Delhi High Court
Commissioner Of Income Tax vs Green Tech Tower Builders Pvt. ... on 12 August, 2010
Author: Manmohan
#28
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ITA 1113/2010
COMMISSIONER OF INCOME TAX ..... Appellant
Through: Ms. Prem Lata Bansal, Advocate
versus
GREEN TECH TOWER BUILDERS PVT. LTD. ..... Respondent
Through: None
% Date of Decision: 12th August, 2010
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the Digest? No.
MANMOHAN, J (ORAL)
1. The present appeal has been filed under Section 260A of Income
Tax Act, 1961 (for brevity "Act, 1961") challenging the order dated 21st
August, 2009 passed by the Income Tax Appellate Tribunal (in short
"ITAT") in ITA No. 2560/Del/2008, for the Assessment Year 2005-
2006.
2. Ms. Prem Lata Bansal, learned counsel for the Revenue
submitted that ITAT had erred in law in deleting the addition of rupees
twenty five lacs made by the Assessing Officer (in short „AO‟) on
account of unexplained share application money under Section 68 of
Act, 1961. She further submitted that ITAT had deleted the said
addition even though the primary onus had not been discharged by the
respondent-assessee.
3. However, upon a perusal of the file, we find that the said addition
was deleted by the Commissioner of Income Tax (Appeals) [in short
"CIT (A)"] and ITAT on the ground that the share applicant had paid
the amount from its current account with Vijaya Bank, Azadpur, Delhi
by way of cheques and no cash had been deposited before issuing the
said cheques to the respondent-assessee. In fact, ITAT in the impugned
order has observed as under:-
"Considering the totality of the facts and circumstances
of the case, we are of the considered view that the ld.
CIT(A) was justified in deleting the addition in the light
of the facts found by him and the conclusion he had
drawn, which has been reproduced above. In this case,
the AO has made the addition on the basis of statement of
Shri Pradeep Kumar Jindal recorded on 15.04.2004,
much before the incorporation of the present company on
19.11.2004. The amount has been received by the
cheque. The share applicant M/s. Ekka Processors and
Distributors Pvt. Ltd. paid the amount from its current
account with Vijaya Bank, Azadpur, Delhi -110033
where no cash money was deposited before issuing the
cheque to the assessee company. The amount was paid
out of the two credits amounting to Rs. 36,00,000/- and
Rs. 25,00,000/- which was credited in the share
applicant's current account through transfer or clearing.
The A.O. has not brought any material on record to
prove and establish that the aforesaid two credits were
originated directly or indirectly from the coffers of the
assessee company. In the light of the facts of the present
case and in the light of the various decisions referred to
by the ld. CIT (A) in his order including the decision of
the Hon'ble Delhi High Court in the case of CIT vs.
Value Capital Services Pvt. Ltd. (2008) 307 ITR 334
(Delhi), we hold that the ld. CIT (A) has rightly deleted
the addition. We, therefore, uphold the order of the ld.
CIT(A)."
4. In our considered opinion, the approach adopted by CIT(A) and
ITAT is in consonance with the decision of Supreme Court in
Commissioner of Income Tax Vs. Lovely Exports (P) Ltd., 216 CTR
195 (SC) wherein it has been held as under :-
"2. Can the amount of share money be regarded as
undisclosed income under s. 68 of IT Act, 1961? We find no
merit in this Special Leave Petition for the simple reason that
if the share application money is received by the assessee
company from alleged bogus shareholders, whose names are
given to the AO, then the Department is free to proceed to
reopen their individual assessments in accordance with law.
Hence, we find no infirmity with the impugned judgment......"
5. Keeping in view the aforesaid mandate of law, the share
application money of rupees twenty five lacs cannot be regarded as
undisclosed income of assessee under Section 68 of Act, 1961.
Accordingly, present appeal is dismissed in limine but with no order as
to costs.
MANMOHAN, J
CHIEF JUSTICE
AUGUST 12, 2010
NG
