TMI Blog2010 (1) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... ney from a racket of systematic entry operators - held that:- judgment of Hon'ble Apex Court in the case of Lovely Exports (P) Ltd. (2008 -TMI - 76942 - SUPREME COURT OF INDIA), is not squarely applicable in the present case because the facts are different. - in the interest of justice, this matter should go back to the file of the Assessing Officer for a de novo assessment after providing an opportunity to the assessee to cross examine Shri SH Mallick. - I.T.A. No. 2986/Del/2009, - - - Dated:- 8-1-2010 - R.P. Tolani, A.K. Garodia, JJ. Pratima Kaushik, Sr. DR for the Appellant ORDER A.K. Garodia, Accountant Member:- 1. This is revenue's appeal and cross objection is filed by the assessee which are directed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not by itself mean that the appeal had been admitted. This rule only clarifies the position. There might be various reasons with the appellant to remain absent at the time of hearing. One of the reasons might also be a desire or absence of need to prosecute the appeal or liability to assist the Tribunal in a proper manner or to take benefit of vagaries of law. 4. Respectfully following the precedents, the cross objection filed by the assessee is treated as un-admitted and dismissed in limine. We may like to clarify that subsequently if the assessee explains the reasons for non appearance and if the Bench is so satisfied, the matter may be recalled for the purpose of adjudication of the cross objection. 5. In the result, the cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through proper channel that the assessee company was one among the hundreds of beneficiaries who has taken accommodation entries from various entry operators. The Assessing Officer has referred to the entry operator i.e. SH Mallick Group. The Assessing Officer has referred to the statement of Shri SH Mallick and many other entry operators which were recorded on oath during the course of enquiry. The Assessing Officer has supplied to the assessee a copy of the statement of Shri SH Mallick. It is noted by the Assessing Officer on page No.7 that on 18.12.2008, a request was made by the assessee company through its director for providing an opportunity for cross examination of Shri SH Mallick. The Assessing Officer was of the view that such a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial evidence to controvert or disprove the contention of the assessee regarding the genuineness of the share application money received by it and supported by necessary documentary evidence. After stating so, Ld. CIT(A) has deleted this addition by following the judgment of Hon'ble Apex Court rendered in the case of Divine Leasing and Finance Ltd. and Lovely Exports (P) Ltd. as reported in 216 CTR 195. Now, the revenue is in appeal before us. 8. It was submitted by Ld DR of the revenue that the facts in the case of Lovely Exports (P) Ltd. and Divine Leasing and Finance Ltd. are different. It is submitted that in those cases, it was not the case of the revenue whereas in the present case it is the case of the revenue that entry operators ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), we feel that his order cannot be sustained. Moreover, regarding judgment of Hon'ble Apex Court in the case of Divine Leasing and Finance Ltd. (supra) and Lovely Exports (P) Ltd. (supra), we are in agreement with Ld DR of the revenue that this judgment is not squarely applicable in the present case because the facts are different. In those cases, it was not the case of the Department that the assessee has obtained share application money from a racket of systematic entry operators whereas in the present case, the case of the revenue is that these cheques were obtained by the assessee as an accommodation entry from entry operator i.e. Shri SH Mallick and he has enclosed a copy of his statement along with the assessment order. We, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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