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TMI Blog2020 (4) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... AO overlooking the findings of the AO in the course of remand proceedings. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the JCIT(OSD) 9(3)(1) be restored. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary." 3. The brief facts of the case are that the assessee filed its return of income on 25.09.2012 declaring total income to the tune of Rs. 89,39,309/- for the A.Y.2012-13. The return was processed u/s 143(1) of the Act. Thereafter, notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee was engaged in the business of builders and developers. During the year under consideration, the assessee has shown the revenue from operation at Rs. 5,03,68,750/- and other income at Rs. 3,97,562/- and net profit has been computed at Rs. 87,68,154/-. The assessee has received the share application money amounting to Rs. 3,75,00,000/- from 12 parties. The discussion of the 12 parties are hereby mentioned below.: - S. No Name of the Applicant PAN Address No. of share Amount of application Face value Premium 1 Khushi Industries Ltd. AAACJ1457F 4A, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the CIT(A) has wrongly allowed the claim of the assessee specifically in the circumstances when the assessee failed to discharge the burden to substantiate the creditworthiness of the share investor and genuineness of the transactions, therefore, the finding of the CIT(A) is not justifiable and is liable to be set aside. It is also argued that the CIT(A) has wrongly relied upon the remand report generated by AO, therefore, the finding of the CIT(A) is not justifiable. However, on the other hand, the Ld. Representative of the assessee has strongly relied upon the order passed by the CIT(A) in question. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:- "7.1.1 Vide this ground, appellant has agitated against the addition of Rs. 3,75,00,000/- received from 12 parties as unexplained cash credit u/s 68 of the Act. During the course of assessment proceedings, the AO had called for the details of applicants including the PAN Numbers, Bank statements, Annual Accounts, ROC records. During the course of the assessment proceeding initially the appellant was not able to provide the relevant documents as the records were not readily available apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted by the AO nor it as been found by AO in his enquires that this company is a fraudulent company. c. Henna Textiles Limited had invested Rs. 25,00,000/-. The total investment has been added by the AO u/s 68. This company is assessed to tax under PAN: AACCI-10454N and is filing its regular income tax returns. The investor's RTGS no VYA5H12084701 1645 dated 24.03.2012 of Rs. 25,00,000/- is reflected in investor's bank statement as well as in the appellant's bank statement. All the investment made are also reflected in the Annual Accounts of the investor. From the Annual Accounts, it is observed that the said investor has its own share its land reserves of Rs. 12,35,32,559/-. Thus the investor had sufficient funds own to subscribe. Further from the bank statements it can be observed that third are no cash deposits in the investor bank account below issue of subscription money to the appellant. None of these facts have been disputed by the AO nor it has been found by AO in his enquires that this company is a fraudulent company. g. Induja Traders Pvt Ltd had invested Rs. 25,00,000/-. The total investment has been added by the AO u/s 68. This company is assessed to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... None of these facts have been disputed by the AO nor it has been found by AO in his enquires that this company is a fraudulent company. j. Dipankar Steel Private Limited had invested Rs. 25,00,000/-.The total investment has bedn added by the AO u/s 68. This company is assessed to tax under PAN:AADCD8268M and is filing its regular income tax returns. The investor's RTGS dated 27.03.2012 of Rs. 25,00,000/- is reflected in investor's bank statement as well as in the appellant's bank statement. All the investment made also reflected in the Annual Accounts of the investor. From the Annual Ahnints, it is observed that the said investor has its own share capital and reserves of Rs. 6,00,71,776/-.Thus the investor had sufficient funds of its own to subscribe. Further from the bank statements it can be observed that there are no channels. It was seen that the share application money was received through ' account payee cheques, detail of which had been filed by the assessee by filing the copy of the bank account of the share applicants. Thus where the return of income was filed by the creditors of the assessee and was accepted by the AO and payments were through account p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is an independent company in as' much as no finding is arrived at by the AO that the two companies are- umbrella companies or have any relationship with each other. e. In CIT vs. STL Extrusion (P) Ltd. 333 ITR 269 the Hon'ble Madhya Pradesh High Court held that though it is the duty of the assessee to establish the genuineness of the credits but in the present case the assesses has duly established the identity and source of credits, The Tribunal has also held that once the identity and source of the subscribers 'of the shards is established no. 7.1.7 Recently the jurisdictional Bombay High Court in the case of CIT vs. Gangadeep Infrastructure Pvt. Ltd. vide its order dated 20.03.2017 has held as under: "The proviso to s.68 (which creates an obligation on the issuing Co. to explain the source of share capital and premium) has been introduced by the Finance Act 2012 with effect front 01.04.2013 and does not have retrospective effect. Prior thereto, as per Lovely Exports 377 ITR 218 (SC), if the AO regards the share premium as bogus, he has to assess the shareholders but cannot assess the smite as the issuing company's unexplained cash credit." 7.1.8 From the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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