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TMI Blog2022 (8) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in admitting fresh evidence without taking into consideration that the assessee had failed to furnish any details before the A.O. in respect of addition in share capital account without any reasonable cause before the A.O. and also failed to prove the identity, genuineness and creditworthiness of the transaction before the Ld. CIT(A), Mumbai. Still the additions were deleted by the Ld. CIT(A) in absence of any evidence before the A.O. & Ld. CIT(A). 2. On the facts and in the circumstances of the case and in law, the impugned order of the learned CIT(A) is contrary to law and consequently merits to be set aside and that of the Assessing Officer be restored." 4. The brief facts of the case pertaining to the appeal, as emanating from the record, are: The assessee is engaged in the business of manufacturing of textured yarn. For the year under consideration, assessee filed its return of income on 29/10/2005 declaring total loss at Rs. 55,29,153 under the normal provisions. The assessee paid tax under section 115 JB of the Act at an income of Rs. 23,97,510. During the course of assessment proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion us 68 had been made by the A.O merely because the persons to whom summons us 131 had been issued had either failed to respond to such summons of the summons could not be served, from which the A.Q. concluded that the ass had failed to discharge is onus However, I observe that there is no mention in the assessment order that the out-come of the events subsequent upon the issue of summons to 28 share holders by the AO. had been brought to the notice of the assessee to accord it an opportunity of rebuttal. Subsequently, in his remand report, I find that the A.O. has not se finding with respect to admissibility of the additional evidence or merit of the additional evidence as was required as per this office letter dated 15.09.2008, except in the case of two share holders namely Mrs. Pushpadevi Agarwal (Rs.1,50,000/-) and Mrs. Kirti Agarwal (Rs.6,50,000). 3.4. As regards admissibility of additional evidence. I hold that additional evidence being new address of the erstwhile share holders furnished during the appellate proceedings is required to be admitted as the A.O. has not raised any specific objection to the same and further, the assessee, during the assessment proceedings wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- and Rs.6,50,000/- respectively. I, therefore, do not find any justification for addition of Rs.3,19,30,000/- except of the sum of Rs.8,00,000/- (Rs. 1,50,000/- + Rs.6,50,000/-) being the investment made by Mrs. Pushpadevi Agarwal and Mrs. Kirti Agarwal. As regards the transactions with Mrs. Pushpadevi Agarwal and Mrs. Kirti Agarwal, the A.O. has mentioned that the investments stated to be made by them could not be verified as they were stated to be out of country. In the written submission dated 09.08.2010, no submission in this regard has been made by the appellant. Thus, in the fresh remand proceedings which were undertaken on the basis of fresh information submitted by the appellant, the source of the sum of Rs.1,50,000/- Rs.6,50,000/- claimed to be from Mrs. Pushpadevi Agarwal and Mrs. Kirti Agarwal could not be verified. The disallowance of a sum of Rs.8,00,000/- (Rs.1,50,000/- + Rs.6,50,000/-) being the amounts stated to have been received from Mrs. Pushpadevi Agarwal and Mrs. Kirti Agarwal is to be upheld. Regarding the balance amount of Rs.3,11,30,000/-, find that the A.O. in the remand report has not arrived at any adverse finding regarding genuineness of the source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is evident that summons under section 131 as well as notices under section 133 (6) of the Act were issued to various parties calling for following information: "2. In this respect, summons u/s. 131 of the Act have been issued to various parties calling for the following information: 1. Ledger ac showing share capital invested with M/s. Aman Agencies & Textiles (I) Pvt. Ltd. for the AY.2005-06. 2. Evidence in support of the source of investment. 3. Copy of capital a/c balance sheet and statement of income for AY 2008-06. 4. Copy of return of income for AY 2005-06. 3. Further notices u/s 133(^) have also been sued to various parties calling for following information: 1. PAN along with the designation of the AO. 2. Copy of assessee's accounts in their books regarding the investments made in the above no. For the period 1.4.2004 to 31.3.2005. 3. Copy of capital a/c balance sheet, P&L A/c along with burn of income for AY 2005-06. 4. Details of share capital introduced in the above co along with evidence source investment thereof. 5. Copy of bank statement covering the investment entries in the bank accounts." 10. After examination of the details filed in the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, except for the two parties, who could not be verified during the remand proceedings, the Assessing Officer in the remand report did not record any adverse findings regarding genuineness of the source of credit from other share applicants. Accordingly, learned CIT(A) admitted the additional evidence filed by the assessee and restricted the disallowance under section 68 of the Act only in respect of the transaction with aforesaid two parties. 12. Now, in the appeal before us, Revenue is objecting to the admission of additional evidence on the basis that such evidence was not produce before the Assessing Officer despite sufficient opportunity. From the perusal of the record, we are of the considered view that when reasonable opportunity was granted by the learned CIT(A) to the Assessing Officer to examine the additional evidence filed by the assessee, and complete verification of all the details was done, in the remand proceedings, by the Assessing Officer, admission of additional evidence filed by the assessee cannot be faulted by taking a pedantic approach. 13. Insofar as the merit is concerned, as noted above, the Assessing Officer in the remand proceedings did not recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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