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TMI Blog2024 (5) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... e competent authority before issuing notice u/s 148 of the Act. Therefore, the reopening of the assessment u/s 147 r.w.s. 148 of the Act in this was bad in law for want of jurisdiction of the Assessing officer to reopen the assessment without approval of competent authority u/s 151 of the Act. Thus since the base order passed u/s 147 r.w.s. 148 of the Act was bad in law being without jurisdiction for want of approval of the competent authority, therefore, the subsequent proceedings/orders which were on the basis of the said order passed u/s 147 of the Act are also held as bad in law. In view of the above discussion, the assessee succeeds on the legal ground. PCIT exercised his revision jurisdiction in respect of order passed u/s 147 wherein the issue of share subscriptions was not the subject matter of reassessment - As assessment was reopened on a particular issue of the escapement of income earned by the assessee as profit on share dealing. The Assessing Officer examined that particular issue and made addition in respect of the said profits earned by the assessee. The issue relating to any other transaction i.e. share application money received by the assessee, was not the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A), thereafter, impugned order has concluded that the identity, creditworthiness and genuineness of the transactions were duly established in this case. Decided in favour of assessee. - Shri Sanjay Garg, Judicial Member And Dr. Manish Borad, Accountant Member For the Department : Shri Abhijit Kundu, CIT-DR, Advocate For the Assessee : Shri Miraj D. Shah, AR ORDER PER SANJAY GARG, JUDICIAL MEMBER: The present appeal by the revenue and the corresponding cross objections by the assessee have been preferred against the order dated 08.09.2020 of the Commissioner of Income Tax (Appeals)-7, Kolkata [hereinafter referred to as CIT(A) ] passed u/s 250 of the Income Tax Act (hereinafter referred to as the Act ). 2. The brief facts of the case are that the assessee originally filed its return of income showing total loss of Rs. 2205/-. The return was processed u/s 143(1) of the Act. Thereafter, the case was reopened u/s 147 r.w.s. 148 of the Act as the Assessing Officer received information from the assessee itself that due to oversight, an amount of Rs. 35,645/- towards profit on share dealing was not considered as income. The Assessing Officer, thereafter, reopened the assessment by se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment was not sustainable as the order passed by the Assessing Officer u/s 147 of the Act, itself, was non-est. The ld. counsel, therefore, has submitted that the subsequent proceedings in relation to order passed u/s 147 of the Act being bad in law and were to be treated as non-est. That, under the circumstances, the additions made by the Assessing Officer were not sustainable in the collateral proceedings to the order passed u/s 147 of the Act. The ld. counsel in this respect has made the following written submissions relying upon the various case laws: In this case the original notice u/s 148 of the Act was issued without any approval u/s 151 of the Act and therefore the said notice and the proceedings are bad in law and thus all the subsequent proceedings based on such notice is also bad in law. It is established that the reopening u/s 148 of the Act in this case was bad in law and thus the said reopening and the consequential assessment order was bad in law. Once the assessment order is found to be bad in law and without jurisdiction, it is settled law that the jurisdiction can be challenged at any stage/proceedings and even that it can be raised before the Hon bie Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessee can challenge the validity of the re-assessment proceedings in the collateral proceedings (relating to examination of validity of Order passed) under section 263 of the I.T. Act. We rely upon the Order of ITAT, Mumbai Bench in the case of Westlife Development Ltd., vs. PCIT 49 ITR (Tribu.) 406 in which it was held allowing the appeal (i) that jurisdiction aspect of the Order passed in the primary proceedings can be examined in collateral proceedings also. Thus, the assessee could be permitted to challenge the validity of the Order passed under section 263 on the ground that the assessment order was non-est. Since the reassessment order itself is bad in law, therefore, Learned Counsel for the Assessee, rightly contended that the same cannot be revised under section 263 of the I.T. Act. Only valid re-assessment order can be revised under section 263 of the I.T. Act. On this ground itself the proceedings under section 263 of the I.T. Act are bad in law and liable to be quashed. We, accordingly, set aside the Order of Ld. Pr. CIT passed under section 263 of the I.T. Act and quash the same. c) In the case of M/s CharbhujaMarmo (India) (P) Ltd. vs. PCIT in ITA No. 4749/D/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T u/s 263 of the Act are collateral proceedings and in such collateral proceedings, the validity of initiation of the reopening u/s 147 of the Act can be challenged. The Mumbai bench of the Tribunal in this regard has placed reliance on several decisions, the main decision being that of the Hon ble Supreme Court in the case of Kiran Singh Ors. V. Chaman Paswan Ors. [1955] 1 SCR 117 wherein the Hon ble Supreme