ITO, New Delhi v. M/s. Ganga Yamuna Auto Pvt. Ltd., New Delhi

ITA 1192/DEL/2011 | 2002-2003
Pronouncement Date: 29-02-2012 | Result: Dismissed

Appeal Details

RSA Number 119220114 RSA 2011
Assessee PAN AAACG0403C
Bench Delhi
Appeal Number ITA 1192/DEL/2011
Duration Of Justice 11 month(s) 23 day(s)
Appellant ITO, New Delhi
Respondent M/s. Ganga Yamuna Auto Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-02-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 29-02-2012
Date Of Final Hearing 31-01-2012
Next Hearing Date 31-01-2012
Assessment Year 2002-2003
Appeal Filed On 07-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH C BENCH C BENCH C BENCH C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL BEFORE SHRI G.D.AGRAWAL VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER SHRI A.D.JAIN JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.119 119 119 1192/DEL/2011 2/DEL/2011 2/DEL/2011 2/DEL/2011 ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : ASSESSMENT YEAR : 2002 2002 2002 2002- -- -03 0303 03 INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER WARD WARD WARD WARD- -- -12(1) 12(1) 12(1) 12(1) NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. M/S GANGA YAMUN M/S GANGA YAMUN M/S GANGA YAMUN M/S GANGA YAMUNA AUTO PVT.LTD. A AUTO PVT.LTD. A AUTO PVT.LTD. A AUTO PVT.LTD. 40 4040 40- -- -41 COMMUNITY CENTRE 41 COMMUNITY CENTRE 41 COMMUNITY CENTRE 41 COMMUNITY CENTRE NEW FRIENDS COLONY NEW FRIENDS COLONY NEW FRIENDS COLONY NEW FRIENDS COLONY NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : AAACG0403C. PAN : AAACG0403C. PAN : AAACG0403C. PAN : AAACG0403C. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL MISHRA SR.DR. RESPONDENT BY : SHRI R.S.SINGHVI CA. ORDER ORDER ORDER ORDER PER A.D.JAIN JM : PER A.D.JAIN JM : PER A.D.JAIN JM : PER A.D.JAIN JM : THIS IS DEPARTMENTS APPEAL FOR AY 2002-03 AGAINST THE ORDER DATED 13 TH DECEMBER 2010 OF THE LEARNED CIT(A)-XV NEW DELHI CHALLENGING THE ACTION OF THE LEARNED CIT(A) IN DEL ETING THE ADDITION OF ` 32 33 628/- MADE BY THE ASSESSING OFFICER UNDER SEC TION 68 OF THE INCOME-TAX ACT 1961. 2. THE FACTS ARE THAT AS PER THE ASSESSMENT ORDER A REPORT WAS RECEIVED FROM THE INVESTIGATION WING OF THE DEPARTM ENT THAT THE ASSESSEE HAD TAKEN ACCOMMODATION ENTRIES AND THE TR ANSACTIONS ENTERED INTO BY THE ASSESSEE WERE A PART OF A DESIG N TO INTRODUCE THE UNACCOUNTED MONEY OF THE ASSESSEE INTO ITS ACCOUNT. THE ASSESSING OFFICER RELIED ON THE STATEMENT OF ONE SHRI MAHESH GARG UNDER SECTION 131 OF THE IT ACT. THIS STATEMENT WAS GIVEN BEFORE THE INVESTIGATION ITA-1192/DEL/2011 2 WING OF THE DEPARTMENT. THE