DCIT, New Delhi v. M/s VIP Forex Pvt. Ltd., New Delhi

ITA 509/DEL/2011 | 2004-2005
Pronouncement Date: 20-11-2017 | Result: Dismissed

Appeal Details

RSA Number 50920114 RSA 2011
Assessee PAN AABCV6909M
Bench Delhi
Appeal Number ITA 509/DEL/2011
Duration Of Justice 6 year(s) 9 month(s) 22 day(s)
Appellant DCIT, New Delhi
Respondent M/s VIP Forex Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 20-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 20-11-2017
Date Of Final Hearing 01-08-2017
Next Hearing Date 01-08-2017
First Hearing Date 01-08-2017
Assessment Year 2004-2005
Appeal Filed On 28-01-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SH.G.D.AGRAWAL HON BLE PRESIDENT AND SH.K.N.CHARY JUDICIAL MEMBER ITA NO. 509 / DEL/20 11 ( ASSESSMENT YEAR: 20 04 - 05 ) O O R D E ORDE R PER K.N. CHARY JUDICIAL MEMBER AGGRIEVED BY THE ORDER DATED 12.11.2010 IN APPEAL NO. 79/2009 - 10 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XIX NEW DELHI [IN SHORT HEREINAFTER CALLED AS THE CIT(A) ] T HE REVENUE IS IN APPEAL BEFORE US CHALLENGING THE DELETION OF THE PEN ALTY LEVIED UNDER SECTION 271D READ WITH SECTION 269SS STATING THAT SUCH DELETION IS THE RESULT OF IGNORING THE DECISION OF HON BLE JHARKHAND HIGH COURT IN THE CASE OF M/S BHALOTIA ENGINEERING PRIVATE WORKS VS. CIT 275 ITR 279 WHEREUNDER THE SHARE DCIT CIRCLE 17(1) C.R. BUILDING NEW DELHI VS VIP FOREX PVT. LTD. 4/35 MAJESTIC PLACE W.E.A. SARASWATI MARG KAROL BAGH NEW DELHI PAN:AABCV6909M (APPELLANT) (RESPONDENT) DEPARTMENT BY SH. AMIT JAIN SR. DR RESPONDENT BY SH. SUNIL ARORA & SH. AKASH CHUGH CA DATE OF HEARING 16 . 11 .2017 DATE OF PRONOUNCEMENT 20 . 11 .2017 2 APPLICA TION MONEY WAS ALSO CONSIDERED AS PART TAKING THE CHARACTER AS DEPOSIT. 2. FACTS RELEVANT FOR DISPOSAL OF THIS APPEAL ARE THAT ON 16.6.2003 ONE MR. RAJESH THAKUR AND HIS BROTHER RAJENDRA THAKUR WERE FOUND PO SSESSING A CASH OF RS. 30 00 00 0/ - AND BASING O N SUCH FACT NOTICE UNDER SECTION 153(C) WAS ISSUED. SUCH MONEY OF RS. 30 00 000/ - WAS ADDED AS INCOME IN THE HANDS OF RAJENDRA THAKUR. HOWEVER THE ASSESSEE CLAIMED THE SEIZED AMOUNT STATING THAT IT WAS GIVEN BY THEM AS ADVANCE TO RAJENDRA THAKUR FOR PURCHASE OF PROPERTY AT JALANDHAR. ON A CONSI DERATION OF A MATERIAL BEFORE HIM THE ASSESSING OFFICER ADDED THE SAID AMOUNT OF RS. 30 00 000/ - IN THE INCOME OF THE ASSESSEE AND SIMULTANEOUSLY INITIATED PENALTY PROCEEDINGS. DURING THE PENALTY PROCEEDINGS ON BEING QUESTIONED IT WAS REPLIED ON BEHALF OF THE ASSESSEE THAT THE AMOUNTS WERE RECEIVED BY WAY OF SHARE APPLICATION MONEY IN ADVANCE AND NOT LOAN OR DEPOSIT. BY WAY OF ORDER DATED 29.6.2009 THE ASSESSING OFFICER LEVIED A PENALTY OF RS. 30 00 000/ - UNDER SECTION 271D OF THE ACT. 3. IN APPEAL LEARNED CIT(A) DELETED THE SAME ON THE GROUND THAT THERE IS NO FINDING THAT THE AMOUNT OF RS. 30 00 000/ - WAS RECEIVED AS LOAN OR DEP OSIT IN CASH TO INVOKE THE PROVISION UNDER SECTI ON 269 SS READ WITH SECTION 271 D OF THE ACT. HENCE THE REVENUE IS IN APPEAL