Principal Commissioner Of Income Tax Central , Jaipur v. M/S Motisons Entertainment India Pvt. Ltd. , 7Th Floor, Sb-110Motisons Tower, Lal Kothi, Tonk Road, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 136/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Motisons Entertainment India Pvt. Ltd. , 7Th Floor, Sb-110Motisons Tower, Lal Kothi, Tonk Road, Jaipur. ----Respondent Connected With D.B. Income Tax Appeal No. 126/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Rainbow Buildcon Private Ltd , Sb-110, 7Th Floor, TonkRoad, Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 127/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----AppellantVersus M/s Motisons Global Pvt. Ltd. , 7Th Floor, Sb-110, MotisonsTower Lal Kothi, Tonk Road, Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 128/2018Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Motisons Global Pvt. Ltd. , 7Th Floor, Sb-110, MotisonsTower Lal Kothi, Tonk Road, Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 129/2018Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant M/s Motisons Global Pvt. Ltd. , 7Th Floor, Sb-110, MotisonsTower Lal Kothi, Tonk Road, Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 130/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Shivansh Buildcon Pvt. Ltd. , A-26, Krishna Nagar, Lal Kothi,Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 137/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Motisons Entertainment India Pvt. Ltd. , 7Th Floor, Sb-110Motisons Tower, Lal Kothi, Tonk Road, Jaipur. ----Respondent D.B. Income Tax Appeal No. 138/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----AppellantVersus M/s Bholenath Real Estate Private Ltd. , 248, Musaraf Bhawan,Haldiyon Ka Rasta, Jaipur, Rajasthan. ----Respondent D.B. Income Tax Appeal No. 139/2018 Principal Commissioner Of Income Tax Central , Jaipur. ----Appellant Versus M/s Motisons Entertainment India Pvt. Ltd. , 7Th Floor, Sb-110Motisons Tower, Lal Kothi, Tonk Road, Jaipur. ----Respondent D.B. Income Tax Appeal No. 162/2018The Pr. Commissioner Of Income Tax Central , Jaipur ----Appellant Versus M/s Motisons Buildtech Pvt. Ltd. , B-9, Vivekanand Marg, C-Scheme, Jaipur, Rajasthan ----Respondent D.B. Income Tax Appeal No. 165/2018 The Pr. Commissioner Of Income Tax Central , Jaipur ----Appellant Versus M/s Motisons Buildtech Pvt. Ltd. , B-9, Vivekanand Marg, C-Scheme, Jaipur Raj. ----Respondent D.B. Income Tax Appeal No. 168/2018 The Pr. Commissioner Of Income Tax Central , Jaipur ----AppellantVersus M/s. Motisons Buildtech Pvt. Ltd. , B-9, Vivekanand Marg, C-Scheme, Jaipur Rajasthan ----Respondent For Appellant(s) : Mr. Siddarth Bafna for Mr. Anil MehtaFor Respondent(s): HON'BLE MR. JUSTICE KALPESH SATYENDRA JHAVERI HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Judgment 31/07/2018 1.Delay in filing the appeals is condoned. Applications u/s 5 ofthe limitation Act are allowed. Other defects are waived andapplications for the same are also allowed. 2.In all these appeals common question of law and facts are involved hence they are decided by this common judgments. 3.By way of these appeals, the appellant has assailed thejudgment and order of the tribunal whereby tribunal has dismissedthe appeals of the department. question of law:- In D.B. ITA No. 136/2018:- ----Respondent For Appellant(s) : Mr. Siddarth Bafna for Mr. Anil MehtaFor Respondent(s): HON'BLE MR. JUSTICE KALPESH SATYENDRA JHAVERI HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Judgment 31/07/2018 1.Delay in filing the appeals is condoned. Applications u/s 5 ofthe limitation Act are allowed. Other defects are waived andapplications for the same are also allowed. 2.In all these appeals common question of law and facts are involved hence they are decided by this common judgments. 3.By way of these appeals, the appellant has assailed thejudgment and order of the tribunal whereby tribunal has dismissedthe appeals of the department. question of law:- In D.B. ITA No. 136/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) which erredin deleting the addition of Rs. 1.95 crore/- madeunder section 56(1) of the Act ignoring the factthat neither any business activity was performednor any business income has been shown bythese concerns from whom share applicationmoney has been received, hence, it is theunaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No.126/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) which erredin deleting the addition of Rs. 2 crore/- madeunder section 56(1) of the Act ignoring the factthat neither any business activity was performednor any business income has been shown bythese concerns from whom share applicationmoney has been received, hence, it is theunaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No.127/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) which erredin deleting the addition of Rs. 2 crore/madeunder section 56(1) of the Act ignoring the factthat neither any business activity was