9911796707
TMI Blog2020 (2) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... and issues in this appeal. Therefore, those are heard together and disposed of by this common order. First we state the grounds of appeal and statements of facts in case of Fusion Conbuild Private Limited in ITA No 1396/ Del/2016 filed by the revenue and ITA no 638 /del/2016 filed by assessee for AY 2011-12 . Thereafter the decision in these appeals are applied to the appeals of other assesses involved in this bunch of appeals. 2. ITA No 1936 / del/2016 is filed by the ACIT, New Delhi (AO) against the order of the ld CIT (A)-25, New Delhi dated 31.12.2015 for Assessment Year 2011-12. 3. The revenue has raised the following grounds of appeal:- "1. That on the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law and on facts in deleting the addition u/s 68 made on account of unexplained share capital received from 9 persons [ excluding the two directors] amounting to Rs. 92500000/- - without appreciating the fact that neither the creditworthiness of these creditors nor the genuineness of transactions were established as submitted by the AO in Assessment Order and Remand Report. 2. That on the facts and in the circumstances of the case, the Ld. CIT(A) has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned assessment order u/s 143(3)/153A without issuing and serving the jurisdictional notice u/s 143(2) of the Act. 3. That having regard to the facts and circumstances of the case, Ld. C1T(A) has erred in law and on facts in confirming the addition to the extent of Rs. 8,27,00,000/- out of total share capital of Rs. 18,72,00,00/- 4. That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the addition to the extent of Rs. 8,27,00,000/- being the amount of share capital by treating it as alleged unexplained cash credit u/s 68 is bad in law and against the facts and circumstances of the case, more so when there was no incriminating material was found during the course of search and more so when the impugned year was the first year of the assessee company. 5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the addition to the extent of Rs. 8,27,00,000/- made by Ld. AO without observing the principles of natural justice. 6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 68 of the Act. Hence, he deleted the same. The revenue is aggrieved with that order and has preferred an appeal before us. Assessee is in appeal contesting the order where the addition of Rs. 82700000/- received from Kolkata companies is confirmed by him. 7. The ld DR vehemently submitted that neither the creditworthiness with respect to the shareholder was proved and nor the genuineness of the transaction was proved. It was further stated that despite repeated reminders the assessee could not produce the share applicants. Further, the ld CIT (A) deleted the addition without examining the shareholders. Therefore, the order of the ld CIT (A) suffers from serious infirmities in deleting the addition of non-Kolkata companies. 8. With respect to Kolkata companies, he defended the order of the ld CIT (A). he submitted that the ld CIT (A) should have applied the same criteria for those non-Kolkata based companies also. 9. The ld AR vehemently supported the orders of the ld CIT (A) in case of non-Kolkata companies and stated that when the assessee has discharged its initial onus, the ld CIT (A) has correctly deleted the addition. With respect to Kolkata companies where the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the ld CIT (A) that if the opportunity is given then they can produce the shareholders. The ld CIT (A) has also noted that the assessee was asked to produce the shareholders only at the fag end of the assessment proceedings. The ld CIT (A) has deleted the addition based on this submission with respect to Non Kolkata assessee holding that assessee has discharged its onus. He confirmed the addition of Kolkata companies as per para No. 8.16 of his order against which the assessee is in appeal. 11. With respect to additions deleted by the ld CIT (A) of Rs. 10,45,00,000/- included a investment of Rs. 88 lakhs, 32 lakhs and Rs. 60 lakhs by the Director of the company, which has not been added by the ld AO. However, the ld AO made additions of the entire share application money therefore; there is an anomaly in the order of the ld AO. With respect to the non Kolkata based companies the ld CIT (A) noted that during the remand proceedings the ld AO issued summons u/s 131 of the Act to M/s. Sunshine Infra Corporation Ltd but he also noted that there was a compliance by that company and only issue was with respect to the fact that the director has not appeared. The ld CIT (A) has delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of inquiry. 12. Thus on an enquiry by the bench, whether the assessee would be willing to produce the directors of those companies for the examination of the ld AO, it was readily agreed. The ld CIT DR also agreed that without examination of those directors clearing suspicion about their creditworthiness and genuineness of the transaction the addition could not be deleted. 13. In view of the commitment of both the parties stated above, we set aside the appeal of the revenue as well as of the assessee back to the file of the ld AO with a direction to the assessee to prove the identity, creditworthiness of those depositors as well as genuineness of the whole transactions. The assessee is specifically directed to produce directors of the companies who are investors in the assessee company before the ld AO within four months from the date of this order. The ld AO may examine the details produced by the assessee and examine the directors of all the companies to test identity, creditworthiness of their investment as well as genuineness of the transactions. Assessee may substantiate its claim by producing any further evidences, which it could not produce before ld AO due to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Rs. 2 8950000 from 28 different entities. The learned assessing officer for the similar reasons made the addition under section 68 and the total income declared of Rs. 2 67220 was assessed at Rs. 2 9217220/-. On appeal before the learned CIT - AB addition was retained to the extent of only Rs. 40 lakhs and the balance addition was deleted. Therefore, both the parties are in appeal. 20. Both the parties confirmed that the facts are identical to the issue decided in case of fusion Conbuild private limited, their arguments are also similar and their assurance of producing the shareholder of the investor companies stands. Therefore, for the similar reasons given in the appeals of both the parties in case of fusion Conbuild private limited, we set aside the appeal of the revenue as well as the assessee to the file of the learned assessing officer with similar direction as given therein to the file of the learned assessing officer. 21. Accordingly, reversing the order of the learned CIT - A, the appeal of the assessee as well as of the revenue are allowed for statistical purposes. 22. Now we come to the appeal of assessing officer in Mount Echo buildable private limited for asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
