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TMI Blog2021 (12) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... kki Industries Ltd. In all the aforesaid cases, the order of CIT (A) though separate and independent but is identical and is of even date 19.09.2017, passed by CIT (Appeals)-XXVI. 1. The brief facts of the case are that, search and seizure operation under section 132(1) of the Income Tax Act was carried out on Minda group of cases group of cases on 20.09.2013. The assessee's being part of Minda Group was also subjected to search. As such, notices u/s 153A dated 08.06.2015 of the Income Tax Act were issued to the assessee's, after which assessments were made by learned assessing officer vide order dated 30.03.2016. Here too also it is important to note that even though the assessing officer has passed separate and independent orders for all the aforesaid assessee's, but, his observations/ enquiries, findings and additions are identical in all the aforesaid cases. 2. That during the course of hearing both Assessee and Revenue agreed on the fact that, all the sixteen captioned appeals involve consideration of common issues. It was further, agreed by both the parties that M/s Jay Auto Components Ltd. (AY 2008-09 bearing ITA No. 6627/Del/2017) may be taken as lead matter, since the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lications under Rule 27 of ITAT Rules in as many as twelve appeals. The break - up of said appeals along with ground taken in Rule 27 application is extracted below: Assessee's Appeals involving legal issues under section 153A of the Act, as the assessments were final on date of search and additions are not based on incriminating material i) M/s Jay Iron & Steel Ltd. AY 2008-09: ITA No. 6626/Del/2017 AY 2009-10: ITA No. 6639/Del/2017 AY 2010-11: ITA No. 6628/Del/2017 AY 2011-12: ITA No. 6629/Del/2017 ii) M/s JPM Tools Ltd. AY 2010-11: ITA No. 7280/Del/2017 AY 2011-12: ITA No. 7281/Del/2017 iii) M/s Jay Auto Components Ltd. AY 2008-09: ITA No. 6627/Del/2017 AY 2009-10: ITA No. 6622/Del/2017 AY 2010-11: ITA No. 6623/Del/2017 AY 2011-12: ITA No. 6624/Del/2017 iv) M/s Jay FE Cylinder Ltd. AY 2011-12: ITA No. 6640/Del/2017 v) M/s Jay Ace Technologies Ltd. AY 2010-11: ITA No. 6638/Del/2017 Ground so raised by assessee in all the aforesaid 12 appeals by filing an application under Rule 27 of the ITAT Rules is as under: "That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regards to the matter of M/s Jay Iron & Steel Ltd. for AY 2008-09, is as below: Sr. No. Particulars Date i) Date of search u/s 132 of the Act 20.09.2013 ii) Date of notice u/s 153A 08.06.2015 iii) Date of filing of original return of income at NIL (the said return of income was final on the date of search) 27.09.2008 iv) Date of filing of Return of Income under section 153A of the Act at NIL 03.07.2015 iv) Assessment u/s 153A Date of order 30.03.2016 Income assessed Rs. 4,93,00,000/- v) Order of CIT(A) Date of order 26.08.2017 Findings Partly Allowed 2. It is most humbly submitted that, it is a settled position of law that the assessments under section 153A of the Act can only be made on the basis of incriminating materials unearthed/ gathered or found during the course of search with regards to the respective assessment year. That further, it is also a settled proposition that in the assessments under section 153A of the Act, additions cannot be made on post search enquiries by investigating team or by enquiries made by learned AO during the course of assessment. In order to support the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er). 4. With regards to the share certificates of 8 companies seized during the course of search, it is submitted that even the learned AO has not made any adverse observations with regards to the said documents, as the same cannot be said to be incriminating in nature, since the share certificates merely records the details of shares issued and allotted which are duly recorded in the books of accounts prior to the date of search. These share certificates were only the statutory records kept with the companies, to be filed before ROC and the same was kept by the Secretarial department of the companies for necessary legal compliances. Thus, here it is submitted that seizure of share certificates does not come within the definition of "incriminating material", as the transactions so referred in the said share certificates are duly recorded and forms part of the books of accounts of the respective companies. This fact is also admitted by learned CIT (A) at pages 60 and 61 of the order (even though CIT (A) dismissed the assessee's appeal on legal issue, however, recorded a positive finding in favor of assessee with regards to share certificates to be not incriminating in nature). Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the additions with regards to share capital. Even the learned CIT (A) at page 62 of his order, has recorded that the said email has no financial implication and as such, it is submitted that the said document cannot be termed as "incriminating in nature". 7. In view of the aforesaid submissions and judgments sited above, it is most humbly submitted that none of the documents so found and referred in the order of assessment are incriminating in nature, as additions so made by learned AO are not based on these documents. The learned AO has merely referred the said documents in the order of assessment, however, makes no adverse inference while making the additions with regards to the issue of share capital. That further and even though the learned CIT (A) has decided the legal issue against the assessee (kindly see pages 59 and 60 of the order), however, while examining the aforesaid documents independently, the learned CIT (A) has recorded, that the said documents are duly disclosed in the books of accounts and have no financial bearing and as such, cannot be termed as incriminating in nature. Reliance is placed on the findings of learned CIT (A) at pages 60 to 62 of his order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee with regards to share certificates to be not incriminating in nature). That further, reliance is placed on the order of Hon'ble ITAT Delhi in the case of M/s ACIT vs Moon Beverages Ltd. in ITA Nos. 115 to 118/Del/2018, wherein, share certificates have been held to be not incriminating in nature as the details mentioned therein, are duly recorded in the books of accounts and for a document to be incriminating, it should depict some undisclosed income unearthed as a result of search. * With regards, to document seized from M/s Jay Ushin Ltd. marked as Party O - 2, Annexure A - 1, Page 50, it was most humbly submitted that a perusal of the said document, which has been extracted by learned AO at pages 14 to 16 of his order, would show that only transaction related to JPM group is with regards to receipt of unsecured loan of Rs. 95 lacs by M/s Jay Ace Technologies Ltd. from M/s Suhana Marketing Pvt. Ltd., with regards to unsecured loan and there is no other name which pertains to any of the companies of JPM Group. It is further, submitted that while framing the assessment of M/s Jay Ace Technologies Ltd. for AY 2013-14 (to which the document relates), no addition h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of DCIT vs Sundaram IT Parks Pvt. Ltd. in ITA No. 5166/Del/2018. g) Order of ITAT Delhi in the case of ACIT vs M/s Five Vision Planners Pvt. Ltd. in ITA No. 4460/Del/2014. h) Judgment of High Court of Delhi in the case of PCIT vs M/s Dreamcity Buildwell Pvt. Ltd. in ITA No. 1152/2017. i) Order of ITAT Delhi M/s TDI Infrastructure Ltd. vs DCIT in ITA No. 5580, 4409, 4410 and 5072/Del/2012. j) Order of ITAT Delhi ACIT vs Realtech Construction Pvt. Ltd. (ITAT Delhi) in ITA No. 6569/Del/2016. 10. The learned senior counsel for the assessee further, submitted that that the said aforesaid legal argument was specifically taken before learned CIT (A), wherein, judgment of Hon'ble Delhi High Court in the case of CIT Vs. Kabul Chawla reported in 380 ITR 573, were cited before learned CIT (A), which even finds mention at pages 8 of learned CIT (A) order. However, the learned CIT (A) vide order dated 25.08.2017 dismissed the said ground so raised by the assessee company at pages 57 to 58 of CIT (A) order, wherein, while dismissing the said appeal, the learned CIT (A) has recorded a finding that "The overall schema that emerges there from indicates that there was prima facie mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificates are also not incriminating, as the said document only shows the details of shares issued by those companies which are duly recorded in the books of accounts and as such, the same cannot be termed as "incriminating material". The learned counsel for assessee placed reliance on the order of Hon'ble ITAT Delhi in the case of M/s ACIT vs. Moon Beverages Ltd. in ITA Nos. 115 to 118/Del/2018, wherein, share certificates have been held to be not incriminating in nature as the details mentioned therein, are duly recorded in the books of accounts and for a document to be incriminating, it should depict some undisclosed income unearthed as a result of search. That further, he argued that the post search investigation or statements recorded post search cannot be equated with the incriminating material found during the course of search, and on the said proposition the learned counsel of assessee relied on the judgment of Hon'ble High Court of Delhi PCIT vs. Jaypee Financial Servies Ltd. reported in 280 Taxman 147. 