TaxTMI 
TaxTMI 
2021 (6) TMI 325
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....n confirmed the passing assessment order without providing opportunity to rebut the material relied by Ld Assessing Officer during the reassessment proceedings examination which is against the principal of natural justice and hence the said order is liable to be quashed. 4. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting addition in respect of the Share Capital and Share Premium of Rs. 92,00,000/- as unexplained cash credit u/s. 68 of the Income Tax Act, 1961 without corroborative evidences. 5. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not permitting of business loss of Rs. 2,53, 121/- 6. On the facts and circumstances of case and in law, Ld. CIT(A) erred in confirming initiation of penalty proceeding u/s.274 r.w.s 271 (1) (c) of Income Tax Act 1961. 7. On the facts and circumstances of the case and law the Ld. CIT (A) erred in set - a siding for fresh calculations of interest under section 234A, 234B and 234C of the Income Tax Act, 1961. 8. The Assessee craves leave to add further grounds or to amend or alter the existing grounds of appeal on or before the date....
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....entries in the guise of share application money. The assessee has received the share application money along with premium from the existing share holders referred at page 3 Para 3.1.5 of the order as under: "3.1.5 On perusal of the details filed during the assessment proceedings it is seen that the following entities had been al lotted share during the year; Sr.No Name and Address No of share allotted Money received as share Money received as share premium Total money received 1 M/s Anmol commerce Pvt Ltd., Kolkata 26000 260000 2340000 2600000 2 M/s Priyamada Finvest Pvt Ltd, Kolkata 25000 250000 2250000 2500000 3 M/s Motacab Finance Pvt Ltd, Kolkata 28500 285000 2565000 2850000 4 M/s Deepa Holdings Pvt Ltd., Kolkata 4500 45000 405000 450000 5 M/s Rexnox Trexim Pvt Ltd, Kolkata 8000 80000 720000 800000 Total 92000 920000 8280000 92,00,000 3. The A.O to verify the claim of genuineness issued notice u/s 133(6) of the Act to these 5 entities and the A.O. has dealt on the facts, details, information and affidavit of the Mr Rajesh Agarwal and o....
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....e Honble Tribunal. 5.At the time of hearing, the Ld.AR submitted that the CIT(A) has erred in not considering the various aspects of investments and the assessee has filed the financial details in respect of these companies which cannot be overlooked. The Ld.AR referred to the paper book and demonstrated the submissions made before the CIT(A).The Ld.AR mentioned that the assessee has submitted the details/evidences in respect of the five shareholder companies to satisfy the identity, creditworthiness and genuineness of the transaction and substantiated with share application form, copy of bank statement, copy of share certificate, copy of Board resolution, copy of audit report and audited Balance sheet and enclosures, copy of certificate of incorporation, and Active status of company from MCA web site. The Ld. AR relied on the catena of Honble High Court and Honble Tribunal decisions. The Ld.AR emphasized that on similar and identical facts, the Hon'ble Tribunal has confirmed the genuineness, identity and creditworthiness of the investors for the same assessment year. Further the Ld.AR substantiated his arguments with paper book, judicial decisions and orders of the Hon'ble Trib....
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....e entries of share money and premium money given by them to the appellant company along with copy of board resolution, resolving the decision of investment into appellant company. To prove the genuineness of the transaction the assessee produced the confirmation, bank statement, financial of the lender. Nothing came into noticed that the transaction were found bogus. Retracted statement of Shri Rajesh Agarwal was not liable to be relied upon the unless corroborated by the sufficient evidence on record. Moreover no opportunity of being heard was given to the assessee. However, in support of this contention, the Ld. Representative of the assessee has placed reliance upon the following law.:- 1. CIT Vs. Loverly Exports Pvt. Ltd. (2008) 216 CTR 195 (SC) 2. PCIT Vs. Himachal Fibers Ltd. (2018) 98 taxmann.com 173 (SC) 3. PCIT Vs. Bharat Securities P. Ltd. (2020) 13 taxmann.com 32 (SC) 4. PCIT Vs. Rohtak Chain Co. P. Ltd. (2019) 110 taxmann.com 59 (SC) 5. PCIT Vs. Ami Industries Pvt. Ltd. 1231 of 2017 6. CIT Vs. Gagandeep Infrastructure Pvt. Ltd. ITA. No.1613 of 2014 (Bom) 7. CIT Vs. Orchid Industries Pvt. Ltd., I. T.....
