TMI Blog2013 (7) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Petitioner : Shri Ved Jain Mrs. Rano Jain, CAs For the Respondent : Ms. Archana S. Awasthi, Senior DR ORDER Per B. C. Meena, Accountant Member :- This appeal filed by the revenue against the order of CIT (Appeals)- XIII, New Delhi dated 16.10.2009 for the Assessment Year 2006-07. 2. The return of income was filed on 31.10.2006. The assessee u/s 143(3) was finalized on 29.12.2008 and addition of ₹ 1,10,00,000/- was made u/s 68 of the Income-tax Act, 1961. The CIT (A) deleted the addition by holding as under :- 6. From the appellant submission it is quite clear that it was able to provide all the information and had produced all the materials as a proof for increase in the share capital. During the course of the assessment proceedings the appellant had submitted various documents in case of investors; such as:- i) Names of the investor ii) Their completed address as per company's records iii) Application of the investors iv) No. of shares allotted v) Amount invested vi) Mode of payment (In none of the cases the amount is received by cash and in all the cases the amount is receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 ITR 344 (Pat.) vi) ACIT vs. Goving Ram Agarwal - 76 ITD 120 (Cal.) In all the above mentioned case it has been stated by the Courts of law that once the assessee has discharged his primary onus of giving the evidences in respect of the identity, creditworthiness and genuineness of the transactions, it is the responsibility of the assessing officer to make further investigation if he suspect the genuineness of the said transaction. Once the burden shifts to the revenue, it should bring on record material from which it could be concluded that the investments were, in fact, made by the assessee and not by the depositors. The following decisions are relevant on this point:- CIT vs. Real Time Marketing Pvt. Ltd. 221 CTR 716; CIT vs. Value Capital Services Pvt. Ltd.-221 CTR 511 (Del.) CIT vs. Daya Chand Jain Vaidya-98 ITR 280 (Allh.). The addition made by the Assessing Officer are clearly based on assumptions, presumptions, conjectures and surmises inasmuch as he came to the conclusion in complete disregard and ignorance of the supporting documents and evidences filed during the proceedings. Under these circumstances, no addition can be made under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital was received. Ld. DR relied on the order of Assessing Officer. He pleaded to set aside the order of CIT (A) and restore the order of Assessing Officer 4. On the other hand, ld. AR submitted that the assessee has received share capital of ₹ 1,10,00,000/- from 39 persons. The Assessing Officer issued notices u/s 133(6) of the Income-tax Act, 1961 to all these investors. Only two notices sent to Shri Mahender Singh and Shri Vijay Kumar Poddar were received back as the same could not be delivered to them. The investors in 9 cases did not sent the confirmation in response to this notice u/s 133(6) of the Act. However, confirmations of all these persons (9 + 2) were submitted by assessee directly to Assessing Officer. The Assessing Officer drew adverse inference with regard to these 11 persons and made an addition of ₹ 31,94,000/- for holding that assessee has failed to furnish satisfactory explanation for this amount. In all other cases, the Assessing Officer received confirmations and the acknowledgement of the ITRs. During the assessment proceedings, the assessee has furnished the following documents before the Assessing Officer :- i) Names of the investo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court and Hon'ble Supreme Court mentioned in the order of CIT (A) which include the following :- i) Stellar Investments Ltd. - 192 ITR 287 (Del) ii) CIT vs. Lovely Exports Pvt. Ltd. [2008] 216 CTR 195 (SC) iii) CIT vs. Electro Polychem Ltd.-294 ITR 661 (Mad.) iv) CIT vs. Value Capital Services Pvt. Ltd.-307 ITR 344 (Del) v) Sky High Properties Pvt. Ltd. vs. I.T.O.-258 ITR (AT) 98 (Del.) vi) Allen Bradley India Ltd. vs. CIT-80 ITD 43 (Del.) vii) CIT vs. Divine Leasing Finance Ltd. (2007) 158 Tax Man 440(DL) Ld. AR pleaded to sustain the order of the CIT (A). 5. We have heard both the side on this issue. We find that the assessee has furnished the names and complete addresses of the persons from whom share application money was received. The copy of the share application and amount invested and details of number of shares applied were also furnished to the Assessing Officer. The assessee has also given the details of mode of payment and cheque/demand draft numbers and the banks from which the amounts were received. The confirmations from the investors were also filed before the Assessing Officer. The assessee has filed the copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 131 of the Act. It took no steps to verify the statement of the assessee. Thus, after the assessee filed the confirmatory letter with the correct name and address of the creditor and the G.I.R. number as well, the onus immediately shifted on the Department which was not discharged by the Department in this case. The decision of the addition of ₹ 41,500/- and allowance of interest on it by the Tribunal was, therefore, proper. Per SUSHIL KUMAR JHA : Where an assessee gives the correct name, address and GIR number of the creditor, he has discharged his onus to prove the genuineness of credits in his accounts and unless a notice in due form under s. 131 of the Act is issued by the Revenue authority to test the genuineness of the transaction or the capacity of the creditor to pay, the amounts cannot be assessed in the hands of the assessee. Similarly Hon'ble Supreme Court in the case of CIT Vs. Orissa Corporation P. Ltd. - 159 ITR 78 has held as under :- Held, that in this case the respondent had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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