M/s Janki Jewellers (p) Ltd.,, New Delhi v. ITO, New Delhi

ITA 3787/DEL/2009 | 2002-2003
Pronouncement Date: 15-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 378720114 RSA 2009
Bench Delhi
Appeal Number ITA 3787/DEL/2009
Duration Of Justice 4 month(s) 7 day(s)
Appellant M/s Janki Jewellers (p) Ltd.,, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 15-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 15-01-2010
Date Of Final Hearing 04-01-2010
Next Hearing Date 04-01-2010
Assessment Year 2002-2003
Appeal Filed On 07-09-2009
Judgment Text
I.T.A. NO.3787/DEL/09 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.3787 /DEL/2009 ASSESSMENT YEAR : 2002-03 JANKI JEWELLERS (P) LTD. ITO 7/A/49 WEA WARD-4 (2) KAROL BAGH NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AABCJ-1311-P APPELLANT BY : SHRI RK GUPTA CA. RESPONDENT BY : SHRI BK GUPTA SR. DR ORDER PER A.K. GARODIA AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A)-VII NEW DELHI DATED 16.6.2009 FOR ASSESSMENT YEAR 20 02-03. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN VIEW OF THE DOCUMENTS AND EVIDENCES FILED BOTH THE LOWER AUTHO RITIES GROSSLY ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING THE ADDIT ION OF RS.48 LAKHS U/S 68 FOR SHARE APPLICATION MONEY/SHARE CAPITAL RECEIV ED DURING THE YEAR FROM FOLLOWING PERSONS: I) SOBER ASSOCIATES PVT. LTD. RS.4 00 000/- II) SHREE GUPTESHWAR MARKETING PVT. LTD. RS.4 00 0 00/- . I.T.A. NO.3787/DEL/09 2/4 III) DK ISPAT & TIMBER LTD. RS.4 00 000/- IV) SPARROW MARKETING PVT. LTD. RS.3 00 000/- V) SHRI DINANATH LUHARIWALA SPG. MILLS RS. 5 00 00 0/- VI) NIKHIL BUILDERS & PROMOTERS PVT. LTD. RS. 5 00 000/- VII) RAHUL FINLEASE PVT. LTD. RS. 5 00 000/- VIII) PERFORMANCE TRADING & INVESTMENT PVT. RS. 5 00 000/- IX) TECHNOCOM ASSOCIATES PVT. LTD. RS. 5 00 000/ - X) BASANT AGENCY PVT. LTD. RS. 3 00 000/- XI) KULDEEPL TEXCTILES PVT. LTD. RS. 3 00 000/- TOTAL RS. 46 00 000/- 2. THAT WITHOUT PREJUDICE THE CORRECT AMOUNT IS R.4 6 LAKHS AGAINST WRONGLY TAKEN AS RS.48 LAKHS BY THE LD ASSESSING OFFICER. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES THE LD A SSESSING OFFICER FURTHER ERRED IN LAW AS WELL AS ON FACTS IN MAKING AN ADDIT ION OF RS.1 20 000/- BEING CALCULATED @ 2.5% OF RS.48 LAKHS ALLEGED TO BE PAID AS COMMISSION FOR OBTAINING ALLEGED AMOUNT OF RS.48 LA KHS. 4. THAT WITHOUT PREJUDICE UNDER THE FACTS AND CIRCU MSTANCES INITIATION OF PROCEEDINGS U/S 147)(148 OF THE ACT AND CONSEQUENT ASSTT. FRAMED IS ABSOLUTELY ILLEGAL WITHOUT JURISDICTION AND UNWAR RANTED. 3. REGARDING GROUND NO.4 I.E. REGARDING VALIDITY O F RE-ASSESSMENT PROCEEDINGS THE SUBMISSION MADE BEFORE THE LD CIT( A) WERE REITERATED. REGARDING GROUND NO.5 IT WAS SUBMITTED THAT THE IS SUE INVOLVED IS CONSEQUENTIAL. REGARDING GROUND NO.1 2 & 3 RELIANC E WAS PLACED ON THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LOVELY EXPORTS (PVT ) LTD. 216 CTR 195. IT WAS ALSO SUBMITTED THAT NO OPP ORTUNITY WAS PROVIDED BY THE ASSESSING OFFICER TO CROSS EXAMINE SHRI MAHESH GARG . IT WAS SUBMITTED THAT PROPER OPPORTUNITY OF HEARING WAS NOT PROVIDED BY T HE ASSESSING OFFICER. 