Court observed as follows It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties. The Mumbai bench of the Ld ITAT made a reference to another decision of the Hon ble Supreme Court in the case of Sushil Kumar Mehta vs Gobind Ram Bohra, (1990) 1 SCC 193 and the decisions in the case of Indian Bank vs M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment received an authentic information that huge value of deposits were made in the bank account of one company called M/s. Miracle and thereafter the money was transferred to some third party account and that further investigation had revealed that large amount of money was routed to the assesses company i.e. M/s. Concord Infra Projects Pvt. Ltd. According to the Ld. AR, this foundational fact on the basis of which the AO had based his reason to believe escapement of income is factually wrong/erroneous since the foundation fact has been found to be absent, which fact is evident from the factual findings of the Ld. PCIT in the impugned order wherein he has made a specific finding of fact in his conclusion recorded at page 40 of the impugned order wherein he concludes in his own words in conclusion the relevant fact which Constitute the present case are that the alleged large transaction of M/s. Miracle have not been reached directly/indirectly to the assessee company as evident from bank account of the assessee company nor through share subscriber companies (shareholders) to whom the assessee company has allotted shares. Therefore, according to the Ld. AR, this finding of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or cancelling the assessment and directing a fresh assessment. From the above it is very clear that first of all the order passed by the Assessing Officer should be erroneous and also it should be prejudicial to the interest of revenue. If the order is not erroneous, even if it is prejudicial to the interest of revenue, the Commissioner has no revisionary power. If the Assessing Officer has no jurisdiction to pass an order, it is not an order at all. It is null and void. In the instant case it is very clear that on the basis of the policy decision taken by the Board, the Assessing Officer s power is taken away to reopen the assessment under Section 147. If the Assessing Officer has no power, the Commissioner also has no power. 2. We therefore submit that for the reasons as stated hereinabove, the order and the notice were bad in law and hence the same be quashed. 6. The ld. DR, on the other hand, has submitted that the reopening of the assessment in this case was done by the Assessing Officer at the instance of the assessee itself as the assessee has written a letter to the Assessing Officer that it had failed to offer Rs. 35,650/- on account of profit on share dealing. That th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the primary proceedings is invalid without jurisdiction but, the same has not been agitated by way of any appeal or otherwise and thereafter on the basis of those primary proceedings, certain secondary proceedings such as reopening of the assessment u/s 147 of the Act or revision of the assessment u/s 263 of the Act is done, in such circumstances, whether the assessee has a right to challenge the very validity of the primary proceedings in an appeal filed against any order passed in such subsequent/collateral proceedings. The Tribunal has discussed various case laws in this respect. The relevant part of the findings of the Tribunal is reproduced hereunder:- 3. During the course of hearing, the Ld. counsel of the assessee inter-alia stated that in this case the impugned order passed u/s 263 is bad in law on the jurisdictional ground, that is to say that the original assessment order passed u/s 143(3) dated 2440-2013 which has been sought to be revised by the Id.CIT was a nullity in the eyes of law, and therefore an order, which was a nullity in the eyes of law had no existence in the eyes of law and, therefore, the same could not have been revised by the Ld.CIT, thereby giving f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal ground itself. 5. Per contra, Ld. Departmental Representative for the Revenue vehemently opposed the arguments of the Id. Counsel. It was submitted by the Id. CIT-DR that even if the original assessment order was framed in the name of an erstwhile company, the same was only a mere irregularity and that does not make the assessment as nullity in the eyes of law. It was submitted that such lapses were protected u/s 292B of the Act. 6. In addition to the above, it was further submitted by him that the issue with regard to illegality in the original assessment order cannot be raised here during the proceedings challenging the order u/s 263. It was further submitted by him that in any case, the ld.CIT had proper jurisdiction to make revision of the impugned assessment order. 