9911796707
TMI Blog2016 (6) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... booking for sale of flats, which was added by the Ld. assessing officer under section 68 of the income tax act. 3. On 04/04/2016 the assessee has moved a prayer for admission of additional ground of appeal:- "That in law the Ld. AO erred in framing the assessment u/s 143 (3) relying on documents seized in a search on a 3rd party without satisfaction under section 153C and without issue of notice under section 153A ." 4. It was submitted that a dumb document was seized from the premises of a third party, the Ld. assessing officer has completed the assessment proceedings under section 143 (3) instead of u/s 153A rws 153C of the act. He stated that it is the root cause of the addition and ground is legal in nature. He further stated that no fresh facts are required to be looked into to decide the above ground of appeal. Therefore, this ground of appeal should be admitted and adjudicated. 5. Ld. Departmental representative objected to the admission of additional ground submitting that there is no error in the order passed u/s 143(3) of the act by the AO, which is confirmed by the Ld. CIT (A). He further submitted that assessee has not taken this objection before the Ld. AO as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance amount. On analysis of that chart, total amount was of Rs. 47,02,000/- /-which was not shown as receipt, ld. AO added it as unexplained cash credit. Further, for the year, assessee has shown Rs. 14000000/- as a creditor from M/s stalwarts private limited and out of this an amount of Rs. 5000000/- is received during the year and Rs. 9000000/- was outstanding balance for the last year. According to the Ld. assessing officer is stalwarts Realtors private Ltd is not doing any real business and this company is form for creating artificial capital and then providing accommodation entries to the other companies of the groups wherever the capital is needed. As during the year the company received Rs. 5 000000 only the Ld. assessing officer held that creditworthiness of this company and genuineness of this amount is not established and hence an addition under section 68 of the income tax act of Rs. 5000000/- is made to the total income of the assessee. Consequently the total income was assessed at Rs. 9687330/- u/s 143(3) of the Act. 8. Appellant assessee aggrieved with the order of the Ld. AO preferred an appeal before the Commissioner of Income Tax (Appeals). Before the Ld. CIT (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lender company but only an accumulated profit of Rs. 3.59 crores reflected in the balance sheet as on 31st march 2008. Therefore the credit entry of Rs. 50 Lacs appearing in the books of the appellant company in the name of stalwarts Realtors private limited was also held as unexplained credit under section 68 by the CIT (A). Against this order of the assessee is in appeal before us. 9. On the issue of additional ground of appeal rose before the Arsenal and authorized representative submitted that this issue is similar to the additional ground raised before the bench in case of ITA No. 2463/DEN/2013 . He also stated that the arguments are the same, which were advanced before the bench in that ITA. Ld. departmental representative also stated that similarly the arguments are placed from the side of the revenue also. 10. We also carefully perused the additional ground raised before us. In ITA No. 2463/Del/2013 we have dismissed the additional ground of appeal as under:- "13. On legal issue, admittedly, assessment has been framed by the ld. AO u/s 143(3) of the act and whole addition has been made based on seized document being page 1 of Annexure A-12 impounded from the premises s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 -Del-2013 dated 13/06/2016 we dismiss the additional ground of appeal of the assessee. 12. Ld. authorized representative submitted before us that this issue is similar to the issue stated in the case of other companies in ITA No. 2463/DEL/2013 . Further issue of addition under section 68 in case of stalwarts Realtors private limited is similar to what was argued in case of ITA No. 2464/DEL/2013. He further submitted that that the arguments of the assessee are same. Ld. departmental representative also agreed to the fact that identical issues have been argued by parties in above appeals. We have also carefully considered the ground in this appeal as well as the issue is covered in those appeals and we are convinced that they are identically nature. 