4. LD DR OF THE REVENUE SUPPORTED THE ORDER OF THE LD CIT(A). . I.T.A. NO.3787/DEL/09 3/4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. REGARDING GROUND NO.4 I.E. RE GARDING VALIDITY OF RE-OPENING WE FIND THAT THIS HAS BEEN EXAMINED BY THE LD CIT(A ) IN GREAT DETAILS AND AFTER PROPER APPLICATION OF ALL THE FACTS AND LEGAL POSIT ION HE HAS DECIDED THIS ISSUE AGAINST THE ASSESSEE AND WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE LD CIT(A) ON THIS ISSUE. WE THEREFORE UPHOLD THE SAME. THIS GROUND IS REJECTED. 6. REGARDING GROUND NO.5 WE ARE IN AGREEMENT WITH LD AR OF THE ASSESSEE THAT THE ISSUE REGARDING LEVY OF INTEREST UNDER SEC TION 234B IS CONSEQUENTIAL AND NO SEPARATE ORDER IS REQUIRED TO BE PASSED ON THIS GROUND. 7. REGARDING GROUND NO.1 2 &3 WE FIND THAT AS PER THE ASSESSING OFFICER IT WAS THE ALLEGATION THAT THE ASSESSEE HAS RECEIVED A CCOMMODATION ENTRIES FROM AN ENTRY OPERATOR SHRI MAHESH GARG AND HE HAS REFER RED TO THE STATEMENT OF SHRI MAHESH GARG U/S 131 ON VARIOUS DATES BY THE INVESTI GATION WING OF THE DEPARTMENT. IT IS STATED BY THE LD CIT(A) ON PAGE N O.11 OF HIS ORDER THAT THE STATEMENT OF SHRI MAHESH GARG CANNOT BE USED AS DIR ECT EVIDENCE IN THE ABSENCE OF CROSS EXAMINATION BY THE ASSESSEE BUT TH E SAME CANNOT BE DISCARDED ALSO BECAUSE HIS STATEMENT WAS VOLUNTARIL Y AND ALL THE ALLEGATIONS WERE AGAINST THE ASSESSEE COMPANY AND THEREFORE THE SAME HAS TO BE CONSIDERED AS CIRCUMSTANTIAL EVIDENCE. WE ARE OF THE CONSIDERED O PINION THAT WHEN THE STATEMENT OF SHRI MAHESH GARG IS BEING RELIED UPON THE OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEE TO CROSS EXAMINE HIM AND S INCE THIS OPPORTUNITY WAS NOT PROVIDED TO THE ASSESSEE BY THE ASSESSING OFFIC ER THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. REGARDING THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LOVELY EXPORTS PVT. LTD. (SUPRA) WE FEEL THAT THIS JUDGMENT IS NOT APP LICABLE BECAUSE IT WAS NOT AN ALLEGATION OF THE REVENUE IN THAT CASE THAT THE SHA RE APPLICATION MONEY WAS RECEIVED BY THE ASSESSEE WITH THE HELP OF SYSTEMATI C ENTRY OPERATOR WHEREAS IN . I.T.A. NO.3787/DEL/09 4/4 THE PRESENT CASE THIS IS THE ALLEGATION OF THE ASS ESSING OFFICER THAT ACCOMMODATION ENTRY WAS OBTAINED BY THE ASSESSEE WI TH THE HELP OF ENTRY OPERATOR AND HENCE THE ISSUE IN THE PRESENT CASE CA NNOT BE DECIDED SIMPLY ON THE BASIS OF THIS JUDGMENT OF HON'BLE APEX COURT RE NDERED IN THE CASE OF LOVELY EXPORTS (SUPRA). WE THEREFORE SET ASIDE THE ORDER OF THE LD CIT(A) ON THIS ISSUE AND RESTORE THIS MATTER BACK TO THE FILE OF THE ASS ESSING OFFICER FOR A FRESH DECISION. THE ASSESSING OFFICER SHOULD PROVIDE AN O PPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE SHRI MAHESH GARG AND IF THE ASSESSING OFFICER IS NOT ABLE TO PROVIDE THIS OPPORTUNITY TO THE ASSESSEE HE SHOULD DECIDE THE ISSUE AFRESH WITHOUT DEPENDING ON THIS STATEMENT OF SHRI MAHESH GARG. THE ASSESSING OFFICER SHOULD ALSO ALLOW AN OPPORTUNITY TO THE ASSESSEE TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANTS AND ALSO T O ESTABLISH THE GENUINENESS OF THE TRANSACTIONS IN QUESTION AND AFTER CONSIDERING ALL THESE ASPECTS AND AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH JAN UARY 2010. SD/- SD/- (I.P. BANSAL) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 15.1.2010. 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 DELHI. TRUE COPY. (ITAT NEW DELHI).