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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 ..... y, AR For the Revenue : Shri Subhendu Datta, DR ORDER PER RAJESH KUMAR, AM: This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the "Ld. CIT(A)"] dated 03.10.2023 for the AY 2012-13. 02. At the outset, we observe that there is a delay of 164 days in filing the appeal by the assessee. The ld. Counsel for the assessee stated that Shri R Agarwal was looking after the taxation matter of the assessee, who also appeared before the first appellate authority. The ld. AR further stated that the said Counsel was not familiar with the procedure of the Tribunal and advised the assessee not to file any appeal before the Tribunal. Thereafter, the assessee approached the present counsel in 3rd week of April, 2024, to seek consultation on some taxation matter, who advised the assessee to file the appeal along 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limine by noting that the assessee has not replied on the various opportunities allowed to the assessee that too in violation of provisions of Section 250 sub section 6 as the merits of the case were not discussed and decided, whereas, on the other hand the assessee had filed return submissions before the ld. CIT (A) along with details and evidences submitting the details in respect of share subscribers which are available at page no.858 to 873. 08. The ld. AR vehemently submitted before us that both the authorities below have failed to conduct an enquiry into evidences filed by the assessee qua the share subscribers as well as its own. The ld. Counsel for the assessee submitted that during the relevant financial year, the assessee has issued equity shares to 15 subscribers at a face value of Rs. 10 each at a premium of Rs. 990/-. The ld. AR stated that the ld. AO simply added amount of share capital/ share premium of ₹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 directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Act by the subscribers as well as by the directors of the assessee company and therefore, no deposition could be recorded. 011. After hearing the rival contentions and perusing the material on record, we find that the assessee has furnished before the AO as well as the Ld. CIT(A) all the evidences qua the share capital/ share premium raised during the instant financial year comprising the names, addresses, proofs of voter IDs, Driving licenses, PAN cards, list of directors with share holders with DIN, copies of ITRs, copies of bank statements and assessment orders u/s 143(3)/143(1) of the Act etc in case of share subscribers. We find that though the directors of the assessee company and also the subscribers companies did not comply with summons u/s 131 of the Act. We even note that the AO has not issued notices u/s 133(6) of the Act to the share subscribers despite the assessee furnishing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premises, if the Tribunal came to the conclusion that the respondent had discharged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. I f the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case." 012. The case of the assessee is also squarely covered by the decisions of Hon'ble Calcutta High Court in the case of Crystal Networks Pvt. Ltd. vs. CIT (supra ) wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions, the fact that summon issued were returned unserved or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. The 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. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply as against cash credit also made. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Ld. CIT(A). The appeal is allowed." 013. The case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers India Pvt. Ltd. (supra) the operative part whereof is extracted below: "8. We have heard the submissions of the learned D.R, who relied on the order of AO. The learned counsel for the assessee relied on the order of Ld. CIT(A) and further drew our attention to the decision of Hon'ble Allahabad High Court in the case of CIT vs. Raj Kumar Agarwal vide ITA No. 179/2008 dated 17.11.2009 wherein the Hon'ble Allahabad High Court took a view that non-production of the director of a Public Limited Company which is regularly assessed to Income tax having PAN, on the ground that the identity 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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