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TMI Blog2019 (3) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 for the Asst Year 2008-09. 2. The only to be decided in this appeal is as to whether the ld CITA was justified in upholding the addition made u/s 68 of the Act towards share application money in the sum of Rs. 7,65,00,000/-, in the facts and circumstances of the case. 3. The brief facts of this issue is that the assessee is deriving income from share dealing and investments as per the assessment order. The return of income for the Asst Year 2008-09 was filed on 28.3.2009 declaring total loss of Rs. 283/-, which was duly processed u/s 143(1) of the Act. Later the assessment was reopened by issuance of notice u/s 148 of the Act and re-assessment was completed u/s 147/143(3) of the Act on 30.4.2010 determining total income at Rs. 17,720/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho were directors of the assessee during the relevant period, failed to produce the shareholders before the ld AO for verification of share capital investments obtained from them. He also observed that the identity and creditworthiness of the shareholders could not be explained. Accordingly, he brought the receipt of share application money in the total sum of Rs. 7,65,00,000/- to tax as unexplained cash credit u/s 68 of the Act. 4. The ld CITA observed that since the source of assessee company's share capital remained unexplained in the light of the failure of the directors to attend personally and explain the business prudence of the investments and their own credentials, the addition on the facts of the case had been rightly made u/s 68 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?" In our opinion, there can only be one answer to this question which is inherent in the question itself: in the negative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Rs. 7,65,00,000/-. We note that the ld CIT invoked the revisional jurisdiction u/s 263 of the Act and found that the assessee company in its Balance Sheet has shown to have infused equity share capital of Rs. 7,65,00,000/- at a premium of Rs. 190/- per share and since the ld AO had not enquired into the source of the share capital and premium infused into the assessee company by verifying the identity, genuineness and creditworthiness of the shareholders, the ld CIT found the AO while doing assessment did not exercise the role of investigator and, therefore, the order of ld AO is erroneous so far as prejudicial to the interest of the revenue and directed the ld AO to make fresh assessment after taking into consideration the pernicious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly placed assessees had challenged the exercise of revisional jurisdiction u/s 263 of the Act before this tribunal in those cases , one of it of Subhalakshmi Vanijya Pvt Ltd vs CIT in ITA No. 1104/Kol/2014 dated 30.7.2015, wherein the Tribunal was pleased to uphold the order passed by the ld CIT passed u/s 263 of the Act , which we learn to have been confirmed by the Hon'ble Jurisdictional High Court and the SLP preferred against the decision of the Hon'ble Jurisdictional High Court has been dismissed by the Hon'ble Supreme Court. We note that the shareholders had duly replied during the original re-assessment proceedings confirming the factum of investments before the ld AO . The ld AO chose to issue summons to the directors of the shareh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding controlling interest including the change in shareholding, directorship etc and then take the entire matter to its logical conclusion to bring out the facts on record. From the perusal of the assessment order, we find that this has not been done by the ld AO. In this regard, we would like to place reliance on the decision of Hon'ble Delhi High Court in the case of CIT vs Jansampark Advertising & Marketing Pvt Ltd in ITA No. 525/2014 dated 11.3.2015 wherein after noticing inadequate enquiry by authorities below, the court had held as under:- "41. We are inclined to agree with the CIT(Appeals), and consequently with ITAT, to the extent of their conclusion that the assessee herein had come up with some proof of identity of some of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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