13. We have heard the rival submissions and also perused the relevant findings given in the impugned orders as well as material placed on record. The core legal issue wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted by AO at page 17 of his order, it is apparent that the same is only a simple email regarding discussion for future plan of restructuring and does not contain any financial transaction or have a bearing on the income of the assessee group. The said email has no where made any reference to any accommodation entry nor to any transaction with regards to the share capital. That is why, even though, the learned AO has referred the said document at page 16 and 17 of his order, however, no adverse inference has been drawn with regards to the said document while making the additions with regards to share capital. Even the learned CIT (A) at page 60 and 61 of his order, has recorded that the said email has no financial implication and as such, not incriminating. iii) Share Certificates found during the course of search, with regards to allotment of shares by Minda group of companies to various companies, noted by AO at page 18 of his order. We have gone through the orders so passed by AO, CIT (A) and also the remand report so furnished by AO during the course of appellant proceedings and notice that these share certificates pertained to 8 companies, namely, M/s JA Builders Ltd, M/s J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the assessee challenging the validity of the assumption of jurisdiction u/s 153A in absence of any incriminating material found during the course of search when the assessment was not pending. As mentioned earlier, the original return was filed on 30th September, 2009 declaring income at Rs. 10,27,91,857/-. The assessment was completed u/s 143(3) determining the total income at Rs. 10,27,91,857/-. This assessment was rectified u/s 154 of the IT Act determining the income at Rs. 7,50,21,860/-. Thus, the assessment was completed and was not pending on the date of search. A perusal of the assessment order shows that the addition is not based on any incriminating material, but, based on post-search enquiries or statements recorded u/s 132(4) of the Act. The share certificates and counterfoils thereof found during the search, in our opinion, cannot be construed as incriminating in nature 15. It is an admitted fact, as also admitted by both the parties that the aforesaid documents so referred in the order of assessment are the only documents which form the basis and edifice for acquiring jurisdiction under section 153A of the Act and there are no other documents which were found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesssee - He also made an addition on account of income of assessee from selling equity shares of a company held by assessee to director of assessee at much below prevailing market price - Commissioner (Appeals) and Tribunal both held that said additions were not based on any incriminating material found during search and assessment was not pending on date of search, thus, impugned additions were unjustified and same were to be deleted- It was noted that revenue had failed to disclose any incriminating material against assessee found during search - Whether, therefore, impugned order passed by Commissioner (Appeals) and Tribunal was justified and same was to be upheld - Held, yes [Para 5] iv) CIT vs SKS Ispat & Power Ltd. (Bombay HC) reported in 398 ITR 584. 2. Mr. Singh, the learned counsel for the appellant contends that the Tri bunal was not justified in deleting the addition made on account of unaccounted sundry creditors (purchases) and unexplained share of the money thereby limiting the scope of assessment under section153A of the Act on the basis of incriminating material discovered in the search only and thus denying the Revenue to assess the undisclosed income on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee challenging the validity of the assumption of jurisdiction u/s 153A in absence of any incriminating material found during the course of search when the assessment was not pending. As mentioned earlier, the original return was filed on 30th September, 2009 declaring income at Rs. 10,27,91,857/-. The assessment was completed u/s 143(3) determining the total income at Rs. 10,27,91,857/-. This assessment was rectified u/s 154 of the IT Act determining the income at Rs. 7,50,21,860/-. Thus, the assessment was completed and was not pending on the date of search. A perusal of the assessment order shows that the addition is not based on any incriminating material, but, based on post-search enquiries or statements recorded u/s 132(4) of the Act. The share certificates and counterfoils thereof found during the search, in our opinion, cannot be construed as incriminating in nature. Even the document appearing at page 59 of Annexure A-10 found and seized from the corporate office of M/s Hindustan Aqua Limited at 1010, Vijaya Building, Barakhamba Road, New Delhi, showing the details of advance for purchase of shares or refund of share application money in our opinion cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the impugned assessment year from 2008-09 to 2011-12 were not pending, as the assessment stood completed prior to the date of search, therefore, we hold that without any incriminating material, concluded assessments cannot be tinkered with and no addition can be made without there being any incriminating material for the impugned assessment year. 19. Accordingly, we hold that the additions made by the Assessing Officer are beyond the scope of Section 153A of the Income Tax Act, 1961. 