ACIT, New Delhi v. M/s. Odeon Builders Pvt. Ltd., New Delhi

ITA 5036/DEL/2012 | 2004-2005
Pronouncement Date: 17-11-2017 | Result: Allowed

Appeal Details

RSA Number 503620114 RSA 2012
Assessee PAN AAACO0155H
Bench Delhi
Appeal Number ITA 5036/DEL/2012
Duration Of Justice 5 year(s) 1 month(s) 22 day(s)
Appellant ACIT, New Delhi
Respondent M/s. Odeon Builders Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 17-11-2017
Appeal Filed By Department
Tags No record found
Order Result Allowed
Bench Allotted E
Tribunal Order Date 17-11-2017
Date Of Final Hearing 01-06-2017
Next Hearing Date 01-06-2017
First Hearing Date 01-06-2017
Assessment Year 2004-2005
Appeal Filed On 25-09-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.S. SYAL VICE PRESIDENT AND SHRI KULDIP SINGH JUDICIAL MEMBER ITA NO.5036/DEL./2012 (ASSESSMENT YEAR : 2004-05) ITA NO.5037/DEL./2012 (ASSESSMENT YEAR : 2003-04) ACIT VS. M/S. ODEON BUILDERS PVT. LTD. CENTRAL CIRCLE 1 N 49 2 ND FLOOR CONNAUGHT PLACE NEW DELHI. NEW DELHI 110 001. (PAN : AAACO0155H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN ADVOCATE REVENUE BY : SHRI ARUN KUMAR YADAV SENIOR DR DATE OF HEARING : 25.10.2017 DATE OF ORDER : 17.11.2017 O R D E R PER KULDIP SINGH JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS THE SAME ARE BEING D ISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. 2. THE APPELLANT ASSISTANT COMMISSIONER OF INCOME- TAX CENTRAL CIRCLE 1 NEW DELHI (HEREINAFTER REFERRED T O AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SE T ASIDE THE ITA NO.5036 & 5037/DEL./2012 2 IMPUGNED ORDER DATED 20.07.2012 PASSED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS)-III NEW DELHI QUA THE ASSESSM ENT YEARS 2003-04 & 2004-05 ON THE GROUNDS INTER ALIA THAT :- ITA NO.5037/DEL/2012 (AY 2003-04) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETI NG THE ADDITION OF RS.40 00 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURC ES U/S 68 OF THE INCOME TAX ACT 1961. 2. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. ITA NO.5036/DEL/2012 (AY 2004-05) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN DELETI NG THE ADDITION OF RS.1 00 00 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURC ES U/S 68 OF THE INCOME TAX ACT 1961. 2. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : INITIALLY ASSESSMENT FOR ASSESSMENT YEAR 2003-04 WAS COMPLETED UNDER SECTION 143 (3) OF THE INCOME-TAX ACT 1961 (FOR SHORT THE ACT) ON 28.02.2006 AT TH E RETURNED INCOME OF RS.93 79 390/- AND RETURN OF INCOME FOR A Y 2004-05 WAS ALSO DECIDED U/S 143 (3) OF THE ACT BY MAKING A DDITION OF RS.1 00 00 000/- ON ACCOUNT THAT ASSESSEE HAD RECEI VED ITA NO.5036 & 5037/DEL./2012 3 ACCOMMODATION ENTRIES UNDER THE GARB OF SHARE APPLI CATION MONEY. SUBSEQUENTLY ASSESSMENT FOR AY 2003-04 WAS REOPENE D U/S 147 AND COMPLETED U/S 153A READ WITH SECTION 143(3) AT TAXABLE INCOME OF RS.1 36 53 190/-. BOTH THE ADDITIONS MAD E BY AO FOR AYS 2003-04 & 2004-05 TO THE TUNE OF RS.40 80 000/- AND RS.1 01 00 000/- RESPECTIVELY ON ACCOUNT OF SHARE C APITAL HAVE BEEN DELETED BY THE LD. CIT (A) AND THE SAID ORDER HAS B EEN CONFIRMED BY THE TRIBUNAL. THE DECISION RENDERED BY THE TRIB UNAL HAS BEEN OVERTURNED BY THE HONBLE HIGH COURT. 