Fizaan Commotrade Pvt. Ltd., Kolkata v. I.T.O.,Ward-15(1), Kolkata

ITA 166/KOL/2020 | 2012-2013
Pronouncement Date: 03-03-2021 | Result: Allowed

Appeal Details

RSA Number 16623514 RSA 2020
Assessee PAN AABCF8995P
Bench Kolkata
Appeal Number ITA 166/KOL/2020
Duration Of Justice 1 year(s) 26 day(s)
Appellant Fizaan Commotrade Pvt. Ltd., Kolkata
Respondent I.T.O.,Ward-15(1), Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 03-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 03-03-2021
Date Of Final Hearing 18-02-2021
Next Hearing Date 18-02-2021
Last Hearing Date 17-02-2021
First Hearing Date 17-02-2021
Assessment Year 2012-2013
Appeal Filed On 07-02-2020
Judgment Text
ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 1 | P A GE B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI J. SUDHAKAR REDDY AM AND SHRI A. T. VARKEY JM] I.T.A. NO. 166/KOL/2020 ASSESSMENT YEAR: 2012-13 FIZAAN COMMOTRADE PVT. LTD. (PAN: AABCF8995P) VS. INCOME-TAX OFFICER WARD-15(1) KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 18.02.2021 DATE OF PRONOUNCEMENT 03.03.2021 FOR THE APPELLANT SHRI MIRAJ D. SHAH AR FOR THE RESPONDENT SMT. RANU BISWAS ADDL. CIT ORDER PER SHRI A. T. VARKEY JM: THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF LD. CIT(A)-5 KOLKATA DATED 07.08.2019 FOR AY 2012-13. 2. THE SOLE ISSUE THAT HAS BEEN RAISED BY THE ASSE SSEE IS AGAINST THE ORDER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.1 80 00 000/- U/S. 68 OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. BRIEF FACTS OF THE CASE AS NOTED BY THE AO ARE THAT THE ASSESSEES CASE FOR AY 2012- 13 WAS SELECTED FOR SCRUTINY AND INTIMATIONS U/S. 1 43(2) AND 142(1) OF THE ACT WERE ISSUED AND PURSUANT TO THE SAME SHRI S. S. LOHIA FCA THE LD. AR OF THE ASSESSEE APPEARED AND FURNISHED FEW DETAILS. THE AO NOTED THAT ASSESSEE I N THIS YEAR HAS INFUSED FRESH SHARE CAPITAL AND SHARE PREMIUM (TOTAL RS.2.10 CR.) SO HE REQUESTED THE LD. AR TO PRODUCE THE DIRECTOR OF THE ASSESSEE COMPANY AND ALSO THE DIREC TORS OF THE SHARE ALLOTTEE COMPANIES AND FIXED THE DATE OF HEARING ON 23.02.2015. ACCORDING TO THE AO THERE WAS NO COMPLIANCE. SO FINAL OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO C OMPLY WITH THE PHYSICAL APPEARANCE OF THE DIRECTORS. HOWEVER THE AO NOTES THAT NONE APP EARED. ACCORDING TO THE AO SINCE THE BALANCE SHEET REVEALS THAT FRESH SHARE CAPITAL INCL UDING SHARE PREMIUM HAS BEEN RECEIVED BY THE ASSESSEE AND SINCE RECORDED IN THE BALANCE S HEET IT ESTABLISHES THE CREDIT OF THE SAME ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 2 | P A GE IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. ACCORDING TO THE AO SINCE RESPONSES TO THE QUERIES RAISED BY HIM HAS NOT BEEN SATISFACT ORILY EXPLAINED THE NATURE AND SOURCE OF THE SAID SUM FOUND CREDITED COULD NOT BE ESTABLISHE D HE WAS OF THE OPINION THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF RECEIV ING THE HUGE MONEY AS SHARE CAPITAL. THEREFORE HE ADDED THE SUM OF RS.1 80 00 000/- ( THOUGH RS.2 10 00 000 RECEIVED BY THE ASSESSEE IN THIS AY AS SHARE CAPITAL AND SHARE PREM IUM THE AO ACCEPTED THE SHARE CAPITAL INVESTED BY THREE INDIVIDUALS TO THE TUNE OF RS 30 00 000/- AND DID NOT ACCEPT THE AMOUNT INVESTED BY COMPANIES ). AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE LD. CIT(A) WHO CONFIRMED THE ORDER OF THE AO AND HELD THAT THE ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF THE TRANSACTION AND THE CREDITWO RTHINESS OF THE SHAREHOLDERS. AGGRIEVED BY THE AFORESAID ACTION OF THE LD. CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US. 4. ASSAILING THE ACTION OF THE LD. CIT(A) THE LD. AR SHRI MIRAJ D. SHAH SUBMITTED THAT ASSESSEE IN THIS RELEVANT ASSESSMENT YEAR I.E . AY 2012-13 HAD RECEIVED A TOTAL AMOUNT OF RS.2 10 00 000/- FROM FIVE (5) PARTIES. OUT OF WHICH THREE (3) ARE INDIVIDUALS AND TWO (2) ARE CORPORATE ENTITIES. ACCORDING TO THE LD. AR AN AMOUNT OF RS. 30 00 000/- COLLECTED FROM THE THREE (3) INDIVIDUALS HAVE BEEN ACCEPTED B Y THE AO HOWEVER THE AO DID NOT ACCEPT THE IDENTITY CREDITWORTHINESS AND GENUINITY OF THE SHARE CAPITAL AND PREMIUM COLLECTED FROM TWO (2) CORPORATE ENTITIES VIZ. M/S . QUEST FINANCIAL SERVICES LTD. AND M/S. ANURODH INFRASTRUCTURE LTD. TO THE TUNE OF RS.1.80 CR. (TOTAL). ACCORDING TO THE LD. AR M/S. QUEST FINANCIAL SERVICES LTD. HAD TRANSFERRED THROUGH BANKING CHANNELS OF RS. 1 00 00 000/- (RS. 1 CRORE) AND M/S. ANURODH INFR ASTRUCTURE LTD. HAD TRANSFERRED RS. 80 00 000/- TO THE ASSESSEE COMPANY FOR SUBSCRIBING SHARE CAPITAL AND PREMIUM HAD DULY DISCHARGED THE ONUS CASTED UPON IT FOR PROVING THE IDENTITY CREDITWORTHINESS AND GENUINITY OF THE SHARE TRANSACTION AND THE AO ERRED IN FASTEN ING THE ADDITION MERELY BECAUSE DIRECTORS OF THESE COMPANIES DID NOT APPEAR BEFORE HIM. ACCO RDING TO THE LD. AR THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE AO ONLY ON TH E GROUND THAT THERE WAS NO RESPONSE BY THE TWO (2) SUBSCRIBING COMPANIES U/S. 131/133(6) N OTICE AND ACCORDING TO HIM THE LD. CIT(A) ERRED IN RELYING ON THE DECISION OF HONBLE SUPREME COURT IN PCIT VS. NRA IRON & STEEL PVT. LTD. CIVIL APPEAL NO OF 2009 (ARISING OUT OF SLP (CIVIL) NO.29855 OF 2018) WHICH ACCORDING TO THE LD. AR WAS NOT APPLICABLE S INCE THAT WAS A CASE WHEREIN THERE WAS ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 3 | P A GE NO COMPLIANCE WHATSOEVER BY THE SHARE SUBSCRIBERS; AND ACCORDING TO LD. AR THAT IS NOT THE CASE SO FAR AS THE PRESENT ASSESSEES CASE IS C ONCERNED. IN ORDER TO BOLSTER HIS ARGUMENTS THE LD. AR BROUGHT TO OUR NOTICE THAT M/S. QUEST FI NANCIAL SERVICES LTD. WHICH HAD INVESTED RS. 1 00 00 000/- IN THE ASSESSEE COMPANY AND TRANSFERRED IT BY RTGS IS A LISTED COMPANY IN THE STOCK EXCHANGE AND IS INCORPORATED 3 2 YEARS BACK WHICH FACT CAN BE DISCERNED FROM A PERUSAL OF THE AUDITED FINANCIALS (ANNUAL REPORT) A COPY OF WHICH IS FILED FROM PAGE 28 TO 59 OF THE PAPER BOOK. A PERUSAL OF PAGE 36 OF PAPER BOOK THIS FACT IS NOTED I.E IS INCORPORATED 32 YEARS BACK AS WELL AS ABOUT THE FACT OF LISTING IN CALCUTTA STOCK EXCHANGE IS STATED THEREIN. 