TMI Blog2019 (5) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of these voluminous documentary evidence, only because those persons had not appeared before the Assessing Officer would not negate the case of the Assessee. See ORISSA CORPORATION PVT. LIMITED [ 1986 (3) TMI 3 - SUPREME COURT] and M/S. GAGANDEEP INFRASTRUCTURE PVT. LTD. [ 2017 (3) TMI 1263 - BOMBAY HIGH COURT] - Decided in favour of assessee. - ITA No. 207/RPR/2014 - - - Dated:- 15-5-2019 - Shri Partha Sarathi Chaudhury, Judicial Member And Dr. Mitha Lal Meena, Accountant Member For the Assessee : Shri S.R. Rao For the Revenue : Shri P.V. Mishra ORDER PER PARTHA SARATHI CHAUDHURY, JM : This appeal preferred by the assessee emanates from the order of the Ld. CIT(Appeals), Bilaspur (C.G.) dated 31.03.2014 for the assessment year 2009-10 as per the following grounds of appeal on record: 1. That the Order of the learned Commissioner of Income Tax (Appeals) is arbitrary, bad in law and facts. Prayed to delete the disallowances. 2.1 That the learned CIT (Appeals) erred in maintaining the addition of ₹ 1,55,35,633/- observing that expenses made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds before us is from ground No.2.1 to 2.5 relating to addition made u/s.68 of the Income Tax Act, 1961 (hereinafter referred to as the Act‟). 3. The brief facts in this case are that the Assessing Officer issued notice u/s.133(6) of the Act to 52 creditors having credit amount above ₹ 10,00,000/-. In 10 out of the 52 cases, notices were returned un-served with the remark that no such persons exist on given addresses. The creditors with their balance outstanding are listed in the order of assessment as per details given below: S. No. Name Amount 1 Shri Mitthu Lal Singh ₹ 14,65,707/- 2 Shri Dwarka Prasad Singh ₹ 18,57,518/- 3 Shri Rajendra Prasad Agrawal ₹ 15,42,390/- 4 Shri Raghubaran Prasad Yadav ₹ 15,07,322/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rks and existence of these creditors. This submission of the Ld. AR was forwarded to the concerned Assessing Officer for his verification and comments and the said Assessing Officer submitted in his report dated 28.02.2013. In that said report it is stated that at the outset on careful study of the assessment order, it is evident that the impugned addition of ₹ 1,67,04,633/- has been made u/s.68 of the Act merely on the basis of un-served notices issued u/s.133(6) of the Act, in spite of the fact that paper documents proving the existence of the creditors were already filed before the Assessing Officer. The Assessing Officer rejected the said paper evidences due to return of notices and relying on different case laws made the aforesaid addition. The Assessing Officer submitted in this report that he has visited the district Surajpur which was formerly under district Surguja and examined the said 10 sub-contractors personally except one Smt. Gopeshwari Sahu. 5. Before us, the Ld. AR of the assessee submitted that from remand report of the Assessing Officer, it is absolutely clear that even the Assessing Officer has personally inquired those 10 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrict of Surguja and personally examined 9 out of those 10 creditors. Therefore, it can safely be said that out of 52 creditors, 51 creditors has been personally established and therefore, the existence of all the 52 creditors cannot be doubted at all. Furthermore, we observe that even the documentary evidences along with PAN have been submitted before the Department. Even the income tax return, bank statement and TDS certificate are also filed before the Department. This fact has not been disputed by the Ld. DR in front of us. Mere notices u/s.133(6) of the Act being returned unserved cannot make the genuine transaction into non genuine one where other facts demonstrates that these transactions were genuinely done and by genuine persons. 8. We take guidance from the decision of the Hon‟ble Apex Court in the case of Commissioner of Income Tax Vs. Orissa Corporation (P). Ltd. (1986) 159 ITR 0078 (SC) wherein it has been held that the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income tax assessees. Their index number was in the file of the Revenue. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Company while ignoring the key factor that these entities were not traceable at their given addresses. 6.4 Whether on the facts and in the circumstances of the case and in law, the Tribunal erred in not appreciating the observations made by the Delhi High Court in Nova Promoters and Finlease Pvt. Ltd. 18 Taxman.com 217 wherein the Court has observed that cases of this type cannot be decided only on the basis of documentary evidences above and there is need to take into account the surrounding circumstances. 6.5 The Tribunal ought to have taken note of the fact that the assessee was not able to produce even a single party before the AO despite agreeing before the CIT(A) that it will produce all parties before the AO during remand proceedings. 2. Mr. Pinto, the learned counsel for the Assessee submits that the Assessing Officer upon considering all the facts had added ₹ 95 lakhs as income under Section 68 of the Income Tax Act. It needs to be considered that the Assessee had not discharged its onus to establish that the amount was received by the Assessee from the share holders as share application money. The Assessee coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has also produced the entire record regarding issuance of shares i.e. allotment of shares to these parties, their share application forms, allotment letters and share certificates, so also the books of account. The balance sheet and profit and loss account of these persons discloses that these persons had sufficient funds in their accounts for investing in the shares of the Assessee. In view of these voluminous documentary evidence, only because those persons had not appeared before the Assessing Officer would not negate the case of the Assessee. The judgment in case of Gagandeep Infrastructure (P.) Ltd. (supra) would be applicable in the facts and circumstances of the present case. 7. Considering the above, no substantial question of law arises. The appeal stands dismissed. However, there is no order as to costs. Respectfully, following the ruling of the Hon‟ble Supreme Court of India as well as the ratio laid down by the Hon‟ble Bombay High Court as referred hereinabove, we set aside the order of the Ld. CIT(Appeals) and ground Nos. 2.1 to 2.5 raised by the assessee in appeal are allowed. 11. In the result, appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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