DCIT, Kanpur v. M/s. Super House Overseas Ltd., Kanpur

ITA 736/LKW/2010 | 2001-2002
Pronouncement Date: 30-03-2011 | Result: Dismissed

Appeal Details

RSA Number 73623714 RSA 2010
Assessee PAN AACCF7773F
Bench Lucknow
Appeal Number ITA 736/LKW/2010
Duration Of Justice 3 month(s) 17 day(s)
Appellant DCIT, Kanpur
Respondent M/s. Super House Overseas Ltd., Kanpur
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-03-2011
Date Of Final Hearing 30-03-2011
Next Hearing Date 30-03-2011
Assessment Year 2001-2002
Appeal Filed On 13-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A - BENCH LUCKNOW. BEFORE SHRI H.L.KARWA HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI ACCOUNTANT MEMBER I.T.A.NO. 736(LKW.)/2010 A.Y. : 2001-02 THE DY.CIT.CC-I VS. M/S. SUPER HOUSE OVERSEAS LT D. KANPUR. 3 RD FLOOR OFFICE NO.2 SOMDUTT PLAZA KANPUR. PAN AACCF7773F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANADI VERMA SR.D.R. RESPONDENT BY : SHRI AMIT SHUKLA ADVOCATE O R D E R PER H.L.KARWA VICE PRESIDENT THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A)-II AGRA DATED 14.9.2010 RELATING TO THE ASSESSMENT YEAR 2001-02. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLO WING GROUNDS: 1. THE CIT(A) ERRED IN DELETING THE ADDITION OF RS .18 25 000/- ON A WRONG APPRECIATION OF FACTS TAKING IT TO BE EXPLAIN ED BY WAY OF ADDITION ON SUBSTANTIVE BASIS IN THE HANDS OF M/S. EMPIRE ESTATE (AOP) DESPITE THE FACTS THAT NO SUCH AOP EXI STED IS EVIDENT FROM THE SEIZED DOCUMENTS AND SUCH UNDISCLO SED RECEIPT OF 'ON MONEY' FROM THE PROSPECTIVE FLAT OWNERS HAD BEEN ACCEPTED BY SHRI TARIQ JAMAL ANOTHER MEMBER OF ALL EGED AOP IN HIS STATEMENT TAKEN DURING THE COURSE OF SEARCH OPERATION. 2. IN DOING SO CIT(A) ERRED IN NOT ACCEPTING THE F ACT THAT SHRI TARIQ JAMAL WAS ACTING AS AN CONSTITUENT OF THE MAN AGING DIRECTOR OF M/S. SUPER HOUSE OVERSEAS LTD. AND ALL THE CASH - 2 TRANSACTIONS WERE DONE ON BEHALF OF THE ASSESSEE. 3. CIT(A) FAILED TO CONSIDER THAT THE TOTAL 'ON MON EY' AMOUNTING TO RS.1.83 CRORES FOR THE TOTAL PROJECT OF EMPIRE E STATE IN DIFFERENT ASSESSMENT YEARS (RS.18.25 LAKH FOR THE Y EAR UNDER CONSIDERATION) HAS NOT BEEN OWNED EITHER BY MR. TAR IQ JAMAL OR M/S. EMPIRE ESTATE (AOP) OR BY M/S. SUPER HOUSE OVERSEAS LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS I N SPITE OF THE FACT THAT SEIZED DOCUMENTS AS PER ANNEXURE-A-3 & A- 4 FOUND FROM THE PREMISES OF MR.TARIQ JAMAL DURING THE COUR SE OF SEARCH OPERATION CLEARLY INDICATED IT TO BE BELONGE D TO M/S SUPER HOUSE OVERSEAS LTD. 4. THAT THE ORDER OF THE LD. CIT (A) BEING ERRONEOU S IN LAW AND ON FACTS BE VACATED AND THE ORDER OF THE AO BE RESTORE D. 5. THAT THE APPELLANT CRAVES LEAVE TO AMEND ANYONE OR MORE OF THE GROUNDS OF THE APPEAL AS STATED ABOVE AS AND WHEN N EED FOR DOING SO ARISE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT FOR THE ASSESSMENT YEAR 2001-02 THE ASSESSEE-COMPANY FILED A RETURN OF IN COME SHOWING A LOSS OF RS.62 66 915. THE RETURN OF INCOME WAS PROCESSED UN DER SECTION 143(1) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) ON 15 .3.2002. LATER ON THE CASE WAS PICKED UP FOR SCRUTINY AND THE AO COMPLETE D THE ASSESSMENT AT AN INCOME OF RS.20 38 400. WHILE COMPLETING THE ASSESS MENT THE AO HAS MADE ADDITION OF RS.18 25 000 TO THE RETURNED INCOM E ON ACCOUNT OF UNEXPLAINED CASH CREDITS UNDER SECTION 68 OF THE A CT OBSERVING AS UNDER : 'AN ADDITION OF RS.18 25 000/- HAS BEEN MADE ON SUB STANTIVE BASIS IN THE CASE OF M/S EMPIRE ESTATE AOP VIDE ASSESSMENT O RDER DATED 19.3.04 PASSED U/S 143(3) TOWARDS UNEXPLAINED CASH CREDITS FOUND RECORDED IN ITS BOOKS OF ACCOUNTS. ACCORDINGLY AN A DDITION OF RS.18 25 000/- IS MADE TO THE INCOME OF ASSESSEE CO . ON PROTECTIVE BASIS TO PROTECT INTEREST OF REVENUE FOR THE REASON S DISCUSSED IN THE 3 ORDER PASSED U/S 143(3) OF IT ACT 1961 IN THE CASE OF M/S. EMPIRE ESTATE AOP.' 4. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE C ARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A) AND THE LD.CIT(A) DELET ED THE ADDITION OBSERVING AS UNDER : 3.1 AS PER THE WRITTEN SUBMISSION FILED BY THE L D.AR OF THE APPELLANT IT IS STATED THAT THE ASSESSEE IS A MEMBE R OF AOP NAMELY M/S EMPIRE ESTATE SHARING PROFIT AND LOSS IN THE RA TIO OF 60%. ANOTHER MEMBER OF THIS AOP I.E. M/S EMPIRE ESTATE I S SHRI TARIQ JAMAL. IT IS NOTICED THAT THE AOP M/S EMPIRE ESTATE OF WHICH THE APPELLANT IS ONE OF THE CONSTITUENT MOVED AN APPLIC ATION BEFORE THE HON'BLE INCOME TAX SETTLEMENT COMMISSION AND IT HAD BEER. ADMITTED U/S 245D(1) VIDE ORDER DATED 1.6.06. WHILE ADMITTIN G THE APPLICATION OF THE AOP M/S. EMPIRE ESTATE THE HON'BLE SETTLEMEN T COMMISSION ALSO CONSIDERED THE ADDITION OF RS.18 25 000/- MADE BY THE AO ON SUBSTANTIVE BASIS IN THE CASE OF AOP M/S EMPIRE EST ATE. THE HON'BLE INCOME TAX SETTLEMENT COMMISSION HAS PASSED THE ORD ER U/S 245D(4) ON 14.12.09 WHICH INTER ALIA INCLUDES THE A.Y. 2001 -02 WHEREIN THE ADDITION OF RS.18 25 000/- HAS BEEN MADE BY THE AO IN THE CASE OF APPELLANT ON PROTECTIVE BASIS. AS THE SUBSTANTIVE A DDITION WAS MADE IN THE CASE OF M/S EMPIRE ESTATE BY THE AO AND THE SAM E HAS BEEN CONSIDERED BY THE HON'BLE INCOME TAX SETTLEMENT COM MISSION THEREFORE THE ADDITION MADE BY THE AO ON PROTECTIV E BASIS HAS NO LEGS TO STAND THEREFORE THE SAME IS DELETED. IT WILL N OT BE OUT OF PLACE TO MENTION HERE THAT ON SIMILAR FACTS EVEN BEFORE THE ORDER OF HON'BLE INCOME TAX SETTLEMENT COMMISSION WAS RECEIVED THE L D.CIT(A)- I KANPUR VIDE ORDER NO.CIT(A)-I/39/CC-V/KNP/03-04/1 30 DATED 27.8.04 HAD DELETED THE ADDITION OF RS.55 LACS. GR OUNDS ARE ALLOWED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THA T THE ASSESSEE IS A MEMBER OF AOP NAMELY M/S. EMPIRE ESTATE SHARING PROFIT AND LOSS IN THE RATIO OF 60%. ANOTHER MEMBER OF THE AOP I.E. M/S. E MPIRE ESTATE IS TARIQ JAMAL. M/S. EMPIRE ESTATE OF WHICH THE ASSESSEE IS ONE OF THE CONSTITUENT 4 MOVED AN APPLICATION BEFORE THE INCOME-TAX SETTLEME NT COMMISSION AND IT HAD BEEN ADMITTED UNDER SECTION 245D(1) VIDE ORDER DATED 1.6.2006. WHILE ADMITTING THE APPLICATION OF THE AOP M/S. EMPIRE ESTATE THE SETTLEMENT COMMISSION ALSO CONSIDERED THE ADDITION OF RS.18 25 000 MADE BY THE AO ON SUBSTANTIVE BASIS IN THE CASE OF AOP M/S. EMPIR E ESTATE. AS PER THE ORDER OF THE SETTLEMENT COMMISSION DATED 14.12.2009 THE AMOUNT OF RS.18 25 000 HAS BEEN ADDED IN THE CASE OF M/S. EMP IRE ESTATE ON SUBSTANTIVE BASIS AND THEREFORE THE ADDITION MADE BY THE AO ON PROTECTIVE BASIS CANNOT BE SUSTAINED IN THE HANDS OF THE ASSES SEE. IN OUR VIEW THE ORDER OF THE LD.CIT(A) IS PERFECTLY CORRECT AND WE UPHOL D THE SAME. 6. IN THE RESULT THE APPEAL IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.3.201 1. SD. SD.. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT MARCH 30TH 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R. ITAT LUCKNOW. SRIVASTAVA.