9911796707
TMI Blog2019 (9) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... see appeared and filed all necessary documentary evidences, in support of the query raised by the AO. After considering the same the AO accepted the claim of the assessee and completed the assessment u/s. 147/143(3) of the Act vide order dated 16.12.2016 at NIL income of the assessee. 2.1 The Income Tax Officer, Ward No. 21(1), New Delhi vide letter dated 03.4.2018 sent a proposal for revision of the order u/s. 263 of the I.T. Act being prejudicial to the revenue wherein it was specifically observed that reassessment proceedings in the case of the assessee for the assessment year 2009-10 was done erroneously. Due to time barred pressure the fact that the accommodation entry amounting to Rs. 1,50,00,000/- had escaped assessment and left un-assessed. AO also brought to the notice of the Pr. CIT-7, New Delhi that the accommodation entry of Rs. 1,50,00,000/- was received from the company namely M/s Virgin Capital Services Pvt. Ltd. which is controlled by an entry operator Sh. SK Jain & Sh. Virender Kumar Jain. AO has also brought to the notice in the proposal that matter of taking the accommodation entry was overlooked due to time barring pressure over the assessment. On the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 2007-08 to 2012-13. For the assessment year in dispute, the assessee filed its return on 28.9.2009 declaring NIL income u/s. 139(1) of the I.T. Act alongwith computation of income, audited financial statements and tax audit report u/s. 44AB of the Act, which the assessee has placed at Page No. 43-58 of the Paper Book. He further submitted that assessment was framed u/s. 147/143(3) of the Act vide order dated 16.12.2016 wherein on detailed examination of the facts on record and after making all possible enquiries the AO had accepted the claim of the assessee then such an order of assessment could not be regarded as erroneous in as much as prejudicial to the interest of revenue merely because the Ld. Pr. CIT had a different opinion and that too, without having established in any manner that, view adopted by the AO was an impossible view. He further submitted that AO had made enquiries during the assessment proceedings; the assessee had given detailed explanation and the AO on being was satisfied with the explanation of the assessee, such decision of the AO cannot be held to be 'erroneous', and therefore cannot be revised u/s. 263 of the Act, which the Ld. Pr. CIT ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17) 77 taxmann.com 285 (SC). - Shree Manjunatehsware Packing Products & Camphor Works vs. CIT (1998) 96 Taxman 1 (SC). - Order of Hon'ble Supreme Court of India in the case of CIT vs. Amitabh Bachan 384 ITR 200 dated 11.5.2016. - Order of ITAT, F Bench in the case of PTC Impex Pvt. Ltd. Vs. CIT, ITA No. 2860/Del/2010 dated 3.4.2018. - Delhi High Court decision in the case of Gee Vee Enterprises vs. Addl. CIT, 99 ITR 375. - ITAT, Delhi Bench decision in the case of Perfetti Van Melle India Pvt. Ltd. ITA No. 3046/Del/2016 for AY 2008-09 order dated 11.1.2019. - ITAT, Delhi Bench in the case of Ramesh Kumar, ITA No. 1982/Del/2018 for AY 2014-15 dated 25.1.2019. - ITAT, Delhi order in the case of CIT vs. Apollo Tyres Ltd. 65 ITD 263. 5. We have carefully considered the rival submissions and perused the relevant records available with us, especially the impugned order passed by the Ld. Pr. CIT u/s. 263 of the Act alongwith the legal position on the relevant issues which emanates from the various decisions cited before us as well as the Paper Books filed by both the parties and the assessment order and reasons recorded for reopening of assessment and the notices issued u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order u/s. 147/143(3) of the Act for the assessment year 2009-10 (Pg. 158 of Paper Book). 5.1 After going through the aforesaid documentary evidences filed in the shape of paper book, we are of the considered view that AO has thoroughly examined the case of the assessee and properly enquired the matter and after satisfaction accepted the genuineness and transaction in dispute and vide his assessment order dated 16.12.2016 passed u/s. 147/143(3) of the Act, he framed the assessment by accepting income declared by the assessee by observing as under:- "Assessee filed its return of income on 28.9.2009 declaring NIL income. The return was processed u/s. 143(1) of the Income Tax Act, 1961. However, the case was not selected for regular scrutiny. "2. Subsequently, information was received from the Investigation Wing, New Delhi vide letter F.No. DIT (Inv.)-II u/s. 148/2012-13/195 dated 12.3.2013 and case was reopened u/s. 148 of the I.T. Act, 1961. Notice u/s. 148 dated 28.3.2016 was issued to the assessee file ITR within 30 days of receipt of notice. Thereafter, notices u/s. 143(2) & 142(1) were issued to the assessee. In compliance with the notices, Sh. Ashish Bhala, CA/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol of Sh. SK Jain. Pass Books / cheques Books of all such investing companies have been found at the premises of Sh. SK Jain and Virender Jain. * That name of the assessee company appears on the document seized from the premise of Sh. S.K.Jain. * That the assessee has declared in its return of income that it has not increased its share capital amounting to Rs. 1,50,00,000/- which confirms the information received. During the course of assessment proceedings the assessee submitted details of its business and details of transactions with Virgin Capital Services Pvt Ltd It was