ABHISHEK ESTATE P LTD, Jaipur v. DCIT, Jaipur

ITA 910/JPR/2010 | 2002-2003
Pronouncement Date: 16-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 91023114 RSA 2010
Assessee PAN AABCA5594M
Bench Jaipur
Appeal Number ITA 910/JPR/2010
Duration Of Justice 1 year(s) 2 month(s) 3 day(s)
Appellant ABHISHEK ESTATE P LTD, Jaipur
Respondent DCIT, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 16-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 16-09-2011
Assessment Year 2002-2003
Appeal Filed On 13-07-2010
Judgment Text
1 ITA 910-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 910/JP/2010 ASSTT. YEAR : 2002-03. M/S. ABISHEK ESTATE PVT. LTD. VS. THE DCIT CENTR AL CIRCLE-3 601 GEETA ENCLAVE VINOBA MARG JAIPUR. C-SCHEME JAIPUR. PAN : AABCA 5594 M. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SACHINDRA MISHRA RESPONDENT BY : SHRI VINOD JOHARI DATE OF HEARING : 12.9.2011. DATE OF PRONOUNCEMENT : 16.9.2011 ORDER DATE OF ORDER 16/09/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2002-03. 2. AS MANY AS SEVEN GROUNDS OF APPEAL HAVE BEEN TAK EN BY THE ASSESSEE IN ITS APPEAL. GROUND NO. 7 IS GENERAL IN NATURE. GROUND NO. 6 IS AGAINST INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) WHICH IS PRE-MA TURE AT THIS STAGE. THEREFORE BOTH THESE GROUNDS ARE DISMISSED. 3. GROUND NO. 5 IS AGAINST LIABILITY TO PAY INTERES T UNDER SECTION 234A AND 234B WHICH IS CONSEQUENTIAL IN NATURE. 2 4. GROUND NOS. 3 & 4 ARE IN RESPECT TO ADDITION OF RS. 5 00 000/- SUSTAINED UNDER SECTION 68 BY NOT ADMITTING VARIOUS EVIDENCES FILED . 5. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A SEARCH OPERATION WAS CARRIED OUT ON 3.5.2007. IN RESPONSE TO NOTICE UNDER SECTION 153A THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME AT RS.12 410/-. THE AO OBSERVED THAT ASS ESSEE HAS RAISED SHARE APPLICATION MONEY OF RS. 5 00 000/- DURING THE PREVIOUS YEAR RE LEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION FROM VARIOUS PERSONS. AO GAVE SEVERA L OPPORTUNITY TO THE ASSESSEE TO PROVE THE IDENTITY GENUINENESS AND CREDITWORTHINES S OF THE PARTIES FROM WHOM THE SHARE APPLICATION MONEY WAS SHOWN TO HAVE BEEN RECEIVED. AS PER AO NO SUCH DETAILS WERE FILED BY THE ASSESSEE. THEREFORE HE MADE AN ADDITI ON OF RS. 5 00 000/- UNDER SECTION 68. IT WAS SUBMITTED BEFORE LD. CIT (A) THAT ASSESSEE W AS NOT GIVEN ANY SHOW CAUSE NOTICE BEFORE MAKING THE SAID ADDITION. IT WAS SUBMITTED THAT SHARE APPLICANTS WERE GENUINE TO WHOM THE SHARE APPLICATION MONEY HAD BEEN REFUNDED THROUGH ACCOUNT PAYEE CHEQUE. THE ASSESSEE HAD FILED COPIES OF LEDGER ACCOUNT OF THESE PERSONS AS WELL AS BANK STATEMENTS. IN THIS REGARD IT WAS SHOWN THAT SINCE THE CHEQUE HAD BEEN ENCASHED BY THE SHARE APPLICANTS SUBSEQUENTLY THEIR EXISTENCE WERE ESTABLISHED. IT WAS FURTHER SUBMITTED THAT ONE OF THE