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TMI Blog2023 (3) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is now in appeal and has raised the following grounds:- 1. Under the facts and circumstances of the case, the assessment order passed by the ld. Assessing Authority u/s 143(3) of the Act and upheld by Id. First Appellate Authority is arbitrary, injudicious, invalid & bad at law. 2. Under the facts and circumstances of the case, Id. Assessing Authority and Id. First Appellate Authority has grossly erred in making addition of Rs. 85,10,50,000/- u/s 68 of the Act when no cash credit has been received by the assessee which is grossly injudicious, unwarranted, against the facts of the case & bad at law. Tax Effect relating to above mentioned ground of appeal is Rs. 28,92,71,895/-. 3. Under the facts and circumstances of the case, Id. Assessing Authority and Id. First Appellate Authority has grossly erred in making addition of Rs. 85,10,50,000/- u/s 68 of the Act which is highly injudicious, unwarranted, against the facts of the case and bad at law as no cash credit either in the year under consideration or in any of the earlier years had ever been received by the assessee & the same were issued against the investment received by the assessee which do not tantamount t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person at the address". Preferring an appeal does not mean mere formally filing it but also taking all the steps to effectively pursue the appeal. When the appeal is filed before the Tribunal by the assessee himself against the orders of the lower authorities, it is expected that the assessee may put forth some documentary evidences in support of his contention so as to unable the appellate authorities to decide the appeal as it is the duty of the assessee to lead evidence in support of its claim and for the adjudicating authority to decide upon the sustainability of the claim on the basis of the evidence lead by the parties before it. The fact that the assessee has not appeared before the Tribunal despite various opportunities granted to the assessee shows that assessee is not serious in perusing the appeal filed by it. The assessee has not placed on record any change of address if any, to which the notice of the hearing could be served to it. In the absence of any co-operation from the side of the assessee we don't find any reason to keep that matter pending before us. In circumstances we have no other option but to dispose of the appeal after considering the material avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Sheet has failed to pass the test of identity, creditworthiness and genuineness of the transaction. He accordingly made the addition of Rs. 85,10,50,000/- u/s. 68 of the Act. AO thereafter held that assessee would have a paid commission at 2% on the amount of accommodation entry of Rs. 85,10,50,000/- which works out to Rs.1,70,21,000/- and he made the addition of the aforesaid sum u/s. 69C of the Act. 8. Aggrieved by the order of AO, assessee carried the matter before CIT(A), who dismissed the appeal of the assessee. While dismissing the appeal, CIT(A) considered the submissions made by the assessee and which are reproduced in his order. CIT(A) thereafter upheld the order of AO by observing as under:- 6.1.10 It is to be noted that the appellant claims as per the documents placed on record, that the sum was credited in the books in the financial year 2007-08. The appellant in its grounds of appeal (no. 7) took a ground that all the financials, necessary ROC forms, Form 2 of allotment of shares etc. were placed before the AO. However, to my utter surprise, though a paper book comprising of 287 pages was filed before me, all such claimed documents pertaining to Financial Year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company were allotted, is filed on record for FY 2007-08 to substantiate the investment in their books of accounts in the FY 2007-08. No details of persons who have been stated to have made investment in F.Y. 2007-08 by way of share capital has been filed. 3. No financials of the company for the FY 2007-08 were filed on record and no Annual compliance forms filed with ROC for such period were filed on record. 4. No income tax return for FY 2007-08 to FY 2012-13 is filed by the appellant company. 5. Interestingly financials for the FY 2008-09 to FY 2012-13 were filed before the ROC only in the Financial year 2016-17, after filing of the first income tax return by the company for the FY 2013-14 on 26.03.2016. From the details filed, it is established that no form and returns were filed by the company during the earlier financial years but Form 20B (Annual Return) & Form 23AC & ACA (Annual accounts) were filed for the first time in October, 2016 and January/ February, 2017. 6. Further, the appellant contented that the shares have been transferred by the shareholders of the company in the FY 2008-09 to another company named M/s Tenstar Marketing Pvt. Ltd. I have perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke-screen-conceived and executed to introduce unaccounted money. 6.1.20 None of the so called primary share-holders and original subscribers (Directors) were produced before the AO. The appellant failed to establish the genuineness of the transactions. Enquiry conducted through Inspector revealed that such primary shareholders do not exist at the given address. 6.1.21 It has been stated that primary share holders transferred the shares to M/s Tenstar Marketing Pvt. Ltd. during FY 2008-09 but the assessee failed to provide the details of IT, Bank account, PAN, Address, Balance Sheet of these primary share holders. 6.1.22 As on 31/03/2014, M/s Tenstar Marketing Pvt. Ltd. was having 99.95% share holding in the appellant company. Enquiry conducted by the AO through Inspector revealed that neither anybody nor any office establishment was found at the given address. Similarly, the inspector deputed to serve the summons to the primary share holders found that all these companies were not working at the address provided by the assessee. Summons issued to the Directors of the assessee company remained un-complied with. The assessee failed to produce the director of the assessee com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -08 is of issue of shares for consideration other than 'cash'. The transaction of 'issue of shares for consideration other than cash' cannot be equated with 'adjustment by way of book entry'. "Adjustment by way of book entry" can only be in the case where there is already some liability/asset/entry in books of account's which is to be adjusted. However, in the instant case that was not the case. There was no entry subsisting in the books of account's which was adjusted. This was a fresh issue of equity shares for consideration other than cash, and was not issued against any of liability in the books of accounts. Thus the reliance of the appellant on the case is not applicable to the facts of instant case. 6.1.28 Thus, in view of the total factual matrix and the documents placed on record I agree with the assessment order of the AO. Thus, the addition made by the AO amounting to Rs.85,10,50,000/- under Section 68 is confirmed. The grounds of appeal are dismissed. 10. With respect to the addition made u/s. 69C of the Act, CIT(A) upheld the order of AO by observing as under:- 6.2.2 I have considered the facts of the case and the documents plac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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