TaxTMI 
TaxTMI 
2021 (5) TMI 570
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....pass the assessment order, hence the said assessment order passed u/s 144 of the Act be quashed. 2. That on the facts and circumstances of the case, the assessment order passed u/s 144 of the Act by ITO Ward 6(1}/Kolkata is bad in law as same is not as per the provisions of the Act to assume the jurisdiction u/s 144 of the Act and passed order as best judgement." 3. From a perusal of the additional grounds of appeal, we note that this is a legal issue which if found to be correct, then it goes to the root of the matter. And since it is a legal issue it can be raised also for the first time before this Tribunal as held by the Hon'ble Supreme Court in the case of NTPC Ltd. Vs. CIT 229 ITR 383 (SC). 4. In respect of the legal issue (supra) the Ld. AR submitted that the assessee's case was assessed u/s 147 r.w. Section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the "Act") on 12.05.2011 by Assessing officer, ITO-Wl( 2)/Kolkata. During original assessment proceedings, the AO verified the share transactions which assessee had received by issuing notice u/s 133(6) of the Act from all the shareholders and since the assessee could satisfy the AO, the na....
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....e premium of Rs. 11,10,00,000/- to the returned income. It was pointed out by Ld. AR that out of the 15 pages assessment order, AO reproduced in 11 pages the Ld CIT's revision order and 2 pages on issue of notices/show cause notice. The reason stated by the ITO ward 6(1)/Kolkata in the re-assessment order were:- A. No response to questionnaire dated 03.02.2015, B. Non-appearance pursuant to summons C. Non-compliance to notices D. High share premium. 11. According to Ld. AR, the assessee had not received any notice dated 03.02.2015. Whereas notice and SCN dated 17.03.2015 were received and duly responded. The AO ignored his own notice dated 17.03.2015 and the assessee's response filed on 24.03.2015, to pass the re-assessment order on 25.03.2015 making the addition. 12. According to Ld AR, the assessee's directors were not served with any summon to appear before the ITO ward 6(1)/Kolkata. Further according to Ld AR, the re-assessment order did not mention the basic details such as date(s) of summon, names of summoned persons, any action taken by the AO for non-appearance the assessee's directors. 13. According to the Ld. AR, since there was no order passe....
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....s order u/s 263 of the Act, the matter was remanded back before the ITO, Ward-1(2) which fact is discernable from a perusal of the order sheet entry placed at page 449 of paper book which Sshows that the ITO, Ward-1(2) received the file in respect of the assessee's case on 20.03.2014. Thereafter, the order sheet shows that the assessee's file was transferred to ITO, Wd-6(1), Kolkata. From a perusal of the order sheet it is noted that the new ITO, Ward-6(1), Kolkata sent section 142(1) notice through e-mail and also issued summons u/s. 131 of the Act to the directors of the investor companies as well as the director of the assessee company. Thereafter, he noted that there was no compliance to the notices to the assessee and thereafter on 25.03.2015 passed the reassessment u/s. 144/263 of the Act making an addition of Rs. 11,10,00,000/-. In this context, the Ld. A.R brought to our notice that in the assessment folder which was transferred to the new AO, all the documents to prove the nature and source of the share transaction in question was available and the actions/investigation carried out by the ITO, Ward-1(2) wherein the earlier AO had accepted the share transaction as genuin....
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.... as the income of the assessee of that previous year. In this case the legislative mandate is not in terms of the words 'shall' be charged to income-tax as the income of the assessee of that previous year". The Hon'ble Supreme Court while interpreting similar phraseology used in section 68 has held that in creating the legal fiction the phraseology employs the word "may" and not "shall". Thus the un-satisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1999] 237 ITR 570. 17. We note that in the present case, the assessee had submitted the following relevant details to substantiate the identity, creditworthiness and genuineness of the share transaction in question and the evidence inter-alia which were filed before the AO included the following details. (a) Income Tax Return of the share holders (b) Audited Accounts of the share holders (c) Share Application Forms (d) Share Allotment Letters (e) Copy of the bank account of the share holders (f) Transaction w....
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....of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw and adverse inference against the assessee. in the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by' treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69. 20. In the case o....
