TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 899
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....0,000/- being the unaccounted cash paid for obtaining the accommodation entries. 2.1 The ld. CIT(A) has ignored the fact that the assessee did not discharge the onus of proving the creditworthiness of creditors and genuineness of the transaction. 3. The appellant craves leave to add, to alter, or amend any grounds of the appeal raised above at the time of the hearing. 3. The Revenue has raised the following grounds in its appeal No. 647/Del/2010:- 1. The order of the Ld. CIT(A) is erroneous and contrary to fact and law. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the penalty of Rs. 25,23,990/- levied by the AO u/s. 271(1)(c) of the I.T. Act. 2.1 The ld. CIT(A) has ignored that the assessee concealed particulars of its income by claiming bogus expenses on various heads. 3. The appellant craves leave to add, to alter, or amend any grounds of the appeal raised above at the time of the hearing. ITA No. 306/DEL/2010 (AY 2002-03) 4. The brief facts of the case are that the return of income was filed on 31.10.2002 declaring income of Rs. 7,271/-. The same was processed u/s. 143(1) of the I.T. Act, 1961 on 13.2.2003 a....
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....spute. 6. Aggrieved with the impugned order, the Revenue is in appeal before the Tribunal. 7. Ld. DR relied upon the order of the AO and reiterated the contentions raised in the grounds of appeal. 8. On the contrary, Ld. Authorised Representative of the assessee has relied upon the order of the Ld. CIT(A) and stated that the order of the Ld. CIT(A) is a well reasoned order and therefore, the same may be upheld and Revenue's appeal may be dismissed accordingly. 9. We have heard both the parties and perused the relevant records, especially the orders of the authorities below. We find that Ld. First Appellate Authority has elaborately discussed the issues in dispute raised in ground no. 2 by considering the submissions of the Ld. Counsel of the assessee and adjudicated the same vide para no. 5 to 5.6 at pages 9 to 14 of his impugned order. For the sake of convenience, we are reproducing the relevant portion of the impugned order i.e. para no. 5 to 5.6 as under:- "5. During the appellate proceedings, the copies of the following documents evidencing the identity and creditworthiness of the shareholders/ share applicants, were furnished on behalf of the appellant:- i) Share appl....
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....ity in terms of Rule-46A (3) to examine the aforementioned evidences but he has not made any comments on the merits of these additional evidences. Under the circumstances stated above, it can be safely presumed that the Assessing Officer has no objection against the additional evidences on merits. It is also significant to note that the assessment has been completed under section 144 of the Act. Considering the totality of facts and circumstances of the case, it was found that the additional evidences were very vital & relevant and therefore they were considered by the undersigned necessary for disposal of the issue (relating to the share application money/share capital) involved in the present appeal. Hence, the aforementioned additional evidences are admitted. 5.3 I have gone through the assessment order, the written and oral submission(s) of the Appellant and the remand report of the AO. Regarding the share application money/share capital/share premium , it is now well settled that where the assessee had furnished (i) the names and addresses of the share applicants (ii) the GIR Nos./P.A.N. Nos. (iii) the Ward Nos. where assessed (iv) the mode of payment and (v) other informat....
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....ber: (2) the genuineness of the transaction, namely: whether it has been transmitted through banking or other indisputable channels; (3) the creditworthiness or financial strength of the creditor/subscriber; (4) If relevant details of the address or PAN identity of the creditor/subscriber are furnished to the Department along with copies of the Shareholders Register, Share Application Forms, Share Transfer Register etc. it would constitute acceptable proof or acceptable explanation by the assessee. (5) The Department would not be justified in drawing an adverse inference only because the creditor/subscriber fails or neglects to respond to its notices; (6) the onus would not stand discharged if the creditor/subscriber denies or repudiates the transaction set up by the assessee nor should the Assessing Officer take such repudiation at face value andconstrue it, without more, against the assessee. (7) The Assessing Officer is duty-bound to investigate the creditworthiness of the creditor/subscriber the genuineness of the transaction and the veracity of the repudiation. " iii) CIT vs. Value Capital Services Ltd. (2008) 307 ITR 334 (Del.)- Hon'ble Delhi High Court has held as und....
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....s a common order along with the decision in CIT v. Divine Leasing & Finance Ltd. [2008} 299 ITR 268 (Delhi). Since the Commissioner of Income-tax (A) has not only found that the identity of each of the shareholders stood established, but has also examined the fact that each of them were income-tax assessees and had disclosed the share application money in their accounts which were duly reflected in their Income-tax return as well as in their balance sheets. In these circumstances we see merit in what the learned counsel for the appellant has submitted and we feel that the Tribunal was unjustified in coming to the conclusion that the CIT(A) had not considered the matter in the right perspective. Consequently, we decide the question in favour of the assessee and set aside the order passed by the Tribunal. 5.4 In the present case the assessee can be said to have discharged its onus under section 68 of The appellant has given all the necessary details in order to establish the identity of the share applicants. After considering the entire material placed on record, it is fair to conclude that the share applicants were existing parties and the payments were made through banking chann....
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....1963] 49 ITR 561, wherein the Hon'ble Court explained that it was the duty of the Assessing Officer to enforce the attendance of a witness, if his witness is material in exercise of his powers under order 16, r. 10 of CPC and where the officer does not do so, no inference can be drawn against the assessee. Reliance is also placed on the decision of the jurisdictional High Court i.e. Delhi High Court in Commissioner of Income-tax Vs. Pradeep Kumar Gupta and Vijay Gupta(2008) 303 ITR 95(Delhi) wherein it was held that reopening of assessment is not permissible on mere adverse statements from others. Such statement by itself does not constitute information, unless the Assessing Officer has made enquiries thereon and inferred understatement of income. I am therefore inclined to agree with the submissions made on behalf of the appellant to the effect that the information, if ,any, gathered behind the back of the assessee without being subjected to cross-examination cannot be fully admitted as evidence against the assessee. 5.6 Under the facts and circumstances of the case stated above, it is held that the addition of Rs. 70,00,OO0/- cannot be sustained and accordingly. the same i....
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.... the assessee company in the matter of share application money or share capital. The view of the Ld. CIT(A) has also been supported by the decision of the Hon'ble Supreme Court of India as well as the Hon'ble Delhi High Court in the case of CIT vs. Lovely Exports Pvt. Ltd. (2008) 216 CTR 195 and CIT vs. Divine Leasing and Finance Ltd. (2007) 299 ITR 278 (Delhi High Court). In our view, the Ld. CIT(A) has rightly deleted the additions in dispute by passing a well reasoned and detailed order while relying upon the various decisions rendered by the Hon'ble Supreme Court of India and Hon'ble Delhi High Court. Therefore, in our considered opinion, no interference is required on our part in the well reasoned order passed by the Ld. CIT(A), hence, we uphold the same. Accordingly, the ground no. 2 raised by the Revenue stands dismissed. As a result, the appeal filed by the Revenue stands dismissed. ITA No. 647/DEL/2010 (AY 2002-03) 10. This Appeal has been filed by the Revenue against the order dated 15.12.2009 passed by the Ld. CIT(A) relevant for the assessment year 2002-03 in the penalty proceedings u/s. 271(1)(c) of the I.T. Act. The facts of the present appeal are exactly similar an....
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....d both the parties and perused the relevant records, especially the orders of the authorities below. We find that Ld. First Appellate Authority has elaborately discussed the issue in dispute raised in ground no. 2 by considering the submissions of the Ld. Counsel of the assessee and adjudicated the same vide para no. 3 to 5 at pages 1 to 2 of his impugned order. For the sake of convenience, we are reproducing the relevant portion of the impugned order i.e. para no. 3 to 6 as under:- "3. It was pointed out by the AR at the time of hearing that the quantum appeal in the appellant's case for assessment year 2002-03 has been disposed of by the undersigned in Appeal No. 40/2008-09 vide order dated 27.11.2009 wherein the addition made by the AO to the extent of (a) Rs. 70 lacs on account of unexplained Bank entries and (b) Rs. 70,000/- on account of commission or obtaining such accommodation entry. The Ld. AR placed before me a copy of aforementioned order of the undersigned in the quantum appeal. It was further submitted by the Ld. AR that in view of the findings of the undersigned in the quantum appeal, the penalty under section 271(1)(c) of the Act did not survive and is liable to b....