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COMMISSIONER OF INCOME TAX Vs. N TARIKA PROPERTIES INVESTMENT PVT. LTD
January, 08th 2014
*IN THE HIGH COURT OF DELHI AT NEW DELHI

%               Judgment reserved on :     23 rd August, 2013
                                          th
                Judgment pronounced on: 28 November, 2013

+                         ITA 2080/2010

COMMISSIONER OF INCOME T AX                       ..... Appellant

                     Through: Mr. Abhishek Maratha , Adv

                   Versus
N TA RIKA PROP ERTIES INVE STME NT PVT. LT D.
                                     ..... Respondent
              Through: Mr. Arvind Bansal, Adv
     CORAM:
     HON'BLE MR. JUSTICE SANJIV KHANNA
     HON'BLE MR. JUSTICE SANJEEV SACHDEVA


SANJEEV SACHDEVA, J.


1.     This is an appeal under Section 260A of the Income

       Tax Act (hereinafter referred to as "the Act") filed by

       the Revenue against the order dated 24.08.2009 ,

       passed      by   the   Income   Tax    Appellate     Tribunal

       (hereinafter referred to as the "ITAT") whereby the

       ITAT has dismissed the appeal of the Revenue against

       the order of the Commissioner Income Tax (Appeals)



=======================================================================

ITA 2080/2010                                               Page 1 of 24
       (hereinafter      referred    to   as   the   "CIT   (Appeals)")

       deleting the addition of Rs.34,50,000/- made under

       Section 68 of the Act with respect to the share

       application money received by the Assessee.


2.     Vide order dated 11.05.2012, the following substantial

       question of law was framed:


                "Whether the order of the tribunal dated
                24.8.2009 ignores and does not deal with the
                factual findings recorded by the assessing
                officer and is, therefore, perverse? "

3.     The case pertains to the Assessment Year 2001-02.

       Return was filed on 31.10.2001 by the Assessee

       declaring total income of Rs. 1,42,508/-. Assessment

       was completed under Section 143(3) on 26.03.2004 at

       income of Rs. 8,90,160/-.


4.     On giving appeal effect, vide order dated 10.02.2005 ,

       the revised income stood assessed at Rs.8,64,414/-.




=======================================================================

ITA 2080/2010                                                  Page 2 of 24
5.     Information was received from the Investigation Wing

       of the appellant that the Assessee was identified as

       one of the beneficiaries who had received bogus

       entries from the following parties:-

                Name         Cheque         Amount          Date
                               No.           in Rs.
        M/s.      Landmark 494833          5,00,300    19.08.2000
        Communication Pvt.
        Ltd.
        M/s.      Landmark 494835          5,00,750    30.08.2000
        Communication Pvt.
        Ltd.
        M/s. Fair N. Square 111077         4,50,360    16.06.2000
        Exports Pvt. Ltd.


6.     Notice under Section 148 of the Act was issued to the

       Assessee on 15.02.2007. In response to which the

       Assessee filed a letter dated 21.02.2007 stating that

       return originally filed may be treated as return in

       response to the notice under Section 148.


7.     Notice under Section s 143(2) & 142(1) was issued on

       21.06.2007 and the Assessee was required to furnish

       information in respect of persons who had been


=======================================================================

ITA 2080/2010                                               Page 3 of 24
       allotted shares between the period 31.03.2001 and

       31.03.2007, besides seeking other information and

       details.   The notice was not complied with and a

       second notice was issued again on 06.07.2007, which

       was also not complied with.        Instead, the Assessee

       vide letter dated 28.09.2007, challenged the validity

       and legality of the action taken under Sections 147

       and 148 of the Act. The Assessee raised objections to

       the action taken under Section 148.          The objections

       were disposed of vide order dated 12.12.2007.


