2018 (6) TMI 1268 - ITAT JAIPUR

Addition u/s 68 - unexplained cash credit in the form of share capital issued by the assessee - CIT(A) has allowed the appeal of the assessee by holding that the assessee has discharged its onus by establishing the identity, creditworthiness and genuineness with regard to the transactions for allotment of shares - Held that:- The assessee had furnished complete details to the AO regarding the transactions in question, which include confirmation, share application form, copy of bank account and their permanent account number. These companies (except M/s Chhoti Leasing & Finance Pvt. Ltd.) are also not covered in the list given by Sh. Aseem Gupta in his statement as being used for providing accommodation entries. As per the statement of Shri Aseem Gupta, the bank account no. 252 of Corporation Bank of M/s Chhoti Leasing & Finance Pvt. Ltd. was used for providing accommodation entries whereas assessee has received the amount from bank a/c no. 5043 on 08.09.2005 as evident from his bank statement placed at page No. 62 of the paper book.

By filing number of identity of these share applicants and the assessee has specifically requested the Assessing Officer to enforce the attendance of Director of these companies. The assessee has prima facie discharged the onus on it. Further the statement of Shri Aseem Kumar Gupta was not provided to the assessee and no opportunity to cross examine was also given in spite of the specific request of the assessee. Thus, not providing the opportunity to cross examine, there is a violation of principles of nature justice. The Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. CCE [2015 (10) TMI 442 - SUPREME COURT] has clearly held that denial of opportunity to the assessee to cross examine the witnesses whose statements were made the sole basis of the assessment is a serious flaw rendering the order a nullity. - Decided in favour of assessee.