TMI Blog2022 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... es proving identity and creditworthiness of the investors and genuineness of the transactions but neither AO nor ld CIT(A) commented on these evidences filed by the assessee. Considering these facts in the light of ratio laid down in the decisions as discussed above , we set aside the order of Ld. CIT(A) and direct the AO to delete the addition. Appeal of the assessee is allowed. - I.T.A. No. 2641/Kol/2019 - - - Dated:- 21-10-2022 - Shri Rajesh Kumar, Accountant Member And Shri Sonjoy Sarma, Judicial Member For the Appellant : Shri Sunil Surana, A.R, Shri Vikas Surana, FCA For the Respondent : Shri Partha Pratim Barman, Addl. CIT ORDER PER SHRI RAJESH KUMAR, AM: This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax(Appeals)-14, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 07.11.2019 for the AY 2012-13. 2. The sole issue raised by the assessee in the various grounds of appeal is against the confirmation of addition of Rs. 5,38,00,000/- by Ld. CIT(A) as made by the AO u/s 68 of the Act on account of unexplained cash credit in respect of share capital and share premium received by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by citing the reason that the assessee has failed to establish the genuineness of these transactions and creditworthiness of the share holders. 5. The Ld. A.R vehemently submitted before us that both the authorities below have hurriedly passed order without any application of mind and without examination of evidences as adduced before both the authorities and wrongly came to conclusion that share capital received by the assessee were sham transactions. The Ld. A.R. stated that neither AO nor Ld. CIT(A) issued any notice u/s 131 of the Act to any of the share subscribing companies. The Ld. A.R. submitted that the assessee has filed all details/evidences in respect of said investments as were required by the AO. The Ld. A.R. submitted that all the details/evidences establishing the identity, creditworthiness of the investors and genuineness of the transactions were furnished before the AO copies whereof are filed at page 40 to 42 of the PB. The Ld. A.R. submitted that on page no. 40, vide written submission dated 12.12.2014 the assessee filed all the details of allotment of shares with full details of shareholdingswith their respective PAN and page no. 41 vide letter dated 20.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in that eventuality no addition can be made in the hands of assessee as the AO also held that the money was invested out of these funds of the investor. In defense of his arguments the Ld. A.R. relied on the order of Co-ordinate Bench of ITAT, Kolkata in the case of ITO vs. Happy Structure Pvt. Ltd. in ITA No. 1977/Kol/2016 for AY 2012-13 dated 22.05.2019, DCIT vs. Maa Amba Towers in ITA No. 1381/Kol/2015 for AY 2012-13 dated 12.10.2018 and Steelex India Pvt. Ltd. vs. ITO in ITA NO. 2666/Kol/2019 for AY 2012-13 dated 09.09.2022. The Ld. A.R. while referring to page 58 to 67 of PB, submitted that all the investor companies were active. The Ld. A.R. further argued the survey conducted on Shri K.M. Naita who is controlling M/s Clubside Dealcom Pvt. Ltd. was never brought to the notice of the assessee at the time of assessment proceedings and also the fact that Shri K.M. Naita was the director of M/s Clubside Dealcom Pvt. Ltd. The Ld. A.R. also referred to the affidavit of the director of the assessee company Mr. Sushil Kumar Naita who has furnished a sworn affidavit the copy of which is filed at page 110 of PB affirming on oath that no accommodation entries were provided to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-06 dated 02.03.2016. Finally the Ld. A.R prayed before the Bench that the order of Ld. CIT(A) may kindly be reversed as the same is against the facts /evidences on records and devoid of any substantive merit as the ld CIT(A) has failed to appreciate the evidences placed by the assessee on record which proved identity, creditworthiness of the investors and genuineness of the transactions beyond doubt. Finally the Ld. A.R prayed before the Bench that the appeal of the assessee may kindly allowed by reversing the order of Ld. CIT(A). 6. The Ld. D.R on the other hand relied heavily on the order of authorities below and strongly controverted the arguments presented by the Ld. Counsel for the assessee by submitting that M/s Clubside Dealcom Pvt. Ltd. and its director Mr. K.M. Naita were subjected to survey u/s 133A of the Act on 23.04.2014 by the DDIT(INV) during which it was revealed that Shri K.M.Naita was engaged in the business of providing accommodation entries through a network of companies nonetheless he was never associated himself as director on these companies. The ld DR while taking us through the order of lower authorities argued that the directors were never produced fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similar ratio has been laid down by the coordinate bench recently in the case of Steelex India (P) Ltd Vs ITO ITA No. 2666/Kol/2019 A.Y. 2012-13 order dated 09.09.2022. 8. We note that share subscribers have also filed sworn affidavits confirming the said investments and source of investments copies whereof have been filed at page 109 to 113. We further note that all the companies are active and have invested the money out of their own resources as is apparent from the details filed by the assessee as comprised in from page 58 to 67 of PB. It is also undisputed that a survey was conducted on Shri K.M. Naita who controlled the M/s Clubside Dealcom Pvt. Ltd. and during survey it was revealed that the said company was providing accommodation entries. However the said fact was never brought to the notice of the assessee during the assessment proceedings of the assessee. We also note that Mr. Sushil Kumar Naita has given a sworn affidavit a copy of which is filed at page 110 of PBstating that no accommodation entry was ever provided to the assessee. We note that said affidavit was available before both the authorities below but has remained uncontroverted. Mr. K.M. Naita was neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the product of the assessee or note. When it was found by the Ld. CIT(A) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact findings. Indeed the Tribunal did not really touch the aforesaid fact finding of the Ld. CIT(A) as rightly pointed out by the learned counsel. The Supreme Court has already stated as to what should be the duty of the learned Tribunal to decide in this situation. In the said judgment noted by us at page 463, the Supreme Court has observed as follows: The Income-Tax Appellate Tribunals performs a judicial function under the Indian Income-tax Act. It is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and records its findings on all the contentions raised by the assessee and the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd-9(4), Kolkata and the order of assessment u/s 143(3) dated 25.01.2006 is placed in the paper book. Similarly Navalco Commodities Pvt. Ltd. was assessed to tax u/s 143(3) for AY 2005-06 by ITO, Ward-9(4), Kolkata by order dated 20.03.2007. Similarly Jewellock Trexim Pvt. Ltd. was assessed to tax for AY 2005-06 by the very same ITO, Ward-9(3), Kolkata assessing the assessee. In the light of the above factual position which is not disputed by the revenue, it cannot be said that the identity of the share applicants remained not proved by the assessee. The decision of the Hon ble Allahabad High Court as well as ITAT, Kolkata Bench on which reliance was placed by the learned counsel for the assessee also supports the view that for non-production of directors of the investor company for examination by the AO it cannot be held that the identity of a limited company has not been established. For the reasons given above we uphold the order of Ld. CIT(A) and dismiss the appeal of the revenue. In the instant case before us also, the assesse has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but neither AO nor ld CI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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