TaxTMI 
TaxTMI 
2018 (10) TMI 1171
X X X X Extracts X X X X
X X X X Extracts X X X X
....confirming the action of the ld. AO in reopening the Assessment under section 147 of the Act without having any new tangible material in his possession to show that any income has escaped assessment. The Appellant, therefore, prays that reopening of assessment on the same set of facts during the original assessment amounts to change of opinion. The Appellant, therefore, prays that the notice issued under section 148 of the Act as well as subsequent proceedings are void-ab-initio and the same may be quashed. b. The ld. CIT(A) further erred in confirming the action of the Ld. AO. in issuing notice under section 148 of the Act without recording proper and valid reasons to show that any income has escaped assessment. The Appellant, therefore, prays that reopening of its assessment is bad-in-law and the same may be quashed." 3. As the learned Counsel for the assessee has not pressed this issue and want to withdraw under instructions of the assessee, the learned Departmental Representative was asked and he has not objected. Hence, we dismiss this issue of re-opening as withdrawn. 4. The next issue on merits is as regards to the order of CIT(A) confirming the action of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Chemicals Ltd. & Talent Infoway Ltd. for routing back its undisclosed and unaccounted income of Rs. 35 lacs in the form of share application money and share premium. Accordingly, the AO added these receipts of share application money and share premium as cash credit under section 68 of the Act. Aggrieved, assessee preferred the appeal before CIT(A). The CIT(A) confirmed the action of the AO by observing in para 3.3 as under: - "3.3 I have carefully considered the facts of the case, observation of the Assessing Officer and also gone through the appellant's contention. I find that the authorised representative of the appellant relied on various judgements mainly dealing with two issues i.e. the identification of persons who had advanced share application money and secondly the onus to prove. In majority of the decisions cited by the appellant, the clinching point for consideration by the Hon'ble Courts are that where the identity of persons who had provided the share application money is proved then the onus is on the Department to prove whether there exists creditworthiness or not. In the instant case, I find that Shri Mukesh Choksi who was the director in MIs. Bu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was received through banking channels and there were no immediate withdrawals from the banks which shows that the share application amounts have not been returned in cash. Thus, the assessee has discharged the primary onus cast upon it to prove the identity, capacity and genuineness of transactions. The assessee, therefore, submits that the AO is not at all justified in treating the share application money amounting to Rs. 35,00,000/- received during the impugned assessment year as undisclosed cash credit under section 68 of the Act. The CIT(A) according to the learned Counsel when it was contended that they were not given proper opportunity to cross examine the departmental witness i.e. Shri Mukesh Choksi, he was allowed opportunity and he drew our attention to the statement of Shri Mukesh Choksi i.e. cross examination by the assessee on 30.10.2013. Wherein, he vide question No. 3 to 7 admitted investing by Buniyad Chemicals Ltd. & Talent Infoway Ltd. in assessee as share application and premium thereon as under: - "Q.3 AO to Deponent No.2 During the course of assessment proceedings in the case of Sunshine Metals & Alloys Ind. P. Ltd, it has come to light that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iven today. Please explain. Ans. Again I state that the said answer was given in general and the aforesaid transactions are explained as above. Q7. AO to Deponent No.1 and 2 Do you want to add anything other than the above? Ans. No." 7. This was done during remand proceedings and in the remand report vide CIT(A)'s letter No. CIT(A)-8/255/12.-13/2013-14/53 dated 21st August 2013 was called for from the Assessing Officer. The AO vide letter No. ITO-4(3)(4)/Remand Report /2013-14, dated 14.11.2013 has submitted as under: - "'As per your direction, the undersigned have verified the submission filed by the assessee before your honour in which it is stated that the assessee was not given proper opportunity to cross examination of the department's witness though specifically requested during the course of reassessment proceedings In this connection the undersigned submit the comments as tinder: The case was reopened as per provisions of section 147 and a notice u/s 148 dated 09/03/2012 was issued, in response to the same, the assessee filed an e-return on 28/03/2012. A notice u/s 143(2) dated 25/04/2012 was served o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 299 1TR 268 * The amounts received by the assessee as share application and premium are fully and properly explained. The AR concluded the submission in the following words: awe hope the above details are sufficed to complete the assessment at an earlier date No other requests were made by the AR and nor filed by the assessee and it was requested that the assessment maybe completed at the earliest. From the above it is clear that the assessee had requested for documents or any evidence available with the A.O. or department for cross examination, which had been provided to the assessee. However, the assessee had not asked for any cross examination thereafter. Therefore, the contention of the assessee that assessee was not given opportunity to cross examination of the department's witness is baseless. Now, your honour has directed the undersigned to give an opportunity to the assessee to cross examine the department's witness. In this connection a summons u/s 131 of the IT Act is issued and served on the witness, Shri Mukesh M. Choksi, to attend the office of the undersigned on 8/10/2013. However, on 8/10/2013, Shri Choksi reques....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Buniyad Chemicals Ltd. and M/s Talent lnfoway Ltd.) Thereafter funds are transferred from the subsidiary companies to the bank account of the company making the investment (in the instant case- by M/s Buniyad Chemicals Ltd. and M/s Talent Infoway Ltd.) and cheque is issued in favour of the company seeking the entry / adjustment. As per records available, the assessee was in receipt of Share Application Money of Rs. 17,50,0001- each from M/s Buniyad Chemicals Ltd. and M/s Talent lnfoway Ltd. totalling to Rs. 35,00,000/-." 8. The learned Counsel for the assessee stated that while cross examining Shri Mukesh Choksi, he admitted that Buniyad Chemicals Ltd. & Talent Infoway Ltd have invested in term of share application money and share premium in assessee company. The assessee furnished the name, address, PAN no and Bank details to the AO and it is the duty of the AO to make further investigation and also to provide cross examination of the parties on whose statement he is relying upon. The learned Counsel for the assessee pointed out that the statement given by Shri Mukesh Choksi, where assessee's name is not at all mentioned as one of the beneficiaries of the share application mone....