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TMI Blog2017 (9) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... not returned by Postal Department. This, in our considered opinion, is hardly sufficient enough to prove the necessary ingredients u/s 68 of the Act. The impugned order cannot be countenanced. Considering the totality of facts and circumstances of the instant case, we are of the considered opinion that the ends of justice would meet adequately if the impugned order is set aside and the addition of ₹ 75 lac is restored to the file of Assessing Officer for a fresh adjudication. The ld. AR, in all fairness, candidly accepted the course of restoration to the AO for a fresh decision as per law. Unexplained share capital along with share premium - Held that:- When complete information was not admittedly submitted before the Assessing Officer, how he could have proceeded to examine the genuineness of the depositors, is anybody’s guess. In our considered opinion, the impugned order deleting the addition cannot be affirmed. Considering the totality of facts and circumstances of the instant case, we are of the considered opinion that the ends of justice would meet adequately if the impugned order is set aside and the matter is restored to the file of Assessing Officer. We order acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the legal position in appeals for the instant years are admittedly similar to those for the A.Y. 2004-05, following the view taken in our order for the earlier year, we hold that the assumption of jurisdiction u/s 153A for the years under consideration is not valid. The assessments framed for these years are also resultantly quashed. 6. In view of our decision on the legal issue raised by the assessee, there remains no need to deal with the merits of the appeals. 7. In the result, the appeals of the Revenue are dismissed and those of the assessee are allowed. Assessment Year : 2009-10 8. Both the assessee as well as the Revenue are in appeal against the order passed by the CIT(A) for this year on 19.03.2013. 9. Briefly stated, the facts of the case are that the assessee showed to have received share capital and share premium from four parties as under:- S.No. Name Share Capital (Rs.) Securities Premium (Rs.) Total Amount (Rs.) 1. Acumen Paper Binders Pvt. Ltd. 2,00,000/- 18,00,000/- 20,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same bank/branch or in different branches in the name of companies/firms and individuals. He found that there was an elaborate network of transactions involved in the entry racket. These accounts, in the opinion of the Assessing Officer, were used for routing the money for providing accommodation entries. Coming to the facts of the case, the Assessing Officer observed that no reasonable person would invest an amount equal to twice its annual earning in an unknown company without getting any benefit in return. Taking into consideration the human probabilities and the judgments of the Hon'ble Supreme Court in CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC) and Sumati Dayal vs. CIT (1995) 214 ITR 801 (SC), the Assessing Officer came to the conclusion that the assessee brought in its own unaccounted funds into the books through the medium of share capital and share premium to the tune of ₹ 75 lac. The same was treated as unexplained and added to the assessee s total income u/s 68 of the Act. 12. During the course of first appellate proceedings, the assessee filed application under rule 46A enclosing certain additional documents to substantiate that the amounts cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition to the tune of ₹ 15 lac and also restoration by the ld. CIT(A). The case of the Department is that the ld. first appellate authority could not have restored the addition for a fresh adjudication. 14. We have heard the rival submissions and perused the relevant material on record. We agree in principle with the ld. DR that the ld. CIT(A) cannot send the matter back to the AO for a fresh decision. Section 251 lists the powers of the CIT(A) in disposing an appeal. Sub-section (1)(a) of sec. 251 provides that the Commissioner (Appeals), in an appeal against an order of assessment, may confirm, reduce, enhance or annul the assessment. Thus, the power of restoration to the AO is no more available to the ld. CIT(A). He has to take a decision at his own end. In that view of the matter, the decision of the ld. CIT(A) in restoring the issue to the AO for a fresh decision cannot be upheld. 15. It is noticed from the assessment order for this year as well as the earlier years that the assessee is showing to have received share capital with a huge share premium and simultaneously passing it on to other unlisted companies. The ld. DR submitted that such total amount allegedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Assessing Officer for a fresh adjudication. The ld. AR, in all fairness, candidly accepted the course of restoration to the AO for a fresh decision as per law. 16. In the result, both the appeals are allowed for statistical purposes. Assessment Year 2010-11 17. The only issue raised by the Revenue in its appeal is against the deletion of addition of ₹ 40 lac made by the Assessing Officer on account of the alleged receipt of unexplained share capital along with share premium. The facts of the case are that, like earlier years, the assessee showed to have received share capital (including share premium) of ₹ 20 lac from M/s Wizard International Ltd. and ₹ 20 lac from M/s CRM Systems Pvt. Ltd.). On being called upon to furnish the details of the amount received and evidence in support of identity and credit worthiness of the lender and also the genuineness of the transactions, the assessee simply furnished a reply which has been summarized by the Assessing Officer by way of a table on page 5 of the assessment order, reproduced below:- S.No. Name Assessment Year Income returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticing that no independent enquiry was conducted by the Assessing Officer despite the relevant details filed by the assessee. We are not convinced with the view canvassed by the ld. CIT(A) for the reason that he has himself recorded on page 16 of the impugned order that: However, certain other documents are also enclosed which form part of the departmental records or public documents. We are unable to find any logic in the impugned order deleting the addition on the ground that no independent enquiry was conducted by the Assessing Officer, when the ld. CIT(A) has himself recorded that certain fresh documents were also filed before him which were not there before the AO. 20. We have noticed above that the assessee was showing to have received share capital with a huge share premium and simultaneously passing it on to other unlisted companies. This practice is not confined only to the year under consideration, but can be seen in all the years argued before us starting from the A.Y. 2004-05. The ld. CIT(A) was swayed by certain documents filed by the assessee and deleted the addition. At the cost of repetition, we state that escape from section 68 can be made not only by showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Registrar of Companies, etc., do not lead to the discharge of onus u/s 68. The Hon'ble Delhi High court in CIT vs. Jansampark Advertising and Marketing Pvt. Ltd. (2015) 375 ITR 373 (Del) did not agree with the routing of transaction through banking channel as necessarily proving the credit worthiness of the parties or the genuineness of the transactions. This judgment clearly proves that the very fact that the transactions are routed through banking channel would not per se lend genuineness to the transaction. It has been further laid down in this case that if the Assessing Officer has not conducted proper enquiry, the addition cannot be deleted simply on the ground that the Assessing Officer failed to conduct enquiry. In such circumstances, a duty has been cast upon the appellate authorities to consider the evidence as to whether the addition was rightly called for or not. For similar proposition, the ld. DR has relied on certain other judgments in which the genuineness of transactions has not been accepted merely on the basis of documents furnished by the assessee, whose reference is being skipped for avoiding repetition. 21. The ld. AR contended that all the nec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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