TaxTMI 
TaxTMI 
2019 (2) TMI 248
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....ether on the facts and in the circumstances of the case, the ld.CIT(A) failed to appreciate the fact that the statement of witness recorded was not concluded due to non-cooperation of the deponent, and hence, no adverse inference could be drawn out of it. 3. Whether on the facts and in the circumstances of the case, the ld.CIT(A) erred in concluding that no opportunity has been provided to the assessee for cross examination of witness, while he has also concluded that opportunity for cross examination did not advance the case of the AO. 4. The appellant prays that the order of the ld.CIT(A) on the grounds be set aside and that of the Assessing Officer be restored. 5. The appellant craves leave to add, amend or alter all or any of the grounds of appeal which may be necessary. 2. The brief facts of the case are that assessee is engaged in the business as general merchants and trader in goods and commodities on ready or forward basis, commission agents, buying and selling agents, etc. During the year, the assessee has shown income from house property and income from business and the return of income for the year under consideration was filed on 28.09.12 d....
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....ain companies by bringing on record any evidence to link the investor companies to Shri Praveen Jain. 4.9. I do not find any merit in the contention of the appellant that the investment being a share capital is a capital receipt and therefore cannot be considered as income in the hands of the appellant. The credits fall within the scope of section 68 which is a deeming provision. Several case laws including those of the Apex Court and High Court have considered credits made to capital account of the assessee's to be covered under the provisions of section 68 and therefore deemed income. The rule for application of section 68 is that the identity and credit worthiness of the investor/lender /creditor has to be established and the genuineness of the transaction has to be established. 4.10. The Apex Court upheld the addition u/s 68 in the case of credits as share capital in the case of N. Tarika Property Invest. (P.) Ltd. v. Commissioner of Income-tax*[2014] 51 taxmann.com 387 (SC) by dismissing the SLP filed by the appellant. 4.11. In the remand report called the assessing officer was clearly given a free hand to bring in any evidence that specifically ....
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....,675 5,00,568 3 M/s. Prajan Trading Pvt. Ltd. 30,00,000 3,03,55,461 5,20,299 4 M/s. Arawalli Stock Broking Pvt ltd 30,00,000 1,63,90,103 4,87,875 5 M/s. Colourunion International Pvt. Ltd. 50,00,000 2,30,51,700 3,43,358 6 M/s.Ramdev Shares & Securities Pvt. Ltd. Now known as Koina Trading P. Ltd 1,00,00,000 2,97,72,514 21,69,240 7 M/s. Jasol Maa Share Trading 1,00,00,000 4,11,30,413 5,32,200 8 Yashita Trading Pvt. Ltd. 95,00,000 41,58,066 Plus share application money 40,00,000 (-) 42177 9 Ashrita Trading Co. Pvt. Ltd. 85,00,000 50,83,061 Plus share application money 50,00,000 (-) 40,851 10 Accurate Multitrade Pvt. Ltd. 25,00,000 42,28,354 Plus share application money 40,00,000 (-) 2,460/- TOTAL 5,75,00,000 In the case of Koina Trading Pvt. Ltd., copy of assessment order u/s 143(3) for AY 12-13 passed by ITO 14(2)(2) was also filed. 4.14. It can be seen from the observation of the Assessing Officer that he has only referred to the information related to the outcome of search in the case of Shri Pravin Kumar J....
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....ogus share holders who's name are given to the Assessing Officer then the department can always proceed against them and if necessary reopen their individual assessments. Held, dismissing the appeal, that there was no dispute that the assessee had given the details of names and addresses of the shareholders, their PAN/ GIR numbers and had also given the cheque numbers, name of the bankers. The Assessing Officer ought to have found out their details through PAN cards, bank reholders. Thus, the view taken by the Tribunal could not be faulted. (iii) The Hon'ble Supreme Court of India in the case of CIT vs. Orissa Corporation reported in 159 ITR 78 (SC) has held as under: "That in this case the respondent had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessee's. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notice under section 131 at the instance of the respondent, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they are credi....
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....2010 has held in para 24.4 as under:- "24.4 In this case also no cross examination was allowed to the assessee. Therefore, adverse inference cannot be drawn only on the statement of Shri MukeshChoksi. We further noted that all other necessary details have been filed before AG. Amounts were received through account payee cheque. Both the companies are assessed to tax in Mumbai. Confirmation along with copies of share certificate, bank statement, memorandum of articles, copy of share application money, audited balance sheet and P&L a/c of these parties were filed. These are similar details as were filed in case of three other companies for asst. yr. 2005-06. We have already disposed of the appeal for asst. yr. 2005-06 whereby we have held that the assessee has discharged its onus by filing necessary details and further have relied on the decisions of Hon'ble Supreme Court and Hon'ble Delhi High Court alongwith various other decisions of Tribunal and have held that addition cannot be made under S. 68 in the hands of the assessee company. Therefore, in view of the same reasoning, we cancel the entire addition made and confirmed by the lower authorities here also. The a....
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....ird party companies. After seeking explanation from the assessee, made the additions u/s 68 of the Act. The Ld. CIT(A) during the appellate proceedings after appreciating the facts had sought remand report from the AO with a view to give free hand to the AO for bringing in any evidence that specifically linked the assessee company receiving share capital money in lieu of cash. Although, the AO had relied upon the statement of Shri Praveen Jain, but could not point out any portion of the statement of the said Praveen Jain to link the investor companies. Apart from this, even no evidence has been brought on record to link the assessee company with the said Praveen Jain. More so, there was no evidences to show that there was any cash trail in respect of the amounts received by the assessee company from the investors. We noticed that though the AO was specifically asked to furnish specific incriminating evidences, but the AO was unable to pin point the specific evidences which could clearly show that the share application money was received in lieu of cash. It is an admitted fact that the investor companies were assessed to tax and had filed their returns of income. The notices u/s 133....
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..... Even the basic premise that the investor companies belong to Praveen Jain was also not proved. It is also an admitted fact that the transactions in the present case were through banking channel and thus, in such circumstances, as per the settled proposition of law as mentioned in the orders of Ld. CIT(A) in para no. 4.14, no additions could be made without any contrary or cogent evidence. We have considered the judgment passed by Hon'ble Supreme Court in the case of CIT V/s Lovely Exports 6 DTR 308, wherein it was held as under: If the share application money is received by the assessee company from alleged bogus share holderswho's name are given to the Assessing Officer then the department is free to proceed to reopen their individual assessments in accordance with law but it cannot be regarded as undisclosed income of assessee company". 8. The Hon'ble Bombay High Court in the case of CIT v/s Creative World Teleflims Ltd 333 ITR 100 has held as under: "If the share application money is- received by the assessee company from alleged bogus share holders who's name are given to the Assessing Officer then the department can always proceed against the....