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2015 (11) TMI 1371 - ITAT DELHI

2015 (11) TMI 1371 - ITAT DELHI - TMI - Disallowance of increase in share capital and unsecured loans - CIT(A) deleted the addition - Held that:- The addition in the facts of the present case as far as increase in share capital is concerned was obviously limited to that portion of the source of increase in share capital which was found to be not genuine. The fact that the increase in share capital was over and above the addition is thus not relevant as its genuineness is not questioned by the AO .....

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upon the assessee having failed has resulted that the assessee is also not in a position to throw light on these crucial aspects. Accordingly in view of the above reasons, the impugned order is set aside and the issues are restored back to the file to the CIT(A) with the direction to pass a speaking order in accordance with and if need to obtain a Remand Report from the AO after giving the assessee a reasonable opportunity of being heard.

Since the facts, the circumstances and the gro .....

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Singh, JM For the Appellant : Dr B R R Kumar, Sr. DR For the Respondent : None ORDER Per Diva Singh By the present appeals, the correctness of the separate orders dated 26.09.2014 of CIT(A)-I, New Delhi pertaining to 2004-05 to 2006-07 assessment years have been assailed on identical grounds. For ready-reference, Grounds from ITA No.-6492/Del/2014 are reproduced hereunder:- 1. "The Ld. CIT(A) has erred in law and on facts in deleting addition of ₹ 10,00,000/- made by Assessing Officer .....

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hearing on behalf of the assessee. The notice sent to the assessee has come back unserved with the comment "No such Firm". The record shows that on an earlier date also, no one was present on behalf of the assessee. However, considering the material available on record it was considered appropriate to proceed with the hearing after hearing the Ld. Sr. DR. 3. The Ld. Sr. DR inviting attention to the facts as recorded in 2004-05 assessment year submitted that a search and seizure operati .....

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i.e. person other than covered under search u/s 132 of the I.T. Act were found and seized. The case of the assessee was centralized in this circle vide order in F.No.CIT-V/Centralization/09- 10/466 dated 25-02-2010 by Commissioner of Income Tax, Delhi-V, New Delhi u/s 127 of the Act. On the basis of documents so seized after recording satisfaction assessment proceedings were initiated u/s 153C of the I.T. Act. Subsequently notice u/s 153C was issued on 04-11-2011 for furnishing of returns of in .....

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₹ 13,31,000/- was made by the AO. For ready reference, paras 4 & 5 of the assessment order are reproduced hereunder:- 4. "From the perusal of balance sheet filed it was noticed that there was increase of ₹ 10 Lac in the share application money & ₹ 3.31 Lacs in unsecured loans. There was also addition of ₹ 12,18,980/- in the fixed assets. The Assessee was required to furnish the details of the above vide this office letter dated 05-12- 2011. On 16/12/2011 AR .....

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to 23/12/2011. On 23/12/2011 the assessee filed copy of income tax return & further stated that they are unable to provide the details as required vide order sheet entry dated 16/12/2011. 5. The Assessee has failed to provide the details from whom share application money & unsecured loans have been taken & has not been able to prove the identity, creditworthiness and genuineness of the transaction, the same is treated as unexplained cash credit in the hands of the Assessee & adde .....

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mplied with the notices and joined the proceedings, it is not appropriate for the appellant to raise issues relating to jurisdiction at the appellate stage. I also find that an order u/s 127 was duly passed in the case and not objected to by the appellant. In the circumstances, it cannot be concluded that the assessment proceedings suffer from lack of jurisdiction. 1 hold accordingly and proceed to decide the case on merits." 5. In the said background, deletion of the addition on the follow .....

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table indicating the year-wise additions made on account of share application money and unsecured loan is given below: FY Share Application (SA) Increase/ decrease in SA Unsecured Loan (USL) Increase / decrease in USL Addition of SA Addition of USL 2002-03 2100000 12694765 2003-04 3300000 1200000 13974755 1279990 1000000 331000 2004-05 3300000 0 14602256 627501 0 627501 2005-06 3300000 0 15419312 817056 0 817056 2006-07 0 3300000 20682006 5262694 0 5262694 7.2 It would be seen from the above tab .....

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4- 05 to 2006-07), however, the entire amount of increase in unsecured loans consisting of net of existing loans increased by fresh loans raised and decreased by loans repaid and the interest accrued thereon was added as income. Thus, the additions made by the AO in assessments framed on the same day in the case of the same appellant suffer from factual inaccuracies as well as internal inconsistencies. 7.3. In the present assessment year, addition of ₹ 10,00,000/- was made on account of in .....

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the department. These transactions took place through banking channels. No evidence was found in the search or has been brought on record to establish that the share application money / loan was not genuine or introduced as / received in lieu of cash. The additions made without any incriminating material or basis cannot be sustained and are deleted." 6. Accordingly inviting attention to para 7.2 of the same it was his submission that the reasoning adopted by the ld. CIT(A) that the increas .....

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ition to the non-genuine sources is fully justified and this reasoning could not have been adopted for deleting the addition entirely. Similarly it was submitted is the position of ₹ 3.31 lacs. Inviting further attention to para 7.2 again it was his submission that the conclusion that it has been repaid in 2007-08 assessment year has not been arrived at by the CIT(A) by making a reference to any evidence considered. Whether it is based on a finding arrived at by the AO in that year or it i .....

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. 6.1. It was his submission, inviting attention to the facts in 2005-06 & 2006- 07 assessment years that identical reasoning has been taken by the CIT(A) in both the years for deleting the addition made and the arguments accordingly remained identical and for similar reasons set side on facts is prayed for in those years also. 7. Having heard the submissions and perused the material available on record, I am of the view that in the facts brought out herein above in detail the arguments of t .....

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