8.     On 18.12.2007, the Assessee filed confirmation from

       the respective persons who had subscribed to the

       share capital, in the Financial Year 2000-01, relevant

       to the Assessment Year 2001-02 in issue.                  The

       Assessee was directed to prove the creditworthiness

       in respect of the parties from whom share application

       money had been received during the Financial Year

       2000-01. The subscription of share capital during the



=======================================================================

ITA 2080/2010                                               Page 4 of 24
       relevant financial year is as under:

         Name                               Amount in Rs.
         M/s. Landmark Communication Pvt.       10,00,000
         Ltd.
         M/s. Jai Baba Traders Pvt. Ltd.         8,00,000
         M/s. S J Hosiery Pvt. Ltd.             10,00,000
         M/s. Bhawani Engineering Pvt. Ltd.      6,50,000
                                                34,50,000


9.     The Assessee requested for and was provided the

       photocopies of the extracts of the bank statements

       which were filed by the Assessee during the course of

       original assessment proceedings. The Assessee was

       provided with the bank statements of M/s. Landmark

       Communication Pvt. Ltd. and M/s. Jai Baba Traders

       Pvt. Ltd. that had been filed by the Assessee during

       the original assessment proceedings.


10.    On 24.12.2007, a request for adjournment was made

       on behalf of the Assessee to 27.12.2007.           However,

       on 27.12.2007, none appeared for the Assessee, so

       the assessment was made on the basis of details filed

       by the Assessee, inquiries made by the AO and details

=======================================================================

ITA 2080/2010                                               Page 5 of 24
       available in the original assessment records.


11.    The Assessing Officer noticed that the extracts of bank

       accounts       submitted     by   the    Assessee     during     the

       original assessment proceedings had been fabricated.

       The Assessing Officer had requisitioned the bank

       statements from the banks which established that

       immediately before the issuance of ch eques for the

       purpose of making pay order or demand draft, there

       was a deposit of cash. The A ssessing Officer noticed

       that the entry by transfer shown in the bank account

       (furnished by the Assessee in the original assessment

       proceedings) was fabricated.             The Assessing Officer

       prepared the following chart as a comparison between

       the      fabricated   entries and       actual    bank statement

       obtained from the bank.





                         M/s. Landmark Communication Pvt. Ltd.
                        (A/c No.3194 with Jai Laxmi Co-op. Bank)

                                FABRICATED STATEMENT

             Date       Narration   Cheque       Debit      Credit       Balance


=======================================================================

ITA 2080/2010                                                    Page 6 of 24
                                        No.
        28 /0 8 /20 00     By Tr         --         --       5,01, 500         5,03, 050
                                                                                      cr.
        29 /0 8 /20 00   To Tr (to    494 83 3   5,00, 750      --                2,30 0
                            pay                                                        cr
                          or der)
        29 /0 8 /20 00       By                              5,00, 000         5,02, 300
                         cle ar ing                                                   cr.
        30 /0 8 /20 00     To Tr      494 83 5   5,00, 750                        1,55 0
                           (pay                                                       cr.
                          or der)

                ACTUAL STATEMENT as obtained from Bank by this office.

            Date         Narration    Cheque       Debit      Credit          Balance
                                        No.
        28 /0 8 /20 00    By Cas h       --          --       220, 00 0        4,42, 210
                                                                                      Cr.
        28 /0 8 /20 00    By Cas h       --          --        60,0 00         5,02, 210
                                                                                      Cr.
        28 /0 8 /20 00     To Tr      494 82 8   5,00, 300       --               1,91 0
                           (PAY                                                       Cr.
                          ORDER)
        29 /0 8 /20 00    By Cas h       --          --        300 00 0        3,01, 910
                                                                                      Cr.
        29 /0 8 /20 00    By Cas h       --          --        200 00 0        5,01, 910
                                                                                      Cr.
        29 /0 8 /20 00    By Cas h       --          --               700      5,02, 610
                                                                                      Cr.
        29 /0 8 /20 00     To Tr      494 83 3   5,00, 300       --               2,31 0
                           (PAY                                                       Cr.
                          ORDER)
        30 /0 8 /20 00    By Cas h       --          --        300 00 0        3,02, 310
                                                                                      Cr.
        30 /0 8 /20 00    By Cas h       --          --        500 00 0        8,02, 310
                                                                                      Cr.
        30 /0 8 /20 00    By Cas h       --          --        200 00 0       10,0 2,31 0


