TMI Blog2023 (9) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... see 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. Besides the investors have also furnished complete details/evidences before the AO which proved the identity, creditworthiness of investors and genuineness of the transactions - we are inclined to set aside the order of Ld. CIT(A) by allowing the appeal of the assessee. - SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For the Appellant : Shri Miraj D Shah, A.R For the Respondent : Shri Vijay Kumar, Addl. CIT, Sr. DR ORDER PER SHRI RAJESH KUMAR, AM: This appeal preferred by the assessee is against the order of the Ld. Commissioner of Income Tax(Appeals)-3, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 23.01.2018 for the AY 2012-13. 2. The only issue raised by the assessee in the various grounds of appeal is against the confirmation of addition of Rs. 5,42,00,000/- by the Ld. CIT(A) thereby upholding the order of AO wherein the addition was made as unexplained cash credit u/s 68 of the Act. 3. Facts in brief ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led all the evidences as required by the AO comprising share allotment chart, copy of ITR, audited accounts, bank statement of the assessee besides names and addresses of the share applicants. The Ld. A.R also stated that the assessee has also filed in respect of share investor M/s Pradeep Kumar Dixit copies of ITR, audited accounts, share application Form, share allotment letter, bank statement, reply filed u/s 131 of the Act, and assessment order for AY 2011-12. Similarly the Ld. A.R stated that the documents in respect of corporate subscribers M/s Bajrang Dealmark Pvt. Ltd. the assessee has filed ITR, audited accounts, share application form, share allotment letter, bank statement and memorandum and article of association etc. The Ld. A.R submitted both the authorities below have failed to point out any defect or deficiency in the documents filed by the assessee and merely concluded that the assessee has failed to prove the identity and creditworthiness of the investors and genuineness of the transactions. The Ld. A.R stated that the assessee also filed all the evidences and has discharged its onus which thereafter shifted on the revenue to carry out further enquiry and investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the authorities, they are duty bound to investigate the matter and conduct necessary enquiries and only base conclusion on the basis of result of search enquiry. However we note that in the present case, no further investigation or enquiry was conducted either by the AO or by the Ld. CIT(A). Even the documents furnished by the assessee were not commented. We also observe that this is not a case of shell companies or bogus accommodation entries . Under the circumstances we are not in a position to concur a conclusion drawn by the Ld. CIT(A). The mere non-production of share holders before the AO can not be the reason for making the addition. We note that despite having filed all the evidences, no enquiry was done and the Ld. CIT(A) has simply affirmed the finding of the AO by holding that no identity and creditworthiness of the creditors could not be proved by the assessee by ignoring all the evidences placed before him. Under the circumstances, we are not in a position to sustain the order of Ld. CIT(A). We find support from the decision of Hon ble Supreme Court in the case of Orissa Corporation Ltd. (supra) That in this case the respondent had given the names and address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Commissioner, in the light of the evidence 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05-06 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. 7.3. Similar ratio has been laid down by the Hon ble Mumbai High Court in the case of CIT Vs Orchid Industries (P) Ltd (supra) by holding that provisions of section 68 of the Act can not be invoked for the reasons that the person has not appeared before the AO where the assessee had produced on records documents to establish genuineness of the party such as PAN ,financial and bank statements showing share application money. 8. In the instant case before us also, the assessee has furnished all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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