20. In view of the above discussion, we allow the application under Rule 27 so filed by the assessee - respondent in ITA No. 6627/Del/2017 and hold that since no incriminating material was found as a result of the search conducted on the assessee, therefore, the notice issued for initiation of proceedings u/s 153A of the Act and the assessment framed subsequently by bringing to tax such additions which were beyond the scope of assessments so framed under section 153A of the Act. Hence, we hold that the impugned assessments so framed are without jurisdiction and are quashed. We hold and direct accordingly. 21. Identical applications under Rule 27 have been filed by assessee in following 12 appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar in all the appeals and thus, if one appeal is heard on merits, it will take care of all other appeals as well. 25. That the Ld. CIT DR Sh. Sanjay Kumar, placed heavy reliance on the order of AO and argued that the addition has been made in the instant case under section 68 on account of alleged accommodation entry taken by the assessee company in the form of share capital of a sum of Rs. 2,53,50,000/-. The Ld. CIT DR further argued that the said addition is based on the discreet and detailed enquiries being conducted by the Investigation wing post search, wherein, it was found that the subscribers to share capital are non - existent, whereas, various subscribers were found to be functioning at the common addresses, which too were mere dummy addresses, as no one was functioning from the said addresses. 26. The Ld. CIT DR further argued that the statement of Sh. Rajesh Agarwal was recorded by investigation wing during the post search proceedings, who has admitted to be engaged in providing accommodation entries and have also admitted to have given accommodation entries to the assessee group, as such, the same is an important piece of evidence gathered by department against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation wing report and also held that companies of JPM group have no great business prospects and as such, cannot command huge premium. The AO further held that the subscribing companies have meagre income as per their income tax returns and were thus, not in a position to invest in share capital of assessee JPM group (kindly see pages 2 to 14 of AO's Order). b) Notices were issued to investor companies under section 133(6) of the Act, however, the replies so submitted by them are not satisfactory and assessee company has failed to produce directors of investor companies for deposition (kindly see pages 24 to 30 and 40 to 41 of AO's order) c) Survey operation was conducted by Investigation wing of Sh. Rajesh Aggarwal (alleged accommodation entry provider), who has admitted to have arranged entries of share capital of Rs. 76.88 crores for JPM group (kindly see pages 30 to 37 of AO's order). d) In view of the above, concluding findings of learned AO are at pages 52 to 61 of the order of assessment. 11. The aforesaid findings so recorded by learned AO, were rebutted by assessee before the learned CIT (A) and considered by learned CIT (A). The said submissions so filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely on the basis that the income returned by the subscriber companies is very nominal. It is further submitted that the learned AO merely relied on the findings recorded in investigation wing report, and held that the subscribers are not existing at the given addresses, ignoring the fact that the assessee furnished fresh addresses to the learned, as most of the companies had been amalgamated with other companies, even after the aforesaid reply the learned AO failed to issue any summon under section 131 of the Act (kindly see pages 19 to 24 of CIT (A)'s order). Finding of CIT (A) is at page 62 to 63 of the order, wherein, it has been held by learned CIT (A) that all the said documents so submitted by subscriber companies and submitted by assessee were before the learned AO and if the balance sheets of the subscriber companies, would have been minutely examined by learned AO, it would have made it clear that the said companies have high net worth to invest in shares of the assessee companies and as such, income returned cannot be the only criteria for the purposes of section 68 of the