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TMI Blog2016 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of hearing of the appeal." 1.1. The assessee has also filed C.O. on the following grounds:- 1. "The additions in the impugned assessment order passed u/s 153 are bad in law and on facts because a) the additions were not based on any books of account or other material not produced in the course of original assessment but which could alleged to have been found in the course of search or an undisclosed income or property discovered therein b) as the assessment proceedings were not abated but were already completed. Thus all the additions so made in the assessment order should be deleted following the Special Bench decision dated 6/7/12 in the case of All Cargo Global Logistics Ltd. in appeals no. ITA/5018- 5022/M/10. 2. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing." 2. The relevant facts of the case are that a search and seizure operation under section 132 of the income tax act was carried out in Raj Darbar group of cases on 31.07.2008 wherein certain documents belonging to the assessee company were also seized from the residence of Sh. Rajendra Aggarwal, Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 158 Taxman 440 (Del.); C.Kant & Co. v CIT [1980] 126 ITR 63 (Cal.); and CIT vs Precision Finance Pvt.Ltd. 208 ITR 465 (Cal.) addition of Rs. 50 lakh was made holding that the assessee has failed to discharge the onus as caste upon it by section 68 of the Act as it had failed despite opportunity to file any supporting document. 3. Aggrieved, the assessee came in appeal before the First Appellant Authority. In support of its claim it was submitted that on 23.12.2010 the assessee had filed copies of Share Application Form along with ITR and bank account copies etc. and there was no provision under the Act to ask for balance sheet of a shareholder. In the face of these evidences having been placed on record where the relevant details of the investors by way of their PANs who were being assessed in New Delhi the Assessing Officers conclusion was assailed. The assessee objected that the Assessing Officer could very well have made direct enquiries from the Assessing Officers of those persons or by deputing Inspector or by calling for information directly from their Banks etc. The argument was also raised that the capital and own funds available to these investors/companies were much mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Lovely Exports Pvt. Ltd., Divine Leasing and Finance Ltd. (supra) etc cited in the above preceding paragraphs as none of the reasons to give ruling in favour of the department by the Court exi here. Further on perusal of the information down loaded from the official website of the Ministry of Corporate Affairs, Government of India, which is in public domain, it is noticed about the investor companies that their regular informations i.e. P&L A/c and balance sheets are available on the portal of the MCA and the same shows not only their creditworthiness to make investment in the equity capital of the appellant company at the relevant time but also reflects that they are regular in their business activities on year to' year basis and there has been increase in their own funds ever since they made investment in the appellant company. All these companies have made substantial investments in the equity share capital of the listed as well unlisted scrips and some of them are blue chip companies. It is not the case where the equity was invested in the appellant company only by the investor companies but those have been made in several other companies as a part of their regular i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year concerned 31/12/07 Date of Search 31/07/08 Date of recording of satisfaction u/s 153C 21/07/10 6.1. Accordingly it was his prayer that the assessment for the AY 2005-06 was not abated [and deemed to be completed u/s 143(1)] as on the date of recording satisfaction. 7. We have heard the rival submissions and perused the material available on record. We find that though the assessee as per the chart has claimed that original return u/s 139 had been filed on 28.10.2005 and supported its claim by filing a photocopy of Return of income. However, since the claim is being raised for the first time, the facts relatable to it have not been verified by anyone. Accordingly in the circumstances, we deem it appropriate to set aside the jurisdictional issue back to the AO to verify whether the documents in support of its claim strike at the very foundation of the departmental action or not. In the eventuality, the assessee does not succeed on the jurisdictional issue addressing the departmental appeal, we deem it appropriate to set aside the impugned order following the view taken by the Co-ordinate Bench in ITA No.3053/Del/2016 & Others in the case of M/s Rite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtners etc. of the Private Ltd. Company The fact that bogus transactions have been accepted by Director, Sh. Rajendra Agarwal in 2009-10 AY and a surrender has been made of Rs. 45 lakhs is sufficient evidence for the Revenue to conclude that such behavior for Director was a norm and not an aberration. Accordingly the company having been given an opportunity to prove that the transactions were genuine the onus in the peculiar facts and circumstances cannot be said to be discharged by placing insufficient evidences. The evidences now on record stated to be filed all along a position disputed by the Revenue and negated by the AO needs to be reconciled and the evidences relied upon need to be addressed. We note that the finding of fact that relevant documents were not filed before the AO has not been assailed by the assessee by way of any affidavit before the CIT(A) or before us that facts are incorrectly recorded. The impugned order in view of these obvious shortcomings is set aside and the matter is restored to the AO for fresh determination. The AO accordingly is directed to pass a speaking order in accordance with law on the jurisdictional aspect first and thereafter if need be on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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