ITO, New Delhi v. M/s Kushagra Real Estate (P) Ltd.,, New Delhi

ITA 4247/DEL/2009 | 2001-2002
Pronouncement Date: 08-01-2010 | Result: Allowed

Appeal Details

RSA Number 424720114 RSA 2009
Bench Delhi
Appeal Number ITA 4247/DEL/2009
Duration Of Justice 2 month(s) 4 day(s)
Appellant ITO, New Delhi
Respondent M/s Kushagra Real Estate (P) Ltd.,, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 08-01-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted D
Tribunal Order Date 08-01-2010
Date Of Final Hearing 04-01-2010
Next Hearing Date 04-01-2010
Assessment Year 2001-2002
Appeal Filed On 03-11-2009
Judgment Text
I.T.A. NO.4247 /DEL/09 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.4247 /DEL/2009 ASSESSMENT YEAR : 2001-02 ITO M/S KUSHARA REAL ESTATE WARD-5 (3) (P) LTD C-1/203 LAJPAT NAGAR NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AABCK-5238-L APPELLANT BY : SHRI BK GUPTA SR. DR. RESPONDENT BY : SHRI ANIL SHARMA ADVOCATE. ORDER PER A.K. GARODIA AM: THIS IS REVENUE'S APPEAL DIRECTED AGAINST THE ORDER OF LD CIT(A)-VIII. NEW DELHI DATED 31.8.2009 FOR ASSESSMENT YEAR 2001-02. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - 1. THE ORDER OF THE LD CIT(A) IS ERRONEOUS AND CONT RARY TO FACTS AND LAW 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.56 00 000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE IT ACT BEING TH E UNEXPLAINED CREDIT ON ACCOUNT OF SHARE APPLICATION MONEY AND SHARE PREMIU M MONEY. . I.T.A. NO.4247/DEL/09 2/4 3. THE LD CIT(A) DID NOT APPRECIATE THE FACT THAT T HE ASSESSEE HAD FAILED TO DISCHARGE THE ONUS OF PROVING THE SOURCE AND CREDIT WORTHINESS OF THE CREDITORS/SHARE APPLICANTS. 3. BRIEF FACTS OF THE CASE ARE THAT DURING THIS YEA R THE ASSESSING OFFICER HAS MADE ADDITION OF RS.80.85 LAKHS ON ACCOUNT OF SHARE CAPITAL RECEIVED DURING THIS YEAR. IT HAS BEEN NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS RECEIVED FRESH SHARE APPLICATION OF RS .80.85 LAKHS AT A PREMIUM OF RS.490/-M PER SHARE. THIS ADDITION WAS MADE BY THE ASSESSING OFFICER MAINLY FOR THE REASON THAT THERE IS NO BASIS ON WHICH THE SHARES OF THE ASSESSEE COMPANY CAN COMMAND PREMIUM OF RS.490/- PER SHARE. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT (A) . BEFORE LD CIT(A) IT WAS SUBMITTED BY THE ASSESSEE THAT DURING THIS YEAR TH E ASSESSEE COMPANY HAS RECEIVED SHARE APPLICATION MONEY OF RS.56 LAKHS ONL Y AND THE BALANCE AMOUNT OF R.26.50 LAKHS WAS RECEIVED IN THE PRECEDING YEAR AN D IN THAT YEAR ALSO ADDITION WAS MADE AND THE SAME WAS DELETED BY THE TRIBUNAL. LD CIT(A) HAS DELETED THE ADDITION OF RS.56 LAKHS ON ACCOUNT OF FRESH SHARE A PPLICATION MONEY RECEIVED DURING THIS YEAR ON THE BASIS THAT THE SAME WAS REC EIVED FROM REPUTED COMPANIES THROUGH ACCOUNT PAYEE CHEQUES AND ALL THE COMPANIES ARE INCOME TAX ASSESSES AND COPIES OF THEIR PAN NO. AND RETURN S OF INCOME WERE MADE AVAILABLE TO THE ASSESSING OFFICER. REGARDING THE BALANCE ADDITION THE SAME WAS DELETED BY THE LD CIT(A) BY THE LD CIT(A) ON TH E BASIS THAT IT WAS NOT RECEIVED DURING THIS YEAR. NOW THE REVENUE IS IN APPEAL REGARDING DELETION OF RS.56 LAKHS FOR WHICH FRESH SHARE APPLICATION MONEY WAS RECEIVED DURING THIS YEAR. 4. IT WAS SUBMITTED BY THE LD DR OF THE REVENUE THA T THE ADDITION WAS MADE BY THE ASSESSING OFFICER ON THE BASIS THAT THE SHAR E OF THE ASSESSEE DOES NOT COMMAND A HIGH PREMIUM OF RS.490/- PER SHARE AND NO FINDING IS GIVEN BY LD CIT(A) ON THIS ACCOUNT AS TO HOW THE SHARES OF THE ASSESSEE COMPANY COULD COMMAND PREMIUM OF RS.490/- AND HENCE THIS ASPECT S HOULD BE RESTORED BACK TO THE FILE OF THE LD CIT(A) FOR AFRESH DECISION AFTER