performednor any business income has been shown bythese concerns from whom share applicationmoney has been received, hence, it is theunaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No. 128/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) regarding indeletion 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 wasperformed nor any business income has beenshown by these concerns from whom shareapplication money has been received, hence, it isthe unaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No.129/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in deletingthe entire addition of Rs.42,07,29,600/- madeunder section 56(1) of the Act ignoring the factthat assets of the assessee company don’tcommensurate to premium charged and furtherignoring the fact that the neither any businessactivity was performed nor any business incomehas been shown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 68 of the IT Act does not empowerthe CIT(A) to make addition under this Act, asthe section 68 empowers only the assessingofficer to make addition. In D.B. ITA No.129/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified in deletingthe entire addition of Rs.42,07,29,600/- madeunder section 56(1) of the Act ignoring the factthat assets of the assessee company don’tcommensurate to premium charged and furtherignoring the fact that the neither any businessactivity was performed nor any business incomehas been shown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 68 of the IT Act does not empowerthe CIT(A) to make addition under this Act, asthe section 68 empowers only the assessingofficer to make addition. 3. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat the addition under section 68 of the IT Actcan only be made by the assessing officer byrelying upon the definition of assessing officer asprovided in section 2(7A) of the IT Act. 4. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoringthe provisions of section 251(1)(a) of the IT Act,1961 which specifically empowers the CIT(A) inan appeal to confirm, reduce, enhance or annualthe assessment; 5. whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified inignoring the explanation of section 251(2) of theIT Act which states that in disposing of anappeal, the [commissioner (appeal)] mayconsider and decide any matter arising out of theproceeding in which the order appealed againstwas passed notwithstanding that such matterwas not raised before the [commissioner(appeal)] by the appellant. In D.B. ITA No. 130/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regarding indeletion of the 8650000/- out of the totaladdition of Rs. 9000000/- made under section56(1) of the Act ignoring the fact that assets of the assessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 68 of the IT Act does not empowerthe CIT(A) to make addition under this Act, asthe section 68 empowers only the assessingofficer to make addition. 3. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat the addition under section 68 of the IT Actcan only be made by the assessing officer byrelying upon the definition of assessing officer asprovided in section 2(7A) of the IT Act. 4. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoringthe provisions of section 251(1)(a) of the IT Act,1961 which specifically empowers the CIT(A) inan appeal to confirm, reduce, enhance or annualthe assessment; 5. whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified inignoring the explanation of section 251(2) of theIT Act which states that in disposing of anappeal, the [commissioner (appeal)] mayconsider and decide any matter arising out of theproceeding in which the order appealed againstwas passed notwithstanding that such matterwas not raised before the [commissioner(appeal)] by the appellant. In D.B. ITA No.137/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regarding indeletion of the 63650000/- out of the totaladdition of Rs. 77800000/- made under section56(1) of the Act ignoring the fact that assets ofthe assessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. In D.B. ITA No.137/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regarding indeletion of the 63650000/- out of the totaladdition of Rs. 77800000/- made under section56(1) of the Act ignoring the fact that assets ofthe assessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 68 of the IT Act does not empowerthe CIT(A) to make addition under this Act, asthe section 68 empowers only the assessingofficer to make addition. 3. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat the addition under section 68 of the IT Act can only be made by the assessing officer byrelying upon the definition of assessing officer asprovided in section 2(2A) of the IT Act. 4. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified ignoringthe provisions of section 251(1)(a) of the IT Act,1961 which specifically empowers the CIT(A) inan appeal to confirm, reduce, enhance or annualthe assessment; 5. whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified inignoring the explanation of section 251(2) of theIT Act which states that in disposing of anappeal, the [commissioner (appeal)] mayconsider and decide any matter arising out of theproceeding in which the order appealed againstwas passed notwithstanding that such matterwas not raised before the [commissioner(appeal)] by the appellant. In D.B. ITA No.138/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) which erredin deleting the addition of Rs. 2.9 crore/- madeunder section 56(1) of the Act ignoring the factthat neither any business activity was performednor any business income has been shown bythese concerns from whom share applicationmoney has been received, hence, it is theunaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No.139/2018:- 1. whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inupholding the decision of the CIT(A) which erredin deleting the addition of Rs. 3.4 crore/- madeunder section 56(1) of the Act ignoring the factthat neither any business activity was performednor any business income has been shown bythese concerns from whom share applicationmoney has been received, hence, it is theunaccounted money of the assessee companywhich have been introduced in the garb of shareapplication money by these concerns which don’thave any worth to invest at such high premium. In D.B. ITA No.162/2018 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regarding indeletion of Rs.3.03 Cr made under section 56(1) of the Act ignoring the fact that assets of theassessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 56(1) of the IT Act does notempower the CIT(A) to make addition under thisAct, as the aforesaid amount could have beentaxed under section 68 of the IT Act. In D.B. ITA No.162/2018 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regarding indeletion of Rs.3.03 Cr made under section 56(1) of the Act ignoring the fact that assets of theassessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 56(1) of the IT Act does notempower the CIT(A) to make addition under thisAct, as the aforesaid amount could have beentaxed under section 68 of the IT Act. 3. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat the addition under section 68 of the IT Actcan only be made by the assessing officer byrelying upon the definition of assessing officer asprovided in section 2(2A) of the IT Act. In D.B. ITA No. 165/2018:- 1. Whether, on the fact and the circumstances ofthe case the learned ITAT is justified in upholdingthe decision of the CIT(A) deleting the addition ofRs.24,20,479/- made by the Assessing Officer bydisallowing the expenses as assessee has notstarted its business activity by ignoring thedecision of the Hon’ble Supreme Court of India inthe case of Tuticorin Alkali Chemicals andFertilizers Pvt. Ltd. reported in 227 ITR 172. In D.B. ITA No. 168/2018:- 1. Whether, on the fact and the circumstances ofthe case the Hon’ble ITAT was justified inuploading the decision of the CIT(A) regardingdeletion of Rs 2,86,27,500/- made under section56(1) of the Act ignoring the fact that assets ofthe assessee company don’t commensurate topremium charged and further ignoring the factthat the neither any business activity wasperformed nor any business income has beenshown by the assessee. 2. Whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat section 56(1) of the IT Act does notempower the CIT(A) to make addition under thisAct, as the aforesaid amount could have beentaxed under section 68 of IT Act. 3. whether on the facts and the circumstances ofthe case the Hon’ble ITAT was justified in holdingthat the addition under section 68 of the IT Actcan only be made by the assessing officer byrelying upon the definition of assessing officer asprovided in section 2(2A) of the IT Act. 4. 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 ITAct, 1961 which specifically empowers the CIT(A)in an appeal to confirm, reduce, enhance orannual the assessment; 5. whether on the facts and the circumstances ofthe case of the Hon’ble ITAT was justified inholding that the explanation of section 251(2) ofthe IT Act which states that in disposing of anappeal, the [commissioner (appeal)] mayconsider and decide any matter arising out of theproceedings in which the order appealed againstwas passed notwithstanding that such matterwas not raised before the [commissioner(appeal)] by the appellant. 5.Counsel for the appellant has taken us to the order of AO, CIT(A) and tribunal and thereafter contended that both CIT(A) aswell as Tribunal have erred in deleting the addition of Rs.1.95crore which was made u/s 56(1). However, the tribunal whileconsidering the matter has discussed the law as well as factualmatrix of the case. In our considered opinion, this is more anappreciation of facts rather question of law. 6.In that view of the matter, no substantial question of lawarises. 7.Hence, the appeals stand dismissed. (ASHOK KUMAR GAUR),JBmg/15-25 & 28 (K.S.JHAVERI),J