerut
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 07-01-2011
Date Of Final Hearing 23-12-2010
Next Hearing Date 23-12-2010
Assessment Year 2005-2006
Appeal Filed On 24-05-2010
Judgment Text
I.T.A. NO.2468 /DEL/10 1/5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO. 2468/DEL/2010 ASSESSMENT YEAR : 2005-06 B.S. COLONIZERS & DEVELOPERS ACIT PVT. LTD. 357/1 BYPASS CIRCLE-1 MODIPURAM ROORKEE ROAD MEERUT. MEERUT. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AACCB AACCB AACCB AACCB- -- -4930 4930 4930 4930- -- -H HH H APPELLANT BY : SHRI V.K. GOEL ADVOCATE. RESPONDENT BY : MRS. PRATIMA KAUSHIK SR. DR. ORDER PER A.K. GARODIA AM: THIS IS AN ASSESSEE'S APPEAL FILED AGAINST THE ORDER OF LD CIT(A) MEERUT DATED 29.3.2010 FOR ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. THAT THE ASSESSEE FURNISHED IDENTITY OF THE SHARE APPLICA NT OF `.27 30 000/- AND IT IS ADMITTED BY THE ACIT CIRCLE -1 HENCE ADDITION MADE BY THE ACIT CIRCLE-1 OF `.27 30 000/ - U/S 68 OF THE INCOME TAX ACT 1961 IS ARBITRARY UNJUST AND AGAINST THE PRINCIPLE OF LAW AND CIT(A) HAS NOT JUSTIFIED IN CONF IRMING THE ADDITION IGNORING CASE LAW QUOTED BY THE ASSESSEE. . I.T.A. NO.2468/DEL/10 2/5 2. THAT THE ASSESSEES CASE FULLY COVERED WITH THE FOLLOWING JUDGMENTS: 1. CIT V. LOVELY EXPORTS (P) LTD. 299 ITR 268 (CAL.) IN WHICH SLP FILED BY THE DEPARTMENT BEFORE SUPREME COURT IS DISMISSED 319 ITR ST. 5. 2. CIT V. SOPHIA FINANCE LTD. 205 ITR 98 (DELHI FULL B ENCH). 3. CIT V. SETTLER INVESTMENT LTD. 251 ITR 263. HENCE LD CIT(A) IS IN ERROR IN MAKING ADDITION AND LD CIT(A) IS WRONGLY CONFIRM THE SAME. THEREFORE THE ORDER OF ASSE SSING OFFICER AS WELL CIT(A) IS BAD IN LAW. 3. THAT DISALLOWANCE OF ` 2M18 354/- AS DEVELOPMENT PAST IS ARBITRARY UNJUST AND AGAINST THE FACTS OF THE CASE AN D LD CIT(A) IS IN ERROR IN HOLDING THAT THE ABOVE ADDITION DOES NOT FORM A PART APPEAL IS AGAINST THE FACTS THE ABOVE ADDITION IS CHAL LENGE IN GROUND NO.1 3 & 5 OF THE GROUNDS OF APPEAL. 4. THAT THE ASSESSEE HAS RIGHT TO ADD/DELETE OR MODIFY ANY GROUNDS OF APPEAL DURING THE APPEAL PROCEEDINGS. 3. IT IS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT GRO UND NO.1 & 2 ARE INTER-CONNECTED AND THE GRIEVANCE OF THE ASSESSEE I S REGARDING ADDITION MADE BY THE ASSESSING OFFICER OF `.27.30 LAKHS U/S 68 OF THE INCOME TAX ACT 1961 WITH REGARD TO THE RECEIPT OF SHARE APPLICATION MONEY BY THE ASSESSEE COMPANY. IT IS SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HO N'BLE APEX COURT RENDERED IN THE CASE OF CIT V. LOVELY EXPORTS P VT. LTD. AS REPORTED IN 319 ITR ST. 5. IT IS SUBMITTED THAT THIS IS NOT MERE REJECTION OF SLP BY HON'BLE APEX COURT BUT THIS REJECTION OF S LP IS WITH . I.T.A. NO.2468/DEL/10 3/5 OBSERVATIONS AND HENCE THE SAME COULD BE FOLLOWED AND THE APPEAL OF THE ASSESSEE SHOULD BE ALLOWED ON THIS ISSUE. 4. AS AGAINST THIS IT WAS SUBMITTED BY THE LD DR OF THE REVENUE THAT IN THE PRESENT CASE THE ASSESSEE HAS NOT BEEN ABLE T O EVEN ESTABLISH THE IDENTITY OF THE SHARE APPLICANTS AND THE GENUINENESS OF THE TRANSACTION AND THEREFORE THIS JUDGMENT OF HON'B LE APEX COURT IS NOT APPLICABLE IN THE PRESENT CASE. IN REJOINDER IT WAS SUBMITTED BY THE LD AR OF THE THAT THE MATTER MAY BE RESTORED BACK T O THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION BECAUSE CERTAIN DOC UMENTS REGARDING IDENTITY OF THE SHARE APPLICANTS I.E. ID CA RD OF ELECTION COMMISSION OF INDIA COULD NOT BE PRODUCED IN THE FIRST ROUND. THE ASSESSEE CAN PRODUCE THESE DOCUMENTS ALONG WITH OTHER DO CUMENTS TO ESTABLISH THE IDENTITY OF THE SHARE APPLICANTS. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IT HAS BE EN NOTED BY THE LD CIT(A) IN PARA NO.6.2 OF HIS ORDER THAT THE ASSESSEE HAS SUBMITTED COPIES OF ID CARD OF ELECTION COMMISSION OF INDIA FOR THE FIRST TIME BEFORE HIM BUT THESE EVIDENCES CANNOT BE ENTERTAINED IN TERM OF RULE 46A OF THE I.T. RULES 1962. CONSIDERING THE FACTS OF THE PRESENT CASE AND IN THE INTEREST OF JUSTICE WE FEEL THAT ONE MORE OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE TO PRESENT ITS CASE PROPERLY A ND TO FURNISH EVIDENCES REGARDING IDENTITY AND CREDITWORTHINESS OF T HE SHARE APPLICANTS AND ALSO REGARDING GENUINENESS OF THE TRANSAC TION. WE THEREFORE SET ASIDE THE ORDER OF THE LD CIT(A) ON TH IS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER F OR A FRESH DECISION. THE ASSESSEE HAS TO PRODUCE NECESSARY EVIDENCES IN SUPPORT O F THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS A S WELL AS FOR GENUINENESS OF THE TRANSACTION. THEREAFTER THE ASSESSING OFFICER . I.T.A. NO.2468/DEL/10 4/5 SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. REGARDING THE SECOND ISSUE WHICH HAS BEEN RAISED BY THE ASSESSEE AS PER GROUND NO.3 IT IS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT THIS ISSUE WAS ALSO RAISED BY THE ASSESSEE BEFORE L D CIT(A) BUT HE HAS NOT DECIDED THIS ISSUE ON THE BASIS THA T THIS ISSUE HAS NOT BEEN RAISED BEFORE LD CIT(A). LD DR OF THE REVEN UE ALSO SUBMITTED THAT THIS GROUND WAS NEVER RAISED BY THE ASSESSEE BEFORE T HE LD CIT(A) AND HENCE THIS ISSUE DOES NOT ARISE OUT OF THE ORDER OF LD CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD IN THIS REGARD. WE FIN D THAT GROUNDS RAISED BY THE ASSESSEE BEFORE LD CIT(A) WERE REPRODUCED BY HIM IN HIS ORDER. WE FIND THAT THE GROUNDS ARE NOT PROPERLY WORDED BUT AS PER GROUND NO.5 RAISED BEFORE LD CIT(A) THE ASSESSEE IS DISPUTING R EGARDING ADDITIONS/DISALLOWANCES BOTH. AS PER ASSESSMENT ORDER THE ASSESSING OFFICER HAS MADE ADDITION OF `.27.30 LAKHS WITH REGAR D TO CASH CREDITS U/S 68 OF THE ACT AND HE HAS ALSO MADE A DISALLOWANCE OF `.2 18 354/- OUT OF EXPENSES INCURRED BY THE ASSESSEE UNDER THE HEAD DEVELOPMENT COST. HENCE WE FEEL THAT IN THE INTEREST OF JUSTICE THIS MATTER SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICE R FOR A FRESH DECISION. ACCORDINGLY WE SET ASIDE THE ORDER OF THE L D CIT(A) ON THIS ISSUE AND RESTORE THIS MATTER ALSO BACK TO THE ASSESSING OFF ICER FOR A FRESH DECISION. THE ASSESSEE HAS TO FURNISH ALL THE DETAILS AND NECESSARY EVIDENCES BEFORE THE ASSESSING OFFICER REGARDIN G THESE EXPENSES AND THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. . I.T.A. NO.2468/DEL/10 5/5 8. WE WOULD LIKE TO MENTION THAT WE ARE RESTORING BO TH THE ISSUES BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DE CISION AND HENCE WE ARE NOT MAKING ANY COMMENTS ON THE MERIT OF THESE ISSUES. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOW ED FOR STATISTICAL PURPOSES. 10. ORDER PRONOUNCED IN THE OPEN COURT ON 7TH JANUA RY 2011. SD/- SD/- (I.P. BANSAL) (A.K. GARO DIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 7 .1.2011. HMS 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).