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M/s. Smilax Pharmaceuticals Ltd. Versus The ITO, Ward- 6 (4) , Jaipur

2016 (6) TMI 32 - ITAT JAIPUR

Addition u/s 68 - addition treating the share capital subscribed as undisclosed income of the company - Held that:- It emerges from the record that Investigation Wing report is based entirely on the fact that one Shri Deepak Gupta was engaged in accommodation entry provider and M/s. Enpol (P) Ltd. was one of the benami concern. The ld. CIT(A) held that Shri Deepak Gupta is non-existent. His finding are self-contradictory and contrary to Investigation Wing. Besides non-providing of cross examinat .....

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8/JP/2014 - Dated:- 25-4-2016 - SHRI R.P. TOLANI, JUDICIAL MEMBER For The Assessee : Shri S.L. Poddar, Advocate For The Revenue : Shri Raj Mehra, JCIT-DR ORDER PER R.P. TOLANI, JM This is an appeal filed by the assessee against the order of the ld. CIT(A)-III, Jaipur dated 20-02-2014 for the assessment year 2003-04 wherein the assessee has raised following grounds:- 1 Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the action of the AO in issuing notice u/s .....

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1. Hence, the same is dismissed being not pressed. 3.1 Apropos Ground No. 2, brief facts of the case are that information Investigation Wing, Delhi was received that the assessee had received share application money from one Shri Deepak Gupta. The assessee was called on to prove the ingredients of Section 68 of the Act in this behalf. In compliance assessee filed the confirmation letter from M/s. Enpol (P) Ltd. Along with their PAN, bank details, full name and address. The AO called for indepen .....

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sh credit. In first appeal, the ld. CIT(A) confirmed the addition by following observations. 3.3 I have considered the facts of the case, assessment order and appellant s written submission. Assessing Officer made addition in respect of share capital of ₹ 5 lacs received from M/s. Enpol (P) Ltd. since Shri Deepak Gupta in his statement to the Investigation Wing admitted that this company was used to issue accommodation entries against payment of unaccounted cash. Assessing Officer issued n .....

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having PAN and therefore, existing appellant also argued that cross examination of Shri Deepak Gupta was not provided. When the person who has given credit to the appellant does not exist and it is admitted by the arranger of the fund that he was only giving accommodation entries, appellant s arguments become secondary. When Assessing Officer did not find the person in whose name credit is appearing, onus is on the appellant to prove the identity, creditworthiness and genuineness which cannot b .....

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of the assessee contends that :- (i) Shri Deepak Gupta is claimed by the Department to exist and operate entry accommodation system which is further clear from Investigation Wing report. The observation of the ld. CIT(A) that cross examination of Shri Deepak Gupta was not provided as it becomes secondary as Shri Deepak Gupta does not exist is an untenable and a self contradictory observation. It goes to root of the addition and makes it unsustainable. (ii) On one hand, the Investigation Wing cla .....

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like confirmation letter, PAN and other relevant details to establish that share application money transaction was explained. (iv) It is settled law that any addition without cross examination of the alleged creditor is baseless. Reliance is placed of ITAT Mumbai in the case of ITO vs. M/s. Superline Construction (P) Ltd. another (ITA No. 3645/Mum/2014 for the assessment year 2007-08 dated 30th Nov. 2015) in which similar additions in batches of appeals have been deleted. (v) The existence of t .....

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cided similar issue (3) ITO - 10(2)(1) vs. M/s. Deep Darshan Properties (P) Ltd. in ITA No. 217/Mum/2014 ,A.Y. 2006-07 and ITA No. 2118/Mum/2014, A.Y. 2007-08 (4) ITO - 10(2)(3) vs. Aajivan Computers (P) ld in ITA No. 2160/Mum/2014, A.Y. 2006-07 (5) ITO - 10(2)(3) vs. Dignity Securities Trading (P) Ltd. in ITA No. 2157/Mum/2014, A.Y. 2006-07 (6) ITO - 10(2) vs M/s. Blue Hill Properties (P) Ltd. in ITA No. 2119/Mum/2014, A.Y. 2006-07 (7) CIT vs. Lovely Exports (P) Ltd. (2008) 216 CTR 195 (SC) 3.3 .....

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