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TMI Blog2023 (11) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of documents filed in Paper-Book and not of deponent of affidavit. Thus, without making any more comment from our side, we only suffice to conclude that the assessee has miserably failed to prove the identity of the shareholder much less the elements of creditworthiness and genuineness. In these circumstances, we are not inclined to accept the impugned receipt as satisfying the requirements of section 68. Receipts from Shri Vijay Singh Rajput - Assessee has given a complete address of shareholder. Then, the assessee has filed an affidavit of shareholder himself before his death which contains full address of shareholder and clear confirmation that he invested in shares of assessee. The assessee has also given PAN of shareholder. Lastly, the amount of investment is Rs. 1,00,000/- only. Therefore, there are sufficient evidences to support the requirement of section 68. Hence, the authorities are not justified to disbelieve submissions of assessee without bringing anything adverse on record. Receipts from Mayank Welfare Society - As shareholder is a registered society, we find merit in the submission of Ld. AR that the AO is not justified to link the investment made by shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) erred in treating the lender companies as paper companies ignoring the fact that the amounts were received as share application money. 4. That the order ignoring the direction of the Hon'ble ITAT is illegal and wrong. 2. Heard the learned Representatives of both sides at length and case-records perused. 3. Briefly stated the facts are such that the assessee is a company. For the relevant AY 2003-04, the return filed by the assessee was selected for scrutiny and the original assessment-order was passed u/s 144 on 30.03.2006 after making certain additions against which the assessee filed first appeal to CIT(A). After decision of CIT(A), the assessee and Revenue both sides carried matters to ITAT, Indore Bench in I.T.A. No. 306/Ind/2011, I.T.A. No. 307/Ind/2011 and Cross Objection No. 3/Ind/2012 and those matters were decided by ITAT, Indore, through a consolidated order dated 23.03.2012. While deciding, the ITAT remanded a particular addition of Rs. 13,30,000/- u/s 68 to AO with a direction for fresh examination and re-adjudication after opportunity to assessee. Thereafter, in pursuance of such direction of ITAT, the AO passed a fresh assessment-order dated 31.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Gupta Rs. 1,30,000/- Total Rs. 13,30,000/- 6. Before us, Learned AR for assessee and Ld. DR for revenue made vehement submissions. We have heard them and also considered the documents placed before us including the orders passed by lower- authorities. The submissions of parties and our findings/conclusions are discussed below: (i) Shri M.B. Deshmukh: (a) Referring to assessment-order, Ld. AR submitted that assessee submitted to AO that the shareholder was an advocate in high court and also having agricultural income from land over 60 bighas. The copy of khasra report of land was submitted to AO. Further, an affidavit of Shri Bhupendra Deshmukh, son of shareholder, was also submitted confirming that his father, Shri M.B. Deshmukh/ shareholder, had expired on 07.03.2002. However, the AO observed that if the shareholder expired on 07.03.2002, how could he deposit amount during the financial year 2002-03, AY 2003-04 under consideration? On this reasoning, the AO made addition. Ld. AR submitted that there occurred a typo mistake in mentioning the date of death in the affidavit su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-produced below: This application form is signed and submitted by shareholder (Shri M.B. Deshmukh) on 05.03.2003. Now, we re-produce below the aforesaid revised-affidavit filed in Paper-Book-I, Page No. 7: This affidavit testifies, in Para No. 2 and 3, correct date of death as 07.02.2003. Now, even if the revised date of death i.e. 07/02/2003 is taken as correct, then also this date precedes 05.03.2003 i.e. the date on which the shareholder has signed the share application form. Therefore, the basic point still remains same i.e. how can the shareholder make sign on application-form and make investment on 05.03.2003 when he had already died on 07.02.2003. Furthermore, it is also noteworthy that the revised-affidavit, though notarized, is not signed by any deponent. The signature part is left blank. The signature at the right side of seal of notary, appearing in the scanned copy of revised-affidavit re-produced above, is a signature of assessee s counsel for certification of documents filed in Paper-Book and not of deponent of affidavit. Thus, without making any more comment from our side, we only suffice to conclude that the assessee has miserably failed to prove t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee without bringing anything adverse on record. Consequently, the addition of Rs. 1,00,000/- is deleted. (iii) Mayank Welfare Society: (a) Referring to assessment-order, Ld. AR submitted that the shareholder is a registered society. The assessee submitted Receipt Payment A/c of shareholder to AO to show the deposit of share application money. However, the AO has observed that shareholder-society was having total receipt of Rs. 14,850/- only, therefore it cannot deposit Rs. 3,00,000/- with assessee. Further, the AO also noted that the shareholder-society cannot make investment in assessee s shares since it would violate the provisions of section 10(23C) read with section 11(5). Ld. AR submitted that the AO has wrongly linked the investment of Rs. 3,00,000/- with gross-receipts of current year alone, the investment could very well be made out of accumulated funds. Ld. AR also contended that the observation by AO that the shareholder- society cannot make investment in shares of assessee as it would be a violation of section 10(23C) or 11(5), is something which is totally irrelevant to assessee. Ld. AR submitted that if it is a violation in the hands of shareholder-societ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) On a careful consideration, we find that the assessee has made following explanation before lower-authorities qua the identity, genuineness and creditworthiness of the impugned receipt: Identity: Copy of Society registration certificate of Mayank Club is enclosed. That the society was registered by Joint Registrar on 12.05.1997 Its PAN is AANFM0552G Genuineness: Confirmed the transaction on affidavit Closely connected with the assessee. Creditworthiness: Copy of Audited Receipt Payment account of Mayank Club for the year ended on 31.03.2003 reflecting share application money of Rs. 3,00,000/- is enclosed. We find that the shareholder is a registered society from 18.05.1997, copy of registration-certificate issued by Registrar of Societies is placed in Paper-Book-II, Page No. 27. PAN card of shareholder is in Paper-Book-II, Page No. 28. Constitution-Deed is filed in Paper-Book- II, Page No. 29 to 40. It appears from order of CIT(A) that the assessee has also filed a copy of audited Receipt Payment A/c reflecting the share-application money payment of Rs. 3,00,000/- to assessee, which is not controverted by Ld. DR. The observation made by L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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