2022 (9) TMI 1330

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....288/2022 ITA 367/2022 & CM APPL. 42289/2022 ITA 368/2022 & CM APPL. 42290/2022 Appellant Through: Mr. Sanjay Kumar, Sr. Standing Counsel for Revenue with Ms. Easha Kadian, Advocate. Respondent Through: Mr. Salil Aggarwal, Sr. Advocate with Mr. Madhur Aggarwal & Mr. Mahir Aggarwal, Advocates. JUDGMENT MANMOHAN, J (Oral): 1. Present income tax appeals have been filed challenging the common order dated 23rd December, 2021 passed by the Income Tax Appellate Tribunal ('ITAT') in ITA No. 7280/Del./2017 for Assessment Year ('AY') 2010-11, ITA No. 6640/Del./2017 for AY 2009-10, ITA No. 6639/Del./2017 for AY 2009-10, ITA No. 7281/Del.2017 for AY 2011-12, ITA No. 6622/Del./2017 for AY 2009-10, ITA No. 6626/Del./2017 for AY 2008-09, ITA....

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....share certificates were found during search and not the original share certificates, as alleged by learned counsel for the Appellant. In support of his contention, he relies upon the following portion of the impugned order passed by the ITAT:- "iii) Share Certificates found during the course of search, with regards to allotment of shares by Minda group of companies to various companies, noted by AO at page 18 of his order. We have gone through the orders so passed by AO, CIT (A) and also the remand report so furnished by AO during the course of appellant proceedings and notice that these share certificates pertained to 8 companies, namely, M/s JA Builders Ltd, M/s JPM Automobiles Ltd, M/s IBER Medior Ltd, M/s JPM Tsukada Pvt Ltd, M....

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....nies i.e. M/s JPM Tools Ltd. and M/s Jay Nikki Industries Ltd., wherein, also the learned AO in the order of assessment has not made the share certificates as a basis to make addition under section 68, rather, he has placed reliance on the post investigation report and statement of a third party Sh. Rajesh Agarwal. Thus, whether the share certificates were original or photocopies, the same will make no difference, as the same has not been made as basis by the AO in the impugned order of assessment. Similar view has also been taken by a coordinate bench of ITAT Delhi in the case of ACIT vs Moon Beverages Ltd. (ITAT Delhi) in ITA No. 115 to 118/Del/2018, wherein, following findings have been recorded, on which we draw our support: "4....

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....t the investor companies had sufficient networth to make the investment. In support of his contention, he relies upon the following Table reproduced by the ITAT in the impugned order:- Subscribing Company Net Worth as per Balance Sheet (in Rs) Investment made in share capital (in Rs) M/s Festino Agencies Pvt. Ltd. 2,83,00,000/- 15,00,000/- M/s. Eversite Commodities Pvt. Ltd. 2,65,84,000/- 15,00,000/- M/s Gajanand Agrotech Ltd. 7,81,98,000/- 15, 00, 000/- M/s Gajeshwar Sales Pvt. Ltd. 3,88,61,942/- 5,00,000/- M/s Matribhumi Commodities Pvt. Ltd. 4,15,90,000/- 5,00,000/- M/s Monalisa Commercial Pvt. Ltd. 3,74,35,000/- 16,00,000/- Lambodar Commercial Pvt. Ltd. 2,96,25,000/- ....

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....ate of Kerala and Another, (2000) 6 SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, the issue of law is covered by the judgments passed by this Court. 10. In the present batch of matters, both CIT (A) and ITAT have given concurrent findings of fact that no incriminating material had been brought on record by the Assessing Officer to sustain the additions. In fact, the ITAT in the impugned order, has held that the allegation of the Assessing Officer that no notices under Section 133(6) of the Act were received by the investors, is irrelevant as the said parties had filed detailed replies in response to the Section 133(6) notices along with the requisite detai....

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....o the Assessees. Mr. Tarun Goyal was also not offered for the cross-examination. The remand report of the AO before the CIT(A) unmistakably showed that the attempts by the AO, in ensuring the presence of Mr. Tarun Goyal for cross-examination by the Assessees, did not succeed. The onus of ensuring the presence of Mr. Tarun Goyal, whom the Assessees clearly stated that they did not know, could not have been shifted to the Assessees. The onus was on the Revenue to ensure his presence. Apart from the fact that Mr. Tarun Goyal has retracted his statement, the fact that he was not produced for cross- examination is sufficient to discard his statement. 38. under Fifthly, statements recorded Section 132 (4) of the Act of the Act do not by ....