TMI Blog2015 (11) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... And Annapurna Mehrotra (Accountant Member) For the Department : Sushil Verman For the Respondent : Sudhir Sehgal ORDER Bhavnesh Saini (Judicial Member) The departmental appeal as well as Cross Objection by assessee are directed against the order of ld. CIT(Appeals) Patiala dated 16.12.2014 for assessment year 2005-06. 2. The department has filed the appeal on the following grounds : 1. In the facts and circumstances of the case, Ld. CIT(A) has erred in deleting the addition of ₹ 94,00,000/- on account of introduction of share application/share capital by the persons/entities, as genuineness of these transactions was not established by the assessee. 2. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in following the Hon'ble ITAT's decision dated 22.06.2012 in the case of ACIT Vs. KISCO Casting Pvt. Ltd. in ITA No.685/Chd/2011 for the A.Y. 2006-07 for deleting the addition of ₹ 94,00,000/-, particularly when the Department is already in appeal before the Hon'ble High Court against the said decision, which is pending for adjudication. 3. In the facts and circumstances of the case and in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of the same are reproduced in the appellate order in which assessee briefly explained that assessee has received genuine share application money from these persons. All the share applicants were assessed to tax. Confirmation about contribution of share capital in the assessee company alongwith their bank accounts and Income Tax Returns and balance sheet etc. were produced. The assessee, therefore, explained that assessee entered into the genuine transactions. The Department solely relied upon statement of Shri Tarun Goyal, however, he was not produced for cross-examination on behalf of the assessee, therefore, his statement can not be read in evidence against the assessee. The assessee relied upon several decisions of different High Courts in support of the contention that assessee entered into genuine transactions of share application and received genuine share application. It was also submitted that in the identical case of M/s KISCO Casting Pvt. Ltd. in ITA 685/2011, ITAT Chandigarh Bench vide order dated 22.06.2012 on identical facts deleted the similar addition. Copy of the order of the Tribunal was placed on record. It was, therefore, claimed that issue is covered in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries pertaining to Shri Tarul Goyal are exactly the same and therefore, issue is covered in favour of the assessee. The ld. CIT(Appeals) reproduced the order of the Tribunal in the case of M/s Kisco Casting Pvt. Ltd. in the appellate order and found that the facts in this case are squarely covered by the order of ITAT Chandigarh Bench in the case of M/s Kisco Casting Pvt. Ltd. wherein the similar additions have been deleted. The ld. CIT(Appeals), following the order of ITAT Chandigarh Bench in the case of M/s Kisco Casting Pvt. Ltd. (supra) deleted the addition. 8. The ld. CIT(Appeals), following the same order of Tribunal, confirmed re-opening of the assessment and held that re-opening of the assessment in this case is valid on the identical fact. The appeal of the assessee was, therefore, partly allowed. 9. The ld. DR relied upon order of the Assessing Officer and contended that addition on merit has been wrongly deleted by the ld. CIT(Appeals) and relied upon order of Delhi High Court in the case of CIT V Navodaya Castles (P) Ltd.50 Taxman.com 110 and decision of Hon'ble Supreme Court in the case of Navodaya Castles (P) Ltd. V CIT 56 Taxman.com 18 in which SLP filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer with regard to proving identity of the share applicants, their credit worthiness and genuineness of the transaction in the matter. No business/manufacturing activities have been carried out by the assessee during the year under consideration. The Assessing Officer accepted the returned income by showing interest income at ₹ 9,522/-. Same evidences were furnished before Assessing Officer for reassessment proceedings and assessee relied upon decision of Supreme Court in the case of Lovely Exports Pvt. Ltd. (supra) as well as order of ITAT Chandigarh Bench in the case of M/s Kisco Casting P. Ltd. These orders have been reproduced in the impugned order which clearly supports the contention of the assessee that assessee received genuine share application money from 8 persons/entities. The order of the Tribunal in the case of M/s Kisco Casting P.Ltd. (supra) is also filed in the Paper Book in which on identical facts, assessment was reopened on account of accommodation entries provided by Shri Tarun Goyal, C.A., New Delhi. The ld. CIT(Appeals) was, therefore, justified in following the decision of Hon'ble Supreme Court in the case of Lovely Exports Pvt. Ltd.(supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee was justified in relying upon decision of Hon'ble Supreme Court in the case of Bharat Engineering Construction Co. (supra) and order of ITAT Chandigarh Bench in the case of M/s Kundle Loh Udyog (supra), however, ld. CIT(Appeals) has not given any finding on the same. Since the issue is covered in favour of the assessee as discussed above, therefore, there is no need to go in detail on this aspect at this stage. We, therefore, do not find any merit in the departmental appeal. The same is accordingly, dismissed. 14. The ld. CIT(Appeals) following the order of ITAT Chandigarh in the case of M/s Kisco Casting P. Ltd. (supra) also confirmed the re-opening of the assessment. Therefore, once ld. CIT(Appeals) has followed the order of Tribunal for the purpose of deleting addition, therefore, no contrary view should be taken on identical facts. Further issue of re-opening of assessment under section 148 is left with academic discussion only once addition on merit have been deleted and confirmed by us. Therefore, there is no merit in the Cross Objection of the assessee as well. The Cross Objection of the assessee is accordingly, dismissed. 15. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