Act, more so, when the transactions are through account payee cheques and there is no evidence ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta i) 295 ITR 105 (Del) CIT vs. Dharam Pal Prem chand Ltd. j) 306 ITR 27 (Del) CIT vs. Rajesh Kumar k) 303 ITR 95 (Del) CIT vs. Pradeep Kumar Gupta l) 315 ITR 265 (Del) CIT vs. M/s Jindal Vegetables Products Limited 13. It is further submitted that the entire assessment order is merely copy and paste of observations of the Investigation wing in the appraisal report. Thus, reliance is placed on the following judgments on the proposition that, when no appropriate investigation has been carried out by the learned A O and as such the burden which lay upon the learned A.O. has not been discharged, as such, the addition so made is unsustainable and deserves to be deleted. a) PCIT vs Krishna Devi (Delhi HC) reported in 279 Taxman 148. b) 149 TTJ 165 ITAT (TM) Vishnu Jaiswal vs CIT c) [2013] 357 ITR 146 (Del) CIT vs. Fair Finvest Ltd. d) [2014] 361 ITR 10 (Del) CIT vs. Gangeshwari Metal (P) Ltd. e) ITA No. 871/D/2010 A.Y. 2003-04 dated 25.05.2012 ITO vs. M/s Excellance Town Planner (P) Ltd. f) ITA No. 1125/D/2012 A.Y. 2002-03 dated 01.06.2012 ITO vs. M/s Hi Tech Accurate Communication (P) Ltd. g) ITA No. 1177/D/2012 A.Y. 2001-02 dated 05.10.2012 ITO vs. India Tex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose shareholders and merely places reliance on investigation report, it does not reject the evidence submitted by the assessee, he does not have a right to make any addition u/s 68 of the Income Tax Act, as assessee has discharged initial onus cast upon him. 31. The learned Counsel of assessee further submitted that the JPM group is a leading manufacturer in the country with regards to automotive components and its esteemed customers includes esteemed companies like Maruti Suzuki, Honda, Hyundai etc. That the entire JPM group commanded a turnover of over Rs. 2500 crores in financial year 2014-15 and further, even one of the companies in the group namely, M/s Jay Ushin Ltd. is a listed company with BSE for which the price of shares in open market are being traded at more than Rs. 200. As such, the allegation of learned AO and CIT DR that the group does not command a premium of Rs. 90 is factually incorrect and fallacious. 32. The learned Counsel of assessee at the time of hearing was directed to file net worth of these companies placed before the authorities below, which he pleaded at the time of hearing that even all the subscribing companies had sufficient net worth to make inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee companies and as such, income returned cannot be the only criteria for the purposes of section 68 of the Act, more so, when the transactions are through account payee cheques and there is no evidence gathered by the learned AO with regards to any collateral payment exchanging hands for issuance of share capital. Reliance was placed on the judgment of Hon'ble High Court of Delhi in the case of CIT vs Good View Trading (P) Ltd. reported in 77 taxmann.com 204. 34. The learned counsel for the assessee further stated that the statement of Sh. Rajesh Aggarwal, alleged accommodation entry operator, was provided to the assessee at the fag end of the assessment proceedings, wherein, immediately assessee demanded for his cross examination, which was denied by learned AO in the assessment proceedings and even at the remand proceedings and also by the learned CIT (A) (at pages 50 to 52 of AO's order and 25 to 28 of CIT (A)'s order). That further, the statement so provided of Sh. Rajesh Aggarwal, would show that his statement is inconsistent and as such, cannot be relied upon (at page 24 of CIT (A)'s order). The learned counsel for assessee further relied on the finding of learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel has given a very detailed rebuttal based on documents on record as incorporated above in the foregoing paragraphs. From bare perusal of the explanation duly supported by the documents, we find that whatever so called inquiry which was conducted by learned AO has not lead to any iota of adverse material so as to hold that the transactions are not genuine. Further, we find that nowhere Assessing Officer has made any effort or conducted any investigation to rebut the documentary evidences so filed by the assessee in order to support the genuineness of share capital received from subscribers and even in response to the replies received from subscriber companies to the notices u/s.133 (6) and what extra he wanted to examine, has not been mentioned. 39. Another allegation by the Assessing Officer was that these companies have received funds from other companies before issuance of cheques through the assessee company and also tried to analyze fund trail to assume that assessee company had ploughed back its own money in the books of account in the garb of share application money. The said allegation itself is based on erroneous assumption of facts which has been demonstrated by the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. 