TMI Blog2020 (2) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce evidence to the satisfaction of the AO regarding the identity and credit worthiness of the investor companies and the genuineness of the transaction. The AO shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee Order of assessing officer without giving the adequate opportunity to the appellant - HELD THAT:- As per the provisions of section 250(4) and 250(6), the ld.CIT(A) is supposed to make further enquiry as he thinks fit or direct the AO to make further enquiry. While disposing of the appeal, he shall pass the order in writing and shall state the points for determination, the decision thereon and the reason for the decision. Even though the assessee has not appeared before him, the ld.CIT(A) cannot dismiss the appeal for want of prosecution and he is supposed to pass a speaking order on merit. Since, in the instant case, the ld.CIT(A) has failed to follow the law, therefore, we deem it proper to restore this issue to the file of the CIT(A) with a direction to pass a speaking order on this issue after giving an opportunity to the assessee to substantiate its case. The assessee is also hereby directed to appear before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be reversed. 2. The learned CIT(A) erred in law and on facts in dismissing the appeal against the order of assessing officer and confirming the addition of ₹ 4,85,00,000/- under section 68 by treating share capital and share premium received as unexplained credit arbitrarily despite the fact that complete details of share applicants were provided. Moreover, no incriminating documents were found during the course of search and in respect of which no proceedings were abated. Thus, order of the learned CIT (A), passed merely on surmises and conjecture should be reversed. 3. The learned CIT (A) erred in law and on facts in rejecting the ground of the appellant on non-applicability of provisions of Section 234B of the Income Tax Act despite the fact that said provisions are not applicable. Thus, order of the learned CIT (A), passed merely on surmises and conjecture should be reversed. 4. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing. 5. The ld. Counsel for the assessee, at the outset, submitted although complete details were filed before the lower authorities, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (P) Ltd., 51 taxmann.com 46 (Del); (xix) PCIT vs. Bikram Singh (2017) 85 taxmann.com 104 (Del); (xx) Rick Lunsford Trade Investment Ltd. Vs. CIT (2016) 385 ITR 399 (Cal); (xxi) Rick Lunsford Trade Investment Ltd. Vs. CIT (2016-TIOL-207- SC-IT); (xxii) M/s Synergy Finlease Pvt. Ltd., ITAT, Delhi, ITA No.4778/Del/2013 A.Y. 2006-07, order dated 08.03.2019. 7. We have considered the rival arguments made by both the sides, perused the orders of the authorities below and the paper book filed on behalf of the assessee. We have also considered the various decisions relied on by both the parties. We find the AO, in the instant case, made addition of ₹ 4.85 crores being the share capital and share premium received from 34 companies wherein the share of ₹ 10/- was issued at a premium of ₹ 190/- and the assessee failed to discharge the onus cast on it by proving the ingredients of section 68 of the Act. We find the ld.CIT(A) upheld the action of the AO. It is the submission of the ld. Counsel for the assessee that the assessee has filed various documents to substantiate the identity and credit worthiness of the share applicants and genuinen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the order of assessing officer and confirming the disallowance of loss of ₹ 35,94,413/- claimed by the appellant in income tax return. The disallowance were made arbitrarily and ad on hoc basis. Moreover, no incriminating documents were found during the course of search and in respect of which no proceedings were abated. The addition was made purely on presumptive basis. Thus, order of the learned CIT (A), passed merely on surmises and conjecture should be reversed. 4. The learned CIT (A) erred in law and on facts in rejecting the ground of the appellant on non-applicability of provisions of Section 234B of the Income Tax Act despite the fact that said provisions are not applicable. Thus, order of the learned CIT (A), passed merely on surmises and conjecture should be reversed. 5. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing. 10. Identical grounds have been raised by the assessee in the other two appeals except that the figures are different. 11. Facts of the case, in brief, are that the assessee in response to notice u/s 153A filed its return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to explain as to why the bogus advance received should not be added to the total income of the assessee. The request of the assessee to cross-examine the persons whose statements were recorded and utilized against the assessee was rejected by the AO on the ground that all these companies were investors of the assessee company and the persons concerned are directly related to the assessee company and instead of requesting the Department for crossexamination, the assessee could have produced the directors of the above mentioned bogus companies in its support which it has failed to do. Rejecting the various explanations given by the assessee, the AO made addition of ₹ 25,94,50,000/- to the total income of the assessee for A.Y.2008-09. Similarly, for A.Y. 2010-11, the AO made addition of ₹ 9,80,00,000/- and for A.Y. 2011- 12, he made an addition of ₹ 2 crore. In appeal, the ld.CIT(A) upheld the action of the AO. 13. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 14. The ld. Counsel for the assessee, at the outset, submitted that despite the request of the assessee, cross examination of the persons whose statements wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be given an opportunity to substantiate its case. We find some merit in the above arguments of the ld. Counsel for the assessee that there was no proper representation before the CIT(A). A perusal of pages 18 to 25 of the impugned order reveals that the ld. CIT(A) has discussed about the non-appearance of the assessee before him and referred to various case laws to the effect that where an assessee does not appear the appeal should be dismissed. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issues to the file of the AO with a direction to give one final opportunity to the assessees to substantiate its case to the satisfaction of the AO by producing the directors of the above companies who have given advances to the assessee for purchase of properties and substantiate their identity and credit worthiness. The AO shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds of appeal raised by the assessee in ITA Nos.4994, 4995 4996/Del/2016 are accordingly allowed for statistical purposes. ITA No.8231/Del/2018 (A.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided the appeal on merit. 19. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 20. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the assessee. We find the ld.CIT(A) while dismissing the appeal filed by the assessee, has not decided the issue on merit. As per the provisions of section 250(4) and 250(6), the ld.CIT(A) is supposed to make further enquiry as he thinks fit or direct the AO to make further enquiry. While disposing of the appeal, he shall pass the order in writing and shall state the points for determination, the decision thereon and the reason for the decision. Even though the assessee has not appeared before him, the ld.CIT(A) cannot dismiss the appeal for want of prosecution and he is supposed to pass a speaking order on merit. Since, in the instant case, the ld.CIT(A) has failed to follow the law, therefore, we deem it proper to restore this issue to the file of the CIT(A) with a direction to pass a speaking order on this issue after giving an opportunity to the assessee to substantiate its case. The assessee is also hereb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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