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2021 (12) TMI 310 - AT - Income TaxReopening of assessment u/s 147 - Validity of reasons to believe - addition u/s 68 of the Act on account of share capital and share application money received by the assessee - as on the basis of a search operation conducted u/s 132 of the Act on 9th October, 2014 in the Kuber group of cases and on the basis of the statement recorded of Shri Mul Chand Malu and on the basis of post search enquiries, reopened the assessment after recording reasons - HELD THAT:- We find, in the instant case the information on the basis of which reasons were conceived was not gathered in search or post search enquiries. Further, the observation of the AO that M/s Binapani Merchandise Pvt. Ltd. is a Jamakharchi company is contrary to report of the commission. This company comes under the category of those companies whose address is not traceable. We further find, Shri Vikas Aggarwal, in his answer to questions No.7 to 12 has not named any of the companies who deposited the money is appearing. Further, in none of the statements recorded by the Investigation Wing of Kolkata, the name of any company who deposited money with the assessee company is appearing. We find, although the assessee has specifically asked for cross-examination of the persons whose statements were relied on by the AO, however, the same was not provided. So far as the name of Mr. Devesh Upadhya is concerned, we find the AO has stated that in the commission report received from Kolkata office, statement of Vikas Agrawala, Devesh Upadhya and Praveen Kumar are mentioned. However, in none of these statements of entry operators, the name of the assessee is mentioned. Further, opportunity to cross examine has not been provided. A perusal of the chronology of date chart shows that the statements of all these persons were recorded prior to the date of search in the Kuber group of cases i.e., on 09.10.2014. Since the assessee in the instant case also belongs to the Kuber Group of companies and the facts are identical, therefore, respectfully following the decision of the Tribunal in the case of Kuber Khanpan Udyog (P) Ltd. (supra), [2021 (3) TMI 1159 - ITAT DELHI] we hold that the addition made by the AO and sustained by the CIT(A) cannot be upheld. We, therefore, set aside the order of the ld.CIT(A) and direct the AO to delete the addition - Decided in favour of assessee.
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