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TMI Blog2023 (4) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... hat under the facts and circumstances, addition of Rs. 10 lacs u/s. 68 for alleged accommodation entry taken from Virgin capital Services (P) Ltd. is illegal, unjustified and unsustainable in law as well as on merits. 4. That in the absence of providing cross examination of relevant persons as specifically requested and also in the absence of confronting with all alleged adverse material, no cognise thereof can be taken for taking an adverse view." 4. Apropos grounds No.3 and 4, the ld. AR submitted that the assessee received share capital of Rs.10 lakh from Virgin Capital Services (P) Ltd., the face value of which was Rs.10 per share issued for Rs.100/- per share after including share premium of Rs.90/- per share. The ld. AR submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y sustainable basis. 6. The ld. AR further pointed out that to prove the identity of the investor the assessee submitted copy of assessment order, bank account and confirmation and to prove credit worthiness of the investor the assessee successfully proved that the payment has been made through bank account out of sufficient balance and in view of the judgement of the Hon'ble Calcutta High Court in the case of CIT vs. Dataware (P) Ltd, the AO is duty-bound to accept the genuineness of the transaction when the identity of the creditor and genuineness of the transaction through account payee cheque has been established. The ld. AR also submitted that during assessment proceedings, photocopy of page 1 of diary of Shri S.K. Jain/Shri V.K. Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XMAN 103 (RAJ); iv) ITO VS. PAWAN KUMAR GUPTA 131 TTJ (DEL.) (UO) 92; & v) CIT Vs. Best Infrastructure (India) Pvt. Ltd. 397 ITR 82 (Del) (121-145/RP-140) 7. The ld. AR submitted that the proposition rendered by the Hon'ble Supreme Court in the case of NRA Iron & Steel Pvt. Ltd., reported as 412 ITR 161 (SC) is not applicable to the present case as, in the present case, the copy of assessment order passed u/s 153C/153A in the case of investor M/s Virgin Capital Services (P) Ltd. for AY 2009-10, no addition has been made and books of account of the assessee as well as the return of income has been accepted by the AO which clearly shows that the AO, in the case of investor company had accepted the genuineness of the transaction of invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er note that the assessee again requested to provide copies of the documents and statements and to provide opportunity of cross-examination, but, I am unable to see any action by the AO on the said consecutive three requests of the assessee. 10. I further respectfully note that their Lordships, speaking for the Hon'ble jurisdictional High Court of Delhi in the case of Pradeep Kumar Gupta (supra) held that the assessment proceedings on the basis of deposition of third party without allowing opportunity of cross-examination of the said party to the assessee despite specific demand was not valid. Further, the Hon'ble jurisdictional High Court of Delhi in the case of CIT vs. Best Infrastructure (India) Pvt. Ltd. (supra), in para 37, held as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary evidence and statements of the persons despite several requests by the assessee, the AO proceeded to make addition u/s 68 of the Act in the hands of the assessee. In my humble understanding, the grievance of the assessee is squarely covered in its favour by the judgement of the Hon'ble jurisdictional High Court of Delhi in the case of Pradeep Kumar (supra) and CIT vs. Best Infrastructure (India) Pvt. Ltd. (supra). Therefore, respectfully following the proposition rendered by the Hon'ble High Court, I am compelled to hold that the addition made by the AO and upheld by the ld.CIT(A) is not valid and sustainable, therefore, I direct the AO to delete the addition. Accordingly, grounds No.3 and 4 of the assessee are allowed. 12. In the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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