TMI Blog2023 (2) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... expenditure to the tune of 20% on account of employee benefit expenses and other expenses. Therefore, such disallowance made on estimated basis without any cogent reason for the same shall be unlawful and prejudicial to the interest of assessee and while considering this aspect, the ld. CIT(A) has rightly decided the issue by disallowing the expenditure to the tune of 10% in the hands of assessee. As such we do not find any infirmity in the order passed by the ld. CIT(A) - Decided against revenue. - I.T.A. No. 588/Kol/2020 - - - Dated:- 16-1-2023 - Dr. Manish Borad, Accountant Member And Shri Sonjoy Sarma, Judicial Member For the Assessee : Shri Anil Kochar, Advocate For the Revenue : Shri P.P. Barman, Addl. CIT ORDER Per Sonjoy Sarma, JM: The present appeal has been preferred by the revenue against the order of Ld. CIT(A)-5, Kolkata (hereinafter referred to as the ld. CIT(A) dated 16.09.2020 for A.Y. 2012-13. The revenue has raised the following grounds of appeal: i. Whether on the facts and circumstances of the case, ld. CIT(A) has erred in deleting the addition of Rs. 2,10,00,000/- made by the AO u/s 68 on account of unexplained cash credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totaling to Rs. 2,10,00,000/- unexplained cash credit in the hands of assessee vide order dated 27.03.2015 which was framed u/s 144 of the Act. 3. Dissatisfied with the above order, assessee preferred an appeal before the ld. CIT(A) wherein the ld. CIT(A) allowed the appeal of the assessee in respect of instant issue by setting aside the addition made by the ld. AO in respect of share capital share premium totaling to Rs. 2,10,00,000/- by giving comprehensive findings while deciding the appeal of the assessee, the ld. CIT(A) giving detailed findings from 5.1 to 5.6 at page no. 23. to 25 in the appellate order. While doing so, the ld. CIT(A) has given reasons to the effect that the assessee has filed all the relevant documents/financed qua raising the share capital and share premium entire details of PAN, bank statement, audited financial statement and IT return filing acknowledgement of the subscribers were furnished by the applicant. Since the subscribers were body corporate registered with ROC and assessed to income tax for the last several years and during the course of the assessment proceedings, the subscribers confirmed the transactions and had filed relevant details/doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /documents in support of such investment made in assessee company. We note that the assessee has filed names, address PAN 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 no. 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 for carrying out independent verification of these transactions which are 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 farmed u/s 143(3) in all the cases. The copy of which are placed before us at page no. 1 to 226 in the paper book. 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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