TaxTMI 
TaxTMI 
2023 (2) TMI 221
X X X X Extracts X X X X
X X X X Extracts X X X X
....or any of the grounds of appeal on or before the final hearing." 2. Brief facts of the case are that assessee filed its return of income on 10.09.2012 declaring total income of Rs. 33,180/- for the assessment year 2012-13. The assessee company raised share capital for an amount of Rs. 2,10,00,000/- through issuance of shares of face value of Rs. 10/- at a premium of Rs. 90/-. The case of the assessee was selected for scrutiny through Cass. Accordingly, notices u/s 143(2) of the Act was duly served upon the assessee. Later on 04.06.2014, notice u/s 142(1) of the Act was also issued upon the assessee. In response to such notices, the AR of the assessee had filed requisitioned documents viz. - ROC- Form No. 2, ROC - Form No. 18, bank statement for F.Y. 2011-12, copy of the audited accounts and copy of the ITR - V. However, during the assessment proceeding, the assessee company has failed to explain the amount of Rs. 2,10,00,000/- in its books of account in the form of share capital and share premium and similarly notice u/s 131 of the Act was issued upon the Director of the company and it was not complied with as alleged in the assessment order by the ld. AO. During the pendency of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nced in respect of subscriber of shares and nothing adverse could be found therein. However, the addition of share capital raised during the year of Rs. 2,10,00,000/-was made by the AO merely based on surmises and conjectures. While passing the order by the ld. CIT(A) also gave details findings in para 4.6 and discuss in respect of each of share subscribers and their identity and as well as creditworthiness of such subscriber and also genuineness of the transaction as the share application money was paid and received through banking channel. Besides that those transactions were duly accounted for in the books of shareholders. Finally, the ld. CIT(A) after relying on various decisions rendered by the assessee deleted the addition on the ground that the ld. AO miserably failed to prove that subscribers of the equity shares did not have the creditworthiness or the transactions were not genuine. Besides that the addition to other evidences, the appellant during the course of assessment proceedings had submitted a letter from the subscribers in respect of confirming the investment made in appellant company. The ld. CIT(A) while allowing the appeal of the assessee he had viewed that the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-production of managing directors of the share subscriber companies to make the addition. The Ld. CIT(A) has noted that the assessee has discharged its onus by filing all the details and evidences which were the part of the record and therefore the addition made by the AO was wrong and ordered to be deleted. In view of these facts, we do not find any infirmity in the order of Ld. CIT(A) as the assessee has discharged its onus by filing all the details in the assessment proceedings. Moreover, the assessment framed u/s 143(3)/147/144 of the Act in all the cases of investor were also furnished before both the authorities below and copies of assessment order were also enclosed in the PB as stated hereinabove. Considering these facts, we do not find any infirmity in the order of Ld. CIT(A) which is otherwise a very reasoned and speaking order passed after discussing various factual details about each and every subscribers in para 4.4 to 4.14, such their source of investments, creditworthiness etc. In our opinion, nonproduction of directors of the investors cannot be a ground for making addition in the hands of assessee u/s 68 of the Act when the other evidences relating to the raising s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... material facts and records its findings on all the contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law." The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law. It is also ruled in the said judgment at page 465 that if the Tribunal does not discharge the duty in the manner as above then it shall be assumed the judgment of the Tribunal suffers from manifest infirmity. Taking inspiration from the Supreme Court observation 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 Ld. CIT(A). We also found no single word has been spared to up set the fact finding of the Ld. CIT(A) that there are materials to show the cash credit was received from various persons and supply as against cash credit also made. 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 Ld. CIT(A). ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. The AO simply harped on the non production of managing directors of the share subscribing companies to make the addition which is not correct. The ld CIT(A) has passed a very reasoned and speaking order discussing all facts and satisfaction of all the ingredients of section 68 of the Act while allowing the relief as stated above. Under these facts and circumstances and considering underlying facts in the light of ratio laid down in the decisions as discussed above, we are inclined to uphold the order of Ld. CIT(A) by dismissing ground no. 1 of the revenue. 5. In respect of another issue regarding disallowance of expenditure to the tune of 20% by the AO and while deciding the appeal of the assessee, the ld. CIT(A) restricted such expenditure to the tune of 10% is bad in law as stated by the ld. DR. The ld. DR placing reliance on the assessment order, argued that the ld. AO has rightly disallowed the expenditure to the tune of 20% debited in the profit & loss account of the assessee company on account of employee benefit expenses and other expenses. While dec....