=======================================================================

ITA 2080/2010                                                         Page 7 of 24
                                                                                     Cr.
        30 /0 8 /20 00      To       494 83 4   5,00, 000       --            5,02, 310
                         Cle aring                                                   Cr.
        30 /0 8 /20 00     To Tr     494 83 5   5,00, 750       --            1,56 0 Cr.
                           (PAY
                         ORDER)


           M/s. Jai Baba Traders Pvt. Ltd. (A/c. No.17757 with Canara Bank,
                                  Ballimaran Delhi)

                                 FABRICATED STATEMENT
            Date         Narration Cheque     Debit   Credit                 Balance
                                      No.
           31 AUG           TR         --       --     450 00 0               4,55, 366
            200 0                                                                    Cr.
           31 AUG           TR          --         --         350 00 0        8,05, 366
            200 0                                                                    Cr.
           31 AUG           DD       198 96 0   8,01, 200                        4,16 6
            200 0                                                                    Cr.

                ACTUAL STATEMENT as obtained from Bank by this office.

            Date         Narratio    Cheque      Debit        Credit         Balance
                            n          No.
           31 AUG         CASH          --         --         450 00 0      452 51 6.7 7
            200 0                                                                    Cr.
           31 AUG         CASH          --         --         351 00 0      803 51 6.7 7
            200 0                                                                    Cr.
           31 AUG          DD        198 96 0   8,00, 000              --     2,71 6.7 7
            200 0                                                                    Cr.
           31 AUG         CASH                          800            --     1,91 6.7 7
            200 0        CHARGE                                                      Cr.


12.    The Assessing Officer noticed that the bank statement



=======================================================================

ITA 2080/2010                                                        Page 8 of 24
       furnished during the original assessment proceedings

       was fabricated and misled the Assessing Officer in as

       much as it omitted to show the deposit of cash

       immediately    prior   to   issuance        of     cheques      for

       preparation of pay order s or DDs in favour of the

       Assessee regarding subscription of its share capital.

       The AO found that the Assessee had adopted unfair

       practice by adducing false evidence to get undue

       advantage of giving colour of genuineness to bogus

       entries through fabricated bank accounts.


13.    The Assessing Officer found that the deposits were

       mostly by cash or transfer entries from the same bank

       of the entry providers. The AO held that there were

       facilitating accounts which showed transfer entries

       from one account to another to avoid direct reflection

       of deposits/withdrawal of cash.             Further that the

       Assessee had received accommodation entries to

       launder   unaccounted       money      in        the   sha pe     of



=======================================================================

ITA 2080/2010                                                   Page 9 of 24
       subscription to its share capital.        With regard to the

       share subscribed by M/s. Bhawani Engineering Pvt.

       Ltd. and M/s. SJ Hosiery Pvt. Ltd., the Assessing

       Officer found that the pay order/DDs in respect of both

       the companies were made out of the bank account of

       M/s. Bhawani Engineering Pvt. Ltd.          The transactions

       in   the    bank   accounts showed        that there     was a

       corresponding withdrawal of the amount in cash on the

       very same day of the crediting of cheques and there

       was immediate issuance of cheques/DDs on deposit of

       cash       and   simultaneously,   they     were   facilitating

       accounts which showed transfer entries from one

       account to the other to avoid direct reflection of

       deposit/withdrawal of cash.


14.    The Assessing Officer held that the said companies

       had no creditworthiness, financial worth or regular

       resources to justify their subscription of share capital

       money in the Assessee company.               The Assessing



=======================================================================

ITA 2080/2010                                                 Page 10 of 24
       Officer held that the Assessee had failed to discharge

       the onus to prove the creditworthiness of the said

       investors in terms of Section 68 of the Act, more so, in

       view of the fact that the extracts of bank statements

       furnished by the Assessee were fabricated.


