TMI Blog2014 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... the audited financial statement by the assessee for the relevant period and the same represents the actual sale of ₹ 28 crores and odd of goods effected by the assessee during the year – assessee could not show that any income on account of bogus claim of transportation charges was included in the figure by the assessee somewhere else in the financial accounts of the assessee – thus, the addition of transportation charges was rightly made by the CIT(A) – Decided against Assessee. Addition made as unsecured loan and interest payable – Held that:- Shri Mahendra Bhansali happens to be the Managing Director of the assessee-company and has confirmed the transaction of advancing money to the assessee - Shri Mahendra Bhansali is an existing Assessee, and has given his PAN and it is not the case of the Revenue that the amount of deposit with the assessee-Company was not reflected in the I.T. records of the creditor - no case of addition could be made out. The assessee has discharged its onus of proving the identity and creditworthiness of the creditor by filing confirmation of Shri Mahendra Bhansali who happens to be Managing Director of the assessee-company, and was an existi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeal of the assessee are as under: 1. That the ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in levying penalty u/s.271(1)(c) of the Act. 2. That the ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in levying penalty u/s.271(1)(c) of the Act even though the income declared u/s.115JB and as assessed u/s.115JB remains the same as held by the Hon ble Delhi High Court in CIT Vs. Nalwa Sons Investments Ltd. in 327 ITR 543. The SLP against the same has been dismissed by the Hon ble SC therefore the same becomes law of the land. 4. The learned counsel for the assessee submitted that the penalty was levied under section 271(1)(c) of the Act, although the book profit under section 115JB of the Act was much more than the total income assessed as per the order of the AO under section 154 of the Act, giving appeal effect to the order of the CIT(A) dated 19.11.2010. He submitted that the MAT under section 115JB was greater than the total tax on regular income and the book profit was taken as deemed total income under section 115JB of the Act, and therefore, the issue of penalty is covered in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .69 crores represents the issuance of accommodation sales bill to one M/s.ABG Shipyard Ltd. using the accommodated purchase bills of ₹ 30.09 crores from one M/s.Param Polypack P. Ltd. The Managing Director of the assessee-company also admitted that no actual moving of goods took place. In these facts, he submitted that since there was no sale amounting to ₹ 30.69 crores, the sales and purchase figures of goods, has to be ignored and no separate addition for transportation expenses could be made. The learned DR submitted that the assssee has retracted its undisclosed income of ₹ 3 crores for Asstt.Year 2010-11 and that he has admitted that there was no actual movement of goods, and hence, the transportation charges were rightly disallowed by the AO. He relied on the orders of the AO and the CIT(A). 9. We have considered rival submissions and perused the orders of the AO and the CIT(A). We find that the Managing Director of the assesseecompany has admitted that there was no movement of goods, and it has issued accommodation sales bills amounting to ₹ 30.69 crores during the year. The assessee has also retracted the undisclosed income of ₹ 3 crores for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in making an addition of ₹ 99,05,000/- as share application money received. 14. The learned counsel for the assessee submitted that this ground of the appeal of the assessee consisted of two parts i.e. firstly, the addition of ₹ 2,05,000/- of share application money pertaining to Shri Mahendra Bhansali, Managing Director of the assessee-company and the other being the addition of ₹ 97.00 lakhs representing corporate share application money deposited by five companies. 15. Regarding first deposit of ₹ 2,50,000/- of Shri Mahendra Bhansali, the learned counsel for the assessee submitted that Shri Bhansali is an existing I.T. assessee and has confirmed the transaction of share application money and has also given his PAN. The learned DR has relied on the orders of the AO and the CIT(A). 16. We have considered rival submissions on this issue. We find that the assessee has discharged its onus of proving the identity and creditworthiness of the creditor by filing confirmation of Shri Mahendra Bhansali who happens to be Managing Director of the assessee-company, and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) 32 taxmann.com 366 (Guj); v) CIT Vs. N.R. Portfolio P. Ltd. Vs. CIT, (2013) 29 taxmann.com 291 (Delhi) 19. We have considered rival submissions and perused the orders of the AO and the CIT(A) and also copies of various documents filed by the assessee in appeal before us. We have also gone through the decisions of the Hon ble Courts relied upon by the parties. We find that the assessee could not prove the genuineness of the deposit of share application money by these five companies at Kalkotta. The summons issued by the AO have come back unserved. The initial burden is on the assessee to prove not only the identity and credit-worthiness of share money depositors, but also the genuineness of the transaction. In these cases, the assessee has not furnished any evidence before the AO. The evidence was filed before the CIT(A), but the assessee could not controvert the case of the Revenue that these five corporate share application money depositors were non-existent, since the summons issued to them have come back unserved. The assessee made no further efforts to prove the existence of these parties or genuineness of the transaction. The decisions relied upon by the learned DR ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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