BEFORE US. 4. LEARNED DR PLACED A RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW WHEREAS AT THE OUTSET IT IS THE ARGUMENT OF THE LEARNED AR THAT IN THE APPEAL AGAINST THE QUANTUM ADDITION PREFERRED BY THE ASSESSEE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ON 3 EXAMINATION OF THE BOOKS OF ACCOUNTS OF THE ASSESSEE REACHED A FINDING THAT THE AMOUNT OF RS. 30 00 000/ - WAS GIVEN BY THE ASSESSEE FOR PUR CHASE OF PROPERTY IN JALANDHAR . LD. CIT(A) ALSO CONSIDER ED THE OBSERVATIONS MADE BY THE LEARNED CIT(A) IN THE APPEAL PREFERRED BY SH. RAJESH KUMAR . AFTER THE CONSIDERING THE SAME IN THE CASE ON HAND LEARNED CIT(A) - 3 DELHI DELETED THE QUANTUM ADDITION. SECOND LIMB OF ARGUMENTS OF THE LEARNED COUNSEL IS THAT THE AO RELIED UPON THE DECISION OF JHARKHAND HIGH COURT IN THE CASE OF M/S BHALOTIA ENGINEERING WORKS PVT . LTD VS. CIT 275 ITR 279 . THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. I.P. INDIA PVT LTD. 2011 16 TAXMANN.COM 407 (DELHI) NOTED THE ABOVE DECISION BUT WHILE REFERRING TO THE DECISION REPORTED IN DIT (EXEMPTION) V. ACME EDUCATIONAL SOCIETY [2010] 326 ITR 146 IT WAS HELD THAT A LOAN GRANTS TEMPORARY USE OF MONEY OR TEMPORARY ACCOMMODATION AND THAT THE ESSENCE OF A DEPOSIT IS THAT THERE MUST BE A LIABILITY TO RETURN IT TO THE PARTY BY WHOM OR ON WHOSE BEHALF IT HAS BEEN MADE ON FULFILLMENT OF CERTAIN CONDITIONS. WHILE PLACING RELIANCE ON THESE TWO DECI SIONS VIZ. I.P. INDIA PVT LTD (SUPRA) AND ACME EDUCATIONAL SOCIETY (SUPRA) LEARNED AR PRAYED TO DISMISS THE APPEAL PREFERRED BY THE REVENUE. 4. HAVING HEARD THE ARGUMENTS ON THE EITHER SIDE WE HAVE PERUSED THE MATERIALS AND PAPERS ON RECORD. LEARNED AO PLACED RELIANCE ON THE DECISION OF BHALOTIA ENGINEERING WORKS PVT. LTD. (SUPRA) TO CONCLUDE THAT THE SHARE APPLICATION MONEY PARTAKES THE CHARACTER OF DEPOSIT. HOWEVER IN VIEW OF THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF I.P. I NDIA PVT. LTD. CASE AND WHILE RESPECTFULLY FOLLOWING THE SAME WE HOLD THAT THE RECEIPT OF 4 SHARE APPLICATION MONEY FOR ALLOTMENT OF SHARES CANNOT BE TREATED AS RECEIPT OF LOAN OR DEPOSIT AND AS A CONSEQUENCE THEREOF PROVISIONS UNDER SECTION 299SS AND SECTIO N 2741D HAVE NO APPLICATION TO THE FACTS OF THE CASE. WITH THIS VIEW OF THE MATTER WE DO NOT FIND ANY ILLEGALITY OR IRREGULARITY IN THE CONCLUSION REAC H ED BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER AND THERE IS NO NEED TO INTERFERE WITH THE SAME . WE ACCO RDINGLY HOLD THAT THE APPEAL OF THE REVENUE IS DEVOID OF ANY MERITS AND IS LIABLE TO BE DISMISSED. 5. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 20TH 2017 . SD/ - SD/ - (G.D.AGRAWAL) (K.N.CHARY) PRESIDENT JUDICIAL MEMBER DATE: - 20 TH NOV 2017 SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 16 .1 1 .2017 PS 2. DRAFT PLACED BEFORE AUTHOR 16 .1 1 .2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS .1 1 .2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK .1 1 .2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.