TMI Blog2011 (3) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and law. 02. On the facts and in the circumstances of the case and in law, the learned CIT (A) has erred in law in deleting the addition of Rs.25,00,000/- made by A.O. u/s 68 of the I.T. Act being the unexplained credit on account of share capital and share proceeds of shares of Rs.9,00,000/- and Rs. 16,00,000/- respectively. 2.1 The CIT (A) did not appreciate the fact that the assessee failed to discharge the onus of proving the source and credit worthiness of the creditors and buyers of the shares and also to prove the genuineness of the transactions. 03. The appellant craves leave to add, to alter, or amend any ground of the appeal raised above at the time of the hearing. 3. The assessee has taken the following grounds in the cross objection:- "1. The Ld. CIT (A) has erred dismissing ground no.1 and 2 and sustaining the reopening of the case u/s 147/148 as the ld. A.O. has not recorded proper reasons for reopening of the assessment and what is recorded is merely information received by him. 2. That the appellant craves leave to add/alter any/all grounds of appeal before or at the time of hearing of the appeal." 4. The original return of income was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /148 of the Income-tax Act as the reasons recorded by the Assessing Officer did not establish any satisfaction on his part that any income belonging to the assessee has escaped assessment. He further submitted that the return of income was filed on 30.10.2001 and the case was reopened after issuing a notice u/s 148 on 18.3.2008. The reasons recorded were supplied to the assessee on 12.11.2008. The assessment was finalized u/s 147/143(3) on 30.12.2008. He submitted that the assessment was reopened on the basis of information received from investigation wing without application of mind by the Assessing Officer. There is no nexus between the reasons recorded and income of the assessee. In the reasons recorded, the Assessing Officer alleged that the assessee has received share application money as an accommodation entry to the tune of Rs.25 lacs. However, assessee has received share application money only of Rs.9 lacs and the rest of the amount was received by the assessee on account of sale of its earlier investments. He pleaded that entire reopening proceedings are vitiated. Further, he also pleaded that it is a settled law that Assessing Officer cannot go beyond reasons and only rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the assessee as a beneficiary of the accommodation entries. In view of this, the cross objection of the assessee is dismissed. 10. In the revenue's appeal, the issue raised is deletion of the addition of Rs.25 lacs made by the Assessing Officer u/s 68 being unexplained cash credit on account of share capital and sale proceeds of shares of Rs.9 lacs and Rs.16 lacs respectively. 11. The revenue has contended that the assessee has failed to discharge the onus by providing the source and creditworthiness of the creditors and buyers of the shares and also to prove the genuineness of the transactions. 12. Learned DR relied on the order of the Assessing Officer. While the learned AR relied on the order of CIT (A) and also relied on the latest decision of Hon'ble Delhi High Court in ITA Nos.2093 to 2095/2010 in the case of Oasis Hospitalities (Pvt.) Limited dated 31.1.2011 from paras 25 to 35. 13. After hearing both the sides on the issue, we find that the assessee has provided the following information in respect of the shareholders and the persons to whom the sale proceeds of shares were issued:- "1. Harpal Associates Pvt. Ltd. (A) Confirmation of transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h shares at face value worth Rs.9.00 lacs to the above parties out of the total fresh allotment of Rs. 12.40 lacs during the year." We find that Hon'ble Delhi High Court in the case of Oasis Hospitalities (Pvt.) Limited, cited supra, wherein at para 28 the Hon'ble High Court has held as under:- "28. The assessee filed copies of PAN, acknowledgement of filing income tax returns of the companies, their bank account statements for the relevant period, i.e., for the period when the cheques were cleared. However, the parties were not produced in spite of specific direction of the A.O. instead of taking opportunities in this behalf. Since the so-called Directors of these companies were not produced on this ground coupled with the outcome of the detailed inquiry made by the Investigating Wing of the Department, the A.O. made the addition. This addition could not be sustained as the primary onus was discharged by the assessee by producing PAN number, bank account, copies of income tax returns of the share applicants, etc. We also find that the Assessing Officer was influenced by the information received by the Investigating Wing and on that basis generally modus operandi by such En ..... X X X X Extracts X X X X X X X X Extracts X X X X
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