TaxTMI 
TaxTMI 
2020 (12) TMI 1147
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....tended that as the issue involved in the present case is in favour of the assessee, the matter can be heard on merit today only. 3. On the other hand the Ld. DR did not raise any objection if the matter is heard on merit out of the turn. 4. We have heard the rival contentions of both the parties and perused the materials available on record. Considering the fact that the issue involve in the impugned appeal is simple & covered, we decided to proceed with the matter on merit after allowing the early petition filed by the assessee. Coming to the ITA NO.1856/Ahd/2019 for A.Y. 2012-13. The issue raised by the assessee is that the ''Ld.CIT (A)'' erred in confirming the penalty levied by the AO u/s 271(1)(c) of the Act for Rs. 22,71,150/- only. 5. At the outset we note that the quantum addition with respect to which the penalty was levied by the AO and subsequently confirmed by the ''Ld.CIT (A)'' has been deleted by this Tribunal in ITA no. 961/Ahd/2016 for the Assessment Year 2012-13 vide order dated 26/10/2020. The relevant extract of the order is reproduced as under: 14. We have heard the rival contentions of both the parties and perused the mate....
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....guidance from the judgment of Hon'ble Gujarat High Court in the case of CIT Vs. Chanakya Developers reported in 43 taxmann.com 91 wherein it was held as under: "9. We are in complete agreement with CIT (A) and the Tribunal both, who have concurrently held that the onus which was required to be discharged on the part of the assessee respondent was duly done. Not only the identity of the persons concerned but also the PAN numbers were before the Assessing Officer. In the event of any further inquiry, it was open to the Assessing Officer to make inquiry under Section 133(6) of the Act. On its choosing not to exercise such powers, it was erroneous on the part of the Assessing Officer to make addition of a sum of Rs. 23,00,000/-, despite such cogent evidences having been putforth by the assessee. Both the authorities have concurrently held the issue in favour of the assessee and moreover, the entire issue is essentially in the realm of facts. No question of law, therefore, arises and hence this issue deserves no further consideration." 15.2 In CIT v. Orissa Corp. (P.) Ltd. [1986] 159 ITR 78/25 Taxman 80 (SC), the Supreme Court held that where the assessee had given the names and add....
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....nd once the assessee produces the evidence which is in his power and possession and which evidence prima facie proves the - (i) identity of the creditor; (ii) the capacity/creditworthiness of the creditor to advance the money; and (iii) the genuineness of the transaction, the onus shifts to the Assessing Officer to make further inquiries. The Assessing Officer cannot perfunctorily reject the evidence produced and has to state cogent reasons for such rejection. 17. Admittedly, the assessee filed part of the documents during assessment proceedings and part of the documents during appellate proceedings in support of share capital received by it in the year under consideration. But undisputedly, neither the AO nor the LearnedCIT(A) carried out any verification from the respective parties despite having all the necessary details in their possession. The question arises whether the matter needs to be set aside to the AO for fresh verification and adjudication, as requested by the Learned DR for the Revenue, as the assessee has filed the necessary documents before the Learned CIT(A). To our mind, the assessee cannot be penalized for the inaction of the Revenue. 18. The Learned CIT (....
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....lanation offered by the assessee is not, in the opinion of the Assessing Officer, satisfactory. The Hon'ble Delhi High Court in the case of CIT v. Novadaya Castles (P.) Ltd. 367 ITR 306 has considered a large number of decisions including the decision of Hon'ble Supreme Court in the case of CIT Vs. Durga Prasad [1971] 82 ITR 540 (SC). According to the Hon'ble Delhi High Court basically there are two sets of judgments. In one set of case, the assessee produced necessary documents/evidence to show and establish identity of the share-holder and bank account from which payment was made. The fact that payment was received through bank channels, filed necessary affidavit of the shareholders or confirmations of the directors of the shareholder company. But thereafter no further inquiry was made by the AO. The second set of cases are those where there was evidence and material to show that the shareholder company was only a paper company having no source of income, but had made substantial and huge investments in the form of share application money. The assessing officer has referred to the bank statement, financial position of the recipient and beneficiary assessee and surrounding circums....
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....h finding that the material disclosed was untrustworthy or lacked credibility the Assessing Officer merely concluded on the basis of enquiry report, which collected certain facts and the statements of Mr. Mahesh Garg that the income sought to be added fell within the description of section 68. Having regard to the entirety of facts and circumstances, the court is satisfied that the finding of the Tribunal in this case accords with the ratio of the decision of the Supreme Court in Lovely Exports (supra)" 10. We also deem it appropriate to take note of some of observations of the Hon'ble Delhi High Court from the decision of Fair Finvest Ltd. (supra). The Hon'ble Court has noticed proposition laid down by the Hon'ble Delhi High Court in the case of CIT Vs. Victor Electrodes Ltd., 329 ITR 271 (Delhi) regarding non-production of share applicants before the AO. The following observations are worth to note ...In this connection the observation of the jurisdictional High Court in case of Dwarkadhish Investment (Supra) are quite relevant where the court has observed that it is the revenue which has all the power and wherewithal to trace any person. Further in the case of CIT vs. Vict....