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..../or of the sub-creditor, the burden on the assessee under section 68 is definitely limited. This limit has been imposed by section 106 of the Evidence Act which reads as follows: "Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden) of proving that fact is upon him. " ******** What, thus, transpires from the above discussion is that white section 106 of the Evidence Act limits the onus of the assessee to the extent of his proving the source from which he has received the cash credit, section 68 gives ample freedom to the Assessing Officer to make inquiry not only into the source(s)of the creditor but also of his (creditor's) sub-creditors and prove, as a result, of such inquiry, that the money received by the assessee, in the form of loan from the creditor, though routed through the sub-creditors, actually belongs to, or was of, the assessee himself. In other words, while section 68 gives the liberty to the Assessing Officer to enquire into the source/source from where the creditor has received the money, section 106 makes the assessee liable to disclose only the sourc....
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....r have to be adjudged vis-a-vis the transactions, which he has with the assessee. The reason why we have formed the opinion that it is not the business of the assessee to find out the actual source or sources from where the creditor has accumulated the amount, which he advances, as loan, to the assessee is that so far as an assessee is concerned, he has to prove the genuineness of the transaction and the creditworthiness of the creditor vis-a-vis the transactions which had taken place between the assessee and the creditor and not between the creditor and the sub-creditors, for, it is not even required under the law for the assessee to try to find out as to what sources from where the creditor had received the amount, his special knowledge under section 106 of the Evidence Act may very well remain confined only to the transactions, which he had' with the creditor and he may not know what transaction(s) had taken place between his creditor and the subcreditor... " ********** "In other words, though under section 68 an Assessing Officer is free to show, with the help of the inquiry conducted by him into the transactions, which have taken place between the credito....
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....ting the said amounts as income derived by the appellant from. undisclosed sources merely on the failure of the sub-creditors to prove their creditworthiness." 21. Further, in the case of CITv. S. Kamaljeet Singh [2005] 147 Taxman 18(All.) their lordships, on the issue of discharge of assessee's onus in relation to a cash credit appearing in his books of account, has observed and held as under:- "4. The Tribunal has recorded a finding that the assessee has discharged the onus which was on him to explain the nature and source of cash credit in question. The assessee discharged the onus by placing (i) confirmation letters of the cash creditors; (ii) their affidavits; (iii) their full addresses and GIR numbers and permanent account numbers. It has found that the assessee's burden stood discharged and so, no addition to his total income on account of cash credit was called for. In view of this finding, we find that the Tribunal was right in reversing the order of the AA C, setting aside the assessment order." 22. We also take note of the decision of the Hon'ble High Court, Calcutta in the case of S.K. Bothra & Sons, HUF v. Income-tax Officer, Ward- 46(3), Kol....
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.... considered by the Commissioner of Income-tax (Appeals). Therefore, the failure of the person to turn up pursuant to the summons issued to any witness is immaterial when the material documents made available, should have been accepted and indeed in subsequent year the same explanation was accepted by the Income-tax Officer. He further contended that when the Tribunal has relied on the entire judgment of the Commissioner of Income-tax (Appeals), therefore, it was not proper to take up some portion of the judgment of the Commissioner of Income-tax (Appeals) and to ignore the other portion of the same. The judicial propriety and fairness demands that the entire judgment both favourable and unfavourable should have been considered. By not doing so the Tribunal committed grave error in law in upsetting the judgment in the order of the Commissioner of Income-tax (Appeals). 9. In this connection he has drawn our attention to a decision of the Supreme Court in the case of Udhavdas Kewalram v. CIT [19671 66 ITR 462. In this judgment it is noticed that the Supreme Court as proposition of law held that the Tribunal must In deciding an appeal, consider with due care, all the material ....
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....ove then it shall be assumed the judgment of the Tribunal suffers from manifest infirmity. 12. Taking inspiration from the Supreme Court observations we are constrained to hold in this matter that the Tribunal has not adjudicated upon the case of the assessee in the light of the evidence as found by the Commissioner of Income-tax (Appeals). We also found no single word has been spared to up set the fact finding of the Commissioner of Income-tax (Appeals) that there are materials to show the cash credit was received from various persons and supply as against cash credit also made. 13. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Commissioner of Incometax (Appeals). The appeal is allowed. 24. When a question as to the creditworthiness of a creditor is to be adjudicated and if the creditor is an Income Tax assessee, it is now well settled by the decision of the Calcutta High Court that the creditworthiness of the creditor cannot be disputed by the AO of the assessee but the AO of the creditor. In this regards our attention was drawn to the decision of the Hon'ble ....