EXAMINING THIS ASPECT. . I.T.A. NO.4247/DEL/09 3/4 REGARDING JUDGMENT OF HON'BLE APEX COURT RENDERED I N THE CASE OF LOVELY EXPORTS (PVT) LTD. AS REPORTED IN 261 CTR 19 IT WA S SUBMITTED THAT THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE BECAUSE THE F ACTS ARE DIFFERENT. IT WAS SUBMITTED THAT IN THE CASE OF LOVELY EXPORTS (SUPRA )< IT WAS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE COMPANY HAS RECEIVED HIGH AMOUNT OF HARE PREMIUM WHICH COULD NOT BE JUSTIFIED ON THE BASIS OF BALANC E SHEET AND FUTURE PROSPECT OF THE ASSESSEE COMPANY. 5. AS AGAINST THIS LD AR OF THE ASSESSEE SUPPORTED THE ORDER OF THE LD CIT(A) AND RELIANCE WAS PLACED ON THE JUDGMENT OF H ON'BLE APEX COURT RENDERED IN THE CASE OF LOVELY EXPORTS (SUPRA). IT WAS ALSO HIS SUBMISSION THAT IN THE EARLIER YEARS ALSO SIMILAR ADDITION WAS DELETED BY THE TRIBUNAL IN ASSESSEES OWN CASE AND HENCE THAT TRIBUNAL ORDER SHOULD BE FOLLOW ED IN THE PRESENT CASE ALSO. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE MATERIAL AVAILABLE ON RECORD. FIRST WE DEAL WITH THIS CONTE NTION OF THE LD AR OF THE ASSESSEE THAT THE ISSUE IN THE PRESENT APPEAL IS CO VERED BY THE TRIBUNAL DECISION IN ASSESSEES OWN CASE AND ALSO BY THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF LOVELY EXPORTS (SUPRA). WE FIND THAT THE RELEVANT PARA OF THIS TRIBUNAL DECISION RENDERED IN THE CASE OF THE ASSESSEE IN ASSESSMENT YEAR 2000-01 HAS BEEN REPRODUCED BY LD CIT(A) ON PAGE NO .6 & 7 OF HIS ORDER AND IN THE SAME WE FIND THAT THIS ASPECT WAS NOT THERE IN THAT YEAR THAT THE SHARE APPLICATION MONEY WAS RECEIVED BY THE ASSESSEE COMP ANY AT A HIGH PREMIUM OF RS.490/- PER SHARE WHEREAS IN THE PRESENT YEAR THI S IS THE MAIN BASIS ON WHICH ADDITION WAS MADE BY THE ASSESSING OFFICER. HENCE MERELY ON THIS BASIS OF THE TRIBUNAL ORDER IN THE PRECEDING YEAR THE ISSUE IN THE PRESENT YEAR CANNOT BE DECIDED AND IN THE SAME THIS ASPECT HAS TO BE EXAM INED AS TO WHETHER THE RECEIPT OF HIGH SHARE PREMIUM OF RS.490/- PER SHARE IN THE PRESENT YEAR IS REASONABLE AND IN SPITE OF THIS HIGH PREMIUM THE T RANSACTION OF RECEIPT OF SHARE APPLICATION MONEY IN THE PRESENT YEAR CAN BE ACCEPT ED AS A GENUINE TRANSACTION. REGARDING JUDGMENT OF HON'BLE APEX COURT IN THE CAS E OF LOVELY EXPORTS (SUPRA) . I.T.A. NO.4247/DEL/09 4/4 WE FEEL THAT JUDGMENT IS NOT SQUARELY APPLICABLE IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. IN THAT CASE IT WAS NOT THE A LLEGATION OF THE REVENUE THAT BECAUSE OF HIGH AMOUNT OF SHARE PREMIUM ON PER SHAR E THAT THE TRANSACTION IN QUESTION WAS NOT GENUINE. HENCE WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE LD CIT(A) FOR AFRESH DECISION. WE THER EFORE SET ASIDE THE ORDER OF THE LD CIT(A) ON THIS ISSUE TO THE EXTENT OF ADDITION D ELETED BY HIM OF RS.56 LAKHS RECEIVED BY THE ASSESSEE COMPANY DURING THIS YEAR A ND RESTORE THIS MATTER BACK TO THE TO HIS FILE FOR A FRESH DECISION. LD CIT(A) SHOULD DECIDE THIS ASPECT AS TO WHETHER A R3ECEIPT OF HIGH PAID PREMIUM SHARE OF RS .490/- PER SHARE FOR THE PRESENT YEAR BY THE ASSESSEE COMPANY IS REASONABLE AND IN SPITE OF THIS HIGH PREMIUM THE TRANSACTION IN QUESTION IS GENUINE TRA NSACTION. LD CIT(A) SHOULD PASS A SPEAKING ORDER ON THIS ASPECT AND DECIDE THE ISSUE AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. IF REQUIRED HE MAY OBTAIN A REMAND REPORT FROM THE ASSESSING OFFICER ON THIS AS PECT. 7. IN THE RESULT THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON JAN UARY 2010. (R.P. TOLANI) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. .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. BY ORDER (ITAT NEW DELHI).