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TMI Blog2022 (6) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... tive grievance raised in the instant appeal challenges correctness of both the lower authorities' action treating share capital of Rs. 46,00,000/- as unexplained cash credits u/s. 68 in the course of assessment dated 22.03.2013 as upheld in the CIT(A)'s order. Lower appellate dismissing qua the instant first issue reads as under: "5.3 I have carefully considered the facts of the case and law apparent from the records. The AO made addition of Rs. 46,00,000/- u/s. 68 on account of unexplained share capital. The appellant had not submitted financial statements as per the Companies Act. Discrepancies has been noted in tax audit report and financial statements submitted by the appellant. The audit report submitted does not reflect true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit during the year. The version of the appellant is doubtful as what is the actual transaction it is known to the appellant only. The appellant has stated that, loans are deposit accepted amount exceeding limit is specified in section 269SS is shown as NA in column 24 of the audit report. In fact, passing journal entry tantamount to taking Joan from the Directors. Apparently, the appellant has misrepresented the balance sheet by passing journal entries. It gives incorrect representation to the extent that without bringing any single rupees. The paid capital has been shown artificially increased. The contention of the appellant is that this is not the job of the ROC to examine such things. The fact remained same that there is credit en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be some entry in the liability side of the Directors account which must be artificial. In other words, the appellant is source of funds and investment is in the books of the appellant without any passing of the money. Therefore the appeal effect will also be in two parts one relating to the appellant and another relating to the Directors. Substantive addition/examination of the source of the funding for share capital requires examination in case of Directors. Once this process is complete then only appellant will be absolved from explaining the source of share capital. Accordingly, ground no. 1 of the appeal is dismissed. However, the demand will be protective only, It is for the appellant to demonstrate when actual transactions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jagannath Hanumanbux vs. ITO (1957) 31 ITR 603 (Cal), Calcutta High Court held that it is open to the Department to make assessments on two persons in respect of the same income, where it is doubtful which assessee is really liable to charge, because unless such 'protective' or 'alternate' assessment is made, assessment proceedings against the party ultimately found to be liable may become time barred; but the Department cannot recover the tax from both the assessees in respect of the same income. We are in respectful agreement. Similar view was expressed by Allahabad High Court in Smt. Hemlata Agarwal vs. CIT (1967) 64 ITR 428 (All). The question arose in the circumstances where certain income was assessed in the first i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tear services requires cash payment only. We fail to understand as to how the impugned payment can be justifiable in the foregoing case only since lacking the supportive evidence as well as genuineness in foregoing details. We thus quote find no merit in the assessee's arguments pertaining to the above sole prayer. The facts also remains that keeping in mind that the nature of assessee's business involving 150 transportation vehicles as well as employees operating in different parts of country, the other small payments indeed deserve to be allowed involving peculiar day to day business requirements. We accordingly uphold the impugned addition of Rs. 23,10,630/- to the extent of Rs. 15,69,530/- only. The remaining disallowance co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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