13. On the issue of advance money in case of booking of spaces and related projects of the appellant we have already decided this issue in ITA No. 2463/DEL/2013 as under:- "6. We have carefully considered the rival contentions and perused the orders of the lower authorities and the document seized. We have already discussed the brief facts of the case above. Now It is necessary to analyses the document seized, certified copies of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party i.e. Shri B K Dhingra and how is he associated with the appellant. Ld. CIT (A) has stated that Shri B K Dhingra is a close associate of Shri I M Thapar . Merely an assertion that somebody is close to one of the director cannot become the close associate of the appellant company itself. Ld. AO has not led any evidence that Shri Dhingra looks after the affairs of the company in any manner. the evidence of actual transaction of those parties and it is unaccounted income of these companies.. ii. On 20.8.2008 search on Thapar Homes Group as well as survey on the assessee were carried out. Admittedly, during the course of search the charts as well as the counterfoils of the chequebooks were found from Shri B K Dhingra. However, during survey no evidences with respect to the projects whether in existence or not for which the statement is found, whether the counterfoils of cheques, which were relied up on whether cleared in the bank, account of the appellant were examined. Appellant has submitted that the there is no such project, assessee received no such booking and no such cheques were received in the bank account of the assessee. Revenue has not controverted this fact. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry operator or the assessment orders of those companies operated by him. vi. Further assuming that those companies are the bogus companies, and then on looking at the chart we found that there are columns of "cash". If these amounts are the bogus amount introduced by the appellant company then we failed to understand that how the cash is also be received from those companies, whereas in general only commission is required to be paid to the entry provider and no cash is receivable from them. vii. Further, it remains uncontroverted that there was no project in the name of the appellant in impugned assessment year as there was no permission also. The facts of the acquisition of land are submitted by the Ld. AR and also stated the status of the project , which is not controverted. It is highly unlikely that the builder who is not the line of the developer for considerable time would get such kind of bookings. All the counter foil of cheques showed dates of March 2008. viii. Further Ld. CIT (A) drew support from the provision of section 292C of the act. That provision applies in case the documents are found from the possession of the person then the presumption arises against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private limited on 13/12/2008 and for the satisfaction of the assessing officer, assessee submitted confirmation showing address, as well as the permanent account number of the lender. It also submitted a copy of the income tax return filed by Stalwarts Realtors private limited for assessment year 2008 - 09, along with copy of the bank account of stalwarts realtors private limited with Corp bank from 1st December 2008 to 31st December 2008. As per the bank account opening balances in the hands of the lender was Rs. 25,67,771/-and subsequently there is an inward credit in the bank account of the lender 13.12.2008 of Rs. 46 lakhs through banking channels from syndicate bank, therefore, before the issuance of cheque to the appellant company, available balance in the hands of the lender was Rs. 7167771/-and out of this balances an amount of Rs. 46 lakhs was issued by account payee cheque No. 795738 on 10/12/2008, which was cleared into the bank account of the lender on 13/12/2008 . Even after the issue of this cheque, there was an outstanding balance in the bank account of the lender of Rs. 2567771/- . Assessee has also submitted the copy of the balance sheet of the lender for the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gus, however, the profit derived from such bogus sales has been taxed by the revenue authorities. Therefore, the ld. AO has made this addition without adducing any evidence on which he strongly relies. The Ld. assessing officer, Ld. CIT (A) and Ld. departmental representative before us did not controverted that profits of Stalwarts Realtors from the bogus sales have been assessed and despite having evidences against that company , no actions have been initiated against that lender. It was not also denied that stalwart realtors private Ltd is a company which is regularly filing its return of income and has an accumulated reserve and surplus of Rs. 3.59 crores which is been accumulated from year-on- year. It is also apparent from the balance sheet filed by the assessee of stalwart realtors private limited that it has substantial amount of bank balances, sundry debtors and loans and advances. Therefore, it cannot be said that that identity and creditworthiness of the lender is at all doubtful. Further, the amount of loan has been taken by the assessee from this lender through account payee cheques and has submitted the bank account of the lender, wherein substantial sum of bank balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