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....P) LTD., ITAT No. 241 of 2010 dated 10- 01- 2011 has held: "On the facts and in the circumstances of the case, Ld. CIT(A) ought to have upheld the assessment order as the transaction entered into by the assessee was a scheme for laundering black money into white money or accounted money and the Ld. CIT (A) ought to have held that the assessee had not established the genuineness of the transaction. " It appears from the record that in the assessment proceedings it was noticed that the assessee company during the year under consideration had brought Rs. 4, 00, 000/- and Rs. 20,00,000/- towards share capital and share premium respectively amounting to Rs. 24,00, 000/- from four shareholders being private limited companies. The Assessing Officer on his part called for the details from the assessee and also from the share applicants and analyzed the facts and ultimately observed certain abnormal features, which were mentioned in the assessment order. The Assessing Officer, therefore, concluded that nature and source of such money was questionable and evidence produced was unsatisfactory. Consequently, the Assessing Officer invoked the provisions under Section 68/69 of ....
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....ective shares allocation had been disclosed. The Commissioner of Income Tax Appeals, further found that the Assessee Company received the applications through bankers to the issue, who had been appointed under the guidelines of the Stock Exchange and the Assessee Company had been allotted shares on the basis of allotment approved by the Stock Exchange. The Assessee Company had duly filed the return of allotment with the Registrar of Companies, giving complete particulars of the allottees. The Commissioner of Income Tax (Appeals) found that inquires had confirmed the existence of most of the shareholders at the addresses intimated to the Assessing Officer, but the Assessing Officer took the view that their investment in the Assessee Company was not genuine, on the basis of some extraneous reasons. The Commissioner of Income Tax (Appeals) took note of the observation of the Assessing Officer that enquiry conducted by the Income Tax Inspector had revealed that nine persons making applications for 900 shares were not available at the given address and rightly concluded that the total share capital issued by the Assessee Company could not be added as unexplained cash c....
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....w. The learned Tribunal has concurred with the learned Commissioner on facts and found that there were materials to show that the assessee had disclosed the particulars of the shareholders. The factual findings cannot be interfered with, in appeal. We are of the view that once the identity and other relevant particulars of shareholders are disclosed, it is for those shareholders to explain the source of their funds and not for the assessee company to show wherefrom these shareholders obtained funds." 28. Further, our attention was drawn to the decision of the Hon'ble High Court, Calcutta in the case of Commissioner of Income Tax vs M/s.Leonard Commercial (P) Ltd on 13 June, 2011 in ITAT NO 114 of 2011 wherein the Court held as follows: "The only question raised in this appeal is whether the Commissioner of Income-tax (Appeals) and the Tribunal below erred in law in deleting the addition of Rs. 8,52,000/-, Rs. 91,50,000/- and Rs. 13,00,000/- made by the Assessing Officer on account of share capital, share application money and investment in HTCCL respectively. After hearing Md. Nizamuddin, learned Advocate appearing on behalf of the appellant and af....
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.... that these twenty one (21) share subscribing companies were regularly assessed to tax and the payments in questions were made through the bank accounts which fact is discernable on a perusal of the copy of bank statement depicting transaction; and when called upon by the AO during assessment proceedings [ during the first round] and also during remand proceedings [ in the form of additional evidence], the assessee had furnished the requisite documentary evidences to prove the identity, creditworthiness and genuineness of the transaction i.e, the assessee had filed the share applicants' Audited Financial Statements and Income-tax Acknowledgement for filing of return for A.Y 2009-10 along with the PAN details and the jurisdiction of AO under whom they were assessed and the scrutiny assessment orders passed u/s 143(3) of the Act in the case of fourteen (14) share subscribers out of total twenty one (21) share subscribers and in respect of the other seven (7) share subscribers, intimation by the department accepting their respective return of income u/s 143(1) of the Act were filed. Thus, the assessee states that it had discharged its onus to prove the identity of the share subscriber....
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....o credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless - (a) The person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) Such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory:" 31. We note that even though the Parliament has inserted by the Finance Act, 2012, w.e.f. 01.04.2013 the proviso to section 68 of the Act, we must bear in mind that there is no change or amendment in the substantive provision of section 68 of the Act wherein if any sum is found by the AO to have been credited in the books of an assessee in the relevant financial year, then when called upon by him (AO) to the assessee to explain the nature and source of the credit; and pursuant to which if the assessee fails to explain to the satisfaction of AO the nature and source of the credit, then the AO may treat the credit as income chargeable to tax. In other words, if t....