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....of three ingredients of Sec. 68 viz. (i) identity of the investor; (ii) creditworthiness of the investors; & (iii) genuineness of the transactions. 8.2 To demonstrate fulfillment of these ingredients, the assessee had during the course of assessment proceedings as well as appellate proceedings, furnished following broad documentary evidences with respect to all the 11 entities: - (i) Share Application Form (ii) Copy of Cheque (iii) Copy of Cheque Deposit Slip (iv) Copy of investor's Bank Statement (v) Copy of Share Certificate Counterfoil (vi) Copy of Audit Report along with financial statements of the investor entity (vii) Copy of ITR acknowledgement of the investor entity (viii) Copy of Certificate of incorporation of investor entity (ix) Memorandum & Articles of Association of investor entity (x) Company Master Data showing status as active (xi) Copy of Board Resolution The assessee's own bank statement was also placed on record which would show that all the transactions have taken through banking channels. Upon careful consideration of these documents, we find that so far as the identity of the investor entities are concerned, the same stand proved by certificate of in....
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....as been retracted within a span of 7 days. It is settled law that statements recorded during the course of survey proceedings would not have much evidentiary value unless the same are backed by credible evidences. This position has been settled by Hon'ble Supreme Court in the case of CIT V/s S.Khader Khan & Sons (25 Taxmann.com 413). The CBDT instructions No. F.No.286/98/2013-IT (Inv. II) dated 18/12/2014 also discourages confessional statements without any credible evidences. No incriminating material is shown to have been found during the course of survey proceedings. 8.4 We also find that learned CIT(A) has gone by irrelevant considerations to confirm the impugned additions. The object clause of the investor entities would have no relevance vis-à-vis proposed additions in the hands of the assessee u/s 68. It is trite law that no additions could be made merely on the basis of suspicion, conjectures or surmises. 8.5 The Ld. DR has relied upon the case of Hon'ble Supreme Court in Sumati Dayal Vs CIT (80 Taxman 89) & Durga Prasad More (82 ITR 540 26/08/1971). No doubt that the revenue authorities were not required to put blinkers while looking at the documen....
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....ulation: - No. Name of Investor Entity BBPL* 2011-12 & 2012-13 MDIL** 2009-10 MDIL** 2010-11 1 Anmol Commerce P Ltd Yes Yes 2 Rexnox Trexim P Ltd Yes Yes 3 SSA Motor Finance P Ltd Yes 4 Priyamvada Finvest P Ltd Yes 5 Motocab Finance P Ltd Yes 6 Camellia Commercial Pvt Ltd Yes 7 Cherry Tieup P Ltd Yes 8 Deepa Holding P Ltd Yes Yes 9 Hill View Hire Purchase Pvt Ltd Yes 10 Mandyati Dealcom P Ltd Yes 11 Nextgen Tradecom Pvt Ltd Yes 12 Vanilla Tie up Pvt Ltd Yes 13 Kamakhya Goods P Ltd Yes Yes *BBPL - Assessee (M/s Bini Builders Pvt Ltd) **MDIL - Sister concer of assessee (M/s Moongipa Dev. & Inf. Ltd) Regarding remaining 3 entities i.e. (i) M/s Gorsia Marine Equipment Pvt. Ltd.; (ii) M/s Sitaram Investment Pvt. Ltd.; (iii) M/s Marudhar Suppliers Pvt. Ltd., we find that the assessee had furnished simila....