TMI Blog2015 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... shares, debentures and immoveable properties, management consultancy, business development and stratagistic alliance, overall business development and marketing assistance to the assessee while using his best business capability. Besides in the assessment years 2010-11 and 2011-12, the revenue had allowed similar claim of payment of consultancy fee to Shri Arvind Khanna. We, thus do not find any reason with the revenue to deviate from its stand taken in other assessment years under similar facts and circumstances. The disallowance in question is thus directed to be deleted - Decided in favour of assessee. Unsecured loan under sec. 68 - It was explained that both the companies i.e. Neelgiri Infra-structure Dev. Ltd. and Nobleese Obliged Estates Pvt. Ltd. had advanced the amount for purchasing shares of the assessee company - Held that:- Assessing Officer had not denied the identity of the above two parties. Genuineness of the transaction is also established as the amount in question have been paid through account payee cheques. So far as creditworthiness of these parties are concerned, the Assessing Officer himself has mentioned that Neelgiri Ltd. had ₹ 110 crores of loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld.A.O. in making the impugned additions/disallowance and framing the impugned assessment order is contrary to law and facts, void ab initio, beyond jurisdiction, and without giving adequate opportunity of hearing, by recording incorrect facts and findings and the same is not sustainable on various legal and factual grounds. 6. That having regards to the facts and circumstances of the case, Learned CIT(Appeals) has erred in law and on facts in not reversing the action of the ld. A.O. in charging interest u/s. 234B and 234D of the Income-tax Act, 1961. 2. We have heard and considered the arguments advanced by the parties in view of orders of the authorities below, material available on record and the decisions relied upon. 3. Ground No.1: The Assessing Officer made the disallowance of ₹ 24.02,062 on account of various travels and various exchange purchased which have been upheld by the Learned CIT(Appeals). 4. In support of the grounds, the learned AR submitted that foreign travel for the business purpose was undertaken by the Directors of the assessee company, hence, the authorities below were not justified in making and sustaining the disallowance. 5. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by filing Form No. 23. The assessee company had also entered an agreement for consultant services with Shri Arvind Khanna. As per this agreement, Shri Arvind Khanna had to render following services: i) Identification of the new business prospectus for the company; ii) Loan syndication and preparation of project report for large projects; iii) Consultancy in the field of investment in shares, the debentures and immoveable properties. 9. Learned AR submitted that copies of the above documents i.e. Form No.23 filed with the Office of the Registrar of the Companies, agreement for consultancy services were filed before the authorities below along with copies of the bills raised by the assessee. He submitted that Shri Arvind Khanna successfully obtained orders for making survey in Bihar. He submitted further that similar claim at ₹ 36 lacs in each of the assessment years 2010-11 and 2011-12 have been allowed by the revenue . 10. The Learned DR on the other hand placed reliance on the orders of the authorities below. He submitted that assessee has failed to produce any evidence of any services having been rendered by the director on the basis of which the consultancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as unsecured loans in the balance sheet drawn on 31.3.2009. In the subsequent financial year, all the parties arrived at consensus on the figure of premium and shares were also allotted to them in the subsequent financial years. The authorities below did not agree and added the amount under sec. 68 of the Act on account of undisclosed income on the basis that assessee has failed to prove the identity, genuineness and creditworthiness of the investors who have allegedly made the payment and that the assessee has been changing it stand on the issue of unsecured loans. 14. In support of the grounds, the learned AR submitted that in support of the claimed amount, the assessee had furnished confirmation of the applicant companies along with their balance sheet and income-tax particulars treating the amount given as share application money while assessee had presented these amounts as loan received as on 31.3.2009 for the reason that the assessee could not finalize the amount of premium on the shares and treated these amounts as unsecured loan in its balance sheet drawn on 31.3.2009. In the subsequent financial year, all the parties arrived at consensus on the figure of premium and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of ingredients of sec. 68 of the Act, the authorities below have rightly added and upheld the same as unexplained amount under sec. 68 of the Act. 18. We find that one of the reasons for doubting the claimed credit by the Assessing Officer remained that the assessee was keeping on changing its stand about the nature of receipt of the amount. The explanation of the assessee in this regard remained that Nobleese Ltd. had paid the amount for purchasing property through the assessee and subsequently converted it into share application money for which shares were allotted in the next year. It was explained that both the companies i.e. Neelgiri Infra-structure Dev. Ltd. and Nobleese Obliged Estates Pvt. Ltd. had advanced the amount for purchasing shares of the assessee company. The assessee, however, could not finalize the amount of premium on the shares and treated these amounts as unsecured loans in the balance sheet shown on 31.3.2009 in the subsequent financial year, all the parties arrived at consensus on the figure of premium and shares were also allotted to them in the subsequent financial year. The applicant company had given confirmation also along with their balance sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 18.9.2012. The Assessing Officer chose to ignore these documents while passing the order. 19. The assessee had also filed confirmation from Neelgiri with the copies of cheque during assessment proceedings vide letter dated 28.11.2011, however, no notice under sec. 133(6) was issued to Neelgiri. The assessee had also filed the confirmation of Neelgiri with bank details, PAN, Ward No. It was submitted that Neelgiri Ltd. is a part of India Bulls Real Estates Group. It is thus clear that both the parties have confirmed the investment and premium paid and both are regularly assessed with the department. The assessee has also pointed out and noted by the Learned CIT(Appeals) at page No. 10 of the first appellate order that on inspection of file the assessee had found that the Assessing Officer had written letter to the ITO of Nobeleese Ltd. on 09.12.2011 and ITO of Neelgiri Ltd. on 12.12.2011. The Assessing Officer wrote to them that these respective company had made investment in the assessee and told them to inform about it so that necessary action may be taken. Nothing adverse has been reported to the Assessing Officer by either of the A.Os. of Neelgiri Ltd. or Nobeleese Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusively proves that share money of '30,00,000/- allegedly received by the respondent-assessee from 5 companies are sham and bogus transactions. 3. We have examined the said contention and find that the assessee during the course of assessment proceedings has filed confirmation letters from the companies, their PAN number, copy of bank statements, affidavits and balance sheet. Thereafter the Assessing Officer had asked the assessee to produce the said Directors/Parties. Assessee expressed its inability to produce them. The Assessing Officer did not consequent thereto conduct any inquiry and closed the proceedings. This is a case where the Assessing Officer has failed to conduct necessary inquiry, verification and deal with the matter in depth specially after the affidavit/confirmation along with the bank statements etc. were filed. In case the Assessing Officer had conducted the said enquiries and investigation probably the challenge made by the Revenue would be justified. In the absence of these inquiries and non-verification of the details at the time of assessment proceedings, the factual findings recorded by the Assessing Officer were incomplete and sparse. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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