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TMI Blog2023 (5) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... criber company or the corresponding transaction thereof was not genuine and on what grounds. AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies. Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee during the year, holding the same to be unexplained cash credit in terms of section 68 of the Income Tax Act, 1961. The addition is unjustified and need to be deleted. 2. The assessee craves leave to add, alter or amend the ground or grounds of appeal before or at the time of hearing. 3. The brief facts of the case are that the case of the assessee was reopened u/s 147 of the Act and the reassessment was completed by the Assessing Officer for A.Y 2008-09 on 28.05.2010 determining the total income at Rs.47,280/-. Subsequently, the Commissioner of Income Tax- II, Kolkata (hereinafter referred to as CIT ) passed order on 28.03.2013 u/s 263 of the Act exercising his revision jurisdiction holding the assessment order in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that in this case, the assessee had filed all evidences to prove the identity and creditworthiness of the subscribers and genuineness of the transaction including the address, PAN Form 2 Form 5 filed with Registrar of Companies of the share subscriber companies, their audited financial statements, acknowledgement of filing their Income Tax Return, copy of bank statement of the allottee company highlighting the payment of the entire amount of share capital . That all the transactions were done through banking channel and duly confirmed by the share subscribers. That even the notices u/s 133(6) of the Act were issued by the AO which were duly complied with by the shareholders and requisite documents were furnished evidencing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies did not appear personally before the AO. The ld. Counsel for the assessee in this respect has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f was not genuine and on what grounds. The AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies. Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO. The Ld. Counsel for the assessee has right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n established the Tribunal should not have ignored this fact finding. 8. 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 appellate authority and has independent power of calling for information and examination of evidences and possesses co-terminus power of assessment apart from appellate powers. However, a perusal of the impugned order of the ld. CIT(A) shows that the ld. CIT(A) has not discussed anything about the material facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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