2010 (9) TMI 171

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..... ssed.
CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN Ms. Rashmi Chopra, Advocate MANMOHAN, J: 1. The present appeal has been filed under Section 260A of the Income Tax Act,1961 (hereinafter referred to as "Act") challenging the order dated 01st September, 2009 passed by the Income Tax Appellate Tribunal (in short "Tribunal") in ITA No. 812/Del/2008 for the Assessment Year 2004-2005. 2. Ms. Rashmi Chopra, learned counsel for the Revenue submitted that the Tribunal had erred in law and on merits in deleting the addition made by the Assessing Officer (in short, "AO") on account of unexplained share application money. According to her, the respondent-assessee had failed to prove the identity and creditworthiness of the sh .....

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..... e above facts, I am of the opinion that the claim denied to the tune of Rs.1,77,815/- as depreciation should be allowed……" 6. In fact, the Tribunal with regard to depreciation has also observed as under:- "12. We have heard the rival submissions and have gone through the material available on record. We find that the disallowance was made by the Assessing Officer on the basis that these two items were not delivered at the site office of the assessee company by the sellers. There is clear finding given by Ld. CIT(A) that there is clear proof of evidence for purchasing the said plant & machineries and the same being put to use. It is also noted by the Ld. CIT(A) that originally these items were delivered at the convenient place of delivery .....

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..... tion for unexplained cash credits." 8. In our considered opinion, the approach adopted by CIT(A) and Tribunal is in consonance with the decision of Supreme Court in Commissioner of Income Tax Vs. Lovely Exports (P) Ltd., 216 CTR 195 (SC) wherein it has been held as under :- "2. Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment……" 9. Kee .....

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