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TMI Blog2018 (4) TMI 410X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (Annexure A/2) passed by the Commissioner of Income Tax (Appeals)-II, Indore by which the learned Commissioner, Income Tax (Appeals) directed for deleting addition of payment of ₹ 68,80,000/- (rupees sixty eight lakhs eighty thousand) which was assessed by the Assessing Officer as unsecured loans and held that each and every detail of four companies was given by the assessee and these companies were Group Companies of the assessee and assessee has taken loan from five companies and discharged its onus lay upon its shoulder to prove the identity, creditworthiness of the creditors and genuineness of the transactions. 2. Relevant paragraphs No.16 to 23 of order dated 26.05.2017 passed by the learned Appellate Tribunal read, as under: - 16. In the light of the above allegations of the Assessing Officer when we analyze the facts of the case in view of the contentions and submissions of the assessee vis- -vis the findings recorded by the authorities below then we hold that there is no dispute regarding existence and identity of the five companies as the assessee submitted their names, addresses and PAN along with all relevant documents in the shape of returns, financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng asked by the Bench, the learned DR could not controvert this fact agitated by the learned counsel for the assessee that this company is a listed company and as per the master details provided by ROC, it is clear that the company has paid up share capital of ₹ 650 lacs and reserve of ₹ 20 lacs as on 31.03.2007 and it has earned interest of ₹ 56.05 lacs. From the documents available at pages 92-96 of the assessee s paper book-I we observe that in the assessment order u/s 143 (3) of the Act for the assessment year 2007-08 income has been worked out at ₹ 6,86,682/- and refund of ₹ 4,49,400/- has been issued after setting off of losses of these companies. In regard to Siddhachal Developers Pvt. Ltd., undisputedly the opening credit balance of this company was ₹ 5 lacs and the assessee received ₹ 15 lacs during the period under consideration. From the copies of documents available at page 85 to 92 of the assessee s paper book-II filed along with written submissions dated 01.08.2012 we note that for the assessment year 2007-08 vide order dated 28.04.2009 passed u/s 154 of the Act refund voucher has been issued to this company and from the maste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the addition u/s 68 of the Act pertaining to this company. From a respectful reading of the judgment of the Hon ble High Court in the case of Rathi Finlease Limited (supra) we observe that in this case the assessee company was asked to explain the alleged receipts of share application money from certain parties including palasia Leasing Pvt. Ltd. and the assessee submitted only copies of share application forms that too in few cases and when the assessee was required to produce the subscribers to the share applications, despite several opportunities neither the confirmations were given nor the subscribers were produced for examination. In para 11, the Hon ble High Court held that in the case of Palasia Leasing Finance Company, entry was not accepted on the ground that by merely filing the confirmation letter, the burden could not be discharged when the inquiries reveal that the company was not in existence nor any books of accounts or directors were traceable. We respectfully point out that the present case is pertaining to unsecured loan and not to share capital. The said company has been assessed u/s 143 (3) for the assessment years 2004-05 and 2006- 07 by the Department and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editors and genuineness of the transactions. From the relevant part of the assessment order, we observe that the Assessing Officer merely proceeded to make addition u/s 68 of the Act keeping aside all the relevant documents, which were filed by the assessee and the alleged companies and alleged that the creditor companies have issued shares at high premium without any basis. In the assessment order the Assessing Officer also made allegation of cash deposits which was controverted by him in the remand report. From a reading of the assessment order we observe that the Assessing Officer himself was confused to the transaction inasmuch as at page 2 he writes unsecured loans from various companies whereas in the subsequent part of page 3 para 2 he asked the assessee to produce share applicants. In the last para at page 3 of the assessment order the Assessing Officer also takes legs from the assessment order of M/s. BCC Cargo Pvt. Ltd. for the assessment year 2007-08 and as we have noted that in this assessment order there is no such allegation against these companies, therefore, we hold that the Assessing Officer was initially confused and proceeded to make addition u/s 68 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be arrived at, no question of law as such arises. 6. Similar is the issue which was considered by a Division Bench of this Court in the case of Commissioner of Income Tax-II, Indore v. STL Extrusion (Private) Limited reported in [2011] 11 Taxmann.com 125 (Madhya Pradesh) = [2011] ITR 269 (Madhya Pradesh) and in paragraph No.9 of the aforesaid judgment, Division Bench has distinguished the judgment in the case of Commissioner of Income Tax v. Rathi Finlease Limited (supra). 7. Shri Sumit Neema, learned Senior Counsel for the respondent has submitted that the issue involved in this appeal has been considered by the Delhi High Court in detail in the case of Commissioner of Income Tax-II v. Kamdhenu Steel Alloys Limited reported in [2012] 19 taxmann.com 26 (Delhi) = [2012] 206 Taxman 254 (Delhi) = [2014] 361 ITR 220 (Delhi) and Special Leave to Appeal (Civil) No.15640/2012 filed by the Department has been dismissed on 17.09.2012 by the Hon'ble Apex Court. He has further submitted that all the requirement under Section 68 of the Income Tax Act, 1961 has been duly proved by the assessee by giving all the details and the findings recorded by the learned Appellate Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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