ASSESSING OFFICER ALSO RELIED ON THE AFFIDAVIT OF ONE SHRI PRAMOD GOEL. THE ASSESSING O FFICER OBSERVED THAT NONE OF THE SHARE APPLICANTS HAD BEEN PRODUCED BY T HE ASSESSEE BEFORE THE ASSESSING OFFICER. PLACING RELIANCE ON CIT VS. PRECISION FINANCE LTD. 208 ITR 405 C.KANT & CO. VS. CIT 126 ITR 63 AND CIT VS. DIVINE LEASING & FINANCE LTD. THE ASSESS ING OFFICER OBSERVED THAT SINCE THE ASSESSEE FAILED TO PROVE THE GENUINE NESS OF THE TRANSACTIONS AND THE CREDITWORTHINESS OF THE APPLIC ANTS THE SHARE APPLICATION MONEY WAS BEING ADDED UNDER SECTION 68 OF THE ACT. 3. BEFORE THE LEARNED CIT(A) THE ASSESSEE CONTENDE D THAT THE SHARE APPLICATION MONEY HAD BEEN RECEIVED FROM THE FOLLOW ING FIVE PARTIES:- (I) WEAL IRON & STEEL CO.PVT.LTD. RS.250000/- (II) JMK SECURITIES PVT.LTD. RS.500000/- (III) CITO GARMENTS PVT.LTD. RS.500000/- (IV) PERFORMANCE TRADING & INVESTMENT PVT.LTD. RS.5 00000/- (V) WINSOME PORTFOLIO PVT.LTD. RS.500000/- TOTAL RS.2250000/- THE ASSESSEE FURTHER SUBMITTED THAT VIDE LETTER DAT ED 24.11.2009 FILED BEFORE THE ASSESSING OFFICER THE ASSESSEE HAD FURN ISHED THE FOLLOWING DETAILS CONCERNING ALL THE AFORESAID PARTIES:- (I) COPY OF APPLICATION FORM. (II) COPY OF BANK STATEMENT. ITA-1192/DEL/2011 3 (III) ITR (COPY FOR AY 00-01). (IV) ASSESSMENT ORDER 97-98. (V) BALANCE SHEET P & L A/C. (VI) CONFIRMATION ALONGWITH PAN NO. 4. THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING CA SE LAWS BEFORE THE LEARNED CIT(A) :- (I) CIT VS. M/S LOVELY EXPORTS (P) LTD. 116 CTR 185 ( SC). (II) CIT VS. VICTOR ELECTRODES LTD. 42 DTR 152 (DELHI) . (III) CIT VS. WINSTRAL PETROCHEMICALS PVT.LTD. (DELHI). (IV) M/S DWARKADHISH INVESTMENT PVT.LTD. 167 TAXMAN 32 1 (DELHI). 5. IT WAS FURTHER SUBMITTED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT IT WAS A CASE OF REASSESSMENT PROCEEDIN GS AND THE PRIMARY ONUS WAS ON THE ASSESSING OFFICER TO BRING ON RECOR D RELEVANT MATERIAL OR EVIDENCE IN SUPPORT OF THE ALLEGED UNEXPLAINED S HARE CAPITAL. RELIANCE IN THIS REGARD WAS PLACED ON CIT VS. PRAD EEP KUMAR GUPTA 303 ITR 95 (DELHI). STILL FURTHER THE ASSESSEE SO UGHT TO RELY ON CIT VS. VALUE CAPITAL SERVICES (P) LTD. 307 ITR 334 (DE LHI) FOR THE PROPOSITION THAT EVEN IF THE SHARE APPLICANTS DO NO T HAVE THE SOURCE TO MAKE THE INVESTMENT THE ONUS IS ON THE DEPARTMENT TO SHOW THAT SUCH INVESTMENT IS REPRESENTED BY UNDISCLOSED INCOME OF THE ASSESSEE. 