7. We have heard both the parties on this issue and also gone through the orders passed by the lower authorities as well as the judgments relied upon before us. In our view, we need to decide following issues, before we go into any other issues or merits of the impugned order: 1. Whether the assessee can challenge the validity of an assessment order during the appellate proceedings pertaining to examination of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently. In other words, whatever tax liability had been determined in the original assessment order that had already become final and that cannot be sought to be disturbed by the assessee. But, the issue that arises here is that if the original assessment order is illegal in terms of its jurisdiction or if the same is null void in the eyes of law on any jurisdictional grounds, then, whether it can give rise to initiation of further proceedings and whether such subsequent proceedings would be valid under the law as contained in Income Tax Act? It has been vehemently argued before us that the subsequent proceedings (i.e. collateral proceedings) derive strength only from the order passed in the original proceedings (i.e. primary proceedings). Thus, if order passed in the original proceedings is itself illegal, then that cannot give rise to valid revision proceedings. Therefore, as per law, the validity of the order passed in the primary (original) proceedings should be allowed to be examined even at the subsequent stages, only for the limited purpose of examining whether the collateral (subsequent) proceedings have been initiated on a valid legal platform or not and for examinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently followed by Hon'ble Supreme Court in the landmark case of Sushil Kumar Mehta vs Gobind Ram Bohra, (1990) 1 SCC 193, wherein an issue arose whether a decree can be challenged at the stage of execution and whether a decree which remained uncontested operates as res-judicata qua the parties affected by it. Hon'ble apex court, taking support from aforesaid judgment, observed as under: In the light of this position in law the question for determination is whether the impugned decree of the Civil Court can be assailed by the appellant in execution. It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. Therefore, though the decree was passed and the jurisdiction of the Court was gone into in issue Nos. 4 and 5 at the ex-parte trial, the decree there-under is a nullity, and does not bind the appellant. Therefore, it does not operate as a res judicata. The Courts below have committed grave error of law in holding that the decree in the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter came back to the assessing officer the assessee specifically raised the point of jurisdiction to reopen the assessment, contending that the notice of reopening was prompted by a mere change of opinion. The AO rejected plea of the assessee but the AAC accepted this ground and also held the reassessment to be bad in law on jurisdictional ground. Against the order of the AAC the Revenue went in appeal before the Tribunal and specifically raised the plea that the question of jurisdiction to reopen the assessment having been expressly given up by the assessee in the appeal against the reassessment order in the first round, the assessee was debarred from raising that point again before the AAC and the AAC was equally wrong in permitting the assessee to raise that point which had become final in the first round and in adjudicating upon the same. The plea of the Revenue impressed the Tribunal which took the view that after its earlier order in the first round of proceedings the matter attained finality with regard to the point of jurisdiction which was given up before the AAC and not agitated further and that in the remand proceedings what was open before the Assessing Officer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilizers Co-operative Ltd vs KIT 105 lTD 33 (Del), wherein a similar issue had arisen. In this case, the issue raised before the bench was whether it is open to the assessee, not having appealed against the reassessment order, to set up or canvass its correctness in collateral proceedings taken for rectification thereof u/s 154. The bench minutely analysed law in this regard and applying the principle of 'coram non judice' and following aforesaid judgments of the supreme court, it was held that if an assessee seeks to challenge the reassessment proceedings as being without jurisdiction, when action for rectification is sought to be taken on the assumption of the validity of the reassessment order, then the assessee has to step in and protect its interests and the liberty to question even the validity of the reassessment proceedings ought to be given to it....... (emphasis supplied) 8.8. Similar view was taken in another decision of the Tribunal in the case of Dhiraj Suri vs ACIT 98 lTD 87 (Del). In the said case, appeal was filed by the assessee before the Tribunal against the levy of penalty. In the appeal challenging the penalty order, the assessee challenged the validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant part of the order is reproduced below: 17. There is no quarrel with the proposition advanced by Id. DR that the proceedings u/s 263 are for the benefit of revenue and not for assessee. 18. However, u/s 263 the Id. Commissioner cannot revise a non est order in the eye of law. Since the assessment order was passed in pursuance to the notice U/S 143(2), which was beyond time, therefore, the assessment order passed in pursuance to the barred notice had no legs to stand as the some was non est in the eyes of law. All proceedings subsequent to the said notice are of no consequence. Further, the decision of Hon'ble Madras High Court in the case of CIT Vs. Gitsons Engineering Co. 370 ITR 87 (Mad) clearly holds that the objection in relation to non service of notice could be raised for the first time before the Tribunal as the some was legal, which went to the root of the matter. 