TMI Blog2023 (3) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the order of Ld. CIT(A) by allowing the appeal of the assessee. - I.T.A. No. 2501/Kol/2019 - - - Dated:- 23-2-2023 - Shri Rajesh Kumar , Accountant Member And Shri Sonjoy Sarma , Judicial Member For the Appellant : Shri Abhishek Bansal , A. R For the Respondent : Shri Vijay Kumar , Addl. CIT ORDER Per Rajesh Kumar , AM : This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-17, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 31.01.2019 for the AY 2012-13. 2. The only effective issue raised by the assessee is against the confirmation of addition of Rs. 3,30,00,000/- by Ld. CIT(A) thereby upholding the order of AO wherein the said addition was made on account of share capital and share premium being unexplained cash credit. 3. Facts in brief are that the assessee filed return of income showing loss of Rs. 1,13,875/-. The case of the assessee was selected for scrutiny and statutory notices were duly issued and served on the assessee. In reply to said notices the assessee company produced the books of account, audited annual accounts and other relevant information as called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned income,net worth of the share applicants and submitted that the investment ranging from 0.64% to 7.82% were made of the total net worth of the assessee company. The Ld. A.R submitted that the investor companies had sufficient resources to invest in the assessee share capital/share premium. The Ld. A.R argued that during the course of assessment proceedings, the assessee has filed names and addresses, copies of audited annual accounts, bank statements, share allotment advice, confirmation of investments etc. However the AO has not pointed out any defects and deficiency in the evidences/ details furnished by the assesse and simply made the addition on the ground that neither assessee nor the share subscribers have complied with the summons issued u/s 131 of the Act. The Ld. A.R submitted that the addition made on the basis of just non-compliance of the summon when all the evidences were filed is not justified and is against the ratio laid down in various decisions. In defense of his arguments the ld. A.R relied on the decision of Co-ordinate Bench of Kolkata in the case of M/s Starland Vinimay pvt. Ltd. vs. ITO, in ITA No. 574/Kol/2020 dated 24.01.2023, decision of Hon ble C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, Form 20 and form 2 filed with ROC, bank statement etc. The only reason given by the AO for making the addition is the non-compliance to summons u/s 131 of the Act to the directors of the assessee company as well as of the subscribers however no defects or deficiency was point out in the evidences/details filed before the AO. We also note that the investors/subscribing companies were having sufficient net worth and resources to invest in the equity capital of the assessee. Considering these facts and circumstances , we are of the view that the assessee has discharged its onus by filing all the necessary evidences and addition was made on the ground that neither assessee nor the subscribers complied with the summon issued u/s 131 of the Act and thus the identity and creditworthiness of the investors and genuineness of the transactions cannot be verified. In our considered view, the mere non compliance to summons issued u/s 131 of the Act or non appearance of the directors of the subscribing companies before the AO cannot be basis for making addition as the assessee has filed all the necessary documents before the authorities below proving the identities , creditworthiness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the relevant law. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law. It is also ruled in the said judgment at page 465 that if the Tribunal does not discharge the duty in the manner as above then it shall be assumed the judgment of the Tribunal suffers from manifest infirmity. Taking inspiration from the Supreme Court observation we are constrained to hold in this matter that the Tribunal has not adjudicated upon the case of the assessee in the light of the evidence as found by the Ld. CIT(A). We also found no single word has been spared to up set the fact finding of the Ld. CIT(A) that there are materials to show the cash credit was received from various persons and supply as against cash credit also made. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Ld. CIT(A). The appeal is allowed. The case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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