6. BY VIRTUE OF THE IMPUGNED ORDER THE LEARNED CIT (A) DELETED THE ADDITION BRINGING THE DEPARTMENT IN APPEAL BEFORE US. ITA-1192/DEL/2011 4 7. CHALLENGING THE IMPUGNED ORDER THE LEARNED DR H AS CONTENDED THAT THE LEARNED CIT(A) HAS ERRED IN DELETING THE A DDITION MADE OF ` 32 33 628/- UNDER SECTION 68 OF THE ACT. BEFORE TH E ISSUANCE OF CHEQUES FROM THE BANK ACCOUNTS OF THE SHARE APPLICA NTS THERE WERE MANY ENTRIES OF CASH DEPOSITS AND IT IS SEEN THAT T HE MONEY WAS WITHDRAWN ON THE SAME DATE OR ON THE VERY NEXT DAT E WHICH SHOWS THAT THE ALLEGED SHARE APPLICANT IS AN ENTRY OPERAT OR. THE STATEMENTS ON OATH OF SHRI MAHESH GARG AND SHRI PRAMOD GOYAL W HEREIN THEY HAVE ADMITTED THAT THE CONCERNS WHICH HAVE ADVANCED THE AMOUNTS OF SHARE APPLICATION MONEY (ALLEGED SHARE APPLICANTS IN THIS CASE) ARE OPERATED/CONTROLLED BY HIM AND NO REAL BUSINESS WAS DONE BY THE SAID ENTITIES AND THE SAME WERE USED TO GIVE ACCOMMODATI ON ENTRIES ONLY. THE ASSESSEE FAILED TO PRODUCE THE ALLEGED SHARE AP PLICANT FOR VERIFICATION. MERE SUBMISSION OF DOCUMENTS AND MAT ERIAL IS HELD TO BE INSUFFICIENT IN THE CASE OF HINDUSTAN TEA TRADING CO. VS. CIT 263 ITR 289. HE FURTHER CONTENDED THAT THE DICTUM GIVEN BY THE HONBLE SUPREME COURT IN CIT VS. DURGA PRASAD MORE 82 I TR 540 AND SUMATI DAYAL VS. CIT 214 ITR 801 IN WHICH THE APEX COURT HAS LAID DOWN THE PROPOSITION THAT THE COURTS AND TRIBUNALS SHOULD SEE THE PREPONDERANCE OF PROBABILITIES WHILE CONSIDERING TH E EVIDENCE FURNISHED BY THE ASSESSEE. HE FURTHER SUPPORTED TH E FINDING OF FACT RECORDED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD INDULGED IN A NOTORIOUS PRACTICE OF RESORTING TO ACCOMMODATION EN TRIES IN ORDER TO ITA-1192/DEL/2011 5 EVADE PAYMENT OF LEGITIMATE TAX. HE SUBMITTED THAT THE ASSESSING OFFICER IS DUTY BOUND UNDER SECTION 68 TO ENQUIRE I NTO THE CREDITWORTHINESS AND IDENTITY OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS AND THAT THE CIT(A) HAS ERRED IN IGNOR ING SUCH FINDINGS RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. 8. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER. THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AS ABOVE HAVE BEEN R EITERATED. FURTHER THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED REL IANCE ON CERTAIN CASE LAWS WHICH ARE AS FOLLOWS:- (I) COPY OF ITAT ORDER DATED 10 TH JUNE 2011 OF NOVEL DEAL CAPITAL AND MANAGEMENT SERVICES LTD. FOR AY 2003-04 & 2004-05 ITA NOS.916 & 917/DEL/2010. (II) COPY OF ITAT ORDER DATED 30 TH NOVEMBER 2010 OF BATRA JEWELS PVT.LTD. FOR AY 2006-07 ITA NO.2988/DEL/20 09. (III) COPY OF ITAT ORDER DATED 10 TH DECEMBER 2010 OF AJNARA INDIA LTD. FOR AY 2007-08 ITA NO.3612/DEL/2010. 9. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALSO RE LIED ON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT RENDERED ON 23.12.2011 IN THE CASE OF KAMDHENU STEEL & ALLOYS LTD. & 10 OTHE RS (COPY PLACED ON RECORD). COPIES OF ALL THE ABOVE DECISIONS HAVE BE EN PLACED ON RECORD BEFORE US. ITA-1192/DEL/2011 6 10. A PAPER BOOK HAS ALSO BEEN FILED BY THE ASSESSE E CONTAINING COPIES OF THE WRITTEN SUBMISSIONS FILED BEFORE THE LEARNED CIT(A) THE NOTICE DATED 27.3.2009 ISSUED TO THE ASSESSEE UNDER SECTION 148 OF THE IT ACT THE LETTER DATED 21.4.2009 REQUESTING REASONS FOR REOPENING OF THE ASSESSMENT THE REASONS RECORDED O N 19.3.2009 FOR INITIATION OF REASSESSMENT PROCEEDINGS THE LETTER DATED 24.11.2009 FILED BEFORE THE ASSESSING OFFICER ALONGWITH SUPPOR TING EVIDENCE WHICH COMPRISES THE APPLICATION FORM THE BANK STATEMENT THE ITR ACKNOWLEDGEMENT FOR AY 2000-01 INTIMATION UNDER SE CTION 143(1)(A) COMPUTATION OF INCOME FOR AY 2000-01 BALANCE SHEET PROFIT & LOSS ACCOUNT AND SCHEDULES AS ON 31.3.2000 AND CONFIRMAT ION ALONGWITH PAN CONCERNING ALL THE FIVE CREDITOR PARTIES OF THE ASSESSEE I.E. M/S WINSOME PORTFOLIO PVT.LTD. M/S CITO GARMENTS PVT.L TD. M/S WEAL IRON & STEEL CO.PVT.LTD. M/S PERFORMANCE TRADING & INVEST MENT PVT.LTD. AND M/S JMK SECURITIES PVT.LTD. 11. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE SIDES AND HAVE PERUSED THE MATERIAL PLACED BEFORE US. THE LEARNED CIT(A) IT IS SEEN WHILE DELETING THE ADDITION MADE BY THE ASSESSING O FFICER OBSERVED INTER-ALIA THAT THE ASSESSEE HAD FURNISHED VARIOUS DOCUMENTS IN SUPPORT OF THE SHARE CAPITAL RECEIVED BY THE ASSESS EE FROM THE AFORESAID FIVE PARTIES; THAT THIS COMPLETE EVIDENCE HAD BEEN FURNISHED BEFORE THE LEARNED CIT(A) ALSO; THAT THIS EVIDENCE COMPRISES OF :- ITA-1192/DEL/2011 7 (I) COMPLETE NAME AND ADDRESS OF SHARE APPLICANT & PAN DETAILS. (II) CONFIRMATION OF SHARE APPLICANT. (III) COPY OF INCOME TAX RETURN OF SHARE APPLICANT. (IV) COPY OF BANK STATEMENT OF SHARE APPLICANT FROM WHIC H IT HAD MADE THE INVESTMENT IN THE SHARES OF COMPANY. THAT APROPOS THE IDENTITY OF THE CREDITORS THE ASS ESSEE HAD FILED THE FOLLOWING DETAILS:- (I) COPY OF APPLICATION FORM. (II) COPY OF BANK STATEMENT. (III) ITR COPY FOR AY 2000-01. (IV) ASSESSMENT ORDER 97-98. (V) BALANCE SHEET P & L A/C. (VI) CONFIRMATION ALONGWITH PAN NO.; THAT THE ABOVE HAD BEEN SUBMITTED BY THE ASSESSEE B EFORE THE ASSESSING OFFICER VIDE LETTER DATED 24.11.2009; THA T IN P.K.SETHI VS. CIT (2006) 286 ITR 318 (GAU.) IT HAS BEEN HELD THAT THE IDENTITY OF A CREDITOR IS PROVED WHEN A CREDITOR IS SHOWN TO BE A N INCOME TAX ASSESSEE; THAT THE GENUINENESS OF THE TRANSACTIONS WAS ESTABLISHED SINCE THE TRANSACTIONS WERE ROUTED THROUGH BANKING CHANNELS; THAT THE SHARE APPLICATION MONEY WAS RECEIVED THROUGH ACCOUN T PAYEE CHEQUES DETAILS WHEREOF HAD