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2022 (8) TMI 454 - AT - Income TaxAddition u/s 68 - assessee having received share application money and share premium from two investor companies being unexplained - HELD THAT:- Both investor companies had placed on record supporting documentary evidences which duly substantiated their identity and creditworthiness, as well as the genuineness of the transaction in question, which had neither been rebutted by the A.O in the course of the original assessment proceedings; nor in the remand proceedings, therefore, the department without dislodging the primary onus that was duly discharged by the assessee could not have drawn adverse inferences as regards the transactions in question. We find substantial force in the claim of the Ld. AR that now when the A.O i.e. ITO, Ward-11(1), Kolkata while framing the assessment of one of the investor company, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. had accepted the share capital of Rs.11.67 crore that was received by it in A.Y.2009-10 against which it had allotted 233470 shares, and thereafter it had not raised any fresh capital upto the date of subscription of the shares of the assessee company, therefore, it could safely be concluded that the source of availability of funds with the said investor company was not only proved to hilt, but in fact the same had also been accepted by the department. As regards the share application money received by the assessee company from the other investor company, viz. Chandrika Vanijya Pvt. Ltd., we find that though the documentary evidences substantiating the identity, creditworthiness and genuineness of the transaction in question that were filed by the assessee were confronted by the CIT(Appeals) to the A.O with a direction to file a remand report,, however, the A.O in the said case too had failed to rebut the documents as were available before him. Apart from that, the fact that the aforesaid share application money had been refunded by the assessee company in two tranches had also been lost sight of by the A.O while drawing adverse inferences as regards the authenticity of the transaction in question. Thus now when the assessee company on the basis of substantial documentary evidences had proved to the hilt the identity and creditworthiness of the investor companies, as well as the genuineness of the respective transactions in question, which had not been dislodged by the A.O, as there is no whisper by him either in the course of the assessment proceedings or in the remand proceedings, therefore, the onus that was shifted upon him to disprove the claim of the assessee had remained undischarged. Assessee in the course of the proceedings before the CIT(Appeals) had placed on record copies of the returns of income a/w. computation of income, bank details etc. to substantiate its claim of having received share application money from the aforementioned eight parties i.e. directors of the assessee company and their close relatives, however, the A.O in his remand report had failed to place on record any material which would dislodge the authenticity of the said documents. In the backdrop of the aforesaid facts, we are of the considered view that as the assessee had discharged the primary onus that was cast upon it as regards proving the identity, creditworthiness and genuineness of the transaction of having received share application money from the aforesaid eight parties i.e directors of the assessee company and their close relatives/friends, which the AO had absolutely failed to dislodge by placing on record any such material which would prove to the contrary - Decided in favour of assessee.
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