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....ional burden is imposed by the first proviso to bring to the notice of AO the "source of source" of the credit entry i.e. source of the share applicant which had been invested in the assessee company. In other words from AY 2013-14 onwards, in the event if an assessee company when called upon by the AO to explain the nature of the credit in its books claims that the credit entry is share application money, share capital and share premium, then the additional requirement of law as per the proviso to section 68 of the Act kicks in and share subscriber should be able to show the source from which it was able to invest in the assessee company. And if the 'source of source' of share application/capital/premium is shown to AO and if he is satisfied with the explanation, then the deeming provision will not apply. This proviso is not applicable in assessee's case since the relevant assessment year is AY 2009-10 and was only discussed for completeness since Ld CIT while setting aside the first re-assessment order directed the AO to look beyond the first source of credit, which the assessee was not obliged to do as far as the law was during AY 2009-10. However we note that assessee had filed....
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....could invest/subscribe in assessee company is clearly discernible. Thus according to Ld AR, even though the source of source requirement of law was not required in this relevant assessment year, still assessee filed documents/confirmation about their source of source. And since the source of source of the sum of money credited in the assessee's books for share subscribing (capital and premium) has been shown to the A.O, even the proviso to section 68 stands satisfied, though it was not the requirement of law and it was only to satisfy the Ld CIT's order u/s 263 the assessee/share subscribers filed these additional documents. Therefore, according to Ld AR, in the aforesaid facts and circumstances of the case as discussed, it cannot be held that the assessee had not discharged its onus of proving the source of source of the share capital and premium as directed by Ld CIT to enquire by order dated 7.3.2014. 33. We note that in this relevant AY 2009-10, the assessee received share capital and premium from the following twenty one (21) corporate entities and the details are revealed from the chart below : 34. It is noted that these are corporate entities which files regularly I....
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.... M/s Karnimata Commerce Pvt. Ltd. is given. This company was incorporated on 01/10/1996 and is having company identification number U51909WB1996PTC081544. This company is having PAN AABCK 1656 J. This company was having a paid up capital with free reserves and surplus of Rs. 23,69,70,631/- as on 31/03/2009. We note that this company invested a sum of Rs. 34,00,000/- in the assessee company. The share application was made by account payee cheque. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other details filed in the paper book. (i.a) The Ld. AR also took pains to draw our attention to records on the present status of this company. As per records, this company is managed by Mr. Sunil Kumar Agarwal and Mr. Mithlesh Kumar Patel. The company is a registered NBFC with RBI and share subscriber is regular in statutory compliance. The business group of the company is having interest in iron & steel, infrastructure and r....
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....ellant company. The share applications were made by account payee cheques. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (iii.a) The Ld. AR took our attention to the present status of this company. This company is managed by Mr. Chintan Maheshbhai Nandrajog and Mr. Vinod. The business group of the company is having interest in investments and financial activities. The registered office of the company is situated at SY No-599, Plot No- 189 T.P.7, Shop No-7, Mezzanine Floor, Ring Road, Surat-395002. The total revenue for the year ended on 31.03.2019 is Rs. 7.41 Lac. (page no. 812-836 in PB) (iv) The Ld. AR draw our attention to pages 124 tol37 of the paper book wherein we note that M/S Alliance Dealcomm Private Limited was incorporated on 16/10/2008 and is having company identification number U51101WB2008PTC130015. This company is having PAN AAHCA3846Q. This comp....
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....k pains to draw our attention to the present status of this company. Masaal Suppliers Pvt Ltd is managed by Mr. Ajay Kumar Dokania and Mr. Ravi Kedia. The company belongs to an industrial group "Somani Group", having interest in Hindustan sanitaryware, Somani Pilkington etc. The company was amalgamated with Paco Exports Pvt Ltd on 12.12.2018 by National Company Law Tribunal, Kolkata Bench. The registered office of the amalgamated company is situated at 2, Red Cross Place, Kolkata-700001. The total revenue for the year ended on 31.03.2018 is Rs. 1.59 Lac. During the year the company had a dividend income of Rs. 1.58Lac. The company Investment in Quoted Shares and securities is of Rs. 41.13 Lac.(page no. 865-949 in PB) (vi) Coming to M/s. Skylark Vincom Private Ltd, Ld. AR draw our attention to pages 158 to 173 of the paper book wherein we note that this company was incorporated on 22/01/2008 and is having company identification number U51109WB2008PTC121992.this company is having PAN AALCS5272L.This company duly filed its return of income for AY 2009-10 before ITO Ward 5(4), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. 19,62,00,660/- as ....
