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Judgment
Delay in filing the appeals is condoned. Applications u/s 5 of the limitation Act are allowed. Other defects are waived and applications for the same
are also allowed.
In all these appeals common question of law and facts are involved hence they are decided by this common judgments.
By way of these appeals, the appellant has assailed the judgment and order of the tribunal whereby tribunal has dismissed the appeals of the
department.
Counsel for the appellant has framed following substantial question of law:-
In D.B. ITA No. 136/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) which erred in
deleting the addition of Rs. 1.95 crore/- made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor any
business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money of the
assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to invest at
such high premium.
In D.B. ITA No.126/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) which erred in
deleting the addition of Rs. 2 crore/- made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor any
business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money of the
assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to invest at
such high premium.
In D.B. ITA No.127/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) which erred in
deleting the addition of Rs. 2 crore/made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor any
business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money of the
assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to invest at
such high premium.
In D.B. ITA No. 128/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) regarding in
deletion of the addition of Rs.6,96,50,000/made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor
any business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money
of the assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to
invest at such high premium.
In D.B. ITA No.129/2018:-
Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in deleting the entire addition of Rs.42,07,29,600/- made
under section 56(1) of the Act ignoring the fact that assets of the assessee company don’t commensurate to premium charged and further
ignoring the fact that the neither any business activity was performed nor any business income has been shown by the assessee.
Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that section 68 of the IT Act does not
empower the CIT(A) to make addition under this Act, as the section 68 empowers only the assessing officer to make addition.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the addition under section 68 of the IT
Act can only be made by the assessing officer by relying upon the definition of assessing officer as provided in section 2(7A) of the IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoring the provisions of section 251(1)(a) of the IT
Act, 1961 which specifically empowers the CIT(A) in an appeal to confirm, reduce, enhance or annual the assessment;
whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified in ignoring the explanation of section 251(2) of the IT
Act which states that in disposing of an appeal, the [commissioner (appeal)] may consider and decide any matter arising out of the proceeding in
which the order appealed against was passed notwithstanding that such matter was not raised before the [commissioner (appeal)] by the appellant.
In D.B. ITA No. 130/2018:-
Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in uploading the decision of the CIT(A) regarding in
deletion of the 8650000/- out of the total addition of Rs. 9000000/- made under section 56(1) of the Act ignoring the fact that assets of the assessee
company don’t commensurate to premium charged and further ignoring the fact that the neither any business activity was performed nor any
business income has been shown by the assessee.
Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that section 68 of the IT Act does not
empower the CIT(A) to make addition under this Act, as the section 68 empowers only the assessing officer to make addition.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the addition under section 68 of the IT
Act can only be made by the assessing officer by relying upon the definition of assessing officer as provided in section 2(7A) of the IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoring the provisions of section 251(1)(a) of the IT
Act, 1961 which specifically empowers the CIT(A) in an appeal to confirm, reduce, enhance or annual the assessment;
whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified in ignoring the explanation of section 251(2) of the IT
Act which states that in disposing of an appeal, the [commissioner (appeal)] may consider and decide any matter arising out of the proceeding in
which the order appealed against was passed notwithstanding that such matter was not raised before the [commissioner (appeal)] by the appellant.
In D.B. ITA No.137/2018:-
Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in uploading the decision of the CIT(A) regarding in
deletion of the 63650000/- out of the total addition of Rs. 77800000/- made under section 56(1) of the Act ignoring the fact that assets of the assessee
company don’t commensurate to premium charged and further ignoring the fact that the neither any business activity was performed nor any
business income has been shown by the assessee.
Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that section 68 of the IT Act does not
empower the CIT(A) to make addition under this Act, as the section 68 empowers only the assessing officer to make addition.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the addition under section 68 of the IT
Act can only be made by the assessing officer by relying upon the definition of assessing officer as provided in section 2(2A) of the IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoring the provisions of section 251(1)(a) of the IT
Act, 1961 which specifically empowers the CIT(A) in an appeal to confirm, reduce, enhance or annual the assessment;
whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified in ignoring the explanation of section 251(2) of the IT
Act which states that in disposing of an appeal, the [commissioner (appeal)] may consider and decide any matter arising out of the proceeding in
which the order appealed against was passed notwithstanding that such matter was not raised before the [commissioner (appeal)] by the appellant.
In D.B. ITA No.138/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) which erred in
deleting the addition of Rs. 2.9 crore/- made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor any
business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money of the
assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to invest at
such high premium.
In D.B. ITA No.139/2018:-
whether, on the fact and the circumstances of the case the Hon’ble ITAT was justified in upholding the decision of the CIT(A) which erred in
deleting the addition of Rs. 3.4 crore/- made under section 56(1) of the Act ignoring the fact that neither any business activity was performed nor any
business income has been shown by these concerns from whom share application money has been received, hence, it is the unaccounted money of the
assessee company which have been introduced in the garb of share application money by these concerns which don’t have any worth to invest at
such high premium.
In D.B. ITA No.162/2018
Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in uploading the decision of the CIT(A) regarding in
deletion of Rs.3.03 Cr made under section 56(1) of the Act ignoring the fact that assets of the assessee company don’t commensurate to premium
charged and further ignoring the fact that the neither any business activity was performed nor any business income has been shown by the assessee.
Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that section 56(1) of the IT Act does not
empower the CIT(A) to make addition under this Act, as the aforesaid amount could have been taxed under section 68 of the IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the addition under section 68 of the IT
Act can only be made by the assessing officer by relying upon the definition of assessing officer as provided in section 2(2A) of the IT Act.
In D.B. ITA No. 165/2018:-
Whether, on the fact and the circumstances of the case the learned ITAT is justified in upholding the decision of the CIT(A) deleting the addition of
Rs.24,20,479/- made by the Assessing Officer by disallowing the expenses as assessee has not started its business activity by ignoring the decision of
the Hon’ble Supreme Court of India in the case of Tuticorin Alkali Chemicals and Fertilizers Pvt. Ltd. reported in 227 ITR 172.
In D.B. ITA No. 168/2018:-
Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in uploading the decision of the CIT(A) regarding
deletion of Rs 2,86,27,500/- made under section 56(1) of the Act ignoring the fact that assets of the assessee company don’t commensurate to
premium charged and further ignoring the fact that the neither any business activity was performed nor any business income has been shown by the
assessee.
Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that section 56(1) of the IT Act does not
empower the CIT(A) to make addition under this Act, as the aforesaid amount could have been taxed under section 68 of IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the addition under section 68 of the IT
Act can only be made by the assessing officer by relying upon the definition of assessing officer as provided in section 2(2A) of the IT Act.
whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holding that the provisions of section 251(1)(a) of the
IT Act, 1961 which specifically empowers the CIT(A) in an appeal to confirm, reduce, enhance or annual the assessment;
whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified in holding that the explanation of section 251(2) of
the IT Act which states that in disposing of an appeal, the [commissioner (appeal)] may consider and decide any matter arising out of the proceedings
in which the order appealed against was passed notwithstanding that such matter was not raised before the [commissioner (appeal)] by the appellant.
Counsel for the appellant has taken us to the order of AO, CIT(A) and tribunal and thereafter contended that both CIT(A) as well as Tribunal have
erred in deleting the addition of Rs.1.95 crore which was made u/s 56(1). However, the tribunal while considering the matter has discussed the law
as well as factual matrix of the case. In our considered opinion, this is more an appreciation of facts rather question of law.
In that view of the matter, no substantial question of law arises.
Hence, the appeals stand dismissed.