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TMI Blog2025 (2) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... with condonation application. The ld. Counsel for the assessee stated that the assessee has not delayed the appeal intentionally or benefited from any manner from the delayed filing of the appeal. Therefore, in the interest of justice and fair play the delay may be condoned and appeal may be admitted for adjudication. 03. The ld. DR on the other hand stated that the reason stated by the Counsel of the assessee are not cogent and convincing and therefore, the appeal of the assessee should not be admitted by not condoning the delay. 04. After perusing the contents of the condonation application, we find that the delay is for bonafide and genuine reasons and hence, the the delay is condoned and appeal is admitted for adjudication, 05. The only issue raised in the various grounds of appeal is against the confirmation of Rs.12,93,00,000/- by the ld. CIT (A) in an ex-parte order as made by the ld. AO on account of share capital/ share premium despite the assessee filing all the relevant documents/ submissions before the ld. CIT (A) thereby upholding the order of the ld. Assessing Officer. 06. The facts in brief are that the assessee filed the return of income on 11.02.2013, showing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital/ share premium of Rs.12,93,00,000/- to the income of the assessee on the ground that there was no compliance to the summons u/s 131 of the Act by the directors of the subscriber companies as well as by the directors of the assessee company. The ld AR argued that though the directors of the assessee company did not appear before the AO but furnished all the evidences as called for by the AO. The ld. Counsel for the assessee submitted that in the appellate proceedings, all the evidences/details qua share capital/share premium were furnished along with written submission. The ld. Counsel for the assessee submitted that assessee filed the share application forms along with allotment letters, the proof of ITRs of the subscribers, payment of share application through cheques, bank accounts, also proof of share subscribers having substantial net worth and assessment orders u/s 143(3)/143(1) of the Act in the case of subscribers. The ld. AR submitted that it is not the case of the ld. AO that cash was deposited in the banks of the subscribers before the making investments in the assessee company. The ld. AR further submitted that the addition cannot be made on the ground that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g all the details/evidences as called by the AO. We note that the AO has not done any verification on the evidences furnished by the assessee and has not pointed any defect of any kind whatsoever in the documents furnished before the AO. We note that the AO has only harped on the fact that the directors of the appellant as well as share subscribers did not turn up on the date and time given for personal deposition. Besides the AO has harped on the fact that these shares were allotted at very high premium by ignoring the facts that there was no bar on issue of shares of high premium in the AY 2012-13 because Clause (viib) to Clause 2 section 56 inserted by Finance Act, 2012 w.e.f 01.04.2013 and was was applicable and effective from AY 2013-14. Similarly, the provisions in Finance Act, 2012 that the assessee company issuing share premium have to prove source of source has been inserted w.e.f 1.4.2013 is also not applicable in the case of assessee as the same is applicable from AY 2013-14 onwards. The case of the assessee finds support from the decision of the Hon'ble Bombay High Court in the case of CIT vs. Gangadeep Infrastructure Pvt. Ltd. in 80 taxmann.com 272 (Bom). Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the Ld. CIT(A) 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 product of the assessee or note. When it was found by the Ld. CIT(A) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact findings. Indeed the Tribunal did not really touch the aforesaid fact finding of the Ld. CIT(A) as rightly poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity 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 interference. It may be seen from the grounds of appeal raised by the revenue that the revenue disputed only the proof of identity of share holder. In this regard it is seen that for AY 2004-05 Shree Shyam Trexim Pvt. Ltd. was assessed by ITO, Ward-9(4), Kolkata and the order of assessment u/s 143(3) dated 25.01.2006 is placed in the paper book. Similarly Navalco Commodities Pvt. Ltd. was assessed to tax u/s 143(3) for AY 2005-06 by ITO, Ward-9(4), Kolkata by order dated 20.03.2007. Similarly Jewellock Trexim Pvt. Ltd. was assessed to tax for AY 2005-06 by the very same ITO, Ward-9(3), Kolkata assessing the assessee. In the light of the above factual position which is not disputed by the revenue, it cannot be said that the identity of the share applicants remained not proved by the assessee. The decision of the Hon'ble Allahabad High Court as well as ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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