ITO, New Delhi v. Dazzling Financial Services (P) Ltd, New Delhi

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA VICE PRESIDENT AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.3072/DEL/2009 ASSESSMENT YEAR : 2001-02 INCOME-TAX OFFICER WARD-10(2) NEW DELHI. VS. M/S DAZZLING FINANCIAL SERVICES PVT. LTD. E-4/21 IST FLOOR KRISHNA NAGAR NEW DELHI. PAN: AAACD3507A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH GUPTA D.R. RESPONDENT BY : SHRI A.K. CHADHA C.A. ORDER PER H.S.SIDHU JM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF THE CIT(A)-XIII NEW DELHI DATED 29.4.2009 FOR ASSESSMENT YEAR 2001- 02. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.20 50 000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME-TAX A CT 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.5 1 25/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION PAID TOWARDS ACCOMMODATION ENTRIES TAKEN. 3. THE FACTS ARE NOT IN DISPUTE BY BOTH THE PARTIES AND THEREFORE NO NEED TO REPEAT TO AVOID UNNECESSARY REPETITION. ITA NO.3072/DEL/09 2 4. LD. D.R. RELIED UPON THE ORDER PASSED BY THE ASS ESSING OFFICER. ON THE CONTRARY LD. AUTHORIZED REPRESENTATIVE OF THE ASSE SSEE STATED THAT REVENUE HAS RAISED THE GROUND CHALLENGING THE ADDITION OF RS.20 50 000 U/S 68 OF THE INCOME- TAX ACT 1961 AND ADDITION OF RS.5 125/- ON ACCOUNT OF COMMISSION PAID TOWARDS ACCOMMODATION ENTRIES TAKEN HE STATED THAT ASSESSE E HAD FILED ALL THE DETAILS JUSTIFYING THE AMOUNT IN DISPUTE AS GENUINE TRANSAC TION. HE FURTHER STATED THAT THE ASSESSING OFFICER MERELY RELIED UPON THE STATEM ENT OF SHRI RAJESH BANSAL BEFORE THE ADDL. DIT(INV.) IN WHICH NO SPECIFIC MAT ERIAL RELATING TO THIS PARTICULAR TRANSACTION HAD BEEN MENTIONED. HE FURT HER STATED THAT THE ASSESSING OFFICER HAS NEITHER GIVEN ANY OPPORTUNITY TO CROSS- EXAMINE SHRI RAJESH BANSAL NOR A COPY OF THE STATEMENT OF SHRI BANSAL WAS MADE AVAILABLE TO THE ASSESSEE. THEREFORE THE ADDITION IN DISPUTE IS NOT SUSTAINAB LE. IN SUPPORT OF HIS CONTENTION THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE FOLLOWING DECISIONS:- I) SAROGI CREDIT CORP. VS. CIT 103 ITR (PAT); II) ACIT VS. HANUMAN AGGARWAL 151 ITR (PAT.); III) CIT V. ORISSA CORPN. PVT. LTD. 159 ITR (SC); IV) CIT VS. LOVELY EXPORTS PVT. LTD. (2008) 6 DTR (SC) 308; V) CIT VS. DIVINE LEASING 299 ITR 268 (DEL) AND; VI) CIT VS. VALUE CAPITAL SERVICES 307 ITR 334 (DEL HI.) HE FURTHER STATED THAT THE ASSESSING OFFICER HAS NO T PROVIDED ADEQUATE OPPORTUNITY FOR PRODUCING BOOKS OF ACCOUNT ALONG WI TH DETAILS OF OTHER SHARE TRANSACTIONS CONDUCTED BY HIM IN THE RELEVANT FINAN CIAL YEAR WHICH THE ASSESSEE HAS FILED BEFORE THE LD. FIRST APPELLATE AUTHORITY WHO AFTER CONFRONTING THE SAME TO ITA NO.3072/DEL/09 3 THE ASSESSING OFFICER OBTAINED HIS REMAND REPORT DA TED 18.2.2009 AND ADMITTED THE ADDITIONAL EVIDENCE. AFTER CONSIDERING ALL THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE LD. FIRST APPELLATE AUTHORITY THE LD. CIT(A) DELETED THE IMPUGNED ADDITIONS. HE THUS PRAYED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE MATERIAL AVAILABLE ON RECORD. WE ARE OF THE CONSIDERED OPIN ION THAT THE LD. FIRST APPELLATE AUTHORITY HAS PASSED A WELL-REASONED ORDER ON THE B ASIS OF EVIDENCE PRODUCED BY THE ASSESSEE AND AFTER TAKING THE REMAND REPORT DA TED 18.2.2009 FROM THE ASSESSING OFFICER ON THE EVIDENCE PRODUCED BY THE A SSESSEE. EVEN OTHERWISE THE ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON R ECORD TO ESTABLISH THAT THE MONEY RELATING TO THE SALE OF SHARES WAS IN FACT OR IGINATED FROM THE COFFERS OF THE ASSESSEE. AFTER GOING THROUGH THE IMPUGNED ORDER WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS RECEIVED THE AMOUNT I N DISPUTE AGAINST THE TRANSFER OF SHARES. IT CANNOT BE CONSIDERED AS UNEXPLAINED C ASH CREDITS IN THE HANDS OF THE ASSESSEE. EVEN OTHERWISE THE ASSESSING OFFICER HA S ALSO VERIFIED THE BOOKS OF ACCOUNT AND OTHER EVIDENCE FILED BY THE ASSESSEE DU RING THE COURSE OF APPELLATE PROCEEDINGS AND HAS NOT RAISED ANY OBJECTION REGARD ING ADMISSION OF ADDITIONAL EVIDENCE. 6. IN THE LIGHT OF FACTS AND CIRCUMSTANCES MENTIONE D ABOVE WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS RECEIVED THE AMOUNT IN QUESTION AGAINST THE TRANSFER OF SHARES. THEREFORE IT CANNOT BE CONSI DERED UNEXPLAINED CASH IN THE ITA NO.3072/DEL/09 4 HANDS OF THE ASSESSEE AND THE ASSESSING OFFICER HAS WRONGLY MADE THE ADDITION IN DISPUTE WHICH HAS BEEN RIGHTLY DELETED BY THE LD . FIRST APPELLATE AUTHORITY. WE UPHOLD ORDER OF LD. FIRST APPELLATE AUTHORITY AND D ISMISS THE GROUNDS OF APPEAL RAISED BY THE REVENUE IN ITS APPEAL. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.4.2010 SD/- SD/- (G.E.VEERABHADRAPPA) (H.S.SIDHU) VICE PRESIDENT JUDICIAL MEMBER DATED : 23.04.2010. VSK COPY FORWARDED TO: - 1. APPELLANT-REVENUE 2. RESPONDENT-ASSESSEE 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR