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TMI Blog2011 (9) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as the Tribunal‟) whereby the assessee has been given opportunity for the fifth time to make up the lacuna/fill in the evidence in this case to meet the ends of justice‟. 2. The issue falls for consideration in the Assessment Year 1995-96 and relates to the addition made by the Assessing Officer (AO) under Section 68 of the Income Tax Act ( the Act‟ for brevity) on account of unexplained credits. During the course of assessment, the AO found that the assessee had received share application money from various alleged investors. Since he had some doubts about the genuineness of these transactions, he called upon the assessee to furnish the details of the investors and the particulars of receipts, etc. The assessee failed to supply any information in spite of various opportunities given because of which, the AO made addition of Rs. 2,25,57,000/-, as on account of share capital and share application money not proved. 3. Against that order, the assessee filed appeal before the CIT (A), the CIT (A) set aside the assessment order vide its decision dated 28.12.1998 directing the AO to frame de novo assessment after giving opportunity to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objecting disallowance of Rs.46,04,000/- of share capital, as the assessee had failed to prove identity/creditworthiness of the companies/parties who had invested in share capital. The Tribunal, while discussing the case, returned categorical findings and made clear-cut observations that the assessee was at fault in not furnishing details in spite of repeated opportunities given to him. After deprecating the conduct of the assessee, the Tribunal has still remanded the case back to the AO giving one more chance to the assessee to furnish requisite information/documents with directions to the AO to make afresh assessment. 6. It is under these circumstances, the present appeal is filed by the Department with the grievance that the conduct of the assessee does not warrants any such leniency to be given to him when there was total non-corporation by the assessee on earlier occasions. 7. Notice in this appeal was issued, which could not be served upon the respondent by normal process. Accordingly, the Revenue was permitted to serve the assessee by publication in a newspaper, which was duly done in spite thereof nobody appeared. The respondent was proceeded ex parte and following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um to the negligence. 9. We find substance in this submission of Mr. Sabharwal. 10. The perusal of the impugned order would show that after discussing the law on the subject, the Tribunal pointed out the burden which led on the assessee to prove, identity of the investors, genuineness of capital/share application money and the capacity of the investors to pay. The Tribunal also recorded that such a burden was not discharged by the assessee in spite of the fact that two innings were given to the assessee and in both the innings, number of opportunities were given. Some of observations of the Tribunal, in this behalf, are as under: In these circumstances, the assessee for one reason or the other failed to furnish the details required regarding the share capital and share application money to the Assessing Officer. As a result in the first round of the assessment, on account of sheer non-cooperation on the part of the assessee by projecting the investment companies to be unapproachable, the assessee showed incapacity in providing and filing the copies of bank accounts as well as the copies of the final accounts of both the investment companies xxx xxx xxx .As a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trol on the investing companies and still it withheld all the necessary information called for by the Assessing Officer, which could enable the Assessing Officer to test the genuineness of the transaction and creditworthiness of the investing companies by verifying the genuineness of the claims made by the assessee before the CIT (A) on the basis of those documents which the assessee filed for the first time before the CIT (A) during the 2nd inning or the appellate proceedings. 26. Thus, it stands established that in fact the assessee produced only the information/documents/person for recording statement called for by the Assessing Officer which suited the interest of the assessee and intentionally withheld that information which did not suit the interest of the assessee. Even Shri Sandeep Thappar, Director, as directed by the CIT (A) in the 1st appellate order to be examined by the Assessing Officer for testing the genuineness of the transaction was never produced by the assessee before the Assessing Officer, though his active involvement in the affairs of assessee company as well as the investing companies cannot be ruled out from the facts appearing on record and also in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim any benefit under the above-stated Explanation. Learned counsel, Mr. Shah, has made a request that in view of the law laid down by the Supreme Court in the case of CIT Vs. Indian Malasses Co. P. Ltd. (1970) 79 ITR 474, the case should be remanded to the Tribunal so that additional evidence can be adduced before the Tribunal. In our opinion, this is not a fit case of remand the matter to the Tribunal because neither was evidence ever adduced by the Assessee before any of the authorities or any averment made to show that the case of the assessee was covered by Explanation (b)9vii) in section 40A(8) of the Act. On the contrary, there is a finding to the effect that interest was paid to sharafi accounts maintained by the agent with the Assessee company. For the reason stated hereinabove, we answer the question referred to us in favour of the Revenue and against the Revenue. 14. Even otherwise, in a case like this, remand is not going to serve any purpose, as the Assessment Years 1994-95 and 1995-96 have passed. We, thus, answer the question in favour of the Revenue and against the assessee. The consequence whereof would be to set aside the order of the Tribunal and sustain the ..... 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