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10-06-2019, Optima Webtech, Section 68, 251, 46A(3), Tribunal Delhi

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1 week 1 day ago #9708 by amit
Section - 68, 251, 46A(3), 254(4)
Order Date - 10-06-2019
Favouring - Revenue Partly allowed for statistical purposes
Court - Tribunal Delhi
Appellant - ITO
Respondent - Optima Webtech Pvt. Ltd.
Justice - AMIT SHUKLA JM & O.P. KANT AM
Citation - 619Taxpundit124
Appeal No. - ITA No.5457/Del/2012
Asstt. Year - 2007-08

Order

PER : O.P. KANT A.M.:

This appeal by the Revenue is directed against order dated 22/06/2012 passed by the Ld. Commissioner of Income-tax (Appeals)-XVI, New Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2007-08, raising following grounds:

1. Whether on the facts & in the circumstances of the case, the Ld.CIT(A) has erred in deleting the addition of Rs. 1,80,00,000/- u/s 68 of the IT Act on account of unproved credits in the grab of share application money/share capital and share premium by allowing the alleged investors of share capital and premium without allowing the AO an opportunity to cross examine them.

2. Whether on the facts & in the circumstances of the case, the Ld.CIT(A) has erred deleting the addition of Rs. 6,14,000/- made by the AO as income from other sources on account of amount credited in the P& L account as sales.

3. Whether on the facts & in the circumstances of the case, the Ld. CIT(A) has erred holding that the assessee had submitted all books of account before the Assessing Officer, when he had clearly failed to do so.

4. The appellant craves to be allowed to add any fresh grounds of appeal and /or delete or amend any of the ground of appeal.

2. Briefly stated facts of the case are that the assessee company filed its return of income electronically on 14/11/2007 declaring total income of Rs.2761/-. The case was selected for scrutiny and notice under section 143(2) of the Income-tax Act, 1961 (in short ‘the Act’) was issued on 22/09/2008, which was duly served upon the assessee. During the assessment proceeding, compliance of various notices was made partly by the Authorised Representative appeared on behalf of the assessee. In the assessment completed under section 143(3) of the Act on 21/12/2009, the Assessing Officer made addition of Rs.1,80,00,000/- under section 68 of the Act for the share application money/share capital shown to be received by the assessee during the year under consideration. The Assessing Officer also made addition of Rs.6,14,000/- under the head ‘Income from Other Sources’ for the amount credited in the profit and loss account as sales. Aggrieved, the assessee filed appeal before the Ld. CIT(A) and produced books of account and vouchers before him. The Ld. CIT(A) after considering submission of the assessee and books of account produced, deleted the additions made by the Assessing Officer. Aggrieved with the finding of the Ld. CIT(A), the Revenue is in appeal before the Tribunal raising the grounds as reproduced above.

3. At the outset, we may like to mention that this appeal was fixed first time for hearing on 22/05/2013 by way of notice issued through registered post at the address provided in form No. 36, but none attended on behalf of the assessee. Subsequently, the notices were issued through registered post and a copy was
provided to the Departmental Representative for service on the assessee through affixure for hearing on various dates i.e. 20/01/2015; 27/05/2015; 12/11/2015; 02/06/2016; 21/07/2016; 26/12/2016; 28/03/2017; 08/06/2017; 27/09/2017; 29/10/2017; 08/02/2018; 18/07/2018;08/10/2018; 18/12/2018; 25/02/2019. The service of notice dated 08/02/2018 through the Department is placed on the file. As per the record, most of the notices sent through registered post to the assessee have not returned back. Despite providing a number of opportunities to the assessee, none attended on its behalf before the Tribunal. The Departmental Representative was directed to serve the notice on the assessee for hearing dated 27/05/2019. A copy of the notice was also sent
through registered post. As per the record, notice has not returned back by the postal authorities. In view of the attempts made by the registry of the Tribunal for service of notice through registered post as well as service of notice through the Departmental Representative, it appears that the assessee is not interested in responding to the appeal filed by the Revenue. In such circumstances, we were of the opinion that no purpose would be served in issuing a further notice to the assessee and thus, we heard the appeal ex parte, qua the assessee.

4. The Ld. Departmental Representative relied on the order of the Assessing Officer and supported the said order by following decisions:

1. CIT vs. Navodaya Castle Pvt. Ltd. [2014] 367 ITR 306 (Del.)

2. Navodaya Castle Pvt. Ltd. Vs. CIT [2015-TIOL-314-SC-IT]

3. Konark Structural Engineering (P.) Ltd. Vs. Deputy Commissioner of Income Tax [2018] 96 taxmann.com 255 (SC)

4. Konark Structural Engineering (P.) Ltd. Vs. DCIT, [2018] 90 taxmann.com 56 (Bombay)

5. DRB Exports (P.) Ltd. Vs. CIT [2018] 93 taxmann.com 490 (Calcutta)

6. CIT Vs. Nipun Builders & Developers (P.) Ltd. [30 taxmann.com 292, 214 Taxman 429, 350 ITR 407, 256 CTR 34]

7. CIT Vs. Nova Promotors & Finlease (P.) Ltd. [18 taxmann.com 217, 206 Taxman 207, 342 ITR 169, 252 CTR 187]

8. CIT Vs. Ultra Modern Exports (P.) Ltd. [40 taxmann.com 458, 220 Taxman 165]

9. CIT Vs. Frostair (P.) Ltd. [26 taxmann.com 11, 210 Taxman 221]

10. CIT Vs. NR Portfolio Pvt. Ltd. [2014] 42 taxmann.com 339 (Delhi) [2014] 222 Taxman 157 (Delhi) (MAG)/[2014] 264 CTR 258 (Delhi)

11. CIT Vs. Empire Buildtech (P.) Ltd. (366 ITR 110)

12. CIT Vs. Focus Exports (P.) Ltd [51 taxmann.com 46 (Delhi)/[2015] 228 Taxman 88]

13. PCIT Vs. Bikram Singh [2017] 85 taxmann.com 104 (Delhi)/[2017] 250 Taxman 273 (Delhi)/[2017] 399 ITR 407 (Delhi)

14. Rick Lunsford Trade & Investment Ltd. Vs. CIT [2016] 385 ITR 399 (Cal.)

15. Rick Lunsford Trade & Investment Ltd. Vs. CIT [2016-TIOL2017-SC-IT] (SC)

16. Hon’ble Delhi High Court Judgment dated 17.01.2019 in the case of NDR Promotors Pvt. Ltd., ITA No. 49/2018

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