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TMI Blog2018 (12) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... om the five companies by giving cash. No doubt there is a contradiction in the statement of Shri Waseem Gupta, but that alone cannot be a deciding factor once the corroborative evidences in the form of bank statements have been filed by the assessee. The Assessing Officer did not make any effort to examine the bank statement furnished by the assessee. - decided against revenue - ITA No. 4249/DEL/2015 - - - Dated:- 12-12-2018 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER For the Appellant : Shri Salil Aggarwal, Adv, Shri Shailesh Gupta, CA For the Respondent : Smt. Naina Soin Kapil, Sr. DR ORDER PER N.K. BILLAIYA, AM:- This appeal by the Revenue and is preferred against the order of the Commissioner of Income Tax [Appeals] VIII, New Delhi dated 30/04/2015 pertaining to assessment year 2006-07. 2. The grievance of the assessee is that the ld. CIT(A) erred in not treating the share application money received by the assessee as its own concealed income introduced in the garb of share application money. 3. Briefly stated, the facts of the case are that assessment u/s 143(3) r.w.s. 147 of the Income-tax Act, 1961 [herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal deposition of the principal officers of these companies. However, no compliance was made. 7. The assessee was informed that none of the principal officers complied with the summons issued u/s 131 of the Act. Accordingly, the assessee was asked to produce the principal officers. On 28.03.2014, the assessee produced the Director of M/s Chotti Leasing Finance Pvt. Ltd, M/s Sam Portfolio Pvt Ltd, M/s KMC Portfolio Pvt Ltd and M/s Sushree Securities Pvt. Ltd. 8. The Assessing Officer recorded the statement of Shri Aseem Gupta, Director of M/s Sushre Securities Pvt Ltd, Shri Wasim Mirza, Director of Chotti Leasing Finance Pvt Ltd and M/s KMC Portfolio Pvt Ltd. The Director of Ravnet Solutions Pvt Ltd could not be produced and the assessee sought more time to produce him. 9. Shri Aseem Gupta and Shri Wasim Mirza, in their statements stated that their companies have not provided accommodation entries but they entered into genuine transactions with the assessee company. 10. The Assessing Officer rubbished the statement as tutored statements and observed that Shri Aseem Gupta himself admitted on oath during the course of survey/search/assessment proceedings that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shifted to the Revenue, it is incumbent upon the Assessing Officer to bring some cogent material evidence on record to demonstrate that the share application money is nothing but the unaccounted money of the assessee. The ld. counsel for the assessee heavily relied upon the decision of the Hon'ble Delhi High Court in the case of Oriental International Company Pvt. Ltd 401 ITR 83. 19. Having heard the rival contentions, we have carefully perused the orders of the authorities below. There is no dispute that the information received from the office of the DIT [INV], New Delhi triggered the proceedings and the Assessing Officer, taking a leaf out of the said INV report, proceeded to verify the transactions entered into by the assessee with the five companies mentioned elsewhere. Three is also no dispute that all the transactions have been done through banking channel, duly recorded in the books of account of the assessee. When the assessee was asked to furnish details of share application money, the assessee not only filed confirmations but also copy of bank statement, report of income and copy of bank statement in which money was received. It is not the case of the Revenue that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer. If the Assessing Officer were to conduct his task diligently, he ought to have at last sought the material by way of bank statements, etc., to discern whether in fact the amounts were infused into the shareholder s account in cash at any pout of time or that the amounts were such as to be beyond their means. The Assessing Officer failed to do so. The Tribunal rightly set aside the addition made under section 68 of the Income-tax Act, 1961. 22. In another judgment, the Hon'ble jurisdictional High Court of Delhi in the case of Fair Finvest 357 ITR 146 has held as under: The assessee had filed documents including certified copies issued by the Registrar of Companies in relation to the share application, affidavits of the directors, Form 2 filed with the Registrar of Companies by such applicants, confirmations by the applicant for company's shares, certificates by the auditors, etc. Unfortunately, the Assessing Officer chose to base himself merely on the general inference to be drawn from the reading of the investigation report and the statement of M. The least that the Assessing Officer ought to have done was to enquire into the matter by, if necessary, invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals are not to be decided for giving one more innings , to the lower authorities. In the appellate jurisdiction the appellate court has to consider whether there is justification for upsetting the order against which the appeal is filed. In this case, where the assessee had repeatedly produced the creditors before the Income-tax Officer and had filed affidavits in support of the credit entries and also filed confirmations and given names and addresses of the concerned parties as well as proved repayment of the amounts by account payee cheques and done all that was within his power to prove the genuineness of the loans, the finding arrived at by the appellate authority on the basis of such reliable material could not have been so cursorily dealt with by the Tribunal for the purpose of giving one more innings to the Assessing Officer. It was the duty of the Tribunal to ascertain the reasons which were given by the Commissioner of Income-tax (Appeals) in whose order the order of the Assessing Officer had merged and not to base its decision merely on a bit of negligence of the Assessing Officer in not cross-examining the parties who were produced before him four to five times. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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