AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 1184
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....nd ITAT had remanded the matter to the file of AO with certain directions. Hence we find it gainful to refer to the facts of the case in the first round appreciated by the ITAT as under :- "This appeal filed by the assessee is directed against the order dated 30.09.2013 of the CIT (A) -XII, New Delhi relating to A. Y. 2009-10. 2. Facts of the case, in brief, are that the assessee is a company engaged in the business of land. It filed its return of income on 24.07.2009 declaring total income of Rs.5,63,0003/-. During the course of assessment proceedings the Assessing Officer observed that the assessee company during the year has shown to have received share capital of Rs.2,25,00,000/- which included share premium of Rs.1,96,00,000/- on sale of 45,000 nos. of shares of the face value of Rs.10/- per share with premium of Rs. 490/- per share from the following companies / persons, the details of which are as under :- S.No. Company/ Persons name No. of share Face value per share Premium per share Total (Rs.) 1. M/s. VIP Leasing and Finance co. (P) Ltd., 10000/- 10/- 490/- 50,00,000/- 2. M/s. Delhi Housing Development Ltd.....
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.... Leasing and Finance co. (P) Ltd. Gulab Builtech (P) Ltd. 10000 M/s. Delhi Housing Development Lt.d Verma Buildtech & Promoters (P) Ltd. 10000 M/s. Euro Asia Mercantile (P) Ltd. Gulab Buildtech Ltd. 10000 4. The addresses of the transferee companies were located by the Assessing Officer from the ROC website and enquiries were got conducted through the ward inspector. From the said enquiry it transpired that M/s. Gulab Buildtech (P) Ltd. is a concern controlled by the assessee's family and also running from the premises no. 31, Jangpura Road, Bhogal, New Delhi which belongs to the family of the assessee. The other 2 companies namely Verma Buildtech & Promoters (P) Ltd and Gulab Buildtech (P) Ltd. though operating from a different address in Green Park, New Delhi are close confidantes of the assessee company. Though the inspector could contact the Director of M/s. Verma Buildtech & Promoters (P) Ltd. at Green Park address but he was also evasive in intimating the rates at which the shares were purchased by them. He, therefore, was of the opinion that these companies are also in collision with the assessee company. In view of the above, the Assessing O....
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.... As regards the individual shareholder Shri Rohit Mathur is concerned, it was submitted that this shareholder had also sent a letter dated 14.11.11 to the Assessing Officer confirming the investment in the assessee company and had also sent his bank account as well as copy of the physical share certificate and his income tax particulars to the Assessing Officer. The copy of the letter sent by Shri Rohit Mathur to the Assessing Officer which was obtained by the assessee from him was also filed before the Ld. CIT (A) to show that Shri Rohit Mathur had duly responded to the notice of the Assessing Officer. 7. As regards Delhi Housing Development Private Ltd. is concerned it was submitted that this shareholder had also directly replied to the A.O. vide his letter dated 28.11.11 confirming the investment in the assessee company and it was thus explained that this shareholder had also directly responded to the notice / summon of the Assessing Officer. The assessee also filed a copy of the balance sheet of this shareholder. 8. As regards VIP Leasing & Finance Private Ltd., the assessee furnished copy of current company master data of that company and submitted that this ....
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.... company and each of them had paid the share capital through normal banking channels. Further the Assessing Officer has not brought on record any material to prove that the transaction of issue of share capital to any of the four holders is an accommodation entry. It is evident that the appellant company had duly discharged its onus to prove the receipt of share capital money. The appellant has duly proved that the share capital was received from identified and existing persons who have invested said amounts out of their own bank accounts and have confirmed the factum of such investment directly to the Assessing Officer and have also filed copies of their bank accounts and balance sheets to prove their creditworthiness and genuineness of the transactions. The Hon'ble High Court of Delhi in the case of Fair Finvest Limited in ITA No. 232/2012 dated 22.11.2012 has decided the same issue in the favour of the appellant referring to the ratio of the decision of the Supreme Court in Lovely Exports. Facts of the case being the same this order of the Hon'ble High Court is applicable in the case of the appellant. Further the Hon'ble Delhi High Court in the case of Gangeshw....
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....Revenue and held as under :- "18. We have considered the rival arguments made by both the sides perused the orders of the authorities below and the paper book filed on behalf of the assessee. We have also considered the various decisions cites before us. We find the Assessing Officer in the instant case made addition of Rs. 2.25 crores being share capital and share premium received by the assessee from the four parties the details of which are given at paragraph No.2 of this order. While doing so he invoked the provisions of section 68 of the IT Act on the ground that this is the money of the assessee which was routed through the accounts of the above companies and such share capital and share premium are unexplained. We find the Ld. CIT (A) deleted the addition, the reason for which has already been reproduced in the proceeding paragraph. It is the submission of the Ld. Counsel for the assessee that the assessee has discharged the onus cast on it and therefore, the Ld. CIT (A) was justified in deleting the addition. It is an admitted fact that the assessee, during the course of assessment proceedings, had filed the copies of the income tax returns, complete details of the....
