IN THE HIGH COURT OF DELHI AT NEW DELHI
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ITA 1186/2011
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INTEGRATED DATA BASE and RESEARCH CENTRE PVT LTD
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..... Appellant
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Through Mr. Kaanan Kapur, Adv.
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versus
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INCOME TAX OFFICER ..... Respondent
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Through Mr. Kiran Babu, Sr. Standing
Counsel, Income Tax
Department.
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CORAM:
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HON'BLE MR. JUSTICE SANJIV KHANNA
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HON?BLE MR. JUSTICE G.P.MITTAL
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O R D E R
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24.10.2011
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This appeal under Section 260A of the Income Tax Act, 1961 is
directed against the order of the Income Tax Appellate Tribunal (for
short, the tribunal) dated 20th May, 2011 passed in ITA No.5211 (Del) of
2010, which relates to the assessment year 2004-05.
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2. Learned counsel for the appellant-assessee has submitted that the
tribunal should have itself decided the appeal and the order of remit is
uncalled for. He submits that the appellant had established identity,
genuineness of the transactions and the creditworthiness of the
shareholders. He relies upon decision of this Court in Vijay Power
Generators Ltd. Vs. Director of Income Tax and Another [2011] 333 ITR 119
(Delhi).
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3. The reasons and the operative portion of the impugned order read as
under:-
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?7. We have heard both the parties. We have gone through the
assessment order as well as order passed by ld. CIT (Appeals). It is seen
from the order of the ld. CIT (A) that the assessee has been pleading
before him that the AO has not been co-operative. On the other hand, the
AO had denied the charges levied against him in his remand report, sent
to the ld. CIT (A). The ld. CIT (A) on the basis of enquiries conducted
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by the Inspector and the AO as well as the copies of the bank statements obtained by the AO had concluded that the identity, the concluded that
the identity, the creditworthiness and genuineness of the transactions
have not been proved. The ld. CIT(A) has also held that the assessee has
not been able to explain as to why and under what circumstances the
investor companies are being investigated by the Govt. authorities
including the Department of Company Affairs and Central Bureau of
Investigation. We have also gone through the profit and loss account and
the balance sheet of the assessee company as on 31st March, 2004 i.e.
relevant to assessment year under consideration as also on 31st March,
2003. The assessee had shown profession fees of Rs.5,000/- and commission
received at Rs.2,40,000/- and profit on sale of assets at Rs,10,055/-
totaling to Rs.2,55,055/- as on 31st March, 2003. As on 31st March, 2004,
the professional fee receipts are at Rs.2,28,500/- and interest from loan
is Rs.39,590/- totaling to Rs.2,68,090/-. The profit before tax for
assessment year 2003-04 is at Rs.13,469/- and for assessment year 2004-05
is at Rs.16,588/-. We have also gone through the balance sheets as on
31st March, 2003 and 31st March, 2004 at Rs.7,00,000/-. The issued
capital as on 31st March, 2003 is at Rs.1,02,000/- and as on 31st March,
2004 is at Rs,5,27,000/-. Reserves and surpluses include share premium
amount of Rs.33,00,000/-. Cash and bank balance at Rs.57,583/-; loans and
advances of Rs.10,10,335/- including TDS of Rs.28,881/- and current
liabilities at Rs.10,857/-. From the above facts, the financial position
of the assessee can be ascertained. The assessee had issued shares at
premium of Rs.900/- per share as against face value of Rs.100/-. The AO
has not gone through the financial status of the assessee as to whether
it can receive share premium of Rs.900/- on the basis of financial
position stated as above. The share premium collected has been mainly
invested in unquoted shares. The ld. AR of the assessee could not file
and evidence by which the authorized capital was raised from2,00,000/- to
Rs,7,00,000/- as on 31st March, 12004. The Ld. AR of the assessee also
could not explain as to how share premium was collected 9 times of the
face value when earning per share face value of share of Rs.100/- as on
31st March, 2004 is nominal. In view of the above facts, we feel it
proper to set aside the matter to the file of the assessing officer with
the direction to examine as to whether assessee can receive share premium
of Rs.900/-. He will conduct inquiries from ROC in this regard. The
assessing officer will provide necessary opportunity of being to the
assessee. The assessee is also direct to co-operate with the assessing
officer in getting the enquiries conducted. The assessing officer will
decide the issue after taking account all material facts and frame
assessment de novo after conducting further enquiries and examining the
investor companies.?
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4. Having heard learned counsel for the appellant, we are not inclined
to interfere with the impugned order which as noticed above is an order
of remit. The tribunal has referred to the various contentions raised by
the appellant, which is apparent from the earlier portion of the impugned
order. However, keeping in view the facts stated and referred to in
paragraph 7 and after recording reasons, the tribunal felt that the
matter should be examined in depth and detail by the Assessing Officer.
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The tribunal felt that aspects required factual investigation for a just and fair decision. One of the reasons given tribunal is that each share
of face value of Rs.100/- had been shown as sold at a premium of Rs.900/-
to two companies, namely, Right Choice Corporation Ltd. and Basant
Agencies Private Ltd. We would not like to elaborate and deal with the
observations, least it causes prejudice to any party. We do not think
that the tribunal has made any observation, which justifies any
interference by this Court. Failure to mention any fact, would have made
the order to the tribunal susceptible to challenge and a detailed finding
would have caused prejudice.
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5. The appeal is accordingly dismissed in limine. It is clarified
that this Court has not expressed any opinion on the question of
genuineness of the transactions of sale and purchase etc. It is also
clarified that the order of the tribunal does not decide the lis on
merits and the observations are tentative and it is open to the
authorities to ascertain facts and independently apply their mind.
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SANJIV KHANNA, J.
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G.P. MITTAL, J.
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OCTOBER 24, 2011
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NA
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