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....1-993 in PB) (viii) Coming to M/s. Tirupati Tradevin Private Limited, the Ld. AR drew our attention to pages 197 to 210 of the paper book wherein we note that this company was incorporated on 08/09/2008 and is having company identification number U51909WB2008PTC284865.This company is having PAN AADCT0249G.This company duly filed its return of income for AY 2009-10 before ITO Ward 4(1), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. 9,57,00,432/- as on 31/03/2009. This Company has invested a sum ofRs:35,00,000/- in the appellant company. The share application was made by account payee cheque. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (viii.a) The Ld. AR took pains to draw attention to present status of this share subscriber Tirupati Tradevin Pvt Ltd is managed by Mr. Anuj Kohli and Mr. Dharam Bir Kohli. The business group of ....
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....r AY 2009-10 before ITO Ward 6(2), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. l1,10,00,408/- as on 31/0312009.The company has invested a sum of Rs. 35,00,000/- in the appellant company. The share application was made by account payee cheque. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (x.a) The Ld. AR drew our attention to the present status of this company Icon Trexim Pvt Ltd is managed by Mr. Surajdeo Bhagat and Miss. Manorma Sharma. The registered office of the company is situated at 9/12, Lal Bazar Street, 2nd Floor, Kolkata-700001. The company engaged in business activities in Investment and finance (page no. 1077-1095 in PB). (xi) In respect of M/s. Seaview Agencies Private Limited, the Ld. AR drew our attention to pages 246 to 259 of the paper book wherein we note that this company was incorporated on 29/08/2008 and....
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....he Ld. AR drew our attention to the present status of this share subscriber, Reliable Commodeal Pvt Ltd is managed by Mr. Hemant Goyal and Mr. Dinesh Goyal. The company was amalgamated with Narsingh Ispat Ltd on 07.02.2019 by National Company Law Tribunal, Kolkata Bench. The registered office of the amalgamated company is situated at 50, J.L. Nehru Road, 2nd Floor, Middleton Row, Kolkata-700071. The company engaged in business activities in Investment and finance (page no. 1191-1290 in PB). (xiii) In respect of M/s. Amarnath Vanijya Private Limited, the Ld. AR drew our attention to pages 282 to 295 of the paper book wherein we note that this company was incorporated on 27/08/2008 and is having company identification number U51909WB2008PTC128862. This company is having PAN AAHCA2394M.This company duly filed its return of income for AY 2009-10 before ITO Ward 4(3), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. 13,24,00,231/- as on 31/03/2009. This company invested the sums of Rs. 48,00,000/- in the appellant company. The share application was made by account payee cheque. The copy of the bank statement of the Company is duly available in ....
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....ue for the year ended on 31.03.2018 is Rs. 6.24 Lac. The company engaged in Investment and finance business activities (page no. 1324-1432 in PB). (xv) In respect of M/s. Innova Tieup Private Limited, the Ld. AR drew our attention to pages 312 to 325 of the paper book wherein we note that this company was incorporated on 27/08/2008 and was having company identification number U51909WB2008PTC128780. This Company is having PAN AABCI9438A. This company duly filed its return of income for AY 2009-10 before ITO Ward 6(2), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. 13,32,00,159/- as on 31/03/2009. This company has invested the sum of Rs. 49,00,000/- in the appellant company. The share application wasmade by account payee cheque. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (xv.a) The Ld. AR took pains to draw our attention to the....
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.... 9(4), Kolkata. This company was having a paid up capital with free reserves and surplus of Rs. 8,62,00,372/- as on 31/03/2009.This company has invested the sum of Rs. 49,00,000/- in the appellant company. The share application was made by account payee cheque. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (xvii.a) The Ld. AR took pains to draw our attention to the present status of this share subscriber. Sensitive Overseas Pvt Ltd is summarized, the company is managed by Mr. Praveen Kumar and Mr. Jitender Wadhawan. The company was amalgamated with J.D.S. Finance Services Pvt. Ltd on 11.10.2019 By National Company Law Tribunal, New Delhi Bench. The business group of the company is having interest in the Hotel industry and Real Estate. The registered office of the company is situated at 134A, 1st Floor, Kishanganj Market, New Railway Colony, Old Rohtak Road, New North Delhi....
