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TMI Blog2023 (10) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment records and relevant materials to conclude that the order of the Ld. AO cannot be interfered with. 4. For that the Ld. CIT(A) erred in accepting the contention the Ld. AO that there was no compliance at the time of assessment proceedings while the assessee have duly complied with all the notices issued. Moreover, the notices issued by the Ld. Assessing Officer to verify the identity and creditworthiness of the share applicants and genuineness of the transactions were duly served upon the share allottees and complied with wherein each of the share allottees confirmed the transactions. 5. For that Ld. CIT(A) erred in confirming the action of Assessing Officer in assessing the share capital and share premium as unexplained cash credit merely for the reason of non-compliance to summon u/s. 131 of the IT Act, 1961. 6. For that the Ld CIT(A) erred in confirming the order of the AO simply relying on the judgment of Calcutta High Court in Rajmandir Estates Pvt. Ltd. which was rendered in connection with the proceedings u/s 263 by which the assessment order was simply set aside for fresh assessment and was not an authority for the purpose of addition u/s 68. 7. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the assessee during the year has shown receipt of share application money of Rs. 14,78,00,000/- on allotment of 144000/- shares to 37 share applicant companies. To verify the identity and creditworthiness of the shareholders and also about the genuineness of the transaction, the assessing Officer issued notices u/s 133(6) to them calling for various details including the source of fund for investment in the assessee company. Out of them, 13 letters issued to different shareholders had been returned back. Further, summons u/s 131 of the Act to the directors of the share subscriber companies. Since the said summons u/s 131 were not complied with, the AO held that the assessee had failed to discharge the burden of proof to substantiate the identity and creditworthiness of the share subscribers and genuineness of the transaction. The learned AO, therefore, passed fresh assessment order u/s 143(3)/263/147/143(3) and made the impugned additions treating the share capital received by the assessee as unexplained income of the assessee. The ld. CIT(A) confirmed the additions so made by the Assessing Officer. 5. We have heard the rival contentions and gone through the record. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 17.03.2014 The Income Tax Officer Ward 9(1)/Kolkata Aayakar Bhawan, 5th Floor, P-7, Chowringhee Square Kolkata- 700069 Sir, In the matter of : M/s Atlantic dealers Pvt. Ltd. P. A. No. : AAHCA 5518 K Assessment Year:2009-10 Regarding : Assessment proceedings pursuant to order u/s 263 Reference : Proceedings u/s 143(3)/263 Please refer to above. We do hereby state that the necessary compliances are being made from time to time in the above case as required from us. In the meantime to expedite proceedings and to fulfil the onus lying with us to prove the identity and creditworthiness of the shareholders and genuineness of the transaction, we do hereby enclose a paper book containing (1) Company master data, (3) Details of Present Directors (3) Details of share applicants with their present addresses (4) Details of Bank Accounts (5) Copy of our Bank Statements (6) Bank Reconciliation Statements (7) Printout of Bank Book (8) Documents relating to share applicants (a) Acknowledgem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied upon the decision of the Jurisdictional Calcutta High Court in the case of Crystal networks (P) Ltd. vs CIT (supra). The ld. Counsel has also relied upon the decision of the Co-ordinate Kolkata Bench of the tribunal in the case of 'M/s Satyam Smertexpvt. ltd. vs. DCIT', ITA No.2445/kol/2019 vide order dated 29.05.2020, wherein, the coordinate bench of the tribunal, while further relying upon the decision of the Hon'ble Allahabad High Court in the case of CIT vs Raj Kumar Agarwal vide ITA No.179/2008 dated 17.11.2009 has held that non production of the director of the company, which is regularly assessed to income Tax having PAN, on ground that the identity of the subscriber is not proved, cannot be sustained. 6. The ld. D/R on the other hand, has relied upon the observations made by the AO. He has further relied upon the impugned order of the ld. CIT(A). The Ld. DR has further relied upon the decision of the hon'ble Supreme Court in the case of PCIT vs NRA Iron & Steel (P) ltd. reported in [2019] 103 taxmann.com 48(SC). 7. We have considered the rival submissions of the ld. representatives of the parties and also gone through the record. In this case a perusal of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the CIT(Appeals) has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the produce of the assessee or not. When it was found by the CIT(Appeal) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact finding." 8. So far as the reliance of the Ld. DR on the decision of the hon'ble Supreme Court in the case of "PCIT v/s NRA Iron & Steel (P) Ltd." (supra) has taken note of the obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer and the Assessing Officer has not pointed out any discrepancy or insufficiency in the said evidences and details furnished by the assessee before him. As observed above, the assessee having discharged initial burden upon him to furnish the evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the burden shifted upon the Assessing Officer to examine the evidences furnished and even made independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidences furnished by the assessee and confronting with the same to the assessee. In view of this, even applying the ratio laid down by the Hon'ble Supreme Court in the case of PCIT vs. NRA Iron and Steel Pvt. Ltd., impugned additions are not warranted in this case. 9. It has to be further noted that though powers of the ld. CIT(A) are co-terminus with the AO and the ld. CIT(A) had all the plenary powers as that of the AO. The Hon'ble Delhi High Court in the case of Commissioner of Income-tax vs. Manish Build Well (P.) Ltd. reported in [2011] 16 taxmann.com 27 (Delhi) has held that the CIT(A) is statutory first ..... X X X X Extracts X X X X X X X X Extracts X X X X
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