TMI Blog2015 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmity in the order of the ld. CIT(A) and accordingly do not see any merit in this appeal of the department. - Decided against revenue. - ITA No. 1310/Del/2011 - - - Dated:- 18-2-2015 - Sh. N. K. Saini And Sh. I. C. Sudhir For the Appellant : Sh. R. S. Singhvi, CA For the Respondent : Sh. Vikram Sahay, Sr. DR ORDER Per N. K. Saini, AM: This is an appeal by the department against the order dated 09.12.2010 of ld. CIT(A)-XVIII, New Delhi. 2. Following grounds have been raised in this appeal: 1. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in deleting the addition of ₹ 14,50,000/- made by the AO u/s 68 being bogus accommodation entry received from entry operator. 2. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in ignoring the fact that the judgment of the Hon ble Supreme Court in the case of Lovely Exports (P) Ltd. 216 CTR 199 (SC) cannot be extended to a situation where a mechanism has been formed to introduce unaccounted money in the books of accounts with the help of accommodation entry providers which has been exposed by deep and detailed investigation ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May 01 Devi Ram Goyal 7. BO Maharastra/NDSE/South Extension 1,50,000 12, May 01 Usha Rani 8. BO Maharastra/NDSE/South Extension 1,50,000 12, May 01 Kiran Bansal 5. According to the AO the submission of the assessee was not sufficient to prove the genuineness of the share application money and that the alleged concerns were simply providing accommodation entries in the shape of bogus share capital/share application money etc. The AO treated the amount of ₹ 14,50,000/- as ingenuine share application money and made the addition in the hands of the assessee. 6. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted as under: It is submitted that the appellant had filed Income Tax Return for the Assessment Year 2002-03 on 30.10.2002 declaring income of ₹ 32,170/-. During the assessment proceedings the assessee has submitted that the company has received Share Application Money amounting to ₹ 14,50,000/- by Payee A/c cheque. The assessee compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Cheque - Copy of Bank Account - Copy of Resolution etc. - Balance Sheet Further these incorporated bodies and Six natural persons have also directly and through the assessee Company provided the required details - confirming their subscription to the share capital of the assessee company. Further it would be seen that no cash was deposited in bank for issue of shares for share application money by any of the share applicants. 7. The reliance was placed on the following case laws: M/s Uma Polymers Pvt. Ltd. Vs DCIT, Spl. Range, the Hon ble ITAT, Jodhpur Bench (Third Member) (2006) 100 ITD 1 (JODH.) Barkha Synthetics Ltd. Vs Asstt. CIT (2005) 197 CTR (Raj.) 432 CIT Vs Shree Barkhas Synthetics Ltd. (2004) 270 ITR 477 Krishan Chand Chellaram 125 ITR 713 (SC) Menaka Gandhi Vs Union of India AIR 978 SC 597 Nawab Khan Abbas Khan Vs State of Gujarat AIR 974 SC 1471 C. Vasantlal Co. Vs CIT (1962) 45 ITR 206 (SC) Dhakeswari Cotton Mills Ltd. Vs CIT (1954) 26 ITR 775 (SC) Narayan Chandra Baidya Vs CIT (1951) 20 ITR 287 (Cal.) S. L. Kapoor Vs Jagmohan AIR 1981 SC 136 Nagulakonda Venkata Subba Rao Vs CIT (1957) 31 ITR 781 (AP) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Vs Steller Investment Ltd. 192 ITR 287 (Del) b. CIT Vs Steller Investment Ltd. 251 ITR 263 (SC) c. Sophia Finance Ltd. 205 ITR 98 (Del) (FB) d. Achal Investment Ltd. Vs CIT 268 ITR 211 (Del) e. CIT Vs Dolphin Canpack Ltd. 204 CTR 50 (Del) f. Polymers Pvt. Ltd. Vs DCIT 100 ITD 1 (TM) Jodhpur g. DCIT Vs Esteem Towers (P) Ltd. 99 TTJ 472 (Del) h. CIT Vs Glocom Impex (P) Ltd. 205 CTR 571 (Del) i. CIT Vs Divine Leasing and Finance Ltd. j. CIT Vs Value Capital Service Pvt. Ltd. k. CIT Vs Lovely Export Pvt. Ltd. l. CIT Vs Daulatram Rawatmull (1972) CTR (SC) 411: (1973) 87 ITR 349(SC) 9. The assessee distinguished the cases relied by the AO and assessee also submitted to the ld. CIT(A) as under: 20. It is submitted that the appellant had received share application money of the value of ₹ 14,50,000/- from one incorporated body and six natural person, which are being assessed to Income-tax. The appellant had filed the photocopies of their Income-tax acknowledgment receipts. Further the share application money had been received by account payee cheques. The appellant had furnished the names and addresses of the said Private Limited Companies along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit from the parties confirming the payment of the amount as share application money, copies of Income Tax Return alongwith acknowledgment and PAN details of the respective parties, share application forms, copy of Form no. 2 filed with ROC showing allotment of shares, copy of bank accounts and cheques receipt etc. as well as Board Resolution and ROC details in the case of corporate entity evidencing the identity and genuineness of the investor parties, before the AO in support of its claim. He also observed that the AO had not been able to bring on record any valid material/evidence to disprove the claim of the assessee. The ld. CIT(A) was of the view that in the matter of cash credit, the initial onus lies on the assessee to prove the genuineness of the transaction alongwith the identity of the lender/investor and his creditworthiness, having done so, the assessee in the instant case has discharged the onus cast upon it. Beyond this, for the charge of unexplained cash credit to stick, the onus lies on the AO to disprove the claim of the assessee by establishing that the evidence filed by the assessee was false and by bringing new material on record and failure to do so would v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y matter, the onus of proof is not a static one. Though in Section 68 proceedings, the initial burden of proof lies on the assessee yet once he proves the identity of the creditors/share applicants by either furnishing their PAN number or income tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue. Just because the creditors/share applicants could not be found at the address given, it would not give the Revenue the right to invoke Section 68. One must not lose sight of the fact that it is the Revenue which has all the power and wherewithal to trace any person. Moreover, it is settled law that the assessee need not to prove the source of source . .. 10. We are also informed that a Special Leave Petition against the aforesaid Division Bench judgment in the case of the respondent-assessee has been dismissed by the Supreme Court. Accordingly, we are of the opinion that no question of law arises in the present cases as the matter is fully covered by the judgment of the Supreme Court in Lovely Exports (P) Ltd. (supra) as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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