noticed that assessee company was registered as. NBFC Company and engaged in the business of trade of shares/security The assessee contended that the alleged transaction with Mis Virgin Capital Services Pvt Ltd of Rs. 1,50,00,000/- was made on account of sale of shares. As per submissions the assessee had sold shares of different entities to M/s Virgin Capital Services Pvt. Ltd for which consideration of Rs. 1.5 cr was received. It was also observed that the said sale of share was offered for taxation in the profit & loss account by the assessee. Such submission of the assessee is verified from the profi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 of Annexure A-29 whose details is given above and is as below:- S.NO. PAGE/ANNEXURE OF INFORMATION DATE AND CHEQUE/PO ISSUED BEARING NO. AMOUNT NAME OF DUMMY COMPANIES CONTROLLED BY SK JAIN BY WHOM CHEQUE ISSUED NAME OF PERSON TO WHOM ISSUED (BENEFICIARY) NAME OF THE MIDDLE MAN / MEDIATOR 1 A-29, 36 PASGE BACK SIDE CHEQUE BOOK 29952 DT. 1911.08 1,50,00,000 m/S Virgin Capital Services Pvt. Ltd. M/s Rajgul Creditnvest Pvt. Ltd. (Assessee) Bhallaji From the above table it is clear that amount, date and intermediary are same. Hence, the allegation as per reason recorded is supported by the corroborative evidence in the form of cash book. This fact could not be verified by the A. O. during the assessment proceedings for the reason of time constraint on the part of the assessee for playing delay tactics Moreover, it was also found that there is no increase in the share capital/premium or even any liability in the financials of the assessee. 2.7 The accommodation entry can also be in the form of sale of shares. In this case the assessee has admitted to have sold shares to the company namely M/s Virgin Capital Services Pvt. Ltd. which is intermediatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us year. However it is also established and admitted by assessee himself during re-assessment proceedings stated that a sum of Rs. 1,50,00,000/- had been received from M/s Virgin Capital Services Pvt Ltd. The contention of AO that accommodation Entry can be in the form of sale of shares can-not be denied. The incriminating seized document i.e. A-29, 36 page Back side contains the exact information in respect of taking entry from M/s Virgin Capital Services Pvt Ltd. which is controlled by an entry operator Sh. S K Jain & Ors. The seized document also contain name of middle man i.e. Bhallaji Whereby fact of receipt of cash against cheque payment is clearly mentioned recorded and is matching with actual cheque receipt in the books of assessee company. 4.1) Accordingly the assessment order passed by the A.O. on 16.12.2016 is erroneous in so far prejudicial to the interest of revenue and therefore set aside to the extent, with a specific direction to make the assessment afresh, after allowing opportunity to the assessee of being heard and after taking into account the provisions of section 68 of Act." 5.4 After perusing the assessment order of the AO, show cause notice issued u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court of Delhi in the case of CIT vs. Leisure Wear Exports Ltd. reported in 341 ITR 166 has held that where the assessment order been passed by the Assessing Officer after taking into account the assessee's submissions and documents furnished by him and no material whatsoever has been brought on record by the Commissioner which showed that there was any discrepancy or falsity in evidences furnished by the assessee, the order of the Assessing Officer cannot be set aside for making deep inquiry only on the presumptions and assumptions that something new may come out. We further note that Hon'ble High Court in the case of ITO vs. DG Housing Project Ltd. Reported in 343 ITR 329 has held that in cases of wrong opinion or wrong finding on merits, the CIT has to come to conclusion and himself decide that the order is erroneous, by conducing necessary enquiry, if required and necessary, before the order under section 263 is passed. We further note that it is not a case where conditions for exercise of power u/s. 263 of the Act stand satisfied since at best it is a case, where two views are possible (one view of the AO and other view expressed in the notice u/s. 263 of the Act). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible. No other corroborative material was available with the department to show that the explanations given by the assessee were wrong or incorrect. Under these set of facts, the AO appears to have been satisfied with the explanations given by the assessee and did not make any addition. We have noticed that the Hon'ble Supreme Court has held in the case of Central Bureau of Investigation (supra) that the entries in the books of account by themselves are not sufficient to charge any person with liability. Hence, in our view, it cannot be held that the assessing officer did not carry out enquiry or verification which should have been done, since the facts and circumstances of the case and the incriminating document was not considered to be strong by the AO to implicate the assessee. Thus, we are of the view that the assessing officer has taken a plausible view in the facts and circumstances of the case. Even though the Ld Pr. CIT has drawn certain adverse inferences from the document, yet it can seen that they are debatable in nature. Further, as noticed earlier, the Ld Pr. CIT has not brought any material on record by making enquiries or verifications to substantiate his infer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
