TMI Blog2022 (3) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 And CO No. 41/Del/2022 (In ITA No.766/Del/2019) - - - Dated:- 29-3-2022 - Shri Anil Chaturvedi, Accountant Member And Shri N. K. Choudhry, Judicial Member For the Revenue : Shri T. Kipgen, Ld. CIT DR For the Assessee : Shri Ashish Goel, Ld. CA ORDER PER N.K. CHOUDHRY, J. M.: 1. The revenue has preferred the instant appeal whereas, the Assessee has preferred the instant Cross Objection against the order dated 27.11.2018 impugned herein passed by the ld. Commissioner of Income tax (A)-XXVI, New Delhi (in short Ld. Commissioner ) u/s 250(6) of the Income Tax Act, 1961 (in short the Act ). 2. We will first decide the appeal filed by the Revenue. 3. The Assessee had filed its original return of income u/s 139(1) of the Act on 30.09.2010, which came into scrutiny and resulted into passing of assessment order u/s 143(3) of the Act on 20.03.2013. 4. Subsequently a search and seizure operation u/s 132 of the Act was conducted on 20.1.2015 and on subsequent dates in different offices and residential premises of Rathi group of cases based at Delhi and National Capital Region (NCR). The case of the assessee company was also covered as one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publicly listed company and the appellant submitted as under in this that they had obtained SEBI approvals for the equity issue as also about share valuations as per the approval. It has been submitted by the appellant as under per submission filed on 26/11/2018- In continuation of the earlier submissions we submit as under- Your honor during the FY 2008-09 relevant to AY 2009-10 appellant issued 3,33,000 Equity shares to M/s Alpha Stocks And Finservices Pvt Ltd and 3,50,000 Equity Shares issued to M/s Shark Packaging India Pvt Ltd, Accordingly the Appellant raised share capital of ₹ 2,04,90,000/- during AY 2009-10. However Ld. AO added that capital amounting to ₹ 2,04,90,000/- in AY 2010-11. When there is no creditin the books of the assessee during the assessment year under consideration ie AY 2010-11 than how additions can be made u/s 68 of IT act. Hence Capital issued during A Y 2009-10 cannot be added in A Y 2010-11. During the assessment proceeding assessee has filed the bank statement, the same has been put on record by the Ld AO in the assessment Order dated 30.12.2016 at para 6.3 page no. 34 of the said order. The relevant finding of the Ld. AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtful and also stating that the genuineness of the transactions is doubtful but at the same time deleting the addition by relying on the proviso 1 of section 68. 2. That the Ld.CIT(A) has erred in law and facts in wrongly interpreting the proviso 1 of section 68 and by holding that the listed public companies are excluded from the onus of explaining the source of source without appreciating the law that the such exemption is provided only for seeking share capital from the public at large. 3. That the Ld.CIT(A) has erred in law and facts and relying on proviso 1 of sec 68 of the I.T. Act without appreciating the explanatory notes of the above noted proviso which only provides that the onus is different in the case of companies seeking share capital from the public at large and which is not the case in the instant appeal. 4. That the Ld.CIT(A) has erred in law and facts in giving the contradictory order i.e. on one hand holding that the creditworthiness and the genuineness of the transactions is doubtful but at the same time allowing the appeal of the assessee by incorrectly referring to proviso 1 of sec. 68. 5. Whether the Ld.CIT(A) is justified in deleting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (2016) 380 ITR 573 (Del.). 6.3 Heard the parties and perused the material available on record. The addition of ₹ 2,04,90,000/-was made by the Assessing Officer on account of increase in share capital by passing an assessment order u/s 153A/143(3) of the Act. The said addition was deleted by the learned Commissioner by referring section 68 read with proviso 1 of the Act, whereby the entities which are listed as public companies, are excluded from the onus of explaining the source of source. Admittedly, in the instant case no assessment was pending as on the date of search and the addition under consideration is not emanating from any incriminating material seized during the course of search and seizure operation as it clearly reflects from the assessment order, hence, the addition under challenge in any sense is un-sustainable and cannot stand in the eyes of lawon legal aspect as well as per judgment of the Jurisdictional High Court in the case of CIT Vs. Kabul Chawla (supra), wherein it was held that that if on the date of search, the assessment proceedings already stood completed and no incriminating material unearthed during the search, then no addition can be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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