Prompt Buildcap (P) Ltd., New Delhi vs Department Of Income Tax

29.10.2010 in appeal no. 188 / CIT(A) XVII/ Del/ 2009-10 for

assessment year 2002-03.

2 ITA NO. 68/ Del/2011

2. The revenue has raised following grounds in this appeal :-

"1. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 52,54,284/- made by the AO on account of accommodation entries received during the year from M/s JRD Stock Brocker Pvt. Ltd.

2. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in ignoring the fact that the assessee had introduced unaccounted money in the books of accounts with the help of accommodation entry providers which has been exposed by deep and detailed investigation carried out by the Investigation Wing of the Department.

3. That the facts and circumstances of the case and in Law the Ld. CIT(A) failed to appreciate the facts that the assessee was uncooperative during the course of assessment proceedings and did not produce the Director of M/s, J R D Stock Brockers Pvt. Ltd. and also the bank account of this company and therefore the A O had to complete the order on the basis of the information available with the Investigation Wing."

3. Briefly stated the facts giving rise to this appeal are that the

assessing officer asked the assessee to file the details of sale and

purchase of shares along with confirm copy of account of broker and

the copy of bank statement. The AO also asked the assessee to

reconcile the copy of account of sale and purchase of shares and

complete copy of account of J R D Stock brockers from where the

assessee has taken accommodation entry and the copy of account of 3 ITA NO. 68/ Del/2011

Vaish Cooperative Bank, Kamla Nagar from entry has been received

by the assessee and copy of statement of AVN AMRO bank in which

the amount has been deposited. The assessing officer noted that the

assessee had not filed the copy of account of J R D Stock Brokers

and their bank statement. The AO after examine the explanation and

details submitted by the assessee concluded that there was an

arrangement between the assessee and M/s J R D Stock Brokers

Pvt. Ltd. to take entry from a bogus concern and the assessee made

cash payment to the said broker and in turn the assessee received

cheque from such entry provider. The AO treated the entire amount

of Rs. 52,54,284/- the income of the assessee and the same was

added to the return income of the assessee for the year under

consideration.

4. The assessee preferred an appeal before CIT(A) which was

allowed granting relief for the assessee on this issue. Now, the

revenue is before this tribunal on this issue with the grounds has

reproduced above.

4 ITA NO. 68/ Del/2011

5. Apropos, ground no. 1, 2 & 3 of the revenue, the Ld.

Departmental Representative (DR) submitted that the CIT(A) erred in

deleting made by the AO on account of accommodation entries

received during the year by the assessee from M/s J R D Stock

Brokers Pvt. Ltd. The Ld. DR , Further, contended that the first

appellate authority ignored the fact that the assessee had introduced

its own unaccounted money in the book of accounts with the help of

accommodation entry providers which has been exposed by deep

and detailed investigation carried out by the investigation wing of the

department. The Ld. DR also contended that the CIT(A) fail to

appreciate the relevant fact that the assessee was not cooperating

during the assessment proceedings and did not produce the Director

of M/s J R D Stock Brokers Pvt. Ltd. and their statement of bank

accounts with the assessee company. Therefore, the assessing

officer was quite justified in completing the assessment and making

the addition on the basis of the information available before him

which was received from the investigation wing. 5 ITA NO. 68/ Del/2011

6. Replying to the above, the Ld. Assessee's Representative (AR)

contended that the assessee submitted all required details which

were available with it during the assessment proceedings except

some bank statements which were also submitted during first

appellate proceedings as additional evidence. The Ld. AR, further,

contended that the CIT(A) asked the AO to submit remand report

and comments on the additional evidence and the assessing officer

did not made any adverse comment therefore, the same was rightly

admitted and considered by the CIT(A) while allowing appeal of the

assessee. Supporting the impugned order the Ld. AR vehemently

contended that while the AO could not bring any positive evidence on

the record to substantiate his conclusion and the Director of M/s J R

D Stock Broker Pvt. Ltd. in his statement recorded on oath by the AO

has confirmed the transaction entered into by the assessee then the

baseless addition made by the AO cannot be sustained.

