TMI Blog2019 (5) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... cal purpose - I.T.A No. 1597/Kol/2016 - - - Dated:- 10-5-2019 - Shri S.S. Godara, JM And Shri Dr. Arjun Lal Saini, AM For the Appellant : Shri Radhey Shyam, CIT, ld.DR For the Respondent : Shri Miraj D. Shah, FCA, ld.AR ORDER SHRI S.S. GODARA, JM: 1. This Revenue s appeal for assessment year 2012-13 arises against the CIT(A), 4, Kolkata s order dated 30-06-2016 passed in case no. ITA No. 764/CIT(A)-4/TRO- 4/Kol/15-16 involving proceedings u/s 143(3) of the I.T Act, 1961 (in short Act ) . Heard both the parties. Case file perused. 2. The Revenue s sole substantive ground/grievance raised in the instant appeal seeks to reverse the CIT(A) s action deleting of an addition u/s. 68 of unexplained cash credit in relation to assessee s share capital/premium of ₹ 12,78,67,165/- made in the course of assessment. The CIT(A) s detailed discussion deleting the impugned amount as follows:- 4.2 I have considered the issue raised in the assessment order in the light of the arguments made by the appellant. The only issue involved is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requisitions made by the AO, fro time to time, produced its audited books of accounts, filed copies of its audited annual accounts including various details and other documents as desired by the AO. The details and documents so produced and filed with the AO included, inter alia, full details of each of the share applicants, who had subscribed to the aggregate share capital as well as share premium money raised by the appellant during the assessment year under appeal. The AO, on receipt of the aforesaid details from the appellant, issued notices u/s. 133(6) of the Act to the share subscribers. The replies received in response thereto by him from such share applicants were not considered by the AO. He doubted the genuineness of the said share capital and the creditworthiness of the share applicants and added the sum of ₹ 12,78,00,0000/- in respect of the entire share capital and share application money pending allotment to the total income of the appellant u/s. 68 of the Act on the premises that the said amounts represented unexplained cash credits which ultimately should form part of the total income of the assesse for the year under consideration. 4.4 It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.6 It is also observed that every share applicant in their respective replies to the statutory notices issued u/s. 133(6) of the Act, furnished copies of their income tax acknowledgements evidencing filing of income tax returns by each of them, copies of their audited accounts including Balance Sheets wherein such investments made by each of them in the subscription of share capital issued by the appellant are duly reflected as also copies of their bank statements for the relevant period from which such subscription monies were paid by them respectively and copy of the allotment advise received by them from the appellant in respect of shares allotted to them. The return of allotment as well as the annual return for the assessment year 2012-13 filed by the appellant with the Registrar of Companies, Ministry of Corporate Affairs, further categorically proves the fact of allotment of shares to the share applicants. It is further observed that the net worth of the each of the share applicants, as disclosed in their Balance Sheets, far exceeded the amount of investments made by them in the shares of the appellant company. It is accordingly observed that it adequately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are allegedly bogus. Then the Revenue is free to proceed to reopen their individual assessments in accordance with law. The facts of the present are on a better footing to the one as decided above. In the instant case, all the share applicants had confirmed their investment with the appellant and as such, there was no basis for the AO to come to any a verse conclusion and accordingly, the entire amount received by the appellant on account of share application as well as share premium monies cannot be regarded as undisclosed income u/s 68 of Act. 4.8. Therefore. considering the totality of the facts and circumstances of the case, I find substance in the argument of the AIR that the appellant has made its case that the identity of the share applicants are established beyond doubt and on enquiries made by the AO there is no adverse finding reached on this aspect. Admittedly, all the share applicants are existing assessees under the Act which establish the identity and authenticity of the share applicants. About the genuineness of the transactions there is no any adverse finding in the assessment order which is distinct to the facts brought on record by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f verification as follows: 2. The assessee is a company and during the previous year it has raised share capital amounting to ₹ 11,01,00,000/-, including share premium of ₹ 9,96,00,000/-. The assessing officer made an addition u/s 68 of the Act. Aggrieved the assessee carried the matter in appeal. The ld. first appellate authority deleted the addition made by the Assessing Officer u/s 68 of the Act and granted relief to the assessee. Aggrieved the revenue is in appeal before us. 3. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 4.1. Before us, the ld. D/R, submits that the Assessing Officer was not given adequate opportunity to examine all the details filed on record before the ld. CIT(A) and that new evidence were brought on record. He prayed that the issue may be remanded back to the file of the Assessing Officer for fresh adjudication in light of all the evidences on record. 4.2. The ld. A/R, though not leavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received the said summon and, therefore, could not make the personal appearance. The AO has drawn adverse conclusion basically because of non-appearance of the directors of the assessee company and that of the shareholder companies. We note that initially the AO started the enquiry on 16.08.2013 which was complied by the assessee by submitting documents which has been acknowledged by the AO. Thereafter, the enquiry was started only at the fag end of February 2014 and the assessee company had informed the AO that their directors were out of station till 23.03.2014. In the light of the aforesaid facts, we are of the opinion that the assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO. 8. We also note that Ld. Cit while setting aside the order of the AO which was passed u/s. 147/143(3) of the Act, the Ld. CIT gave certain guidelines to follow for conducting deep investigation. We also note that similarly placed assessees had challenged the exercise of revisional jurisdiction u/s. 263 of the Act before this Tribunal in those cases one of it of Subha Lakshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment. So, since there was lack of opportunity as aforestated it has to go back to AO. We also note that the Hon ble Delhi High Court in the case of CIT Vs. Jansampark Advertising Marketing Pvt. Ltd. in ITA No. 525/2014 dated 11.03.2015 wherein after noticing inadequate enquiry by authorities below have held as under: 41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to the extent of their conclusion that the assessee herein had come up with some proof of identity of some of the entries in question. But, from this inference, or form the fact that the transactions were through banking channels, it does not necessarily following that satisfaction as to the creditworthiness of the parties or the genuineness of the transactions in question would also have been established. 42. The AO here may have failed to discharge his obligation to conduct a proper inquiry to take the matter to logical conclusion. But CIT(Appeals), having noticed want of proper inquiry, could not have closed the chapter simply by allowing the appeal and deleting the additions made. It was also the obligation of the first appellate authority, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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