TMI Blog2019 (11) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 15-11-2019 - MR. VIPIN SANGHI AND MR. SANJEEV NARULA JJ. Appellant Through: Dr. Rakesh Gupta, Ms. Monika Ghai, Ms. Tani Malik and Mr. Rohit Kumar Gupta, Advocates. Respondent Through: Ms. Vibhooti Malhotra and Mr. Siddharth Manocha, Advocates. VIPIN SANGHI, J. (ORAL) 1. The appellant has preferred the present appeal to assail the order dated 18.04.2019 passed by the Income Tax Appellate Tribunal, Delhi Bench D : Delhi in ITA No.190/Del/2009 in respect of the Assessment Year 2004-05. The Tribunal has allowed the appeal preferred by the Revenue against the order dated 03.11.2008 of CIT (Appeals). 2. The CIT (Appeals) had deleted the addition of ₹ 1.17 Crore made by the Assessing Officer on account of unex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Labh Tronics Overseas Pvt. Ltd., Delhi 5,00,000 Savera Commercial Enterprises Ltd., Ludhiana 5,00,000 Gracious Portfolio Pvt. Ltd., Delhi 10,00,000 Era Advertising Marketing Co. Pvt. Ltd., Delhi 5,00,000 1,17,00,000 3. The assessee was asked to furnish details of the share application money received, and was also asked to furnish copy of the ITR and audited accounts for Assessment Year in question of all the persons who had advanced the share application money to the assessee company. Bank statements from wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bank Account, through which, investment was made were maintained with Vijaya Bank, New Delhi. All these facts created suspicion and in order to satisfy the genuineness of the transaction, assessee was asked to produce the Principal Officers of the Companies situated in Delhi for verifying the genuineness of the transaction, but, the assessee company failed to do the needful. Thereafter, the A.O. with a view to verify the genuineness of the transaction, has issued notice under Section 133(6) of the I.T. Act to the Companies having address of outside Delhi and summons under Section 131 were issued to the Companies having their addresses in Delhi. In the notice under Section 133(6), the Principal Officer of their respective Companies were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r from Darya Ganj, New Delhi, which were also incorrect. The A.O. also received reply from Savera Commercial Enterprises Ltd., Ludhiana: and Sparton Commerce Ltd., Ludhiana where notices under section 133(6) could not be served and returned with the remarks no such Company exists . The A.O. therefore, noted that assessee failed to explain the identity, creditworthiness of the Investors and genuineness of the transaction in the matter. The A.O. accordingly made addition of ₹ 1.17 crores under section 68 of the I.T. Act, 1961. 4. The appeal preferred by the appellant before the CIT (Appeals) succeeded. As noticed above, the ITAT has reversed the order passed by the CIT (Appeals). 5. The ITAT has examined the position as emergin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese facts were confronted to the assessee to make compliance and to produce Directors/Principal Officer of the Investor Companies, but, no compliance have been made. Few of the Investors have filed their reply to the notice under section 133(6) of the I.T. Act, but, their replies have not been sent from Kolkata as same have been sent through courier from Darya Ganj, New Delhi without documents. Ludhiana Investors sent their reply to the notice under Section 133(6) of the I.T. Act from Ludhiana address where they do not exist as per the report of the postal authorities. These factors clearly create a doubt and suspicion in the explanation of assessee. It is well settled Law that burden is upon assessee to prove identity of the Investors, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. These facts clearly show that though the assessee may be able to prove the identity of the creditors because they are assessed to tax, but, assessee failed to prove the creditworthiness of all the Investors as well as genuineness of the transaction in the matter. The Hon'ble Supreme Court in the case of Durgaprasad More 82 ITR 540 and in the case of Sumanti Dayal vs. CIT 214 ITR 801 held that Courts and Tribunals have to judge the evidence before them by applying the test of human probabilities . If the said test is applied in this matter, it clearly established that assessee has failed to prove the genuineness of the credits received in the matter, Thus, there was no justification for the Ld. CIT(A) to have deleted the addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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