Mr. Sunil Chopra, New Delhi v. Addl. CIT, New Delhi

ITA 619/DEL/2010 | 2006-2007
Pronouncement Date: 10-02-2012 | Result: Allowed

Appeal Details

RSA Number 61920114 RSA 2010
Assessee PAN ABAPC4200F
Bench Delhi
Appeal Number ITA 619/DEL/2010
Duration Of Justice 2 year(s)
Appellant Mr. Sunil Chopra, New Delhi
Respondent Addl. CIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 10-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 10-02-2012
Date Of Final Hearing 01-02-2012
Next Hearing Date 01-02-2012
Assessment Year 2006-2007
Appeal Filed On 09-02-2010
Judgment Text
ITA NOS. 619 & 693/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 619/DEL/2010 A.Y. : 2006-07 MR. SUNIL CHOPRA 14-A/57 1 ST FLOOR WEA KAROL BAGH NEW DELHI (PAN : ABAPC4200F) VS. A DDL. C.I.T. RANGE - 33 NEW DELHI AND ITA NO. 693 /DEL/2010 A.Y. 2006-07 DCIT CIRCLE-33(1) VS. SHRI SUNIL CHOPRA NEW DELHI 14-A/57 1 ST FLOOR WEA KAROL BAGH NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : DR. RAKESH GUPTA ADV. DEPARTMENT BY : SH. DIVENDER SINGH D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THESE CROSS APPEALS BY THE ASSESSEE AND THE REVE NUE EMANATING OUT OF ORDER OF THE LD. COMMISSIONER OF IN COME TAX (APPEALS) DATED 26.11.2009 PERTAINING TO ASSESSMENT YEAR 2006-07. ASSESSEES APPEAL ASSESSEES APPEAL ASSESSEES APPEAL ASSESSEES APPEAL 2. THE FIRST ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING ` 292326/- AS DEE MED DIVIDEND WITHOUT UNDERSTANDING AND APPRECAITING THE FACT THA T THE AMOUNT PAID BY SH. PN CHOPRA IS TOWARDS REPAYMENT OF LOAN OUTST ANDING TAKEN ITA NOS. 619 & 693/DEL/2010 2 FROM THE ASSESSEE SH. SUNIL CHOPRA WHICH WAS OUTSTA NDING AS ON 1.4.2005. 3. IN THIS CASE ASSESSING OFFICER OBSERVED THAT AS SESSEE IS A SHARE HOLDER OF M/S SISBRO INDIA PRIVATE LIMITED. THE COMP ANY HAS GIVEN LOAN AMOUNT TO SHRI PN CHOPRA FATHER OF THE ASSESSEE ON 20.6.2005. SHRI PN CHOPRA IN TURN HAS LENT THE MONEY TO THE ASSE SSEE SH. SUNIL CHOPRA ON THE SAME DATE. ASSESSING OFFICER OPINED THAT THIS WAS DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE. ASSES SEE EXPLAINED THAT THE PROVISIONS OF SECTION 2(22)(E) WILL HAVE NO APPLICATION IN THE INSTANT CASE BECAUSE THE MONEY WAS PAID BY MR. PN C HOPRA IN DISCHARGE OF AN EXISTING LIABILITY. ASSESSING OFF ICER DID NOT ACCEPT THIS CONTENTION AND TREATED THE AMOUNT AMOUNT AS DEEMED DI VIDEND. 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOM E TAX (APPEALS) OBSERVED THAT HE FOUND THAT SHRI SUNIL C HOPRA WAS IN FACT A CREDITOR WITH RESPECT TO SHRI PREM NATH CHOPRA AS ON 31.3.2005 TO THE EXTENT OF ` 43 24 057/- WHO IN TURN WAS A CREDITO R IN THE BOOKS OF M/S SISBRO INDIA PVT. LTD. TO THE EXTENT OF ` 19 35 000/ -. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER FOUND THAT THE SAID COMPANY HAD ACCUMULATED PROFITS TO THE EXTENT OF ` 2 59 039/- ON LY AS ON 31.3.2005. LD. COMMISSIONER OF INCOME TAX (APPEALS) RESTRICTED T HE DEEMED DIVIDEND ` 292326/- ONLY. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSES SEE HAS NOT RAISED ANY LOAN FROM M/S SISBRO INDIA P LTD. BUT HAS RECEIVED BACK THE AMOUNT OF LOAN WHICH WAS DUE TO THE ASSESSEE FROM HI S FATHER SHRI PN CHOPRA. SHRI PN CHOPRA RECEIVED BACK HIS LOAN FROM M /S SISBRO INDIA P LTD. THEREFORE WHEN NO LOAN HAS BEEN RAISED BY T HE ASSESSEE MUCH ITA NOS. 619 & 693/DEL/2010 3 LESS FROM THE SAID COMPANY THERE IS NO QUESTION OF ANY DEEMED DIVIDEND TAXED IN THE HANDS OF THE ASSESSEE. 7. LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. AS PER ADMITT ED FACT OF THE CASE ASSESSEE HAS NOT RECEIVED ANY AMOUNT DIRECTL Y FROM M/S SIBRO INDIA PVT. LTD. M/S SISBRO INDIA PVT. LTD. OWED CERT AIN AMOUNT OF MONEY TO SHRI PN CHOPRA THE FATHER OF THE ASSESSEE AND S HRI PN CHOPRA IN TURN OWED CERTAIN AMOUNT TO THE ASSESSEE. M/S SIS BRO INDIA PVT. LTD. HAS PAID THE AMOUNT TO SHRI PN CHOPRA IN ORDER TO S ATISFY THE CREDIT AND SHRI PN CHOPRA IN TURN HAS PAID THE MONEY TO THE ASSESSEE IN SATISFACTION OF HIS LOAN. IN THESE CIRCUMSTANCES IN OUR CONSIDERED OPINION IT CANNOT BE SAID THAT THERE IS ANY LOAN F ROM M/S SISBRO INDIA PVT. LTD. TO THE ASSESSEE. WHEN THERE IS NO LOAN TO THE ASSESSEE FROM M/S SISBRO INDIA PVT. LTD. THERE IS NO QUESTION OF ANY DEEMED DIVIDEND. UNDER THE CIRCUMSTANCES IN OUR CONSIDERED OPINION ON THE FACTS OF THE CASE ORDERS OF THE AUTHORITIES BELOW NEED TO BE SE T ASIDE AND THE ISSUE DECIDED IN FAVOUR OF THE ASSESSEE. 