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....e the share application are also available from a perusal of the bank statement and other documents filed in the paper book. (xix.a) The Ld. AR took pains to draw our attention to the present status of this share subscriber Tulsi Commodeal Pvt Ltd is managed by Mr. Rajesh Kumar Gupta and Miss. Ritu Gupta. The company was amalgamated with J.D.S. Finance Services Pvt. Ltd on 11.10.2019 By National Company Law Tribunal, New Delhi Bench. The business group of the company is having interest in the Hotel industry and Real Estate. The registered office of the amalgamated company is situated at 108, 1st Floor, Vikas Surya Plaza, Plot No. 7, Road No. 44, Rani Bagh, Delhi- 110034. The total revenue for the year ended on 31.03.2019 is Rs. 3 Lac (page no. 1648-1679 in PB). (xx) Coming to M/s. Landmark Vintrade Private Limited, our attention was drawn by the Ld. AR to pages 395 to 407 of the paper book wherein we note that this company was incorporated on 27/08/2008 is was having company identification number U51909WB2008PTC128815. The Company is having PAN AABCL5094P.This company duly filed its return of income for AY 2009-10 before ITO Ward 9(3), Kolkata. This company was having a paid ....
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....r. Somnath Ghosh. The business group of the company is having interest in Information Technology, real Estate. The registered office of the company is situated at Ho Chi Minh Sarani, 2nd Floor, Suit No. 2E, Kolkata-700071. The total revenue for the year ended on 31.03.2019 is Rs. 1.39 Lac. The company Non- Current Assets (Property & Land) as on 31.03.2019 is Rs. 185 Lac (page no. 1712- 1741 in PB). 39. Thus in this case we note that assessee has discharged the onus on it to prima facie prove the nature and source of the credit/share capital and premium. And thereafter, the onus shifted on AO/Ld CIT(A) to disprove it, which they have failed to do so. So in such a scenario, based on conjectures and surmises no adverse view was sustainable. Reliance in this regard is also placed on the decision of the Hon'ble Delhi High Court in the case of CIT Vs Gangeshwari Metal (P) Ltd (ITA No. 597 of 2012) dated 21.01.2012. In this case the assessee had received share application money of Rs. 55.50 lacs during the year in question. The assessee filed the complete names, addresses of the share applicants, confirmatory letters from them, copies of bank statements of both the company as well as t....
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....nducting any inquiry or verification whatsoever. The Court thus held that the decision of CIT Vs Novo Promoters & Finlease (P) Ltd (342 ITR 169) was not applicable to the facts of the case. Instead it was held that the issue in hands was on the lines of the decision of the Supreme Court in the case of CIT Vs Lovely Exports Pvt Ltd (319 ITR 5). Accordingly the addition made under Section 68 on account of share application was deleted. 40. We would like to reproduce the Hon'ble High Court order in CIT vs. Gangeshwari Metal P.Ltd. in ITA no. 597/2012 judgement dated 21.1.2013, the Hon'ble High Court after considering the decisions in the case of Nova Promoters and Finlease Pvt. Ltd. 342 ITR 169 and judgement in the case of CIT vs. Lovely Exports 319 ITR (Sat 5)(5. C) held as follows:- "As can be seen from the above extract, two types of cases have been indicated. One in which the Assessing Officer carries out the exercise which is required in law and the other in which the Assessing Officer 'sits back with folded hands' till the assessee exhausts all the evidence or material in his possession and then comes forward to merely reject the same on the presum....
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.... can be made under Section 68 of the Income Tax Act 1961. Consequently, the question is answered in the negative. The decision of the Tribunal is correct in law" 41. The case on hand clearly falls in the category where there is lack of enquiry on the part of the AO [during second round and in remand proceedings] as in the case of Ganjeshwari Metals (supra). a) In the case of Finlease Pvt Ltd. 342 ITR 169 (supra) in ITA 232/2012 judgement dt. 22.11.2012 at para 6 to 8/ it was held as follows. "6. This Court has considered the submissions of the parties. In this case the discussion by the Commissioner of Income Tax (Appeals) would reveal that the assessee has filed documents including certified copies issued by the ROC in relation to the share application affidavits of the directors, form 2 filed with the ROC by such applicants confirmations by the applicant for company's shares, certificates by auditors etc. Unfortunately, the Assessing Officer chose to base himself merely on the general inference to be drawn from the reading of the investigation report and the statement of Mr. Mahes Garg. To elevate the inference which can be drawn on the basis of readin....
