TaxTMI 
TaxTMI 
2023 (11) TMI 1292
X X X X Extracts X X X X
X X X X Extracts X X X X
....he delay is for sufficient reasons and the assessee is not benefitted by delayed filing of appeal. Accordingly, we are inclined to condone the delay and admit the appeal for adjudication. 3. The only issue raised by the assessee is against the confirmation of addition of Rs. 1,53,31,318/- by Ld. CIT(A) as added by the Assessing Officer (in short ld. 'AO') on account of unexplained share capital/share premium u/s 68 of the Act. 4. The facts in brief are that the assessee filed the return of income on 05.01.2015 showing total loss at Rs. 3,69,272/-. The case of the assessee was selected for scrutiny through CASS and statutory notices were duly issued and served upon the assessee. The assessee did not comply to the said notices resulting into framing of assessment ex-parte on the basis of information available with the AO. The AO on the basis of information before him observed that the assessee company was incorporated on 09.09.2013 and a sum of Rs. 1,53,31,318/- was credited in the books of accounts as share capital/share premium. The sums credited from the price of share capital of Rs. 37,75,000/- and share premium of Rs. 1,06,55,728/- and share application money pendi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he first remand proceeding the AO did not give any opportunity to the assessee to present his case and when this issue was raised before Ld. CIT(A), Ld. CIT(A) again called for a remand report and in the second remand proceeding the assessee was given an opportunity to represent its case and assessee filed all the evidences in respect of share subscribers. 6. We note that the assessee has filed the names and addresses of the subscribers, their balance sheets, net worth, bank statements and ITRs etc. along with copies of PAN. However, the AO has not examined these documents and only harped on the technicalities to draw adverse inference. In our opinion, the assessee has filed all the evidences concerning the identity and creditworthiness of the investors and their net worth available with the subscriber companies. We also note that the reply received in response to the summons issued u/s 133(6) of the Act were also available with the AO and the assessee vide letter dated 11.07.2023 through RTI has called for the order sheet entries, copies of notices issued u/s 133(6) of the Act and replies received in response thereto, notice u/s 143(2) of the Act and proof of service thereof an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ased on some evidence on which a conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case." 6.1. The case of the assessee is also squarely covered by the decisions of Hon'ble Calcutta High Court in the case of Crystal Networks (P) Ltd vs CIT reported in 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CIT(A). The appeal is allowed." 6.2. The case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers India Pvt. Ltd. (ITA No. 282/Kol/2012), the operative part whereof is extracted below: "8. We have heard the submissions of the 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 t....