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2015 (7) TMI 651 - ITAT DELHI

2015 (7) TMI 651 - ITAT DELHI - TMI - Penalty u/s 271(1)(c) - Bogus expenses - Held that:- In the light of the pleadings before the Bench and the arguments advanced the only claim of the assessee which may have some force is that the relief on quantification of the penalty imposed as admittedly the Ld. CIT(A) on facts has not taken into consideration the fact that in the quantum proceedings at the stage of the CIT(A), relief was granted to the extent of ₹ 3 lakh and it has been urged that .....

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ee and thereafter passed a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. - Decided partly in favor of assessee for statistical purposes. - I.T.A .No.-5592/Del/2012 - Dated:- 15-7-2015 - SMT DIVA SINGH AND SHRI J.S. REDDY, JJ. For The Appellant : Sh. Ved Jain, Adv. For The Respondent : Ms. Y. Kakkar, DR ORDER PER SMT. DIVA SINGH, J.M. By the present appeal the assessee assails the correctness of the order dated 27/08/2012 of CIT(A)-V, New .....

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erred, both on facts and in law, in confirming the penalty on the addition made by AO on account of share application money despite the assessee brining all material and evidences on record to prove the identify of the share applicants. 4. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in ignoring the contention of the appellant that no penalty is leviable as the appellant has disclosed all facts in the return filed by the appellant and as such th .....

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271(1)(c) despite the fact that the appellant has submitted explanation in support of its contention that there is neither concealment nor furnishing of inaccurate particulars of income. 7. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in rejecting the contention of the appellant that the order passed by the AO levying penalty is untenable in the eye of law as the same is barred by limitation. 8. That the appellant craves leave to add, amend or a .....

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y an order passed u/s 143(3), as a result of addition of ₹ 25 lakh made on account of bogus share application money; ₹ 1,80,612/- on account of expenses @ 30% of the total expenses; and ₹ 17,308/- on account of preliminary expenses. 3. The addition was challenged in the quantum proceedings before the CIT(A), wherein partial relief was given to the assessee however on a challenge further by the assessee the additions sustained by the CIT(A) was confirmed by the ITAT. It is also .....

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justify the genuineness, creditworthiness to ₹ 25,50,000/- as the accommodation entry received by the assessee company form entry providers. Further, the assessee has also deliberately debited the preliminary expenses amounting to ₹ 17,308/- in profit loss account which expenses were not allowable. Therefore, the assessee has willfully concealed the taxable income to the tune of ₹ 25,67,308/-. (emphasis provided) 3.2. As a result of this penalty of ₹ 10,14,087/- was impo .....

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lty order necessary relief qua this fact was not considered. Apart from that the addition of ₹ 1,80,692/- it was submitted was set aside by the ITAT in the quantum proceedings. Accordingly in view of these facts the penalty order should be quashed. In the facts of the present case it was argued simply because the explanation of the assessee has not been accepted in the quantum proceedings, it cannot be said to amounting to concealment having been made out. It was submitted that the penalty .....

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of the judgment dated 8th September, 2011, wherein the appeal of the assessee in the quantum proceedings had been dismissed (2012) 18 taxmann.com 9 (Del.) in the case of Beautex India (P) Ltd. Vs. CIT. Referring to the said judgment it was submitted that the assessee s claim has been held to be bogus right up to the Hon ble High Court. Referring to the penalty order it was submitted that no explanation was offered. Similarly in the impugned order only general arguments have been advanced and sa .....

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nd distinct; the explanation offered in the penalty proceedings is to be considered separately in the penalty proceedings notwithstanding the fact that for the purposes of the assessment it may not have been accepted are well-settled legal proposition and have been taken into consideration while arriving at a conclusion. Similarly the argument that no defect has been pointed out in the books of accounts where books at the relevant point of time were not produced has also been considered in the b .....

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see raised share application money of ₹ 27,40,600/- from eight persons. Out of the above, during the year in question, only a sum of ₹ 22,50,000/- was received towards share capital. The Assessing Officer (AO) initiated enquiry proceedings in respect of shareholders and sent summons to Shri Amit Gupta, Shri Surender Kumar Srivastava, Shri Moolchand Nirmal and Shri Yogesh Saxena. The summons issued to Shri Amit Gupta and Shri Surender Kumar Srivastava were returned back with the remar .....

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made enquiries and come to the conclusion that the share application money received from an account maintained in the name of Mr. Agarwal with ABN Amro Bank, Barakhamba Road, New Delhi. The AO on 28.02.2007 issued a show cause notice along with the statements of Sh. Moolchand Nirmal and Shri Yogesh Saxena to the assessee, which was replied by the assessee on 30.04.2007 where confirmations, receipt of filing income tax returns, affidavits were filed. Not satisfied with the aforesaid replies/docum .....

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in the impugned year. 4. The assessee once again preferred appeal before the Tribunal against the order of the CIT(A). The Tribunal vide impugned order affirmed the order of the CIT(A) on this issue. Thereafter, the appellant also filed Misc. Application u/s 254(2) of the Act, which was again dismissed on 5.3.2010. 5. Still dissatisfied, the appellant preferred the instant appeal u/s 260A of the Act. (emphasis provided) 5.1. Considering these facts and the submissions of the parties the Hon ble .....

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also not produced its shareholders of the company for verification and, therefore, the identity of these shareholders was not proved. Two persons, viz., Mr. Yogesh Saxena and Mr. Moolchand Nirmal, who appeared before the AO had specifically made statement denied that they had made any investment with the share application money. Further finding which is recorded by all the three Authorities that the money had not come from their accounts. In fact, it was found that the accounts from which those .....

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Counsel for the appellant was that Shri Moolchand Nirmal and Mr. Yogesh Saxena were not allowed to be cross examined by the appellant even when specific opportunities were sought for. We may note that the Tribunal in the impugned judgment had categorically observed that no such cross examination was sought for by the assessee and the ld. Counsel for the assessee argued that this was factually wrong observations, as vide communication dated 2.2.2007, the assessee had made a specific request for .....

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d the said communication in that perspective, we find that there was no such specific request made by the appellant. 8. We, thus, do not find any infirmity in the impugned order. No question of law arises for consideration. This appeal is dismissed in limine. (emphasis provided) 5.2. In view of the above, finding of facts remaining unaddressed in the present proceedings the general arguments on various propositions of law without placing on record any evidence to the contrary to rebut the consis .....

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