19. While exercising powers u/s 263 Id. Commissioner cannot revise an assessment order which is non est in the eye of law because it would prejudice the right of assessee which has accrued in favour of assessee on account of its income being determined. If Id. Commissioner revises such an assessment order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere change of opinion. AAC found that no reasons were recorded by ITO before issuing notice for re-assessment and, therefore, held that ITO had no jurisdiction to re-open assessment. Tribunal held that in restoring case to file of ITO by earlier order, only point left open was in respect of addition of on merits and that legal or jurisdictional aspect whether re-assessment proceedings were legally initiated was not kept open; It also held that even though this point went to root of jurisdiction and was pure question of law, merely because point was initially raised and not pressed when matter was taken up before AAC, it could be waived and it could not be reagitated ; The the Hon ble Gujarat High Court reversing the order of the Tribunal held that if the jurisdiction cannot be conferred by consent, there would be no question of waiver, acquiescence or estoppel or the bar of res judicata being attracted because the order in such cases would lack inherent jurisdiction unless the conditions precedent are fulfilled and it would be a void order or a nullity. The above decision of the Hon ble Gujrat High Court has also been followed by the co-ordinate bench of the Tribunal in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the paper-book, wherein, the concerned Assessing Officer/ITO- 6(1), Kolkata has replied Approval from competent authority obtained u/s 151 of the Income Tax Act: Not readily available from the record . The ld. counsel referring to the aforesaid facts on the file has submitted that reopening of the assessment in this case was done without taking approval of the competent authority u/s 151 of the Act. He, therefore, has submitted that the reassessment order passed by the Assessing Officer u/s 147 of the Act was without jurisdiction and, therefore, the same was non-est. He has submitted that the subsequent revision order passed by the ld. PCIT u/s 263 of the Act and the consequent order passed by the Assessing Officer u/s 143(3) r.w.s sec. 263 of the Act were therefore, bad in law and therefore, the addition made in the subsequent orders which were non-est in the eyes of law has no legal sanctity. 9. We note that for reopening of the assessment u/s 147 r.w.s. 148 of the Act, the Assessing Officer must have reasons to believe that the income of the assessee for the relevant assessment year has escaped assessment. The said reasons to believe could be based on any tangible material or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The ld. Counsel, in this respect, has submitted that ld. PCIT could not have exercised his revision jurisdiction in respect of order passed u/s 147 of the Act wherein the aforesaid issue of share subscriptions was not the subject matter of reassessment and that therefore, the revision order passed by the PCIT u/s 263 of the Act was bad in law. That the Ld. PCIT could have exercised revision jurisdiction in respect of original assessment order and not in respect of order passed u/s 147 of the Act. He has further contended that the revision order passed u/s 263 was, otherwise, time-barred. He in this respect has placed reliance on the decision of the Hon ble Supreme Court in the case of CIT vs. Alagendran Finance Ltd. [2007] 293 ITR 1(SC) , wherein, the Hon ble Supreme Court has categorically held that where the Commissioner has sought to revise only that part of the assessment order, the subject-matter of which had nothing to do with that item of income, in such a case, doctrine of merger did not apply and that the period of limitation would commence from the date of original assessment and not from the reassessment since the latter had not anything to do with the said item of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) forwarded the said details and evidences to the Assessing Officer and called for the remand report from the Assessing Officer in this respect. During the assessment proceedings, the Assessing Officer issued notices not only u/s 133(6) of the Act but also u/s 131 of the Act which were duly complied with by the assessee and the share subscribers. All the directors of the share subscribing companies appeared before the Assessing Officer in compliance of the summons issued u/s 131 of the Act and their statements were duly recorded by the Assessing Officer. The Assessing Officer thereafter furnished the remand report to the CIT(A), however concluding that the assessee company rotated its undisclosed money layering through different body corporates in different structured web to obfuscate inquiry. In reply to the said remand report, the assessee filed its submissions which were also considered by the CIT(A). The ld. CIT(A), after considering the remand report as well as submissions of the assessee, deleted the addition, so made by the Assessing Officer, observing as under: 4.2. I have considered the issue in the assessment order framed by the AO in light of the arguments made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year the appellant had raised share capital including share premium in the aggregate sum of Rs. 10,61,00,000/- by issuing 1,00,000 equity shares at par to toe subscriber of the Memorandum and 10,60,000 equity shares of toe face value