TMI Blog2012 (9) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... ncashed by assessee in its bank account, there is no reason for accepting assessee’s contention for non-service of notice u/s 143(2) on the very same address. Ground taken by the assessee with regard to non service of notice is hereby dismissed. Additional evidences produced by the assessee before the CIT(A) goes to the root of the issue for deciding the identity, creditworthiness and genuineness of transaction in respect of share application money. In the interest of justice, we accept the additional evidence filed by the assessee and direct the AO to consider the issue afresh - Decided in favor of assessee for statistical purposes. - I.T.A.No. 185/Ind/2012 - - - Dated:- 2-7-2012 - SHRI JOGINDER SINGH AND SHRI R.C.SHARMA, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having considered the ratios laid down by the various courts and keeping in view the specific and peculiar facts of this case, the undisputed facts emerged that during assessment proceedings or during remand proceedings before the Assessing Officer, the appellant failed to prove the creditworthiness of such shareholders. During appellate proceedings, vide order sheet entry dated 8.12.11, the appellant was specifically required to prove the creditworthiness of such shareholders and the appellant contended that as identity of the shareholders is proved, there was no requirement of law to prove the creditworthiness of the shareholders. Having considered all facts as discussed above, it is noted that as regard creditworthiness and genuinenes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Money, as additional evidence under Rule 46A of the Income Tax Rules, 1962 read with Section 250(4)/(5) of the Income Tax Act, 1961, which goes to the very root of the matter and involves a substantial cause in determining correct income and the correct tax liability for the year under appeal of the appellant company, production whereof before the Id.CIT(A) is fully covered by the exception in clause (d) of sub-Rule (1) of Rule 46A which reads as " Where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal." The said additional evidence therefore, be ordered to be admitted. 2. That on the facts and in the circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 5.6 I have carefully considered the submission of the appellant and the observation findings of the AO. The undisputed facts are that return was filed on 31.10.2007 in respect of A.Y. 2007-08 and notice u/s 143(2) for assuming jurisdiction for scrutiny assessment was to be issued / served by 30.09.2008. The appellant's main dispute is that notice dated 25.07.2008 was never served upon the appellant. Though some other notices were also stated to be not served but such other notices are of the dates after 30.09.2008 and therefore, these will not make any material difference. It may be seen that this a case where return was e-filed by the appellant. Therefore, the AO was not having the physical return. As per PAN, the address of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subsequently added in the register. It is also seen that the notice has not been received back. The notice was to be issued /served by 30.09.2008 whereas, the notice u/s 143(2) was issued and dispatched on 25.07.2008 well before two months. In the circumstances, when the appellant himself is showing its PAN address on which such notice has been dispatched, there is no evidence of returning back of such notice. It is genuinely believed that notice was served on the appellant. Moreover, on the same address, the order of intimation u/s 143(1) was issued vide which refund of Rs. 1,07,881/- was sent to the assessee in the same month on 23.07.2008. The assessee has never disputed the receipt of such order of intimation u/s 143(1) of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Assessing Officer. However, the CIT(A) did not accept the additional evidence on the plea that the Assessing Officer has given sufficient opportunity to the assessee for furnishing these evidence but the assessee has not furnished the same, therefore, additional evidence does not deserve to be accepted under Rule 46A. The CIT(A), therefore, rejected additional evidence filed before him and after examining the issue on merit, as per his finding given at page 15 of his appellate order, which has been reproduced hereinabove, he confirmed the addition u/s 68 of the Income-tax Act, 1961. 9. From the record, we found that the assessee has not only filed the confirmation from the shareholders but also PAN Nos. of shareholders. To prove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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