TMI Blog2020 (12) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the genuineness of the transaction the assessee produced the confirmation, bank statement, financial of the lender. Nothing came into noticed that the transaction were found bogus. Retracted statement of Shri Rajesh Agarwal was not liable to be relied upon the unless corroborated by the sufficient evidence on record. Moreover no opportunity of being heard was given to the assessee - As relying on M/S. BINI BUILDERS PVT. LTD. VERSUS DCIT-CENTRAL RANGE-7 (3) , MUMBAI [ 2020 (3) TMI 595 - ITAT MUMBAI] issue decided in favour of assessee. - I.T.A. Nos. 625 & 626/Mum/2019 - - - Dated:- 4-12-2020 - Shri Shamim Yahya, AM And Shri Amarjit Singh, JM For the Assessee : Shri Vimal Punamiya For the Revenue : Shri A. H. Ansari (Sr. AR) ORDER PER AMARJIT SINGH, JM: The assessee has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals) -49, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the A.Ys. 2009-10 2010-11. ITA. NO.625/M/2019 2. The assessee has filed the present appeal against the order dated 05.12.2018 passed by the Commissioner of Income Tax (Appeals) -49, Mumbai [herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that sum of Ps. 11,13,30,000/- was the undisclosed ir..omc of the group in a statement recorded under the provisions of section 131 of the Income Tax Act, 1961 (herein after, 'the Act') which had been recorded on 09.10.2014. Further analysis of the documents seized / impounded documents indicates that the assessee company. 3. The Pr. CIT 2, Kolkata, on 11.12.2015 passed an order under section 127 of the Act centralizing the case with this office. In view of the above facts, reasons were recorded and the Principal Commissioner of Income Tax (Central) - 4, Mumbai accorded the approval for reopening of the assessment of the assessee vide letter dated 28.03.2015 beefing No. Pr.CIT(C)-4/MUM u/s. 147/2015-16. Notice under section 148 of the Act was issued on 28.03.2016. This notice was served on the assessee on 31.03.2016. Vide this notice, the assessee was requested to furnish a return within 30 days from the date of the service of the notice. 4. The assessee responded vide letter filed in this office on 06.04.2016 requested that the returned tiled on 30.09.2009 (under section 139(1) of the Act) be treated as return in response to the notice dated 78.03.2016. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the assessee being not pressed. ISSUE NO.3 7. At the very outset, the Ld. Representative of the assessee has argued that the case of the assessee has duly covered by assessee s sister concern unit namely M/s. Bini Builders Pvt. Ltd. ITA. No.631 632/M/2019, therefore, in the said circumstances, the issue is liable to be decided in favour of the assessee. It is specifically argued that the present case is on similar footing and having similar facts and circumstances, therefore, the issue is liable to be decided in favour of the assessee in accordance with law. However, on the other hand, the Ld. Representative of the revenue has refuted the said contentions. Under this issue the assessee has challenged the addition of share capital of ₹ 50,00,000/- as unexplained cash credit u/s 68 of the Act. In the case of the assessee s sister concern i.e. M/s. Bini Builders Pvt. Ltd. ITA. No.631 632/M/2019, the issue has been decided by Hon ble ITAT in favour of the assessee. The copy of order dated 12.03.2020 is on the file and the relevant finding is hereby reproduced as under.:- 6.3 On merits, the assessee assailed the quantum addition by way of elaborate submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. 342 ITR 169 to confirm the additions. Finally, the additions were confirmed by observing as under: - 7.8 The Learned Counsel also alleged that the AO made the addition on the basis of suspicion and not evidences. This also is not correct as the AO had brought in enough evidences both direct and corroborative to come to the conclusion that the share capital and premium received by the assessee are not genuine. As could be seen from the assessment order and from the discussion made above, the Learned Counsel further alleged that the AO has no material in his possession to prove the same and that he made the addition of the basis of information from investigation wing and without any independent enquiry made by the AO. This also is incorrect as the AO had in-depth information not only about the 11 companies which have invested in the assessee company but also about the 67 companies which have invested in the said 11 companies. The AO had made exhaustive enquiry and analysis before reaching to this conclusion. The Learned Counsel has also alleged that the Third Party Unilateral Act cannot be the basis of addition but the addition, in this case, has been made not on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken through banking channels. Upon careful consideration of these documents, we find that so far as the identity of the investor entities are concerned, the same stand proved by certificate of incorporation which is held to be conclusive proof of registration of a corporate entity. The creditworthiness of the entities would stand satisfied by the financial statements of the investor entities, which are also placed on record. The genuineness of the transactions would stand proved by the fact that the transactions were duly supported by share application form, share certificates, copy of board resolution and by the fact that ultimately the shares were allotted to all these entities. The assessee has tabulated the net worth of all these entities in the following manner: - The perusal of net worth chart would reveal that all the investor entities had sufficient net worth to make stated investment in the assessee company. Upon perusal of all these documentary evidences, it could safely be concluded that the assessee had successfully discharged the onus casted upon him u/s 68 and the onus was on revenue to rebut assessee s evidences. 8.3 Proceeding further, we find that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific adjudication on our part. 8.7 So far as the legal grounds are concerned, we find that the original return was processed u/s 143(1) and the only requirement in law to trigger assessment was that Ld. AO certain reasons to believe that certain income escaped assessment in the hands of the assessee. We find that Ld. AO was clinched with tangible information from investigation wing which suggested possible escapement of income in the hands of the assessee. In our opinion, nothing more was required at this stage since Ld. AO had sufficient reasons to form such a belief. Therefore, we do not find much substance in assessee s legal grounds. Ground Nos. 1 to 3 stand dismissed. 8.8 The appeal stands partly allowed in terms of our above order. 8. It is legal preposition is that the assessee has to prove three ingredient to discredit the addition raised u/s 68 of the I. T. Act. (i) Identity of the Investor (ii) Creditworthiness of the investor (iii) Genuineness of the transactions. The assessee has furnished the address, PAN, Certificate of incorporation, MOA AOA of the subscribers who subscribe the shares. To prove the credit-worthiness the assessee has given the certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 21230000 328020767 349250767 0.64 9 M/s. Balaji Dealcom P Ltd. 25000 250000 2250000 2500000 9035000 80426195 89461195 2.52 10 M/s. Deepa Holding Pvt. Ltd. 25000 250000 2250000 2500000 651800 27049015 27700815 8.12 11 M/s. Deepa Holding P. Ltd. 30000 300000 2700000 3000000 24418000 193035310 217453310 1.24 12 M/s. Hill View Hire Purtchase P Ltd. 30000 300000 2700000 3000000 47377000 384208224 431585224 0.63 13 M/s. Limelight Commotrade Pvt. Ltd. 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1000 4538154 9779153.6 6.44 6 Simplex Merchants Pvt. Ltd. 5000 50000 450000 500000 980000 7922013 89022013 5.06 7 Wellplan Corporate M Pvt. Ltd. 10000 100000 900000 1000000 3223100 9321859 12544959 7.17 Total 50000 4500000 5000000 4820990 253766854 301976754 1.65% The investor companies have positive net worth and only invested 1.6% and 1.2% of their net worth. The assessee submitted Form of application of shares, Photocopy of the cheque receipt towards the share application, photo copy of the bank deposit slip reflecting the deposit of the above cheque, extract of Bank Statement of all subscribers duly highlighting the entries of share money and premi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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