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TMI Blog2014 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the issue of condonation was decided in favour of the assessee by the Hon'ble Gujarat High Court in the case of Jayvantsinh N. Vaghela Vs. ITO, (2013) 40 taxmann.com 491 (Gujarat). The learned DR has opposed the submissions of the learned counsel for the assessee on the issue of condonation of delay. We have considered rival submissions on the issue of condonation of delay. We find that in view of the affidavit of the assessee, there was a sufficient cause in not filing the present appeal before the Tribunal, and accordingly, we condone the delay in presenting the appeal before the Tribunal, and we direct accordingly. 3. The grounds of the appeal of the assessee are as under: "1. That the ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in levying penalty u/s.271(1)(c) of the Act. 2. That the ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in levying penalty u/s.271(1)(c) of the Act even though the income declared u/s.115JB and as assessed u/s.115JB remains the same as held by the Hon'ble Delhi High Court in CIT Vs. Nalwa Sons Investments Ltd. in 327 ITR 543. The SLP against the same has been dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order was rejected by the Hon'ble Supreme Court. Accordingly, we cancel the penalty levied under section 271(1)(c) of the Act, and the grounds of the appeal of the assessee are allowed. ITA No.1092/Ahd/2012 - Asstt.Year 2008-2009 (Quantum appeal) 7. The ground no.1 of the assessee's appeal is as under: "1. The ld.CIT(A) erred in law and in the facts of the case in conforming the order of the AO in disallowing Rs. 23,12,214/- as transportation charges." 8. The learned counsel for the assessee submitted that the assessee has admitted that out of total sale of Rs. 58.87 crores, sales of Rs. 30.69 crores represents the issuance of accommodation sales bill to one M/s.ABG Shipyard Ltd. using the accommodated purchase bills of Rs. 30.09 crores from one M/s.Param Polypack P. Ltd. The Managing Director of the assessee-company also admitted that no actual moving of goods took place. In these facts, he submitted that since there was no sale amounting to Rs. 30.69 crores, the sales and purchase figures of goods, has to be ignored and no separate addition for transportation expenses could be made. The learned DR submitted that the assssee has retracted its undisclosed income of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of advancing money to the assessee. Moreover, Shri Mahendra Bhansali is an existing I.T.Assessee, and has given his PAN and it is not the case of the Revenue that the amount of deposit with the assessee-company was not reflected in the I.T. records of the creditor. In these facts and circumstances of the case, we are of the view that no case of addition could be made out by the Revenue, and accordingly, the addition made is deleted and the ground no.2 of the assessee's appeal is allowed. 13. The ground no.3 of the assessee's appeal is as under: "3. The ld.CIT(A) erred in law and in the facts of the case in confirming the order of the AO in making an addition of Rs. 99,05,000/- as share application money received." 14. The learned counsel for the assessee submitted that this ground of the appeal of the assessee consisted of two parts i.e. firstly, the addition of Rs. 2,05,000/- of share application money pertaining to Shri Mahendra Bhansali, Managing Director of the assessee-company and the other being the addition of Rs. 97.00 lakhs representing corporate share application money deposited by five companies. 15. Regarding first deposit of Rs. 2,50,000/- of Shri Mahendra Bhansali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies by the AO were returned un-served by the postal authorities. He submitted that the initial burden was on the assessee to prove the genuineness of the transaction. He relied on following series of decisions in support of the case of the Revenue. i) CIT Vs. Nipun Builders & Developers P. Ltd., (2013) 30 taxmann.com 292 (Delhi); ii) CIT Vs. Ultra Modern Exports P. Ltd., (2013) 40 taxmann.com 458 (Delhi); iii) Gayathri Associates Vs. ITO, (2014) 41 taxmann.com 526 (AP); iv) Blessing Construction Vs. ITO, (2013) 32 taxmann.com 366 (Guj); v) CIT Vs. N.R. Portfolio P. Ltd. Vs. CIT, (2013) 29 taxmann.com 291 (Delhi) 19. We have considered rival submissions and perused the orders of the AO and the CIT(A) and also copies of various documents filed by the assessee in appeal before us. We have also gone through the decisions of the Hon'ble Courts relied upon by the parties. We find that the assessee could not prove the genuineness of the deposit of share application money by these five companies at Kalkotta. The summons issued by the AO have come back unserved. The initial burden is on the assessee to prove not only the identity and credit-worthiness of share money depositors, but al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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