4. THEN ON 25.09.2008 SEARCH AT THE PREMISES OF TH E ASSESSEE WAS CONDUCTED AND CONSEQUENTLY PROCEEDINGS U/S 153A WERE INITIATED. AO MADE SAME ADDITION AS HAS ALREADY BE EN MADE FOR AY 2003-04 U/S 153A READ WITH SECTION 143 (3) AND F OR AY 2004- 05 U/S 143 (3) OF THE ACT BY ELABORATELY EXPLAINING THE CIRCUMSTANCES. 5. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EALS BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITIONS. FEE LING AGGRIEVED THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF CHALLENGING THE IMPUGNED ORDER PASSED BY LD. CIT (A ) . 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL GONE THROUGH THE DOCUMENTS R ELIED UPON AND ITA NO.5036 & 5037/DEL./2012 4 ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. LD. DR FOR THE REVENUE CHALLENGING THE IMPUGNED ORDER PASSED BY LD. CIT (A) RELIED UPON THE ASSESSMENT OR DERS DATED 24.12.2010 FOR AYS 2003-04 & 2004-05. HOWEVER ON THE OTHER HAND LD. AR FOR THE ASSESSEE BY RELYING UPON THE O RDER PASSED BY LD. CIT (A) CONTENDED THAT SINCE THERE IS NO INCRIM INATING MATERIAL ON RECORD AGAINST THE ASSESSEE THE INCOME IS REQUI RED TO BE ASSESSED AS ORIGINALLY ASSESSED BY THE ASSESSEE AND NO INDEPENDENT ADDITION CAN BE MADE. 8. UNDISPUTEDLY BOTH THE ADDITIONS MADE BY THE AO F OR AYS 2003-04 AND 2004-05 ON ACCOUNT OF SHARE CAPITAL WER E SUBJECT MATTER OF THE EARLIER ASSESSMENT MADE U/S 143 (3) O F THE ACT. HOWEVER ON THE BASIS OF SEARCH AND SEIZURE OPERATI ON CONDUCTED AT THE PREMISES OF THE ASSESSEE ON 25.09.2008 FRESH A SSESSMENT U/S 153A READ WITH SECTION 143 (3) WAS MADE BY THE AO O N THE SAME SUBJECT MATTER. SINCE ASSESSMENT MADE U/S 143(3) I N THE PRESENT CASE STANDS SUBSTITUTED BY THE ASSESSMENT MADE U/S 153A IT IS REQUIRED TO BE EXAMINED IN THE LIGHT OF ASSESSMENT MADE U/S 143 (3) WHICH HAS YET NOT ATTAINED FINALITY AS THE MATTER I S PENDING ADJUDICATION BEFORE HONBLE SUPREME COURT IN SLP NO.25549/2012. ITA NO.5036 & 5037/DEL./2012 5 9. SO WE ARE OF THE CONSIDERED VIEW THAT THE INCOM E OF THE ASSESSEE QUA AYS 2003-04 AND 2004-05 WOULD BE THE S AME TO THIS EXTENT AS ORIGINALLY ASSESSED AS SUBJECT MATTER OF BOTH THE ASSESSMENT IS THE SHARE CAPITAL MONEY. SO IN THES E CIRCUMSTANCES ORDER PASSED BY LD. CIT (A) DELETING THE ADDITION I S NOT SUSTAINABLE IN THE EYES OF LAW HENCE REVERSED AND THE ADDITION S MADE BY AO U/S 153A/143 (3) ARE RESTORED. IN CASE THE ASSESS EE SUCCEEDS IN ITS APPEALS BEFORE THE HONBLE SUPREME COURT ON THIS SC ORE IN THE SLP (SUPRA) IT WILL BE AT LIBERTY TO APPROACH THE AO TO HAVE THE CONSEQUENTIAL RELIEF QUA THE INSTANT PROCEEDINGS. CONSEQUENTLY THE APPEALS FILED BY THE REVENUE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 17 TH DAY OF NOVEMBER 2017. SD/- SD/- (R.S. SYAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 17 TH DAY OF NOVEMBER 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-III NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.