BEEN FILED BY THE ASSE SSEE; THAT HENCE WHEN THE RETURNS OF INCOME HAD BEEN FILED BY THE CR EDITORS OF THE ASSESSEE SUCH RETURNS WERE ACCEPTED BY THE DEPARTM ENT AND THE PAYMENT WAS THROUGH ACCOUNT PAYEE CHEQUES THE GENU INENESS OF THE ITA-1192/DEL/2011 8 TRANSACTIONS COULD NOT BE DOUBTED; THAT THE COPIES OF THE BALANCE SHEETS FILED SHOWED THAT THE PERSON APPLYING FOR SH ARES HAD ADEQUATE SHARE CAPITAL AND RESERVES ESTABLISHING THE CREDIT WORTHINESS OF THE CREDITORS; THAT NO EVIDENCE ON THE OTHER HAND HAS BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO PROVE THAT THE S HARE APPLICATION MONEY EMANATED FROM THE COFFERS OF THE ASSESSEE; TH AT NO OPPORTUNITY OF CROSS-EXAMINATION HAS BEEN PROVIDED TO THE ASSES SEE; AND THAT THE BALANCE SHEET OF THE SHARE APPLICANTS SHOWED EXISTE NCE OF SUFFICIENT SHARE CAPITAL AND RESERVES FROM WHICH THE SHARE A PPLICATION MONEY COULD BE GIVEN. 12. THE DEPARTMENT HAS NOT BEEN ABLE TO CONTROVERT THE ABOVE FACTUAL OBSERVATIONS MADE AND THE FACTUAL FINDINGS GIVEN BY THE LEARNED CIT(A) IN THE ORDER UNDER APPEAL. THE INGR EDIENTS OF SECTION 68 HAVE BEEN THUS AMPLY PROVED BY THE ASSESSEE. THE IDENTITY OF THE SHARE APPLICANTS STANDS ESTABLISHED THE CREDITORS HAVING BEEN SHOWN AS INCOME TAX ASSESSEES. THE GENUINENESS OF THE TR ANSACTIONS IS NOT IN DOUBT. THE TRANSACTIONS WERE ROUTED THROUGH BANKIN G CHANNELS. THE SHARE APPLICATION MONEY WAS RECEIVED BY THE ASSESSE E THROUGH ACCOUNT PAYEE CHEQUES. DETAILS THEREOF HAD BEEN DU LY FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE INCOME TAX RETURNS FILED BY THE CREDITORS STOOD ACCEPTED BY THE DEPARTMENT. TH E BALANCE SHEETS OF THE SHARE APPLICANTS SHOWED THAT THERE EXISTED S UFFICIENT SHARE ITA-1192/DEL/2011 9 CAPITAL AND RESERVES FROM WHICH THE SHARE APPLICA TION MONEY COULD BE GIVEN. THIS ESTABLISHED THE CREDITWORTHINESS OF TH E CREDITORS. 13. IT IS PERTINENT THAT VIDE LETTER DATED 24.11.20 09 (COPY AT APB 12 TO 13) THE ASSESSEE HAD FURNISHED COMPLETE DETAILS ABOUT ITS FIVE TRADE CREDITORS I.E. :- (I) WEAL IRON & STEEL CO.PVT.LTD. (II) JMK SECURITIES PVT.LTD. (III) CITO GARMENTS PVT.LTD. (IV) PERFORMANCE TRADING & INVESTMENT PVT.LTD. (V) WINSOME PORTFOLIO PVT.LTD. 14. THE DETAILS FILED WERE COPIES OF APPLICATION FO RM BANK STATEMENT ITR COPY FOR AY 2000-01 ASSESSMENT ORDER FOR AY 19 97-98 BALANCE SHEET PROFIT & LOSS ACCOUNT AND CONFIRMATION ALONG WITH PAN NUMBER. THUS ALL THE NECESSARY DETAILS WITH REGARD TO THE SHARE APPLICANTS HAD BEEN DULY FILED BY THE ASSESSEE BEFORE THE ASSESSIN G OFFICER IN THE ASSESSMENT PROCEEDINGS ITSELF. THE ASSESSING OFFIC ER ON THE OTHER HAND MADE THE ADDITION EVEN