15.    The Assessing Officer relying on the decision of the

       Delhi High Court in CIT VS . H IMA LAYA IN TERNA TIONA L

       LTD . (2008) 214 CTR 437 (D EL.) vide order dated

       28.12.2007 held that the Assessee had failed to

       discharge the onus in proving the Identify of the

       creditors/subscribers, genuineness of the transactions

       and      the   creditworthiness.   The   Assessing     Officer

       accordingly made an addition of Rs.30,50,000/- in the

       hands of the Assessee.


16.    On an appeal by the Assessee, the CIT (Appeals),

       vide order dated 03.03.2009, deleted the addition

       made by the Assessing Officer.           The CIT (Appeals)

       accepted the contention of the Assessee that once the


=======================================================================

ITA 2080/2010                                               Page 11 of 24
       share applicants were identified, there could not be

       any addition under Section 6 8 in the hands of the

       recipient company even if the share applicants/share

       holders are bogus and the other parameters i.e.

       creditworthiness and genuineness of transaction were

       not      required   to   be   fulfilled   in   respect   of   share

       application money/share capital                once identity was

       established.


17.    The CIT (Appeals) held that the Assessee had filed

       confirmation letters which contained the addresses,

       PAN numbers and other details and that the Assessee

       had discharged its burden on proving basic details that

       were required for verification to fulfill the conditions i.e.

       identity of creditors, creditworthiness of the creditors

       and genuineness of transactions. The CIT (Appeals)

       held that the AO had not verified the details or the IT

       records of the investors. The CIT (Appea ls) held that

       the Assessee had provided the necessary details and



=======================================================================

ITA 2080/2010                                                    Page 12 of 24
       discharged the onus cast on it.


18.    With regard to the discrepancy between the bank

       accounts maintained by the share applicants and the

       copy of the bank accounts furnished in the course of

       assessment proceedings, the CIT (Appeals) held that

       it was a case of reopening of assessment of the share

       applicants i.e. M/s. Landmark Communication Pvt. Ltd.

       and      M/s. Jai    Baba       Traders Pvt. Ltd.          The      CIT

       (Appeals)     held       that   the   Assessee     could      not   be

       penalized for the mistakes/faults committed by the

       share applicants and that the AO had not found any

       discrepancy in the bank accounts maintained by the

       Assessee. The CIT (Appeals) directed the AO to

       reopen      the    assessment         of   the   said   two    shar e

       applicants to bring to tax the deposits made in their

       respective        bank     accounts.       The    CIT    (Appeals)

       accordingly         deleted       the      addition     made         of

       Rs.34,50,000/-.



=======================================================================

ITA 2080/2010                                                     Page 13 of 24
19.    The appeal filed by the Revenue against the order of

       the CIT (Appeals) has been dismissed by the IT AT

       vide the impugned order dated 24.08.2009. The ITAT ,

       relying on the decision of the Supreme Court in the

       case of CIT vs. Lovely Exports P. Ltd. 216 CTR 195

       (SC), has held that since in the present case details of

       all persons from whom the share application money

       was received were furnished alongwith PANs, account

       details, share application forms and also confirmation

       letters and bank accounts, the addition could not be

       made in the hands of the Assessee by invoking

       provisions of Section 68 of the Act.              The ITAT

       confirmed the findings of the CIT (Appeals).


20.    Aggrieved by the order of the CIT (Appeals) as

       confirmed by the ITAT, the Revenue has filed the

       present appeal.


21.    Learned    Counsel    for   the   Appellant/Revenue        has

       submitted that the orders of the CIT (Appeals) and the


=======================================================================

ITA 2080/2010                                              Page 14 of 24
       ITAT are perverse in as much as they have failed to

       appreciate the fabrication in the bank statements of

       the      share applicants that had            been filed by the

       Assessee. The Assessee had failed to establi sh the

       creditworthiness        of   the    investors      and     also    the

       genuineness of the transaction.


22.    The Learned counsel for the Respondent/Assessee

       submitted that by providing the PANs, account details ,

       share application forms and confirmation letters the

       Assessee had discharged the onus and no addition

       could      be   made    in   the    hands     of   the   Assessee.

       Additions if any could be made in the hands of the

       applicants.     In    support      of   his   contention     learned

       Counsel relied upon the Judgment of this court in the

       case of CIT      VS   GAN GESHWAR I M ETA LS P VT L TD . 2013

       (2) A.D. (D E LHI ) 378.


