TMI Blog2023 (11) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... Iron and Steel Pvt. Ltd.[ 2019 (3) TMI 323 - SUPREME COURT] impugned additions are not warranted in this case wherein held once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness of the subscribers, then the AO is duty bound conduct to conduct an independent enquiry to verify the same In the case of Commissioner of Income-tax vs. Manish Build Well (P.) Ltd. [ 2011 (11) TMI 35 - DELHI HIGH COURT] has held that the CIT(A) is statutory first appellate authority and has independent power of calling for information and examination of evidences and possesses co-terminus power of assessment apart from appellate powers. However, a perusal of the impugned order of the CIT(A) shows that the CIT(A) has not discussed anything about the material facts of the case. He has not pointed out any defect and discrepancy in the evidences and details furnished by the assessee but simply upheld the order of the AO in mechanical manner. The order of the ld. CIT(A) is a non-speaking order. The same is not sustainable as per law. Decided in favour of assessee. - Shri Sanjay Garg, Judicial Member And Shri Girish Agrawal, Accountant Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly i.e. M/s Primerose Traders Pvt. Ltd. and the assessee had duly furnished the relevant documents such as copy of audited financial statement for the A.Y 2012-13, copies of bank statement, copy of Form 5 along with receipt filed with ROC, details of source of funds of M/s Primerose Traders Pvt. Ltd. along with copy of bank statement, copy of assessment order dated 19.03.2015 for A.Y 2009-10 of M/s Primerose Traders Pvt. Ltd., copy of Form 5 issued by PCIT-2, Kolkata in respect of Vivad Se Vishwas scheme opted by M/s Primerose Traders Pvt. Ltd. Apart from that, it was submitted that the identity of the share subscriber was duly proved, transactions were carried out through banking channel, the source of funds of the share subscriber was duly furnished. It was submitted that in the case of said share subscriber namely M/s Primerose Traders Pvt. Ltd., an assessment u/s 143(3) was carried out for A.Y 2009-10 and an income of Rs. 12,45,21,590/- was assessed, whereupon, a tax demand of Rs. 6,00,32,523/- was raised. The said share-subscriber i.e. M/s Primerose Traders Pvt. Ltd. availed Vivad Se Vishwas Scheme, 2020 and paid the tax demand amounting to Rs. 42278495/- and settled the dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO. The Ld. Counsel for the assessee has rightly placed reliance upon the decision of the Hon ble Bombay High Court in the case of PCIT, Panji vs. Paradise Inland Shipping Pvt. Ltd. reported in (2017) 84 taxman.com 58 (Bom) wherein the Hon ble High Court has held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case. Further the jurisdictional Calcutta High Court in the case of Crystal networks (P) Ltd. vs CIT (supra) has held as under: We find considerable force of the submissions of 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 credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act. The Hon ble Supreme court, thus, has held that once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness of the subscribers, then the AO is duty bound conduct to conduct an independent enquiry to verify the same. However, as noted above, the Assessing Officer in this case has not made any independent enquiry to verify the genuineness of the transactions. The assessee having furnished all the details and documents before the Assessing Officer and the Assessing Officer has not pointed out any discrepancy or insufficiency in the said evidences and details furnished by the assessee before him. As observed above, the assessee having discharged initial burden upon him to furnish the evidences to prove the identity and creditworthiness of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
