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TMI Blog2015 (7) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided partly in favor of assessee for statistical purposes. - I.T.A .No.-5592/Del/2012 - - - Dated:- 15-7-2015 - SMT DIVA SINGH AND SHRI J.S. REDDY, JJ. For The Appellant : Sh. Ved Jain, Adv. For The Respondent : Ms. Y. Kakkar, DR ORDER PER SMT. DIVA SINGH, J.M. By the present appeal the assessee assails the correctness of the order dated 27/08/2012 of CIT(A)-V, New Delhi pertaining to 2005-06 assessment year on the following grounds: 1. On the facts and circumstances of the case, the order passed by the ld. Commissioner of Income Tax (Appeals) (CIT(A)) is bad, both in the eye of law and on facts. 2. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in confirming the penalty amounting to ₹ 10,14,087/- levied by AO u/s 271(1)(c) of the Act. 3. On the facts and circumstances of the case, the ld. CIT(A) has erred, both on facts and in law, in confirming the penalty on the addition made by AO on account of share application money despite the assessee brining all material and evidences on record to prove the identify of the share applicants. 4. On the facts and circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, vide judgment dated 8th September, 2011. 3.1. A perusal of the record shows that as a result of the addition of ₹ 27,48,000/- penalty proceedings were initiated against the assessee and taking into consideration the facts of the case the AO came to the following conclusion: In view of the above facts it was clear that assessee was not able to justify the genuineness, creditworthiness to ₹ 25,50,000/- as the accommodation entry received by the assessee company form entry providers. Further, the assessee has also deliberately debited the preliminary expenses amounting to ₹ 17,308/- in profit loss account which expenses were not allowable. Therefore, the assessee has willfully concealed the taxable income to the tune of ₹ 25,67,308/-. (emphasis provided) 3.2. As a result of this penalty of ₹ 10,14,087/- was imposed. The assessee challenged the action unsuccessfully before the CIT(A). Aggrieved by this the assessee is in appeal before the Tribunal. The ld. AR addressing the facts submitted that the CIT(A) in the penalty proceedings had taken cognizance of the fact that out of the addition of ₹ 25,50,000/- made by the AO th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed are well-settled legal proposition and have been taken into consideration while arriving at a conclusion. Similarly the argument that no defect has been pointed out in the books of accounts where books at the relevant point of time were not produced has also been considered in the back drop where it is a matter of record that the books were never produced and no plea has been raised till date that they can be produced. However in the peculiar facts of the present case these general propositions of law no doubt well settled do not help the assessee in any manner. The facts leading to the imposition of the penalty proceedings have been summed up by the Hon ble High Court in paras 2 to 5 in the quantum proceedings in the following manner: 2. The brief facts are that the assessee raised share application money of ₹ 27,40,600/- from eight persons. Out of the above, during the year in question, only a sum of ₹ 22,50,000/- was received towards share capital. The Assessing Officer (AO) initiated enquiry proceedings in respect of shareholders and sent summons to Shri Amit Gupta, Shri Surender Kumar Srivastava, Shri Moolchand Nirmal and Shri Yogesh Saxena. The summons is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to share application money was bogus and in fact, these persons had never invested in the assessee s company. The assessee had not been able to discharge the primary onus put on him to prove the cash credit. The assessee had also not produced its shareholders of the company for verification and, therefore, the identity of these shareholders was not proved. Two persons, viz., Mr. Yogesh Saxena and Mr. Moolchand Nirmal, who appeared before the AO had specifically made statement denied that they had made any investment with the share application money. Further finding which is recorded by all the three Authorities that the money had not come from their accounts. In fact, it was found that the accounts from which those amounts were received as share application money was belonging to one Mr. Aggarwal, Mr. Yogesh Saxena even stated that his signatures on confirmation as well as on affidavit were forged. As per the bank reports, the share application money were received from Mr. Aggarwal through his proprietary concern and thus, transactions were not genuine. These are all findings of fact accorded by all the three Authorities below. Faced with these findings, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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