Cit v. Nr Portfolio Pvt Ltd

order as to costs.

S. RAVINDRA BHAT

(JUDGE)

R.V. EASWAR

(JUDGE) December 21, 2012

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : 03.12.2012 PRONOUNCED ON: 21.12.2012 + ITA NOS. 134/2012 COMMISSIONER OF INCOME TAX DELHI-V …………..Appellant Through : Ms. Suruchi Aggarwal, Sr. Standing Counsel. Vs. M/S. N.R. PORTFOLIO PVT. LTD. ………… Respondent Through : Dr. Rakesh Gupta, Ms. Rani Kiyala, Sh. Piyush Singh and Ms. Ayushi Pareek, Advocates. CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE R.V. EASWAR MR. JUSTICE S.RAVINDRA BHAT % 1. The revenue claims to be aggrieved by the order of the Income Tax Appellate Tribunal (IT AT) dated 22-07-2011 in IT a No. 2177/DEL/2010 by which its appeal was dismissed. The following question of law arises for consideration: "Did the Tribunal fall into error in directing the deletion of the sum brought to tax by the AO as unexplained income under Section 68 of the Income Tax Act?" Page 2 2. Briefly the facts are that the assessee filed its return for AY 2004-05 declaring a loss to the extent of ` 42793/-. It's case was later reopened when the AO issued notice under Section 148. Eventually the AO framed the assessment under Sections 147/144 and added back the sum of ` 35,00,000/- under Section 68. The assessee felt aggrieved and appealed to the Commissioner of appeals. In the appellate proceedings, the Commissioner sought for a remand report which was furnished to him. The remand report dated 06-11-2009 - a fairly elaborate document which analyzed in meticulous detail the contentions of the assessee and the materials on the record, to the extent it is relevant for disposal of the present appeal reads as follows: "Vide the said summons u/s 131 the said parties were required to furnish the following details/information on 07.11.2009; 1. personal deposition 2. To produce books of account alongwith complete bills & vouchers for the period 01.04.2003 to 31.03.2004. 3. Statement of all the bank accounts related to your company for the period 1.1.2003 to 31.3.2004. 4. Please explain whether you still in possession of the shares allotted by M/s N.R. Portfolio Pvt. Ltd. If not then to whom the said shares have been sold and the date and details thereof alongwith the supporting document. On 23.10.09 the A.R. of the assessee appeared but Shri Chaurasia did not attend. On 30.10.09 Shri Prakash Gupta, A.R. attened and sought adjournment to file reply and he was asked to produce Shri Vicky Chaurasia on 05.11.09 along with all the details as asked for. On 5.11.09 the A.R. of the assessee appeared along with Shri Vicky Chaurasia and a letter dated 3.11.09 but no books of Page 3 accounts as asked for were produced. Statement of Shri Vicky Chaurasia was recorded, copy of which is enclosed herewith as annexure-A for your kind perusal. It is brought to your kind notice that the summons u/s 131 so sent to the parties, summons have come back unserved on 27.10.09 in respect of 4 parties mostly with the postal remarks "NO SUCH FIRM/COMPANY/PERSON", OR A FEW `LEFT WITHOUT ADDRESS". Out of the remaining 3 parties, neither anybody attended in person, nor filed any application for adjournment nor filed the details asked for in the summons u/s 131. Thus, these parties have not discharged their duty to the department as required u/s 131 of the I.T. Act and these persons will never come before any Income-tax Authority as already discussed in details that they are only entry operators and either absconding or evading service of any kind of notice from the Income tax Department or avoiding appearance before any Income-tax Authority because they do not have any real identity, creditworthiness and business. As regards compliance of letter dated 12.10.2009 sent to the assessee, the A.R. of the assessee has filed a letter dated 29.10.2009 on 30.10.2009 seeking adjournment upto 04.11.2009. The assessee company filed its reply dated 03.11.2009 on 04.11.2009 in support of its contention and the same are discussed as under" In para 2 of its letter dated 3.11.2009 the assessee stated that "vide letter dated 10.1