TMI Blog2022 (10) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... etheless the addition was made in the original assessment order by the AO for the want of information/details u/s 68 of the Act. Similarly the case of assessee find support from the decision of Hon ble Supreme Court in the case of PCIT vs. Paradise Inland Shipping Pvt. Ltd. [ 2018 (7) TMI 1105 - SC ORDER ] as upheld the order of Hon ble High Court wherein the Hon ble High Court has taken a view that the assessee has proved genuineness of the transactions after the assessee filed voluminous documents from the public offices and also brought on records the assessment orders passed in the case of said companies. We uphold the order of Ld. CIT(A) by dismissing the appeal of the revenue. - I.T.A. No. 133/Kol/2022 - - - Dated:- 19-10-2022 - Shri Rajpal Yadav, Vice-President (KZ) And Shri Rajesh Kumar, Accountant Member For the Appellant: Shri A.K. Tulsiyan, FCA For the Respondent: Smt. Ranu Biswas, Addl. CIT DR ORDER Per Shri Rajesh Kumar, AM: This is an appeal preferred by the revenue against the order of the Commissioner of Income Tax-16, Kolkata [hereinafter referred to as CIT(A) ] dated 22.09.2020 for the assessment year 2012-13. 2. The only is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order has made the additions giving general assumptions and treating the share capital to be bogus in the hands of the assessee. However, during the remand proceedings, die AO in the remand report has himself mentioned that assessee have made all the compliances and all the details relating to the share capital raised by the assessee were furnished before him. Also, no adverse finding has been given by the AO in the remand report as he is satisfied with the documents submitted by the assessee. Further, I have gone through the documents submitted by die appellant and have seen that all the transactions are made through proper banking channel and all the companies are active on the MCA website and are regular in filing of the income tax returns as mentioned by the AO. Also, the source of funds from which the share application money was given to the assessee was also explained by the appellant. From perusal of the details filed by the appellant in the paper book, it came to light that the share applicants were having sufficient owned funds for making investments in the appellant company. The details of the new owned funds of the applicants and the investmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clearly revealed the identity of share applicants, no addition coulld be made under section 68 by AO in absence of any enquiry, simply on surmises, -The AO noted that the assessee was' a sick company during the relevant assessment year but had nevertheless garnered Substantial amounts to the extent, of Rs. 12 crores invested by two share applicants. After taking into account the material placed before him, the AO concluded that the identity .of the shareholders and the genuineness of the transaction had not been established and accordingly brought to tax the said, amount CIT(A) noticed that remand report, disclosed that AO did not carry out any enquiries with respect to the identity of share applicants .whose addresses were provided, Tribunal endorsed opinion of CTT(A). Held: The assessee urns a sick company; it pulled out of the woods in 2010. To tide over its financial sickness, apparently, it sought the help of the share applicants. The identity of those share applicants was clearly revealed. As noted by both the, .lower appellate authorities, no suspicion was attached to the said share applicants; moreover, the AO did not conduct any further enquiry, except resting his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefrom those shareholders obtained funds1 Impugned order of Tribunal upheld? Revenue's appeal dismissed . Further in a recent decision of the Hon'ble Kolkata ITAT in case of M/s Satyam Smertex Pvt Ltd. vs DCIT in ITA No. 2445/KoI/2019 dated 29.05.2020, it has been held as under: 29. In this case on hand, the assesses had discharged its onus to prom the identity, creditworthiness and genuineness of the share applicants, thereafter the onus shifted to AO to disprove the documents furnished by assesses and the documents produced by the assessee cannot be brushed aside by the AO to draw, adverse view; which action of AO cannot be countenanced. In the absence of any investigation, much less gathering of evidence by the Assessing Officer, we are of the considered view that addition cannot be sustained merely based on inferences drawn by circumstance, Applying the law laid down in these case laws to the facts of this case, we are inclined to interfere with the order of the Ld, Commissioner of Income Tax (Appeals)and give relief to the assessee. 30, To sum up section' 68 of the Act provides that if any sum found credited in the year in respect of Which' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hifted to the AO to disprove the materials placed before him. In absence of that, the addition made by the AO based on his conjectures and surmise's- is not justified. In view of the above findings, I agree with the contentions of the AR that addition u/s 68 was not warranted. As such, on the basis of the finding given by the AO in the remand report and considering the submission made by the appellant and in view of the above discussions and various judicial decisions of the Hon'ble Apex Court, various High courts including jurisdictional High court and various ITAT including jurisdictional ITAT, I find drat all the decisions as relied are squarely applicable to the case of the appellant I agree with the contention that the addition made by the AO is without any cogent material on record and is purely based on his surmises. Therefore, it is held that the addition made by the AO u/s 68 of the Act of Rs. 3,00,00,000/- is completely unjustified Accordingly, tire AO is hereby directed to delete the addition. The appeal on this ground is allowed. 5. The Ld. D.R. submitted before the bench that the order passed by the Ld. CIT(A) has ignored several factual issues as n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment record. The Ld. A.R submitted that this fact was admitted by the Ld. D.R in his written submissions before the Bench also. The ld counsel of the assessee argued that once the assessee has furnished all the evidences before the AO , then no addition can not be made without pointing any defect in the documents furnished by the assessee as the assessee has discharged its onus. The Ld. A.R. has relied on the following decisions in defense of his arguements: i) PCIT vs. Ambition Agencies Pvt. Ltd. (2022) 134 taxmann.com 5 (Cal) ii) Tradelink Carrying Pvt. Ltd. vs. ITO (2020) 113 taxmann.com 520(kol-Trib) iii) PCIT vs. Paradise Inland Shipping Pvt. Ltd. (2018) 93 taxmann.com 84 (SC) iv) PCIT vs. M/s Himachal Fibres (ITA No. 263/2018) dated 28.02.2018(Del) v) SLP dismissed by the Hon ble Supreme Court in the case of PCIT vs. M/s Himachal Fibres [SLP (Civil) Diary No. 26753/2018)] vi) CIT, Central vs. M/s Nishan Indo Commerce Ltd. (ITA No. 52 of 2001 dated 02.12.2013) (Cal) Finally the Ld. A.R submitted that considering all these facts ,the appeal of the revenue may kindly be dismissed by upholding the order of Ld. CIT(A). 7. Having he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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