SHARE APPLICANT WAS M/S. TRIMURI CO LONIZER AND BUILDERS PVT. LTD. A COMPANY BELONGING TO THE SAME GROUP AND ASSESSED TO TAX WITH SAME ITO. THEREFORE THE IDENTITY OF THIS APPLICANT WAS NOT IN DOUBT. IT WA S FURTHER SUBMITTED THAT THE ADDRESSES OF SOME OF THE SHARE APPLICANTS ARE NOW BEING SUPPLIED AS BEFORE THE AO THEY WERE NOT AVAILABLE. FROM THE ADDRESS OF THE PARTIES IT IS CLEARLY ESTABLISHED THAT THEY ARE GENUINE. RELIANCE WAS PLACED ON VARIOUS CASE LAWS. HOWEVER THE LD. CIT (A) WAS ALSO NOT SATISFIED. ACCORDINGLY HE CONFIRMED THE ACTION OF T HE AO. 3 6. CONTENTIONS RAISED BEFORE LD. CIT (A) WERE REITE RATED HERE BEFORE THE TRIBUNAL. FURTHER RELIANCE WAS PLACED ON THE STATEMENT OF CAS E AND SYNOPSIS ENCLOSED ALONG WITH THE GROUNDS OF APPEAL AT THE TIME OF FILING OF APPEAL. 7. ON THE OTHER HAND THE LD. D/R STRONGLY PLACED R ELIANCE ON THE ORDERS OF AO AND LD. CIT (A). 8. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND. ALL THE DETAILS IN RESPECT TO SHARE APPLICATION MONEY WAS FILED BEFORE AO. SOME OF THE ADDRESSES COULD NOT BE GIVEN TO THE AO. HOWEVER THEY WERE GIVEN TO THE LD. CIT (A). A LL THE SHARE APPLICATION MONEY RECEIVED FROM VARIOUS APPLICANTS WERE RETURNED THRO UGH ACCOUNT PAYEE CHEQUE WHICH IS NOT IN DISPUTE. PAYMENT BY CHEQUE ESTABLISHED THAT THE PARTIES ARE GENUINE WHO HAVE RECEIVED THE PAYMENT THROUGH ACCOUNT PAYEE CHEQUE. EVEN OTHERWISE IN VIEW OF THE DECISION OF HONBLE APEX COURT IN CASE OF LOVELY EX PORTS PVT. LTD. 216 CTR 195 WHEREIN IT IS HELD THAT IF ANY ADVERSE VIEW COULD B E DRAWN THAT CAN BE DRAWN AGAINST THE SHAREHOLDERS NOT AGAINST THE COMPANY WHO RECEIVED SHARE APPLICATION MONEY. LIST OF APPLICANTS WHICH ARE 11 IN TOTAL IS PLACED ON RECO RD. IT IS SEEN THAT ADDRESS OF SOME OF THE PARTIES ARE GIVEN. THEREFORE IN OUR VIEW NO ADVER SE INFERENCE SHOULD HAVE BEEN DRAWN IN THE HANDS OF THE FIRM. THEREFORE KEEPING IN MIND ALL THESE FACTS AND CIRCUMSTANCES AND THE DECISION OF HONBLE APEX COURT INCLUDED VARIOUS OTHER DECISIONS MENTIONED IN THE STATEMENT OF FACTS WE ARE OF THE VIEW THAT ADDITIO N OF RS. 5 00 000/- MADE BY AO WHICH IS CONFIRMED BY LD. CIT (A) IS NOT JUSTIFIED. ACCOR DINGLY THE SAME IS DISMISSED. 9. GROUND NOS. 1 & 2 ARE AGAINST FRAMING ASSESSMENT UNDER SECTION 153A WITHOUT ANY MATERIAL FOUND DURING THE COURSE OF SEARCH. 4 10. SINCE WE HAVE DELETED THE ADDITION OF RS. 5 00 000/- THEREFORE WE ARE NOT INCLINED TO DISPOSE OFF THE LEGAL GROUND AT THIS PO INT OF TIME. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D IN PART AS INDICATED ABOVE. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 16 .9.2010 SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- SHRI ABISHEK ESTATE PVT. LTD. JAIPUR. THE DCIT CENTRAL CIRCLE-3 JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 910/JP/2010) BY ORDER AR ITAT JAIPUR.