3, 03, 42, 000/- 15, 00, 000/- M/s Vandana Designs Pvt. Ltd. 1, 65, 05, 000/- 8, 00, 000/- M/s Exotica Commodities Pvt. Ltd. 1, 81, 73, 303/- 7, 00, 000/- M/s Kushal Infotech Pvt. Ltd. 4, 47, 41, 466/- 17, 00, 000/- M/s Mupnar Trexim Pvt. Ltd. 2, 62, 78, 000/- 33, 50, 000/- M/s Ranisati Apartments Pvt. Ltd. 1, 58, 89, 000/- 14, 00, 000/- M/s Festino Agro Pvt. Ltd. 3, 89, 58, 000/- 24, 00, 000/- M/s Frost Traders Pvt. Ltd. 2, 30, 68, 113/- 18, 00, 000/- M/s Trimline Vyapaar Pvt. Ltd. 2, 91, 44, 889/- 4, 00, 000/- 41. From the above, it is apparently clear that the subscribing companies had sufficient net worth to make investments in the assessee group companies and as such, we have no hesitation in holding that income is not the sole criterion, whereas, a holistic view needs to be taken, as to investee companies can also make investments out of its past savings or its net worth and the said fact has not been appreciated/ rebutted by AO in the impugned assessment orders. We have even gone through the remand report which was filed by AO before the CIT (A), therein; also the AO has not been able to rebut the fact that the subscribi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hesitation in holding that it was incumbent upon the learned AO to have provided opportunity to cross examine the person or atleast issued commission to Revenue Authorities at Kolkata to summon and specifically inquire about alleged entry operator, because heavy reliance has been placed on the statement. It is an elementary principle of law that, if any adverse inference is drawn against the assessee based on statement of a third party and no opportunity is provided to cross examine, then such a statement loses its credibility as primary evidence. Thus, in absence of cross - examination of Sh. Rajesh Agarwal, the said statement needs to be excluded and cannot be relied upon as a piece of evidence to make any addition. On this point, reliance is placed on the judgment of Hon'ble Apex Court in the case of M/s Andaman Timber Industries vs. CCE (SC) reported in 127 DTR 241 has held as follows: "According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o witnesses was the only basis of issuing the Show Cause Notice We, thus, set aside the impugned order as passed by the Tribunal and allow this appeal." 43. We have further, noticed that the AO in the order of assessment has relied on report and observations of the Investigation wing, which otherwise does not implicate any of the assessees, whereas, no concrete enquiry or investigation had been carried out by the assessing officer in the order of assessment to dislodge the explanation or rebut the documentary evidence placed and recorded by AO at page 14 of the order and at page 61 of CIT (A) order. Thus, when no appropriate investigation has been carried out by the learned AO and as such the burden which lay upon the learned A.O. has not been discharged, the addition so made is unsustainable and deserves to be deleted. 44. In view of the aforesaid facts and materials available on record, we have also noticed that that the Revenue has failed to controvert the findings so recorded by learned CIT (A) which is based on documentary evidences as have been discussed above, wherein, substantial relief on merits was provided to assessee by CIT (A). Thus, documentary evidences on record h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that assessee is a leading business in automotives having various high end customers and commands significant Goodwill, excellent past performance and high investors' confidence resulting into bright future prospects for the assessee in the long run. It was submitted that these aspects were duly appreciated by the shareholders and accordingly the shareholders had agreed to invest in the assessee company at a premium. 47. Before concluding, we would like to discuss the judgments so relied by learned CIT DR. He has placed reliance on the judgments of Hon'ble High Court of Delhi in the case of PCIT vs NDR Promoters Ltd. reported in 410 ITR 379, CIT vs Nova Promoters & Finlease Pvt. Ltd. reported in 342 ITR 169 and Hon'ble Supreme Court in the case of PCIT vs NRA Iron & Steel (P) Ltd. reported in 412 ITR 161. We have gone through all the aforesaid cases and rather have found that the said judgments support the case of assessee companies, as the main proposition which has been laid down in all the aforesaid judgments is that "Assessing Officer ought to conduct an independent enquiry to verify the genuineness of the credit entries once documents are submitted by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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