7. On careful consideration of above submissions and perusal of

the record placed before us, inter alia, assessment order, impugned

order, remand report and other relevant documents at the outset we 6 ITA NO. 68/ Del/2011

note that during the assessment proceedings the assessee could not

produce Director of M/s J R D Stock Broker Pvt. Ltd., but during

remand proceedings the AO recorded the statement of Director Shri

Ashok Gupta on oath, who supported the transaction. We also note

that the assessing officer also found himself satisfied about the

explanation of the assessee that the Director Shri Ashok Gupta and

Smt. Nilima Gupta were out of India from 20.12.2009 to 08.02.2010.

We also note that during the assessment proceedings required bank

statement was and the confirmed copy of account of J R D Stock

Brokers Pvt. Ltd. with the assessee for A. Y. 2002-03 was also

submitted by the Director Shri Ashok Gupta before the AO during

remand proceedings effectively substantiating and confirming the

transactions effected during the financial year relevant to the

assessment year under consideration with the assessee. From the

operative para 3.3. at page 9 of the impugned order, we observe that

the CIT(A), after considering the remand report, granted relief for the

assessee with following findings and conclusion :

"3.3. I have carefully considered the submissions of Ld. AR, assessment order and remand report of the AO. It is seen that the AO made addition on the ground that the 7 ITA NO. 68/ Del/2011

appellant has taken entry from M/s J R D Stock Brokers (P) Ltd. However, the AO could not bring any positive evidence on the record to substantiate his conclusions. On the contrary the director of M/s JRD Stock Brokers (P) Ltd.

in his statement recorded on oath by the AO has confirmed the transaction entered into by the appellant. He has also submitted the copy of the account of appellant and copy of contract note and bills in respect of sale and purchase of the shares. In view of the above facts, I am of the view that the addition made by the AO cannot be sustained. Therefore, the addition made by the AO is deleted. This ground of appeal is allowed."

8. In view of above and in the peculiar facts and circumstances of

the present case, we are of the considered opinion that the CIT(A)

granted relief for the assessee on justified and cogent reasons. The

assessing officer made addition on information of investigation wing

but the AO could not bring any positive or sustainable evidence or

any other adverse material on the record to substantiate his

conclusions. Per contra, the assessing officer recorded statement of

Sh. Ashok Gupta, the Director of the J.R.D. Stock Broker who

confirmed the transaction supporting the verified copy of account

with the assessee. In view of above stated facts and circumstances,

we reach to the conclusion and the addition made by the AO was not

sustainable which was rightly deleted by the CIT(A) during first 8 ITA NO. 68/ Del/2011

appellate proceedings. We are unable to see any infirmity or any

other valid reason to interfere with the impugned order and thus, we

upheld the same.

9. In the result ground no. 1, 2 and 3 of the revenue being devoid

of merits are dismissed. Finally, appeal of the revenue is dismissed.

Order pronounced in open court on 25th February, 2015.

Sd/- Sd/- (B.C. Meena) (C.M.Garg) Accountant Member Judicial Member

Dated 25th Feb. 2015 B.Rukhaiyar Copy forwarded to 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT (ITAT), New Delhi.

AR, ITAT N. Delhi 9 ITA NO. 68/ Del/2011

Sl. Description Date No. 1. Date of dictation by the Author 24.02.2015

2. Draft placed before the Dictating 24.02.2015 Member

3. Draft placed before the Second 24.02.2015 Member

4. Draft approved by the Second 24.02.2015 Member

5. Date of approved order comes to 24.02.2015 the Sr. PS

6. Date of pronouncement of order 25.02.2015

7. Date of file sent to the Bench 25.02.2015 Clerk

8. Date on which file goes to the Head Clerk

9. Date of dispatch of order 10 ITA NO. 68/ Del/2011