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2007 (5) TMI 263 - ITAT DELHI-GAddition u/s 68 - unexplained share capital and share application money - Onus to prove - identity and creditworthiness of the creditors as well as genuineness - HELD THAT:- Ld. CIT(A) in our view, rightly concluded that parties were existent parties and payments were made by banking channels. Despite the sufficient opportunities provided to the Assessing Officer by the Ld. CIT(A), no adverse material has been brought on the record. As already noted that onus on assessee in the case of share capital by public issue is lighter one and therefore such onus would stand discharged if identity of the share applicant is established. In the present case, the same is established beyond doubt. No doubt, the Assessing Officer could bring adverse material on record by making his enquiries but nothing adverse to assessee has been brought on record in respect of 108 share applicants. Thus, it is held that onus on assessee stand discharged. Consequently, the Ld. CIT(A) was justified in deleting the addition. Addition sustained by the Ld. CIT(A) - In the present case, the onus was on assessee to prove the genuineness of transaction. The confirmation was filed by the assessee. The Assessing Officer issued the summons in response to which the alleged persons, Hament Kumar, denied to have made any investment in such public issue. This fact was admittedly confronted to the assessee. At that stage, the assessee never sought the cross-examination of Mr. Hament Kumar. Thus, assessee accepted the denial made by Hament Kumar. On these facts, it cannot be said that assessee could discharge its onus. Accordingly, it is held that Ld. CIT(A) rightly confirmed the addition. Regarding Laxman Dass Bhatia, we find that assessee had submitted before the Ld. CIT(A) that his address was changed and, therefore, he could not be found from that address. The Ld. CIT(A) asked the Assessing Officer to issue summons at the correct address. It appears that notice was sent at the correct address. However, in the remand report, there is no adverse material in respect of Laxman Dass Bhatia. The confirmation and income-tax return acknowledgements are placed on record. Mere non-compliance of notice/summon would not lead to the inference that onus has not been discharged as held by the Apex Court in the case of Orissa Corporation [1986 (3) TMI 3 - SUPREME COURT]. Therefore, we are of the view that the sum in the case of Laxman Dass Bhatia cannot be assessed u/s 68. Accordingly, the order of Ld. CIT(A) is modified to that extent and consequently, the addition is restricted. In the result, appeal of the Revenue is dismissed while the appeal of the assessee is partly allowed.
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