THOUGH THERE WAS NO C ASH DEPOSIT AND ALL POSSIBLE EVIDENCE HAD BEEN FILED BY THE ASSESSE E. THEREFORE THE LEARNED CIT(A) CANNOT IN ANY MANNER BE SAID TO HA VE ERRED IN DELETING THE ADDITION WRONGLY MADE. 15. COMING TO THE CASE LAWS IN LOVELY EXPORTS (S UPRA) THE HONBLE SUPREME COURT INTER ALIA HELD THAT IF THE SHARE A PPLICATION MONEY ITA-1192/DEL/2011 10 RECEIVED BY THE ASSESSEE IS EVEN FROM ALLEGED BOGUS SHAREHOLDERS WHOSE NAMES ARE GIVEN TO THE ASSESSING OFFICER BY T HE ASSESSEE THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW. 16. IN VICTOR ELECTRODES LTD. (SUPRA) THE HONBL E DELHI HIGH COURT HAS HELD INTER-ALIA THAT WHERE THE DOCUMENTS HAVE BEEN FURNISHED AND THERE IS FAILURE TO PRODUCE THE SHARE APPLICANT S THE ASSESSING OFFICER IF HE SO WANTS CAN SUMMON THEM FOR VERIFI CATION. 17. IN WINSTRAL PETROCHEMICALS PVT.LTD. (SUPRA) IT HAS BEEN HELD INTER ALIA THAT IF THE ASSESSING OFFICER ENTERTAIN ED ANY DOUBT ABOUT THE GENUINENESS OF THE DOCUMENTS FURNISHED BY THE ASSES SEE THERE WAS NOTHING PREVENTING HIM FROM SUMMONING THE RECORD FR OM THE CONCERNED AUTHORITIES I.E. THE REGISTRAR OF COMPA NIES OR THE DEPARTMENT OF COMPANY AFFAIRS; THAT THERE IS NO LEG AL BAR TO MORE THAN ONE COMPANY BEING REGISTERED AT THE SAME ADDRESS AN D IF THEY WERE ISSUED PAN CARDS AND HAD BANK ACCOUNTS FROM WHICH THE MONEY WAS TRANSFERRED TO THE ASSESSEE BY WAY OF ACCOUNT PAYEE CHEQUES THEY CANNOT BE SAID TO BE NON-EXISTENT EVEN IF AFTER SU BMITTING THE SHARE APPLICATION THEY HAD CHANGED THEIR ADDRESS OR HAD STOPPED FUNCTIONING; THAT MERELY BECAUSE THE APPLICANTS DID NOT RESPOND TO THE NOTICES THE AMOUNT COULD NOT BE ADDED TO THE INCOM E OF THE ASSESSEE AND THE ASSESSING OFFICER HAVING FOUND OUT THE CUR RENT ADDRESSES OF ITA-1192/DEL/2011 11 THE APPLICANTS COULD HAVE SUMMONED THEM; AND THAT IF THE NAMES AND ADDRESSES OF THE DIRECTORS WERE NOT AVAILABLE THEY COULD HAVE BEEN OBTAINED FROM THE OFFICE OF THE REGISTRAR OF COMPAN IES OR FROM THE BANKS ON WHICH THE CHEQUES WERE DRAWN. 18. IN DWARKADHISH INVESTMENT PVT.LTD. (SUPRA) T HE HONBLE DELHI HIGH COURT OBSERVED THAT THE DECISION IN LOVELY EX PORTS (SUPRA) WOULD COVER THE ISSUE WITH REGARD TO INTERPRETATION OF SE CTION 68 OF THE IT ACT; AND THAT ONCE THE PAN NUMBER OR INCOME TAX ASSESSME NT NUMBER HAS BEEN FILED BY THE ASSESSEE AND THE GENUINENESS OF T HE TRANSACTION HAS BEEN SHOWN BY THE PRESENCE OF MONEY IN HIS BOOKS E ITHER BY ACCOUNT PAYEE CHEQUES OR BY DRAFT OR BY ANY OTHER MODE T HE ONUS WOULD SHIFT ON TO THE REVENUE AND IT WOULD BE THE RESPONSIBILIT Y OF THE REVENUE TO PROVE THAT THE AMOUNT INVOLVED WAS THE UNEXPLAINED INCOME OF THE ASSESSEE. 