TMI Blog2023 (1) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... The assesse has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. AO simply harped on the non production of managing directors of the share subscribing companies to make the addition which is not correct. CIT(A) has passed a very reasoned and speaking order discussing all facts and satisfaction of all the ingredients of section 68 while allowing the relief as stated above. We are inclined to uphold the order of CIT(A) by dismissing the appeal of the revenue. - I.T.A. No. 651/Kol/2020 - - - Dated:- 4-1-2023 - Shri Rajesh Kumar, Accountant Member And Shri Sonjoy Sarma, Judicial Member For the Appellant: Shri Akkal Dudhwewala, A.R For the Respondent: Shri Vijay Kumar, Addl. CIT ORDER Per Rajesh Kumar, AM: This is the appeal preferred by the revenue against the order of the Ld. Commissioner of Income Tax (Appeals)-7, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 21.09.2020 for the AY 2012-13. 2. The only issue raised by the revenue in the various grounds of appeal is against the deletion of addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 in the appellate order. The Ld. CIT(A) while allowing the relief to the assessee has given comprehensive finding to the effect that the assessee has filed all the documents/evidences qua raising the share capital / share premium from ten shareholders/investors amounting to Rs. 4,67,50,000/- and even the AO has carried out independent investigation by calling for details/evidences from these investors by issuing notices u/s 133(6) which were duly responded by them by furnishing details as called for by the AO. The Ld. CIT(A) also noted that the bank statement of the assessee was also requisitioned by the AO for doing verification with the corresponding bank statements of the subscribers. The Ld. CIT(A) also noted that the addition was made by the AO mainly on the ground that the managing directors of the share holder companies were not produced by the directors of the assessee company in terms of summons issued u/s 131 of the Act to the directors of the assesse company. The Ld. CIT(A) also gave detailed findings of facts in respect of each of the share subscribers in para 4.6 discussing the amount of transaction by account payee cheques, the fact of the investors having filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to notice dated 5.5.2014 issued u/s 142 of the Act. We note that the assessee has filed names, addresses PANs of the investors, copies of share allotment advice, copies of share application forms, bank statements, statement giving complete details of share application money received during the year, copy of Form 2 evidencing Return of Allotment and Copy of Form 5 for increase in Authorized capital. We also note that the AO has issued notice u/s 133(6) to all the investors on 11.06.2014 for carrying out independent verification of these transactions which were duly responded by these investors by filing all the requisite details comprising shares subscribed, ledger accounts, bank statements, explanation for source of funds, ITRs and audited financial statements and also assessment order framed u/s 143(3) in all the cases. The copy of these which are also placed before us at page 15 to 340 in the PB. We also note that the AO has issued summon u/s 131 to the directors of the assessee company to produce managing directors of the share subscribing companies which were not complied with and this is the sole reason for making the addition in the hands of the assessee. The AO has not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the Ld. CIT(A) has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar ruling of the ITAT Kolkata bench in the case of ITO vs. Devinder Singh Shant in ITA No. 208/Kol/2009 vide order dated 17.04.2009. 9. We have considered the rival submissions. We are of the view that order of Ld. CIT(A) does not call for any interference. It may be seen from the grounds of appeal raised by the revenue that the revenue disputed only the proof of identity of share holder. In this regard it is seen that for AY 2004-05 Shree Shyam Trexim Pvt. Ltd. was assessed by ITO, Ward-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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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