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....s of the assessee company income already assessed at Rs.5,63,003/- u/s 250/143 (3) vide order dated 13.11.2003 is accepted u/s 153A/143(3) of I. T. Act. Assessed u/s 153 A/ 143 (3) at Rs.5,63,003/-. Charged interest u/s 234A,B,C &D as applicable. Demand notice u/s 156 of the Act issued. Credit for prepaid taxes has been given. The order passes with the approval of the Joint Commissioner of Income Tax, Central Range-IV, New Delhi as accorded by him vide letter F. No. JCIT/CR-4/2015-16/1687 dated 31.03.2016." 19. From the above it is very clear that no adverse material was found during the course of search or post search inquiries to establish that the assessee has received any bogus share capital or share premium. However, these are all subsequent to the order passed by the CIT (A) and neither the Assessing Officer nor the CIT (A) had the benefit of all these details where in all the parties have responded to the inquiry conducted by the investigation wing as well as responded to the notice issued u/s 133 (6) by the Assessing Officer during the search assessment proceedings. Under these circumstances we deem it proper to restore the issue to the file of th....
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....reated and will be added to the income of the assessee u/s 68 of the Income Tax Act, 1961. The fact is, as even Investigation Wing has already established in various cases of accommodation entries, it is evident process of layering and trailing of funds come to in the accounts above mentioned four closely, family linked persons/entities from assessee company has taken accommodation beneficiary entries total amounting to Rs.2,25,00,000/- in guise of share premium." 7. Thereafter, ld. CIT (A) referred to the written submissions and paper book of the assessee. He noted that various details were provided and examined in post-search investigation and that none of these items were referred to by the AO. The order of ld. CIT (A) in this regard may be gainfully referred as under :- "5.3 On perusal of the written submissions and paper book of the appellant, it is observed as under: (i) In the copy (submitted by appellant) of questionnaire dated 21.9.2015 during the assessment proceedings u/s 153A, the AO had asked in Q No 4 as under: "4. Please furnish the original copy of P & L A/c and balance sheet in the conventional form alongwith detailed schedules and tax....
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....st on 9.1.2016 with No ED971715725IN and subsequent reply dated 20.2.2016 as per letter received in the O/o ACIT (CC)-15, Delhi. (vi) Copy of summons issued u/s 131(lA) vide F. No ADIT(Inv.)/Unit V(2)/ASL/2013-14/599 dated 11.3.2014 to M/s Euro Asia Mercantile P Ltd. (EAMPL) asking for 12 details w.r.t these transactions. The reply of the M/s EAMPL sent vide speed post No ED413051024IN on 21.4.2014 to the DDIT(Inv), Delhi. (vii) Copy of the notices u/s 133(6) issued by the AO vide letters F.No.- ACIT/CC15/2015-16/1002 dated 13.10.2015 & 1818 dated 11.2.2016 to M/s Euro Asia Mercantile P Ltd. asking elaborate 15 details w.r.t these transactions. Copies of reply submitted by the appellant vide letters received in the O/o ACIT (CC)-15, Delhi on 16.11.2015 & 29.2.2016. (viii) The copy of reply made by Mr Rohit Mathur on 20.3.2014 vide speed post no ED747288306IN to DDIT(Inv.), Delhi in response to summons u/s 131 w.r.t these transactions. 5.3.1 In view of the above documents submitted by the appellant in the paperbook filed, it appears that the AO had incorrectly mentioned that no inquiries were made either in post search investigations or proceeding....
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.... 27.12.2019 as in the earlier assessment order u/s 143(3) dated 28.11.2012 and this addition of Rs.2.25Cr made in the order dated 28.11.2012 was deleted by my predecessor vide order dated 30.09.2013. There are no new evidence/facts brought by the AO in this assessment order which needs to be considered fresh in this appeal. Therefore, respectfully, following the order of my predecessor, the addition made by the AO in this assessment order dated 27.12.2019 on the same facts as in earlier assessment dated 28.11.2012, is not sustainable. 5.3.3 In view of the discussion made in above Para, the addition of Rs.2.25 Cr made by the AO, on account of share capital including share premium, u/s 68 is not sustainable and is hereby deleted." 8. Against the above order, Revenue is in appeal before us. We have heard both the parties and perused the record. 9. Ld. DR for the Revenue relied upon the order of the AO. 10. Per contra ld. Counsel of the assessee submitted that ITAT has thoroughly gone through the matter in the first round. It had not found it appropriate to reverse the order of ld. CIT (A). Instead ITAT has taken note of the fact that there has been subsequent search ....