19. NOT ONLY THIS IN VALUE CAPITAL SERVICES' (SUP RA) THE HONBLE DELHI HIGH COURT HAS HELD THAT EVEN IF THE SHARE AP PLICANT DID NOT HAVE THE SOURCE TO MAKE THE INVESTMENT IT WAS THE ONUS OF THE DEPARTMENT TO PROVE THAT THE INVESTMENT WAS REPRESENTED BY THE UNDISCLOSED INCOME OF THE ASSESSEE. 20. TO SIMILAR EFFECT ARE THE DECISIONS IN NOVEL D EAL CAPITAL AND MANAGEMENT SERVICES LTD. (SUPRA) BATRA JEWELS PV T.LTD. (SUPRA) ITA-1192/DEL/2011 12 AJNARA INDIA LTD. (SUPRA) AND LAST BUT NOT THE LEAST IN KAMDHENU STEEL & ALLOYS LTD. (SUPRA) THE HONBLE DELHI HIGH COURT HAS IN ITS DETAILED ORDER DEALT WITH ALL THE ASPECTS OF THE M ATTER AND ALL CASE LAW RENDERED HITHERTO ON THE ISSUE ULTIMATELY HOLDING INTER ALIA THAT:- 40. IN CONCLUSION WE ARE OF THE OPINION THAT ONCE ADEQUATE EVIDENCE/MATERIAL IS GIVEN AS STATED BY U S ABOVE WHICH WOULD PRIMA FACIE DISCHARGE THE BURDEN OF THE ASSESSEE IN PROVING THE IDENTITY OF SHAREHOLDER S GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDERS THEREAFTER IN CASE SUCH EVIDENCE IS T O BE DISCARDED OR IT IS PROVED THAT IT HAS CREATED EV IDENCE THE REVENUE IS SUPPOSED TO MAKE THOROUGH PROBE OF T HE NATURE INDICATED ABOVE BEFORE IT COULD NAIL THE ASS ESSEE AND FASTEN THE ASSESSEE WITH SUCH A LIABILITY UNDER SECTION 68 AND 69 OF THE ACT. 21. MOREOVER THE DECISION IN KAMDHENU STEEL & ALLO YS LTD. (SUPRA) ALSO PUTS PAID TO THE ASPECT OF THE STATEMENT OF SH RI MAHESH GARG WHICH STATEMENT WAS NEVER CONFRONTED TO THE ASSESSE E IN THE PRESENT CASE AND THE ASSESSEE WAS NEVER ALLOWED TO CROSS-EX AMINE HIM. 22. THUS THE SETTLED POSITION WAS AND REMAINS THAT ONCE THE ASSESSEE HAS BEEN ABLE TO PROVE THE INGREDIENTS OF SECTION 68 OF THE ACT WHICH IN THE PRESENT CASE ALSO THE ASSESSEE HA S BEEN ABLE TO DO AS SEEN HEREINABOVE AS RIGHTLY DECIDED BY THE LEAR NED CIT(A) THE ONLY COURSE LEFT OPEN FOR THE ASSESSING OFFICER IS TO MA KE THOROUGH ITA-1192/DEL/2011 13 ENQUIRIES IN THE CASES OF THE SHAREHOLDERS AND MAKE ASSESSMENT IN ACCORDANCE WITH LAW. 23. IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND ANY MERIT IN THE GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT AND THE SAME IS HEREBY REJECTED UPHOLDING THE ORDER PASSED BY THE LEARNED CIT(A). 24. IN THE RESULT THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 29 TH FEBRUARY 2012. SD/- SD/- (G. (G. (G. (G.D.AGRAWAL D.AGRAWAL D.AGRAWAL D.AGRAWAL) )) ) (A.D.JAIN) (A.D.JAIN) (A.D.JAIN) (A.D.JAIN) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT JUDI JUDI JUDI JUDICIAL MEMBER CIAL MEMBER CIAL MEMBER CIAL MEMBER DATED : 29.02.2012 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR