TMI Blog2022 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... not raised any fresh capital upto the date of subscription of the shares of the assessee company, therefore, it could safely be concluded that the source of availability of funds with the said investor company was not only proved to hilt, but in fact the same had also been accepted by the department. As regards the share application money received by the assessee company from the other investor company, viz. Chandrika Vanijya Pvt. Ltd., we find that though the documentary evidences substantiating the identity, creditworthiness and genuineness of the transaction in question that were filed by the assessee were confronted by the CIT(Appeals) to the A.O with a direction to file a remand report,, however, the A.O in the said case too had failed to rebut the documents as were available before him. Apart from that, the fact that the aforesaid share application money had been refunded by the assessee company in two tranches had also been lost sight of by the A.O while drawing adverse inferences as regards the authenticity of the transaction in question. Thus now when the assessee company on the basis of substantial documentary evidences had proved to the hilt the identity and credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jya Pvt. Ltd. by ignoring the facts as brought on record by the AO that the assessee company failed to prove the identity, genuineness and creditworthiness of the investor company as per the parameters of the legal provisions u/s 68 of the Act? 3. Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,33,50,000/- pertaining to M/s ChandikaVanijya Pvt. Ltd. made by the AO on account of unexplained cash credits u/s 68 of the Act, stating that the part of the amount was refunded during the instant assessment year and the rest of the amount was refunded in the A.Y. 2015- 16, thereby giving a finding which is beyond the jurisdictions of the legal parameters as mandated in Section 68 of the Act.? 4. Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.1,10,50,000/- received from Neel Kamal Vanijya Pvt. Ltd. during the year by ignoring the facts as brought out by the-A0 on record, that the assessee company failed to prove the identity, genuineness and creditworthiness of the investor company as per the legal parameters u/s 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of ITAT, Kolkata '13' Bench in the case of M/s SubhlakshmiVanijya (P) Ltd. Vs CIT- 1, Kolkata in ITA No. 1104/Ko1/2014 and other cases dated 30.07.2015.? 11. Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) has erred by giving finding which is contrary to the ratio of the decision of Hon'ble ITAT, Kolkata Bench in the case of M/s Bisakha Sales (P) Ltd. Vs CIT-II, Kolkata [ITA No. 1493/Kolkata/2013]? 12. Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) was justified by giving a finding which is contrary to the evidence on record, as the Ld. CIT(A) has accepted the identity, creditworthiness of the entities investing in the share capital and share premiums of the assessee company as genuine, a finding which is factually incorrect, thereby rendering the decision, which is perverse.? 13. Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) was justified in giving a decision in favour of the assessee and against the revenue though there is no nexus between the conclusion of fact and primary fact upon which without conclusion is based.? 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come, audited financial statements, details of bank accounts a/w. complete details of the share applicants but the same were summarily brushed aside by him. Adverting to the observations of the A.O that two share applicant companies to whom notices/letters were issued u/s.133(6) of the Act for verifying the authenticity of the assessee s claim of having received share application money from them, had failed to furnish the requisite information/documents, it was submitted by the assessee that as the said notices were dispatched by the A.O at the fag end of the assessment proceedings i.e on 28.03.2015 and were received by the said respective companies which were based in Kolkata on 3rd April, 2015 i.e. after the assessment order was passed by the AO under Sec. 143(3), dated 31.03.2015, therefore, it was for the said reason that the replies of the aforesaid companies could not be filed in the course of the assessment proceedings. It was the claim of the assessee that both the investor companies on receiving the notices/letters u/s. 133(6) of the Act on 03rdApril, 2015, had without involving any loss of time furnished the requisite details with the A.O, i.e, both by way of an e-mail da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of the assesee of having received share application money and share premium from the aforesaid investors, the CIT(Appeals) was of the view that in so far the aforesaid two investors companies, viz. (i). M/s. Chandika Vanijiya Pvt. Ltd.; and (ii).Neel Kamal Vanjiya Pvt. Ltd. were concerned, both of them had duly replied to the queries that were raised by the AO. It was observed by the CIT(Appeals) that the fact that both the aforesaid investor companies had filed their replies with the A.O was evidenced on a perusal of the assessment records wherein copies of e-mails addressed to him with respect to the queries so raised were found lying available on record. Adverting to the share premium amounting to Rs.92,62,500/- that was added by the AO u/s.68 of the Act, the CIT(Appeals) found favor with the claim of the assessee that as the aforesaid amounts were the opening balances that and had been received by way of cheques in the period relevant to A.Y.2010-11, therefore, the same could not have been added as an unexplained cash credit u/s.68 of the Act during the year under consideration. As regards the amount of Rs.26 lac that was received by the assessee company as share applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share application money that was received by the assessee company from the said investor company i.e. M/s. Neel Kamal Vanijya Pvt. Ltd. 8. In so far assessee s claim of having received share application money of Rs.1,33,50,000/- from M/s. Chandrika Vanijya Pvt. Ltd. was concerned, it was observed by the CIT(Appeals) that the assessee company had refunded the entire amount of money in two tranches, viz. (i) Rs.38,50,000/- was refunded during the period relevant to A.Y.2012-13; and (ii) the balance amount of Rs.95 lac was refunded in the period relevant to A.Y.2015-16. It was, thus, observed by the CIT(Appeals) that the AO was in error in drawing adverse inferences in the hands of the assessee by loosing sight of the aforesaid material fact. 9. Accordingly, on the basis ofhis aforesaid observations the CIT(Appeals) vacated the addition of Rs.2,44,00,000/- that was made by the A.O as regards the share application money that was claimed to have been received from the aforesaid two investors companies. 10. The Revenue being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. Before us the department has challenged the deletion of the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, i.e, furnishing of the requisite details by the investor companies pursuant to the queries that were raised by the AO vide notices/letters issued under Sec. 133(6) of the Act. Apart from that, we find that though the assessee in the course of the proceedings before the CIT(Appeals) had furnished substantial documentary evidences to support the authenticity of its claim of having received share application money from the aforesaid investor companies, i.e. M/s. Neel Kamal Vanijya Pvt. Ltd and M/s Chandrika Vanijya Pvt. Ltd., viz. copies of the share application forms, audited financial statements, copies of the bank statement, confirmations of the share applicants, copies of the resolution of board of directors etc. which though were forwarded by the CIT(Appeals) to the A.O with a direction to furnish his remand report, but the A.O had failed to rebut much the less dislodge the claim of the assessee of having received genuine share application money from the aforesaid share subscribers. 13. In our considered view, as both the aforementioned investor companies had placed on record supporting documentary evidences which duly substantiated their identity and creditworthiness, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umentary evidences had proved to the hilt the identity and creditworthiness of the investor companies, as well as the genuineness of the respective transactions in question, which had not been dislodged by the A.O, as there is no whisper by him either in the course of the assessment proceedings or in the remand proceedings, therefore, the onus that was shifted upon him to disprove the claim of the assessee had remained undischarged. Accordingly, finding no infirmity in the view arrived at by the CIT(Appeals) who had rightly vacated the addition of Rs.2,44,00,000/- that was received by the assessee company as share application money from the aforementioned two investors company, we uphold the same. 16. Adverting to the amount of Rs.26 lac that was received by the assessee company from the directors and their close relatives, we find that as stated by the Ld. AR, and rightly so, the A.O while framing the assessment had though not made any verification qua the said investors, but had summarily without giving any cogent reason drawn adverse inferences as regards the same. 17. Be that as it may, we find that though the assessee in the course of the proceedings before the CIT(Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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