of T1/~ each at a premium of W9f- per share. It is found that 9 corporate shareholders subscribed to the aforesaid share capital raised by toe appellant and all payments were made by each of them through account payee cheques drawn on their respective bankers. Each of the subscriber companies is regularly assessed to income tax and assessed u/s 143(3) of toe Act for the relevant assessment year: and the investments made by each of them are duly and fully reflected in their audited books of accounts as well as their respective income tax return. The appellant filed its return of total income u/s 139(1) of the Act in respect of the assessment year 2009-10 on 25.08.2009 declaring loss of Rs. 2,2025/-. The said return was accepted and processed by the AO u/s 143(1) of the said Act Subsequently, the AO issued a notice u/s 148 of the Income Tax Art, 1961 requiring the appellant to file a fresh return of its total income for the assessment year under appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as director and reach a logical conclusion regarding the controlling interest, iii) The A.O, is directed examine the source of realization from the liquidation of assets shown in the balance sheet after the change of Directors; the main grievance of the appellant was that the AO has not provided adequate opportunity to the appellant the matter was sent back to the AO for sending a remand report after making necessary enquiries. The remand report dated 02.07.2019 was received and the copy of same was forwarded to toe appellant for is comment The reply of appellant was also received on 19/08/2019 and was placed an record remand proceedings took-steps to frame the fresh assessment order in respect of the assessment year under appeal It is observed that that the AO had issued notices u/s 133(8) of the Act, to each of toe share subscribers again. Such notices were duty served upon the respective share applicants at their respective addresses on the records of the appellant Service of such notices u/s. 133(8) and u/s 131 of the Act to each of the share applicants at their respective known addresses proves their respective identifies, ft is observed that each of the share applicants are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y rotated is undisclosed money layering through different body corporates in different structured web to obfuscate inquiry. 4.4. In the rebuttal to remand report, the AR of the appellant company reiterated file same submissions and stated that compliance u/s 133(6) as well as appearance u/s 131 has been done by the director of the appellant company as well as file directors of all the 9 share applicant companies, the 9 share applicant companies were duly assessed either u/s 143(3) or u/s 143(1) of the Act for the relevant assessment year and by the own assertions of AO the money has come from related entities, thus the nature and source of moneys received are duly explained and no addition u/s 88 could have been made by the AO. 4.5. After considering the remand report and replies of the AR of the appellant it is also observed that each of file share applicants explained' the source of funds, from which they made payments- to the appellant for subscribing to the share capital, These facts borne on record by the share applicants, in my opinion, clearly prove their respective source of funds, and their capacity for making such payments and accordingly, the criteria of their credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade Pvt Ltd. is in a sum of Rs. 10,00,98,135/- as on the 31.03.2008 and only a sum of Rs. 1,20,00,000/-was invested as share application money with the appellant Promise Suppliers Pvt. Ltd. is in a sum of Rs. 10,00,99,187/- as on the 31.03.2009 and only a sum of 1,60,00,000/- was invested as share application money with the appellant, Sargam Suppliers Pvt Ltd. is in a sum of 110,00,96,595/- as on the 31.03.2009 and only a sum of Rs. 60,00,000/- was invested as share application money with the appellant, Srijan Retailers Pvt. Ltd. is in a sum of Rs. 10,00,99,540/- as on the 31.03.2009 and only a sum of Rs. 1,20,00,000/- was invested as share application money with the appellant, Sumeru Dealers Pvt Ltd. is in a sum of Rs. 10,00,99,885/- as on the 31.03.2009 and only a sum of 160,00,000/- was invested as share application money with the appellant. It is accordingly observed that these facts adequately prove their credit worthiness to make investment in the share capital of the appellant company. The aforesaid facts underlined by evidences clearly prove the identity of the share applicants, their capacity and source of funds of the share applicants, as well as the genuineness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal has confirmed the order passed by the CIT who had overturned the order of the Assessing Officer by making the following observation: ...We find that the identity of the 5 parties investing in the share capital is not in doubt They are body corporates and their complete addressees are on record. This is the very first assessment in the life of the assesses company. The amounts were deposited by these 5 corporates per account payee cheques. These parties were not shareholders of the assesses company at the time when the case was reopened under section 147 or when the summons were issued to them. We find that the assesses has filed before the A O. copies of share application forms duty signed along with the complete addresses of the investors along