9. THE NEXT ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN TREATING ` 276526/- AS DEEMED DI VIDEND WITHOUT APPRECIATING THE FACTS OF THE CASE. 10. ON THIS ISSUE ASSESSING OFFICER FOUND THAT ASS ESSEE WAS A SHARE HOLDER IN THE COMPANY NAMED M/S HARI KRIPA TOWERS PR IVATE LIMITED. ON PERUSAL OF THE ACCOUNTS OF THE ASSESSEE ASSESS ING OFFICER FOUND THAT ASSESSEE HAS RECEIVED AN AMOUNT OF ` 323334/- FROM M/S HARI KRIPA TOWERS PRIVATE LIMITED. THE RESERVES AND SURPL US AS ON ITA NOS. 619 & 693/DEL/2010 4 31.3.2006 IS ONLY ` 276526/-. ASSESSING OFFICER TREATED THIS AMOUNT AS DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE. 11. ASSESSEE EXPLAINED THAT DUE TO SOME ERROR SOME C ALCULATION MISTAKE INTEREST WAS CALCULATED AT ` 3 23 334/-. FOR THIS A CHQEUE WAS ISSUED TO THE ASSESSEE. AT THE TIME OF DEPOSITING T HE TDS A MISTAKE WAS DETECTED AND CHEQUE OF THE ENTIRE AMOUNT WAS TA KEN BACK AND INTEREST WAS RECALCULATED AT ` 92953/- OUT OF TDS O F ` 9303/- WAS MADE AND DEPOSITED TO THE CENTRAL GOVERNMENT ACCOUNT. THE BALANCE AMOUNT OF ` 73614/- HAVE BEEN SHOWN AS RECEIVABLE FR OM THE ABOVE COMPANY. ASSESSING OFFICER WAS NOT SATISFIED AND TREATED THE ENTIRE AMOUNT TO THE EXTENT OF ACCUMULATED PROFITS AS DEEME D DIVIDEND AS IN THE HANDS OF THE ASSESSEE. 12. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ADDITION. 13. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 14. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THERE IS NO LOAN OR ADVANCE RECEIVED BY THE ASSESSEE FROM HARI KIRPA TOW ERS P LTD. BUT PAYMENT WAS RECEIVED BY THE ASSESSEE FROM THE SAID C OMPANY TO THE TUNE OF ` 3 23 334/- ON ACCOUNT OF PURPORTED INTERE ST ON LOAN AND WHICH IN FACT WAS A WRONG CALCULATION AND WHEN THE ERROR WAS DETECTED A CORRECT CHEQUE OF INTEREST WAS ISSUED AND THE WRONG PAYMENT OF ` 3 23 334/- WAS TAKEN BACK. 15. LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAN D RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 16. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. ITA NOS. 619 & 693/DEL/2010 5 17. WE FIND CONSIDERABLE COGENCY IN THE SUBMISSION O F THE ASSESSEE THAT ASSESSEE HAS NOT RECEIVED ANY LOAN OR ADVANCE FROM M/S HARI KIRPA TOWERS P LTD. THE WRONG PAYMENT TO THE TUNE OF ` 3 23 334/- WAS ON ACCOUNT OF PURPORTED INTEREST ON LOAN AND W HICH IN FACT WAS A WRONG CALCULATION AND WHEN THE ERROR WAS DETECTED A CORRECT CHEQUE OF INTEREST WAS ISSUED AND THE WRONG PAYMENT OF ` 3 23 334/- WAS TAKEN BACK. IN THESE CIRCUMSTANCES IN OUR CONSIDE RED OPINION ORDERS OF THE AUTHORITIES BELOW NEEDS TO BE SET ASIDE AND ISSUE DECIDED IN FAVOUR OF THE ASSESSEE. REVENUES APPEAL REVENUES APPEAL REVENUES APPEAL REVENUES APPEAL 18. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCO ME TAX (APPEALS) HAS ERRED IN RESTRICTING THE AMOUNT OF D EEMED DIVIDEND TO ` 292326/- ON THE GROUND THAT ONLY THAT WAS THE AMOU NT OF ACCUMULATED PROFITS WITHOUT CONSIDERING THE FACT T HAT THE ASSESSING OFFICER HAS GIVEN A CLEAR FINDING THAT THE AMOUNT O F RESERVES AND SURPLUS WAS TO THE TUNE OF ` 15 83 126/- IN THE BAL ANCE SHEET OF M/S SISBRO INDIA PVT. LTD. 19. WE FIND THAT IN ASSESSEES APPEAL HEREINABOVE WE HAVE ALREADY SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. A S SUCH THIS GROUND IS TO BE DECIDE AGAINST THE REVENUE AND IN FAVOUR OF T HE ASSESSEE. ITA NOS. 619 & 693/DEL/2010 6 20. IN THE RESULT THE APPEAL FILED BY THE ASSESSE E STANDS ALLOWED AND APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/2/2012. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBR ACCOUNTANT MEMBR ACCOUNTANT MEMBR ACCOUNTANT MEMBR DATE 10/2/2012 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES