TaxTMI 
TaxTMI 
2018 (1) TMI 1045
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....ct amounting to Rs. 95,10,000/- ? (B) Whether the Appellate Tribunal is justified in law in upholding the action of Respondent No.1 in making the addition of Rs. 95,10,000/- under section 68 of the Act without appreciating that the Appellant has proved the identity, capacity and genuineness of transaction ? (C) Whether, in the facts and the circumstances of the case, and in law, the order of the Tribunal is perverse as it is based on irrelevant and erroneous considerations while ignoring material and relevant considerations and, as such, is liable to be quashed ?" 2. The appellant - assessee filed a return of income for the assessment year 2007-08 declaring total income at Rs. 71,51,330/-. The appellant is a private limited company whic....
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....t - assessee. Therefore, the Assessing Officer treated the amount of Rs. 95,10,000/- which was claimed by the appellant/assessee as amount in lieu of equity share subscription as unexplained cash credit and the same was added to the total income of the assessee. 3. Being aggrieved by the order of the Assessing Officer, an appeal was preferred by the appellant - assessee before the Commissioner of Income Tax (Appeals) [CIT (A)]. We may note here that the assessment order was passed on 22nd December, 2009. Along with a letter addressed to the CIT (A), the appellant purported to file the affidavits of 23 persons affirmed before a notary public. 4. The CIT (A) passed an order of remand and the remand report dated 9th September, 2010 was submi....
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....ted that the appellant discharged the burden on him by producing the affidavits of 23 persons and if there was any doubt about the genuineness of the contents of the said affidavits, the Assessing Officer could have always issued summons to the declarants. He submitted that the Assessing Officer did not give any opportunity to the appellant/assessee to procure presence of the said 23 persons. He submitted that if the Appellate Tribunal was inclined to hold that the identity, genuineness and capacity of the shareholders was not established by the appellant, then an order of remand ought to have been made to enable the appellant to lead evidence by producing the said persons for examination. He submitted that when the appeal was pending befor....
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....llant could not procure presence of the said parties. It is observed that during pendency of appeal before the first Appellate Authority, the assessee filed the affidavits of said persons and pleaded that due of requirement of work, they kept on changing their addresses. However, the address mentioned in the affidavits were the same as the addresses filed before the Assessing Officer on which summonses under Section 131 were issued. Out of 23 persons, the summonses issued to 22 were returned on the ground that the addressees was not available. The Appellate Tribunal also noted that all said persons have their bank accounts only in the Borivali branch of Vijaya Bank and all the persons appear to have made cheque payments on 23rd August, 200....
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....enuineness and capacity as they had allegedly subscribed to the shares. 11. There is one more aspect of the matter. We have perused the copies of the affidavits/declarations annexed to the memorandum of the appeal. The declarants are residing at various places in Mumbai Suburban District, Mira Bhayandar in Thane District and Vasai in Palghar District. However, all affidavits/declarations have been affirmed before the same notary public Shri Deepak Malkani having office at Malad (West), Mumbai. Almost all the declarants have been identified by the same Advocate Mr.Ashok M.Pandya. More importantly, the registration number of the said declarations in the notorial register maintained by the notary public has not been mentioned on the declarati....