TaxTMI 
TaxTMI 
2023 (8) TMI 1522
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsidering the facts and submissions of the rival sides, we are inclined to condone the delay of 3 days in filing the appeal and appeal is admitted for adjudicated. 3. The issue raised by the assessee in ground no. 1 is against the order of Ld. CIT(A) deleting the addition of Rs. 2,34,00,000/- made by the Assessing Officer (in short ld. 'AO') u/s 68 of the Act for undisclosed cash credit. 4. The facts in brief are that the assessee filed its return of income declaring total income at Rs. 3,14,79,262/- on 29.09.2012 for AY 2012-13. The case of the assessee was selected for scrutiny through CASS and statutory notices were duly issued and served upon the assessee. The assessee is engaged in the business of automobile dealership for Tata passenger cars, spare parts, accessories and workshop for servicing the vehicles etc. Ld. AO during the course of assessment proceedings observed from the return of income that the assessee has issued equity shares thereby raising share capital through the issue of equity shares at huge share premium amounting to Rs. 6,16,39,640/-. Thereafter, Ld. AO further noted that out of the said amount only Rs. 2.34 Cr was raised during the year and the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....7-HC-2020(Bom) has distinguished the ratio laid down by the Hon'ble Apex Court in the case of PCIT Vs. NRA Iron & Steel Pvt. Ltd. [2019] TS-106-SC-2019 (SC). 6. After hearing the rival contentions and perusing the material on record, we find that undisputedly the assessee has filed the evidences/details as called for by Ld. AO in respect of the share subscribers of Rs. 2.34 Cr which has not been commented by Ld. AO in the assessment proceedings nor any defect has been pointed out meaning thereby that no further verification of these evidences was carried out by Ld. AO. We note that though there was a non- compliance to the summon issued u/s 131 of the Act by the directors of the assessee company, but the just mere non- compliance to the summon issued u/s 131 of the Act cannot be a ground for adding the share capital/share premium raised by the assessee during the year as unexplained cash credit u/s 68 of the Act. We note that Ld. CIT(A) has considered all the facts of the case and after passing a very detailed order has allowed the appeal of the assessee. We note that Ld. CIT(A) has followed a series of decisions as stated above. In our opinion, the mere non- compliance to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of Hon'ble Calcutta High Court in the case of Crystal Networks Pvt. Ltd. vs. CIT 353 ITR 171 (Cal ) wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions , the fact that summon issued were returned 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 vie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he learned D.R, who relied on the order of AO. The learned counsel for the assessee relied on the order of Ld. CIT(A) and further drew our attention to the decision of Hon'ble Allahabad High Court in the case of CIT vs. Raj Kumar Agarwal vide ITA No. 179/2008 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....