TMI Blog2016 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... made of ₹ 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 merits after giving the assessee a reasonable opportunity of being heard. - I.T.A .No.-3556/Del/2012, C.O.No.301/Del/2012 - - - Dated:- 27-7-2016 - SMT D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse thereto the assessee filed its return on 11.08.2010 declaring an income of ₹ 10,19,010/-. In the scrutiny assessment, it was noticed that the assessee had allotted 10,000 shares of ₹ 100/- each to the following companies at a premium of ₹ 400 per share:- Sl.No. Name of the Party No. of Shares Amount Received in (Rs.) 1. M/s GEEFCEE Finance Limited 5000 25,00,000 2. M/s Hunt Commercial P.Ltd. 1000 5,00,000/- 3. M/s Reliance Polycreate P.Ltd. 3000 15,00,000/- 4. M/s Viv Sun Properties 1000 5,00,000/- 2.1. The assessee was required to prove the genuineness of the transactions by filing evidences in respect of share application money received during the year. In response thereto the assessee filed Shared Allotment Form as filed before the RoC. No other document such as confirmations, copies of share applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r information directly from their Banks etc. The argument was also raised that the capital and own funds available to these investors/companies were much more than the investments made by each of them thus their creditworthiness stood proved. Further, the amounts having been received through banking channels, it was submitted proved the genuineness of the transactions. Moreover since all of these were incorporated bodies or individuals, their identity was also stated to be proved beyond doubt. Apart from these facts it was submitted nothing more was available with the assessee as at the time of receiving share application money or allotment no other information is required to be given by a shareholder either under the provisions of the Income Tax Act nor under the provisions of the Companies Act, 1956. It was argued that company is under no obligation to ask a shareholder as to where from he has got the money to invest nor is the shareholder obliged to give such information to the company. The shareholders having been duly identified it was argued could not be regarded as fictitious persons. Accordingly, no adverse action can be taken by the government against them. Reliance was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 investment business. The own available funds of these investors companies were sufficiently large and much more than the investments made by them in the appellant company. There is no findings on record from the assessing officer that these investors are not regular in filing their income tax returns despite that the income tax assessment particulars of these investors were on his record. Therefore, their existence are established. Besides, they had enough resources to make the impugned investments in the relevant period. The genuineness of the transaction has also not been found contrary to the audited books of account by the assessing officer. In absence of any material contrary to the information on record, the action of the assessing officer based on surmises and conjecture while making addition u/s 68 of the Act in respect of share capital received cannot be sustained. Thus the addition of ₹ 50,00,000/- is deleted. The appeal is allowed. 4. Aggrieved by this, the Revenue is in appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pack Industries Pvt.Ltd. vs DCIT. We further find that whereas the AO categorically holds that apart from the Share Allotment Form nothing else was filed by the assessee despite opportunity. The CIT(A) has accepted the argument that PAN, ITRs and copies of Bank Accounts etc. were filed on 23.12.2010 before the AO. Apart from the obvious contradiction in the two orders, it is even otherwise seen that the AO u/s 153C/143(3) is dated 30.12.2010 and if the presumption of documents having been filed on 23.12.2010 is accepted even in such an eventuality admittedly there was no time available to the AO to carry out necessary enquiry through the Inspector or for calling for the concerned AOs or corroborate the copies of Bank Accounts with the Bankers etc. of these parties. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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