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TMI Blog2023 (7) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 (1) TMI 575 - SC ORDER] . Unsecured loan received from M/s. Jeenma Business Pvt. Ltd. - CIT(A) deleted the addition by holding that the assessee proved the genuineness of the transaction. Before us, the Ld. Sr. D.R. could not produce any contra evidences, which warrant confirming the addition made by the A.O. In the absence of the same, we have no hesitation in confirming the order of Ld. CIT(A) who deleted the additions u/s. 68. Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmation, Copy of ITR along with Audited Report and Bank details in respect of the unsecured loan received from M/s. Jeenma Business Pvt. Ltd., the same is treated as non-genuine and disallowed u/s. 68 of the Act. 3. Aggrieved against the assessment order, the assessee filed an appeal before Ld. Commissioner of Income Tax (Appeals). The Ld. CIT(A) during the appellate proceedings called for a Remand Report from the Assessing Officer and Rejoinder from the assessee and deleted the addition made on account of share application money observing as follows: "…..4.3. I have considered the facts of the case, the AO's observations and remand reports and the submissions made by the appellant. So far as the 2nd and 3rd grounds of appeal in relation to share application money are concerned, the appellant had provided the details of the 5 share applicants as per its record before the Assessing Officer. The AO had also made enquiries through DDIT Investigation 1(2), Kolkata in relation to the share application made by these companies to the appellant. Out of these 5 companies, 4 companies namely Subhlabh Fiscal Services Pvt. Ltd., J.P. Engineering Corporation Pvt. Ltd., Compact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 26.3.2013 was submitted by the DDIT Investigation. After that, the AO had informed the appellant about non existence of this company vide order sheet entry dated 26.03.2013 and provided the appellant a time period of 2 days for giving such information. Thus, the time provided by the AO was not sufficient to found out the new address of this company by the appellant. Besides, as per the facts submitted by the appellant, this company had shifted its registered office from Kolkata to New Delhi w.e.f. 18.04.2012 i.e. on a date prior to the date on which the appellant had Informed the address to the AO. The appellant has submitted a copy of the order passed by the registrar of the companies, NCR-Delhi and Haryana informing the shifting of the registered office from one state to another. It is pertinent to note here that this office had asked the appellant to provide details of status of shares held by this 5 companies in the appellant company as on date. In response to this, the appellant had submitted that the shares held by M/s. Balaram Vinimay Pvt.Ltd. had been transferred to M/s. Enkay Trafin Pvt. Ltd. on 31.05.2010 itself. Thus, during the course of the assessment proceedings, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his company, the appellant was dependent upon third party i.e. the loan creditor and hence, could not gather the documents during the course of the assessment proceedings is a plausible explanation. The appellant has submitted all such documents during the course of the appellate proceedings which have been forwarded to the AO, who has provided his comments. Under such circumstances, the additional evidence filed by the appellant is admissible and are accordingly admitted. 4.4.1. Now coming to the addition made by the AO, the appellant has submitted following documents in respect of M/s. Jeenma Business Pvt. Ltd., which have also been provided to the AO by this office for examination: i) Certificate of incorporation of the company ii) Acknowledgement of filing of return of income for AY 2010-11 iii) Assessment order passed by the ITO, Ward-6(2), Kolkata In this case of this company for AY 2010-11. iv) Ledger account of the appellant in the books of JBPL. v) Copy of confirmation of account of the appellant by JBPL. vi) Annual Accounts of JBPL of FY 2009-10. vii) Bank Statement of JBPL reflecting the payments made to the appellant. 