23.    We have heard the learned counsel for the parties. We

       are of the considered opinion that the orders of the


=======================================================================

ITA 2080/2010                                                      Page 15 of 24
       CIT (Appeals) and the ITAT in deleting the addition s

       made by the AO under Section 68 of the Act are

       perverse and are clearly unsustainable.


24.    Recently in the case of C OMM ISSIONER                O F INCOME    TAX

       VS   NR P OR TFO LIO P V T. L TD (INCOME TAX A PPEA L N O .

       1018     OF   2011   AND   1019   OF   2011) vide Judgment dated

       22 nd    November,         2013    we      have    held    that   mere

       production of PAN Number or assessment particulars

       does not establish the identity of a person.                       The

       identification of a person includes the place of work,

       the staff and the fact that it was actually carrying on

       business        and    further         recognition    of    the    said

       company/individual in the eyes of public.                   We have

       further noticed that PAN Numbers are allotted on the

       basis     of    applications       without        actual   de     facto

       verification of the identity or ascertainment of the

       active nature of business activity.                  PAN Number is

       allotted as a facility to revenue to keep track of



=======================================================================

ITA 2080/2010                                                       Page 16 of 24
       transactions. The PA N Number cannot be blindly and

       without consideration of surrounding circumstances

       treated as sufficiently disclosing the identity of the

       individual.


25.    Following CIT       VS   N OVA P ROMOTERS          AND    F IN LEASE

       P RIVATE L IMITED    CASE   (2012) 342 ITR 169 (D E LH I) we

       have held that in view of the link between the entry

       providers and incriminating evidence, mere filing of

       PAN      Number,     acknowledgement          of    Income       Tax

       Returns       of   the   entry   providers,        bank    account

       statement is not sufficient to discharge the onus on the

       Assessee.


26.    We have further held that the Court or Tribunal should

       be convinced about the identity, creditworthiness and

       genuineness of the transactions.         The onus to prove

       the three factum is on the Assessee as the facts are

       within the personal knowledge of the Assessee. Mere

       production of incorporation details, PA N Numbers or


=======================================================================

ITA 2080/2010                                                    Page 17 of 24
       income      tax    returns    may     not     be   sufficient   when

       surrounding and attending facts predicat e a cover up.

       The production of incorporation details, PAN numbers

       or income tax details may indicate towards completion

       of paper work or documentation but genuineness,

       creditworthiness and identity of investment and the

       investors     are     deeper        and   obtrusive     than      mere

       completion of paper work or documentation.





27.    As we have held that PAN Numbers are allotted on the

       basis    of       applications      without    actual      de     facto

       verification of the identity or ascertainment of the

       active nature of business activity.                PAN Number is

       allotted as a facility to revenue to keep track of

       transactions. The PA N Number cannot be blindly and

       without consideration of surrounding circumstances

       treated as sufficiently disclosing the identity of the

       individual. The mere filing of share application is not

       enough        as     the     said     application     is    not     an



=======================================================================

ITA 2080/2010                                                      Page 18 of 24
       unimpeachable document and does not on its own

       prove    the    genuineness             or    authenticity     of       the

       transaction.        It    can    at    best    be   treated        as    a

       corroborative document. Since the share application

       form is not an unimpeachable document, it cannot on

       its own be treated as sufficient for cross -verification of

       the transaction. We have already held that that mere

       production of PAN Number or assessment particulars

       does not establish the identity of a person.                        The

       identification of a person includes the place of work,

       the staff and the fact that it was actually carrying on

       business       and        further     recognition      of    the    said

       company/individual in the eyes of public.


28.    The Assessing Officer had requisitioned the Bank

       Statements of the share applicants as there was a

       doubt about the correctness of the bank statements

       furnished      by        the    Assessee      during    the    original

       assessment          proceedings.         The     bank       statements



=======================================================================

ITA 2080/2010                                                        Page 19 of 24
       requisitioned      from   the    banks       established     that

       immediately before the issuance of cheques for the

       purpose of making pay order or demand draft, there

       was a deposit of cash. The entry by transfer shown in

       the bank account (furnished by the Assessee in the

       original assessmen t proceedings) was fabricated.