with their IT. Me numbers, account payee cheque numbers and the assessee s bank statements disclosing the deposits of these amounts. In these facts we find that the assesses has discharged its initial onus to prom the identity of the investors as well as their. creditworthiness. It is not the case of the Revenue that the investor parties did not exist or that the money was not invested by them through banking channels. Having found suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the. aforesaid materials, we agree with the Tribunal below that the Assessing Officer failed to establish that the share applicants did not ham the means to make investment and that such investment actually emanated from the coffers of the assessee company. The receipt of sham capital money had been duly recorded in the books of the assessee company and the payment of share application money was also duly recorded in the audited account of each of the sham applicants. We, thus, find that both the authorities below on the basis of toe aforesaid materials on record were quite justified in deleting the aforesaid addition of Rs. 45,00,000/- done by the Assessing Officer, we are of the view that the order, impugned does not suffer from any defect whatsoever and no question of substantial error, of law arises justifying our interference. The appeal is, thus, summarily dismissed. There is no evidence on record to show that the identities of the share applicants are not proved and/or that the introduction of share capital by them was not genuine and/or fits source of investment was not fully explained to the satisfaction of the AO. Further, the Hon-ble Jurisdictional High Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished the names, age, address, date of filing the application of share, number of shares of each subscriber there was no justification for the Assessing Officer for making the impugned addition because once the existence of the investors/share subscribers was proved, onus shift to the revenue to establish that either the share applicants were bogus or the impugned money belonged to the assessee itself. 5.1. The instant case is also supported by the decision of Hon ble Madras High Court in the case of CIT vs. Creative World Telefilms Pvt. Ltd. [2011] 333 ITR 100 (Bom), wherein their Lordship have held as under: In the case in hand, it was not disputed that the assessee had given the details of name and address of the shareholder, their PAN/GIR number and had also given the cheque number, name of the bank. It was expected on the part of the Assessing Officer to make proper investigation and reach the shareholders. The Assessing Officer did nothing except issuing summons which were ultimately returned back with an endorsement 'not traceable'. The Assessing Officer ought to have found out their details through PAN cards, bank account details or from their bankers so as to reach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the assessee were sufficient to displace the onus is a matter to be decided upon the facts of each case. Both the Commissioner (Appeals) and the Tribunal having held that the assessee had duly discharged the onus, no substantial question of law would arise. 5.4. The instant case is further supported by the decision of Hon ble Gujarat High Court in the case of CIT vs. Namastey Chemicals (P) Ltd., [2013] 217 TAXMAN 25 (Guj) wherein their Lordship have held as under: Where in respect of share application money received by assessee, it was apparent from records that large number of subscribers had responded to letters issued by Assessing Officer and submitted their affidavits, Tribunal was justified in deleting impugned addition made in respect of said amount. 6. The initial doubts stressed in the reasoning of the , AO in the instant case is based on the premise of non-appearance by the Directors of the appellant in response to summons issued u/s.131 of the said Act In this respect, it is observed that there is no ground to draw any adverse inference against the appellant, in relation to the provisions contained in sec. 68 of the said Act since the appellant had adduced alt poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icants in respect of the share capital to warrant the inference that such share application monies received is unaccounted cash credit. There is no material brought on record to that effect and wild speculation of this genre cannot be passed off as gospel truth. Hence, I am inclined to accept the arguments tendered by the A/R of the appellant in this respect. In view of the above, I have no hesitation to hold that the impugned addition made by invoking the provisions of Section 68 by the AO is not justified in the circumstances and accordingly direct him to delete such addition of Rs. 10,00,00,000/- made on this amount. 14. A perusal of the above reproduced relevant part of the order of the CIT(A) would reveal that the ld. CIT(A) has thoroughly discussed the entire evidences on file. The ld. CIT(A) has observed that the assessee had duly filed all the relevant documents to prove the identity and creditworthiness of the 9 share subscribers who have subscribed aggregate share capital of Rs. 10,61,00,000/-. That the Assessing Officer to get the identity and creditworthiness of the said share subscribers verified, had issued notices u/s 133(6) of the Act, which were duly complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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