TaxTMI 
TaxTMI 
2023 (9) TMI 538
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....rved on the basis of details furnished by the assessee that the assessee has issued equity shares during the year thereby raising share capital/share premium to the tune of Rs. 2,24,28,434/-. The AO also issued notices u/s 133(6) of the Act to various share subscribers which were duly responded by the share subscribers by filing necessary documents and confirming the transactions of purchase of shares in the assessee company. Besides the summons u/s 131 of the Act were also issued to the directors of the share subscribing companies for their personal appearance, however no one complied with the same. Thereafter the AO after discussing the decision of Hon'ble Apex Court in the case of Sumati Dayal vs. CIT in 214 ITR 801 (SC) and CIT vs. Durga Prasad More 82 ITR 540 (SC) came to the conclusion that the assessee has failed to establish the identity, creditworthiness of the investors and genuineness of the transactions and finally added the same to the income to the assessee as unexplained investments in the assessment framed u/s 143(3) of the Act dated 10.03.2016. 4. In the appellate proceeding, the Ld. CIT(A) dismissed the appeal of the assessee that though the assessee has filed ....
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....furnish the evidences to prove the identity, creditworthiness of the subscribers and genuineness of the transactions, also issued notices u/s 133(6) of the Act to the share holders who had duly replied the said notices by filing the necessary details as called for by the AO and thus confirmed the transactions. We note that though summons issued u/s 131 of the Act to the directors of the subscribing companies were not complied with, the assessee as well as share subscribers have filed the details /documents as called for by the AO. The assessee furnished the copy of names and addresses of the subscribers, besides its bank statement, return of allotment etc. the subscribers also furnished replies to response to notices u/s 133(6) of the Act filing the following documents: a) Income Tax Return of the share holders b) Certificate of incorporation of the share holders c) Audited Accounts of the share holders d) Share Application Forms e) Share Allotment Letters f) Copy of Memorandum & Articles of Association g) Copy of Board Resolution h) Copy of Bank Statement i) Transaction with the appellant was duly hig....
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....eturned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. The relevant portion of the decision is extracted below: "We find considerable force of the submissions of the learned Counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the Ld. CIT(A) has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the product of the assessee or note. When it was found by the Ld. CIT(A) on fact having examined the documents that the advance given by the creditors....
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..../2008 dated 17.11.2009 wherein the Hon'ble Allahabad High Court took a view that non-production of the director of a Public Limited Company which is regularly assessed to Income tax having PAN, on the ground that the identity of the investor is not proved cannot be sustained. Attention was also to the similar ruling of the ITAT Kolkata bench in the case of ITO vs. Devinder Singh Shant in ITA No. 208/Kol/2009 vide order dated 17.04.2009. 9. We have considered the rival submissions. We are of the view that order of Ld. CIT(A) does not call for any interference. It may be seen from the grounds of appeal raised by the revenue that the revenue disputed only the proof of identity of share holder. In this regard it is seen that for AY 2004-05 Shree Shyam Trexim Pvt. Ltd. was assessed by ITO, Ward-9(4), Kolkata and the order of assessment u/s 143(3) dated 25.01.2006 is placed in the paper book. Similarly Navalco Commodities Pvt. Ltd. was assessed to tax u/s 143(3) for AY 2005-06 by ITO, Ward-9(4), Kolkata by order dated 20.03.2007. Similarly Jewellock Trexim Pvt. Ltd. was assessed to tax for AY 2005-06 by the very same ITO, Ward-9(3), Kolkata assessing the assessee. In the light o....