29.    The bank statements of the investors furnished by the

       Assessee during the original assessment proceedings

       were fabricated and misleading. They omitted to show

       that there was deposit of cash immediately prior to

       issuance of cheques for preparation of pay or ders or

       DDs in favour of the A ssessee regarding subscription

       of its share capital. False evidence had been adduced

       by the Assessee during the original proceedings to get

       undue advantage of giving colour of genuineness to

       bogus    entries    through     the   bank     accounts.    The

       deposits were mostly by cash. With regard to the

       share subscribed by M/s. Bhawani Engineering Pvt.



=======================================================================

ITA 2080/2010                                                Page 20 of 24
       Ltd. and M/s. SJ Hosiery Pvt. Ltd., the Assessing

       Officer has noticed that the pay order/DDs in respect

       of both the companies were made out of the bank

       account of M/s. Bhawani Engineering Pvt. Ltd.             The

       AO has held that the transactions in the bank accounts

       showed that there was a corresponding withdrawal of

       the amount in cash on the very same day of the

       crediting    of   cheques   and    there   was    immediate

       issuance of cheques/DDs on deposit of cash.


30.    The      Judgment in the case       of M/S GANGESHWAR I

       M ETALS P VT. L TD . (SUPRA ) , does not advance the case

       of the respondent inasmuch as in the said judgment it

       has been held that tehre are two types of cases. One

       in which the assessing officer carries out the exercise

       which is required in law and the other in which the

       assessing officer 'sits back with folded hands' till the

       assessee exhausts all the evidence or material in his

       possession and then comes forward to merely re ject



=======================================================================

ITA 2080/2010                                              Page 21 of 24
       the same on the presumptions. The High Court held

       that case to be falling in the second category. In the

       present case the asessing officer has not sat back with

       folded hands but has conducted the enquiry. He has

       requisitioned and examined the bank acc ounts and

       found discrepancy in the bank statement filed by the

       Assessee at the time of the orignal assessment and

       the ones requisitioned. The said judgment is clearly

       not applicable in the facts of the present case.


31.    We are of the considered opinion that the Assessee

       has not been able to discharge the initial onus and has

       not      been   able       to     establish     the    identity,

       creditworthiness     of    the   share   applicants and       the

       genuineness     of   the    transaction.      The   surrounding

       circumstances and inquiries made by the Assessing

       Officer were significant but the said finding though not

       disturbed have been ignored. Further the Tribunal has

       failed to take holistic view and has relied upon neutral



=======================================================================

ITA 2080/2010                                                 Page 22 of 24
       and general evidence without noticing other evidence,

       which are :-

       a)       The Respondent - Assessee is a private limited
                company.

       b)       The subscribers were unknown persons, not
                related or friends.

       c)       The    subscribers     bank   account     statements
                furnished were forged and fabricated.

       d)       There were corresponding cash deposits in the
                bank accounts before issue of share application
                cheques.

       e)       The subscriber companies it has been shown
                were   carrying   on   effective   and   day    to    day
                business or were angle investors.

       f)       The    subscribers did    not bother     and     ensure
                protection of their investment.

32.    In view of the above, we are of the view that the

       Assessee has not discharged the onus satisfactorily

       and the additions made by the Assessing Officer was

       justified and sustainable and the order of the Tribunal

=======================================================================

ITA 2080/2010                                                  Page 23 of 24
       ignoring and nor dealing with the factual findings

       recorded by the assessing officer is perverse .


33.    The substantial question of law is thus answered in

       favour of the     Appellant/Revenue       and     against the

       Respondent/Assessee.        The    appeal    is   accordingly

       allowed with costs that are assessed at Rs. 20,000/-.




                                       SANJEE V SACHDEVA, J.




28 th NOVE M BE R, 2013                    SANJIV KHANNA, J.
st




=======================================================================

ITA 2080/2010                                               Page 24 of 24

 
 
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