TaxTMI 
TaxTMI 
2016 (5) TMI 854
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....te orders each dated 25.03.2013 of the ld. CIT(A)- XXXI, New Delhi. 3. The issues involved in these appeal are common and the appeals were heard together so these are being disposed off by this consolidated order for the sake of convenience and brevity. 4. First we will deal with the Cross appeals for the assessment year 2005-06. In the assessee's appeal following grounds have been raised: "1. The learned CIT(A) erred in law and on facts in confirming the addition of Rs. 23,00,000/- for the amounts received against allotment of the share capital during the relevant period and without considering the documentary evidences placed on record. Thus the addition must be deleted. 2. The appellant craves the leave to add, substitute, modify, delete or amend all or any ground of appeal either before or at the time of hearing." 5. In the departmental appeal, the only effective ground raised reads as under: "On the facts and in the circumstances of the case, the ld. CIT(A) has erred in deleting the addition of Rs. 85,00,000/- out of total addition of Rs. 1,08,00,000/- made by the Assessing Officer u/s 68 of the IT Act, 1961 on account of unexplained share capital without appreciating ....
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....el) * DIT(Exemption) Vs Arunodya (2006) 286 ITR 383 (Del) * Satish Kumar Keshari Vs ITO (2007) 106 TTJ 980 (ITAT-Pat.) * ITO Vs Gurinder Kaur (2006) 102 ITD 189 (ITATDel) * CIT Vs J.K. Cotton Spinning & Weaving Mills Co. Ltd. (2005) 197 CTR 73 (All.) * DCIT Vs Maruti Udyog Ltd. (2006) 99 ITD 666 (Del-Trib) * CIT Vs Ashok Leyland Ltd. (2001) 25) ITR 452 (Mad.) * Orissa Cement Ltd. Vs CIT (2001) 117 Taxman 625/250 ITR 856 (Del) * Eicher Motors Ltd. Vs DCIT (2004) 82 TTJ (Ind.) 61 9. During the course of hearing the ld. Counsel for the assessee reiterated the contents of the aforesaid applications and requested to admit the additional grounds. 10. In his rival submissions the ld. DR objected for the admission of the additional grounds and submitted that these grounds were not raised before the ld. CIT(A), therefore, these should not be admitted. 11. We have considered the submissions of both the parties and perused the material available on record. In the present case, it is noticed that the assessee raised the additional ground first time before the ITAT, the grounds so raised are purely legal grounds and go to the root of the controversy involved, so thes....
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....080/- on 13.01.2010. 13. During the course of assessment proceedings, the AO noticed that the assessee had allotted 2,16,000 shares of Rs. 10/- each at a premium of Rs. 40/- per shares to the following companies: Sl. No. Name of the Party No. of Shares Amount Received in (Rs.) 1. M/s Reenu Fincap P. Ltd 20000 10,00,000/- 2. M/s Satellite Marcon P. Ltd. 26000 13,00,000/- 3. M/s GFC Finance Ltd. 100000 50,00,000/- 4. M/s Diplomat International P. Ltd. 30000 15,00,000/- 5. M/s Enjoy Commercial P. Ltd. 20000 10,00,000/- 6. M/s Mahanivesh India P. Ltd. 20000 10,00,000/- 1,08,00,000/- The AO also noticed that during the search operation at the residence 23/5, Shakti Nagar, Delhi of Sh. Rajender Aggarwal, Director of the assessee company, documents relating to buy back of shares of M/s Kiwi Food India Pvt. Ltd. and M/s Rite Pack India Pvt. Ltd. i.e. the assessee, were found and seized as Annexure A-1 to A-5 and those documents for the transfer and buy back of shares of those companies were lying blank which were summarized by the AO as under: Sl. No. Name of the Beneficiary Company Subscriber Company No. of S....
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....g aggrieved the assessee carried the matter to the ld. CIT(A) and submitted as under: "a. It is an undisputed fact that the amounts received from all the above allottees were against the share capital allotted to them. b. In terms of the provisions of the income-tax Act as well as of the Companies Act, 1956, no company is under an obligation, rather cannot ask the shareholder as to wherefrom he got the money to invest nor the shareholder is obliged to give such information to the company. There is no provision under any of the two above Acts to ask for the balance sheets of the shareholders. However, the details regarding those investors as per list attached were very well placed on the record of the assessing officer during the course of the assessment proceedings and if so desired, she could have called for further information from the office of Registrar of Companies or the shareholders directly. Further PANs of such investors were also placed on the record of the assessing officer and all of them were being assessed in New Delhi. The assessing officer could have made direct enquiries from their assessing officers by deputing inspector or by calling for information and could ....