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.... powers, which he did not do. In the absence of any fruitful investigation, much less gathering of evidence by the Assessing Officer/Ld CIT(A), we are of the opinion that addition could not have been sustained merely based on inferences drawn by circumstance/conjectures/surmises. 43. To sum up section 68 of the Act provides that if any sum found credited in the year in respect of which the assessee fails to explain the nature and source shall be assessed as its undisclosed income. In the facts of the present case, both the nature & source of the share application received was fully explained by the assessee. The assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the share applicants. The PAN details, bank account statements, audited financial statements and Income Tax acknowledgments, confirmation of source of source and fourteen (14) share subscribers scrutiny assessments passed u/s 143(3) out of twenty one (21) share subscribers were placed on AO/Ld CIT(A)'s record. Accordingly all the three conditions as required u/s. 68 of the Act i.e. the identity, creditworthiness and genuineness of the transaction were placed before the AO/Ld C....
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....con Trexim Pvt. Ltd. 8750 3500000 9/12, Lal Bazar Street, 2nd floor, Block-E, Kolkata-700001 PAN:AABC19429D 11 Seaview Agencies Pvt. Ltd. 7500 3000000 2, Lal Bazar Street, 1st floor, R. N. 107C, Kolkata-700001 PAN: AAMCS3862P 12 Reliable Commodeal Pvt. Ltd. 12250 4900000 2, Lal Bazar Street, 1st floor, R. N. 107C, Kolkata-700001 PAN: AAECR0641K 13 Amarnath Vanijya Pvt. Ltd. 12000 4800000 27, Brabourne Road, 5th Floor, R. N. 512, Kolkata 700001 PAN: AAHCA2394M 14 |Vedant Vincom Pvt. Ltd. 11500 4600000 27, Brabourne Road, 5th Floor, R. N. 512, Kolkata 700001 PAN: AACCV8715F 15 Innova Te-up Pvt.Ltd. 12250 4900000 9/12, Lal Bazar Street, Block-E, 2nd Floor, Kolkata-700001 PAN: AABC19438A 16 Marina Dealers Pvt.Ltd. 11250 4500000 2, Lal Bazar Street, 1st floor, R. N. 107C, Kolkata-700001 PAN: AAFCM8486N 17 Sensitive Overseas Pvt. Ltd. 12250 4900000 14-C, Maharshi Devendra Road 4th Floor, Kolkata-700007 PAN: AALCS5183N 18 Jaguar Merchandise Pvt. Ltd. 12250 4900000 27, Brabourne Road, 5th Floor, R. N. 512, Kol....
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.... A.Y. Jurisdiction Assessed U/s. Pg. No.in No. paper book 1. Chirag Trexim (P) Ltd AADCC4340F 2009-10 ITO, Ward-6(1)/Kol 143(3)/147 106-107 2. Mashaal Suppliers (P) Ltd. AAFCM8009H 2009-10 ITO, Ward-4(2)/Kol 143(3)/147 155-157 3. Skylark Vincom (P) Ltd. 4. Hilton Exim (P) Ltd 5. Ridhi Sidhi Vintrade (P) Ltd AAECR1123J 6. Icon Trexim (P) Ltd AALCS5272L 2009-10 ITO, Ward-5(1)/Kol AACCH0780P 2009-10 DCIT, CC-XXII/Kol 2009-10 ITO, Ward-9(3)/Kol AABC19429D 2009-10 143(3)/147 174-175 153-A/143(3) 189-196 143(3)/147 227-228 ITO, Ward-6(2)/Kol 143(3)/147 243-245 7. Seaview Agencies (P) Ltd 8. Reliable Commodeal (P) Ltd AAMCS3862P 2014-15 AAECR0641K 2009-10 ITO, Ward-4(1)/Kol ITO, Ward-8(4)/Kol 143(3) 260-263 143(3)/147 278-281 9. Amarnath Vanijya (P) Ltd AAHCA2394M 2009-10 ITO, Ward-9(1)/Kol 143(3)/147 296-297 10. Innova Tie-Up (P) Ltd AABC19438A 2009-10 ITO, Ward-6(2)/Kol 143(3)/147 326-327 11. Marina Dealers (P) Ltd. AAFCM8486N 2009-10 ITO, Ward-4(2)/Kol 143(3)/147 342-345 12. Jaguar Merchandi....