4.4.2. The AO has also provided hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case the learned CIT(A) has erred in facts and in law, in deleting the addition of Rs. 1,70,00,000/-, being disallowance on account of share capital and share premium account u/s. 68 of the I.T. Act, without appreciating that the assessee failed to substantiate the identity, creditworthiness transaction and genuineness of this 2. On the facts and in the circumstances of the case the learned CIT(A) has erred in facts and in law, in applying the ratio of judgment of Hon'ble Supreme Court in the case of Lovely Export Pvt. Ltd. to the facts of the present case, though the present case is distinguishable from the case of Lovely Export Pvt. Ltd., in as much in the present case, the identity of share subscriber was not conclusively established on the basis of enquiries conducted by the A.O. 3. On the facts and in the circumstances of the case the learned CIT(A) has erred in facts and in law in deleting the disallowance of Rs. 1,00,00,000/- made on account of unsecured loan u/s. 68 of the Act, without appreciating that the assessee failed to substantiate its claim with documentary evidences, to establish the creditworthiness and genuineness of this transaction. 4. On the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) Acknowledgement of Return of Income for A.Y.2008-09. 145 6) Order of Company Law Board, Kolkatta vs. 17(1) of Company Act dated 18-4-2012 for change of Regd. Office From Calcutta to New Delhi. 146 to 148 Compact Advertising & Credit Pvt.Ltd. PAN-AABCC8465H 1) Certificate of Registration of 16-2-2004 149 2) Acknowledgement of Return of Income for A.Y.2010-11 with details of Share Application. 150 & 151 3) Copy of Demand Notice for A.Y.2008-09 dated 14-12-2010 by ITO ward 1(2), Kolkatta 152 & 153 4) Copy of Bank Statement showing share purchase Account of Rs. 15 lakhs. 154 & 155 5) Copy of Balance Sheet/P & L A/c for A.Y.2010-11 156 to 174 Enkay Trafin Pvt. Ltd. PAN-AAACE5682P 1) Certificate of Registration of 4-6-2003 175 &176 2) Certificate dated 30-9-2011 of Renewal of RBI for A.Y.2012-13 showing Investment as Nature of Trade.177 to 180 3) Copy of Vijaya Bank Statement showing share purchase of shares. 181 & 182 J.P. Engg. Corpn. Pvt.Ltd. PAN- AABCJ23401 1) Certificate of Registration of RBI for doing Non- Banking Financial Institution of 19-1-1999. 183 2) Certificate of Establishment by Kolkatta Municipal Corporation recording doing B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount to assessee's income under section 68 Tribunal, however, deleted addition made by Assessing Officer - High Court noted that both assessee and later share applicants upon receiving notice under section 131, had produced documentary proof - Documents so produced included assessments and returns filed by share applicants as well as confirmation and acknowledgment documents - According to High court, if Assessing Officer wished to pursue matter, there were sufficient clues for him to have proceeded, for instance, it could have issued notices and obtained statements from bankers of share applicants or even balance sheets which existed in records of their Assessing Officers - However, Assessing Officer did not choose to pursue said course of action - High Court thus upheld Tribunal's order deleting addition made by Assessing Officer - Whether, on facts, SLP filed against order of High Court was to be dismissed - Held, yes [Para 2] [In favour of assessee]" 7.3. The judgment of Hon'ble Supreme Court of India in the case of DCIT Vs. Godavari Tie-up (P.) Ltd. reported in [2019] 265 Taxmann.om 432 (SC) held as follows: "Section 68 of the Income-tax Act, 1961 - Cash credit (Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts and bank statements of these investors before the A.O. Thus following the Hon'ble Supreme Court Judgment in the case of Lovely Exports (P.) Ltd. (cited supra), the Ld. CIT(A) deleted the additions, the findings arrived by the Ld. CIT(A) does not require any interference. 8.1. Regarding the share application money invested by M/s. Balram Vinimay Pvt. Ltd., the same got amalgamated with M/s. Minda Capital Ltd. and the copy of the order of the Hon'ble High Court of Delhi dated 16-09-2013 was submitted by the assessee. After verification of the same and copies of the audited accounts and bank statements and the share application money has been transferred to the assessee company through banking channels. The Ld. CIT(A) deleted the additions made by the Assessing officer and also following Supreme Court judgment in the case of Lovely Exports (P.) Ltd. The Ld. Sr. D.R. neither could produce any contrary facts in support of its grounds raised before us nor demonstrate any error in the findings of the Ld. CIT(A). In the absence of the same and respectfully following the Supreme Court Judgments in the case of Lovely Exports (P.) Ltd., Adamine Construction (P.) Ltd., Godavari Tie-up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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