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....lhi) * CIT Vs Orissa Corporation Ltd (1986) 159 ITR 78 (SC) 18. It was contended that if the assessee had furnished the evidences regarding the share capital allotted to the share applicants and the department alleges otherwise then onus lies on the department to prove the same. The reliance was placed on the following case laws: * CIT Vs Bedi & Co. Pvt. Ltd. (1998) 230 ITR 580 (SC) * CIT Vs Daulat Ram Rawatmull (1972) 87 ITR 349 (SC) * Rajabali Nazarali & Sons Vs CIT (1987) 163 ITR 7 (Guj.) * CIT Vs Sukhdayal Rambilas (1982) 136 ITR 414 (Bom.) * Hiraluxmi Pandii Vs ITO 27 ITR 643 (Patna) * Juggilal Kamlapat Vs CIT (1969) 73 ITR 29 (SC) * Jaisalmer Construction Co. 9 TTJ 452 19. It was contended that the income on account of the buy back of the shares was already surrendered by a director of the company namely M/s Rajender Aggarwal in his hands in the year. It was further submitted that as far as the assessee company was concerned, it received money against the shares allotted by it to the shareholders and whether the same were given by the director or the shareholders was not its concern, rather availability of such documents absolved the assessee compan....
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....re any person claimed before the revenue that the impugned share capital is nothing but bogus introduction by way of accommodation entries. In the impugned appeal the issue is squarely covered by the earlier judgments in the case of Lovely Exports Pvt. Ltd., Divine Leasing and Finance Ltd. (supra) etc cited in the above preceding paragraphs as none of the reasons to give ruling in favour of the department by the Court exists here. Further on perusal of the information down loaded from the official website of the Ministry of Corporate Affairs, Government of India, which is in public domain and it has been found that as per chart submitted by the appellant the following two companies have not filed their audited annual accounts for the period after the year 2008/09 with the ROC as per the information available on the portal of the MCA as on 28.12.2011. It is highly intriguing that have - .he companies which have invested heavily in the share of the appellant company can vanish. The list these two companies are as under; SI. No Name of the Company Company in which capital invested & Investment in Rs. Information as per portal of MCA Date of downloading information by the assessee....
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.... and submitted that no incriminating material was found during the course of search and Sh. Rajender Aggarwal, Director of the company admitted that shares allotted to different companies were bought by him and not by the company. He also surrendered the income on account of purchase of shares, therefore, the addition sustained by the ld. CIT(A) was not justified. He also submitted that the assessment framed by the AO u/s 153C r.w.s. 143(3) of the Act deserves to be quashed in view of the judgment of Hon'ble Jurisdictional High Court in the case of CIT Vs Kabul Chawla in ITA No. 707/2014 order dated 28.08.2015 (copy of the said order was furnished). He drew our attention towards para 37(vii) of the said judgment wherein it has been held as under: "vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment." 22. However, on query from the Bench, the ld. ....
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....hat the companies had enough resources to make the impugned investment. Therefore, by keeping in view the aforesaid facts, we are of the opinion that the issues under consideration require a fresh adjudication. As the principles of natural justice demand that opportunity is to be given to both the parties, we, therefore, deem it appropriate to set aside these issues raised vide additional grounds to the file of the ld. CIT(A) to be adjudicated expeditiously in accordance with law after providing due and reasonable opportunity of being heard to both the parties. The assessee is also directed to co-operate and not to seek any unwarranted or undue adjournment. In the present case, no other ground was argued by either of the parties before us. Therefore, no finding is given on the merit of the case. 25. In ITA No. 2611 & 2609/Del/2013 for the assessment years 2006-07 & 2008-09, the assessee has raised the similar ground challenging the validity of the assessment framed u/s 153C of the Act. Therefore, considering the similarity in the facts for these assessment years vis-à-vis assessment year 2005-06, the issues in these appeals are also set aside to the file of the ld. CIT(A) t....