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TMI Blog2023 (9) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... l preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-3, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 24.07.2018 for the AY 2013-14. 2. The only issue raised in various grounds of appeal is against the confirmation of addition of Rs. 2,24,28,434/- by the Ld. CIT(A) as made by the AO on account of share capital/ share premium being unexplained u/s 68 of the Act. 3. Facts in brief are that the assessee filed return of income on 21.01.2014 declaring a total income of Rs. 3,235/-. The case of the assessee was selected for scrutiny and statutory notices were duly issued and served on the assessee. During the course of assessment proceedings, the AO observed on the basis of details furnished by the assessee that the assessee has issued equity shares during the year thereby raising share capital/share premium to the tune of Rs. 2,24,28,434/-. The AO also issued notices u/s 133(6) of the Act to various share subscribers which were duly responded by the share subscribers by filing necessary documents and confirming the transactions of purchase of shares in the assessee company. Besides the summons u/s 131 of the Act were also issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting that the transactions of raising share capital/share premium remained unverified due to non presence of the share subscribers as mere furnishing of documents either by the assessee or by the subscribers would not be suffice. The ld DR therefore submitted that the order of ld. CIT may be affirmed by dismissing the appeal of the assessee. 7. After hearing the rival contentions and perusing the material on record, we find that the assessee during the year has issued 1,18,800 equity shares of Rs. 10/- each at a premium of Rs. 179 per share. These shares were issued to the following share holders: We note that during the course of assessment proceedings, the AO, besides calling upon the assessee to furnish the evidences to prove the identity, creditworthiness of the subscribers and genuineness of the transactions, also issued notices u/s 133(6) of the Act to the share holders who had duly replied the said notices by filing the necessary details as called for by the AO and thus confirmed the transactions. We note that though summons issued u/s 131 of the Act to the directors of the subscribing companies were not complied with, the assessee as well as share subscribers h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. I f the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case. The case of the assessee is also squarely covered by the decisions of Hon ble Calcutta High Court in the case of Crystal Networks Pvt. Ltd. vs. CIT (supra) wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions , the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. The relevant portion of the decision is extracted below: We find considerable force of the submissions of the learned Counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Ld. CIT(A). The appeal is allowed. Besides the case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers India Pvt. Ltd. (supra) the operative part whereof is extracted below: 8. We have heard the submissions of the learned D.R, who relied on the order of AO. The learned counsel for the assessee relied on the order of Ld. CIT(A) and further drew our attention to the decision of Hon ble Allahabad High Court in the case of CIT vs. Raj Kumar Agarwal vide ITA No. 179/2008 dated 17.11.2009 wherein the Hon ble Allahabad High Court took a view that non-production of the director of a Public Limited Company which is regularly assessed to Income tax having PAN, on the ground that the identity of the investor is not proved cannot be sustained. Attention was also to the similar ruling of the ITAT Kolkata bench in the case of ITO vs. Devinder Singh Shant in ITA No. 208/Kol/2009 vide order dated 17.04.2009. 9. We have considered the rival submissions. We are of the view that order of Ld. CIT(A) does not call for any interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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