TMI Blog2022 (7) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to establish source of source. In view of the evidences brought on record and referred to hereinabove, we direct the Assessing Officer to delete the addition - Appeal of assessee allowed. - ITA No. 650/DEL/2019 - - - Dated:- 11-7-2022 - Shri N.K. Billaiya, Accountant Member, And Ms. Astha Chandra, Judicial Member For the Assessee : Shri Gautam Jain, Adv, Shri Lalit Mohan, CA For the Department : Ms. Aashna Paul, CIT- DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the assessee is preferred against the order of the ld. CIT(A) - 31 New Delhi dated 27.12.2018 pertaining to Assessment Year 2012-13. 2. The substantive grievance of the assessee is that the ld. CIT(A) erred in confirming the addition of Rs. 2,96,48,700/- made by the Assessing Officer u/s 68 of the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] and the second grievance relates to the disallowance of Rs. 9,77,970/- made by the Assessing Officer on account of foreign travel expenses which was upheld by the ld. CIT(A). 3. The other grounds taken in Form No. 36 were not pressed. Accordingly, the same are dismissed as not pressed. 4. The represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate. 8. The said notice was returned unserved. 9. The Assessing Officer further issued notice u/s 133(6) of the Act to two companies, namely, M/s Karda Traders [P] Ltd and M/s Captive Equity Management [P] Ltd. Both the notices were received back with the remarks Incorrect Address . 10. The assessee was asked to show cause as to why share premium and share application money should not be added back to the total income of the assessee u/s 68 of the Act. 11. On receiving no plausible reply, the Assessing Officer came to the conclusion that the assessee has not discharged the primary onus cast upon it by provisions of section 68 of the Act and concluded the assessment by making addition of Rs. 2,95,56,417/-. 12. The Assessing Officer further made addition of Rs. 9,77,970/- on account of foreign travel expenses. 13. Additions were challenged before the ld. CIT(A) but without any success. 14. Before us, the ld. counsel for the assessee vehemently stated that the assessee has placed on record entire evidence and material to discharge the burden which lay upon it u/s 68 of the Act. The ld. counsel for the assessee drew our attention to the additional evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that non compliance of notice u/s 133(6) of the Act to all the entities giving unsecured loans cannot be sole basis for making addition u/s 68 of the Act . 21. It would be per pertinent to refer to the observations made by the Hon'ble High Court of Delhi in the case of CIT Vs. Kamadhenu Steel and Alloys Ltd 361 ITR 220 and same read as under: 6. What kind of proof is to be furnished by the assessee, is the question. It has come up for discussion in various judgments rendered by this Court, other Courts as well as the Supreme Court. The law was discussed by a Division Bench of this Court in the case of Commissioner of Income Tax Vs. Divine Leasing and Finance Ltd. [299 ITR 268]. Since the entire gamut of case law as on that date was visited in the said judgment, we may initiate our discussion by taking note of this case. In this case, the Court highlighted the menace of conversion of unaccounted money through the masquerade or such channels of investment in the share capital of a company and thus stressed upon the duty of the Revenue to firmly curb the same. It was also observed that, in the process, the innocent assessee should not be unnecessary harassed. A delicate b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove circumstances, the view taken by the Tribunal cannot be faulted. No substantial question of law is involved in the appeal. XXXX XXX 21. We may also usefully refer to the judgment of the Supreme Court in the case of Commissioner of Income Tax Vs. P. Mohanakala [(2007) 291 ITR 278 (SC)]. In that case, the assessee had received foreign gifts from one common donor. The payments were made to them by instruments issued by foreign banks and credited to the respective accounts of the assessees by negotiations through bank in India. The evidence indicated that the donor was to receive suitable compensation from the assessees. The AO held that the gifts though apparent were not real and accordingly treated all those amounts which were credited in the books of account of the assessee, as their income applying Section 68 of the Act. The assessee did not contend that even if their explanation was not satisfactory the amounts were not of the nature of income. The CIT (A) confirmed the assessment. On further appeal, there was a difference of opinion between the two Members of the Appellate Tribunal and the matter was referred to the Vice President who concurred with the findings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation is not acceptable, the material and attending circumstances available on record do not justify the sum found credited in the books being treated as a receipt of income nature. 22. In light of the aforementioned judicial rulings, we find that in the case in hand, the investors throughout have confirmed the investment and no material has been led by the Assessing Officer to even allege that such investment was made from the coffers of the assessee company as it is not the case of the Revenue that the assessee has purchased cheque by paying cash to the investor company. 23. The investors are corporate entities duly assessed to tax and have made investment through banking channel from their own sources which fact has neither been denied nor rebutted in the assessment nor by the first appellate authority. 24. Considering the facts of the case in totality, we are of the considered opinion that the assessee has discharged the primary onus cast upon it by provisions of section 68 of the Act. It is not the case of the Revenue that the assessee is a beneficiary of accommodation entry. 25. The Assessment Year under consideration is Assessment Year 2012-13 and for this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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