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07-06-2019, Namah Shivaya Marketing, Section 68, 147, 148, Tribunal Delhi

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3 months 1 week ago #9682 by amit
Section - 68, 147, 148, 69, 271(l)(c), 132, 153C, 69C
Order Date - 07-06-2019
Favouring - Assessee Partly allowed for statistical purposes
Court - Tribunal Delhi
Appellant - Namah Shivaya Marketing (P) Ltd.
Respondent - ITO
Justice - R.K.PANDA AM
Citation - 619Taxpundit98
Appeal No. - ITA No. 7456/Del/17
Asstt. Year - 2008-09

Order

PER : R.K.PANDA

This appeal filed by assessee is directed against the order dated 04th October,2017 of Ld.CIT(A)-28, New Delhi pertaining to Assessment Year (A.Y.) 2008-09.

2. Facts of the case in brief, are that the assessee is a Private Limited Company and filed its return of income on 09th April,2008 declaring total income of Rs.7,070/-. The return was processed u/s 143(1) of the Income Tax Act, 1961 (the Act) on 05th June,2009. Subsequently the Assessing Officer (AO) received information from the Investigation Wing of the Department that the assessee has received accommodation entry of Rs.30 lakhs in the garb of Share Application Money through the following companies, the details of which are as under. He noted that the above Companies are floated by Shri Surendra Kumar Jain/Virendra Kumar Jain, who have admitted during the course of search that they are mere entry operators and the various companies floated by them are used for providing accommodation entries only. Accordingly, the AO reopened the assessment u/s 147 of the Act and notice u/s 148 dated 17th March, 2015 was issued after obtaining approval from the Competent Authority. The assessee objected to such notice by filing Objections which were disposed of by the A.O. by passing a speaking order. Subsequently during the course of assessment proceedings the AO asked the assessee to substantiate the Share Application money so received from various companies floated by Shri Surendra Kumar Jain. Rejecting the explanation given by the assessee and relying on various decisions, the AO made addition of Rs.30 lakhs to the total income of the assessee u/s 68 of the Act. The AO further made addition of Rs.60,000/- being commission paid for obtaining the accommodation entries by following the provisions of S.68C of the Act.

2.1. Before Ld.CIT(A) apart from challenging the addition on merits, the assessee also challenged the validity of the reassessment proceedings.

2.2. However, Ld.CIT(A) was not satisfied with the arguments advanced by the assessee and upheld the reassessment proceedings initiated by the A.O. So far as merits of the case is concerned, he also upheld the action of the A.O.

3. Aggrieved with such order of Ld.CIT(A) assessee is in appeal before the Tribunal by raising the following grounds.

1. The learned CIT(A) has erred on facts and in law in upholding the impugned order of the learned assessing officer which is contrary to law, devoid of jurisdiction, passed without application of mind and without complying with the procedure and rules, is against equity and justice and facts of the assessee and material on record.

2. The appellant denies his liability to tax as upheld by the learned CIT(A) and determined and computed by the learned assessing officer and the manner in which it has been so determined or computed.

3. The learned CIT(A) has erred on facts and in law in upholding the validity of reassessment proceedings ignoring the fact that initiation of the proceedings u/s 148 and the consequent order u/s 147 are bad in law as:

a) The initiation of proceedings u/s 148 are contrary to provisions of law.

b) The mandatory procedure laid downin the Act has not been followed.

c ) The information has been collected behind the back of the assessee and the assessee was never confronted with the same nor an opportunity provided for cross-examination of Jain brothers, copies of the orders of Jain Brothers and the relevant seized material relied upon has not been provided to the assessee.

d) The assessment has been made on the basis of conjecture & surmises without any cogent evidence.

4. The learned CIT(A) has erred on facts and in law in upholding the addition of Rs.30,00,000/- u/s.68 on account of share capital, treating the same as an accommodation entry.

5. The learned CIT(A) has erred on facts and in law in upholding the addition of Rs.60,000/- u/s 69 as alleged commission paid for obtaining accommodation entries.

6. The learned CIT(A) has erred on facts and in law by not adjudicating ground of initiation of penalty proceedings u/s 271(l)(c) without any material on record. PRAYER

6. The appellant craves leave and sanction of the Hon'ble ITAT to file additional evidence, if so required for proper prosecution of the case, based on facts and circumstances, which has not been or could not be educed or filed before lower authorities either because proper and sufficient opportunity was not provided or because it was not solicited or its need was not appreciated.

7. The appellant craves leave to and permission of the Hon'ble ITAT to add to or alter any of the grounds of appeal at any time up to the final decision of the appeal.

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