5. THEREAFTER THE LD. AR DREW OUR ATTENTION TO THE BALANCE SHEET OF M/S. QUEST FINANCIAL SERVICES LTD. WHICH IS PLACED AT PAGE 40 OF PAPER BOOK FROM WHERE HE DREW OUR ATTENTION TO THE OWN FUNDS OF THE SAID COMPANY FROM WHERE IT IS NOTED THAT THE SHARE CAPITAL AND RESERVE AND SURPLUS AS ON 31.03.2011 (AY 2011-1 2) (WHICH MEANS THE OPENING BALANCE FOR THE AY 2012-13) WHEREIN WE NOTE THAT M/S. QUEST FINANCIAL SERVICES LTD. HAD RS.13.8 CR. (AS SHARE CAPITAL) AND RS.3.5 CR. (AS RESERVE A ND SURPLUS) WHICH MEANS M/S. QUEST FINANCIAL SERVICES LTD. HAD MORE THAN RS.16 CR. AS OPENING BALANCE FOR THIS AY 2012-13 I.E. AS ON 01.04.2011. THEREAFTER THE LD. AR DREW OUR ATTENTION TO THE BALANCE SHEET AS ON 31.03.2012 (AY 2012-13) WHEREIN THE M/S QUEST FINA NCIAL SERVICES LTDS SHARE CAPITAL HAS INCREASED MANIFOLD BY MORE THAN RS.123 CR. WHI CH ACCORDING TO THE LD. AR WAS ON THE EVENT OF AMALGAMATION WITH M/S. QUEST FINANCIAL SER VICES LTD. CERTAIN CORPORATE ENTITIES AS PER ORDER OF THE HONBLE CALCUTTA HIGH COURT. ACCO RDING TO LD. AR THE HONBLE HIGH COURT HAS APPROVED THE SCHEME OF AMALGAMATION OF M/ S. DRISTI SUPPLIERS LTD. M/S. PRAN JEEVAN DISTRIBUTORS LTD. AND M/S. REWARD AGENCIES L TD. WITH M/S. QUEST FINANCIAL SERVICES LTD. THE LD. AR DREW OUR ATTENTION TO THE DETAILS OF THIS FACT (AMALGAMATION) WHICH FACTS ARE DISCERNIBLE FROM PAGE 36 OF PAPER B OOK. FROM A PERUSAL OF PAGE 29 OF THE PAPER BOOK IT IS DISCERNED THAT THIS IS THE 32 ND ANNUAL REPORT I.E. FOR AY 2012-13 WHICH IS SEEN PLACED FROM PAGES 29 TO 59 OF THE PAPER BOOK THUS THE FACT OF INCORPORATION OF THIS COMPANY 32 YEARS BACK IS CORROBORATED. THE LD. AR D REW OUR ATTENTION TO THE FOLLOWING FACTS I.E. M/S. QUEST FINANCIAL SERVICES LTD.S PAN IS AAACQ0461C AND AT PAGE 27 OF THE PAPER BOOK THE ITR ACKNOWLEDGMENT OF M/S. QUEST FI NANCIAL SERVICES LTD. HAS BEEN FOUND ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 4 | P A GE KEPT AND FROM A PERUSAL IT IS NOTED THAT THE SAID C OMPANY IS UNDER THE TERRITORIAL JURISDICTION OF ITO WARD-4(4) KOLKATA. THEREAFTER THE LD. AR DREW OUR ATTENTION TO PAGE 60 OF PAPER BOOK WHICH IS THE REPLY BY M/S. QUEST FINANCIAL SER VICES LTD. TO THE SUMMONS U/S. 131 OF THE ACT IS FOUND PLACED. AND FROM A PERUSAL OF THIS REPLY IT IS NOTED THAT M/S. QUEST FINANCIAL SERVICES LTD. HAVE INFORMED THE AO THAT I TS DIRECTORS WERE OUT OF STATION AND THEY WOULD BE BACK WITHIN A MONTH AND THEY ENCLOSED FOLL OWING DOCUMENTS ALONG WITH THEIR REPLY TO SUBSTANTIATE THEIR IDENTITY CREDITWORTHIN ESS AND GENUINENESS: I) THEY CONFIRMED THAT THEY (M/S. QUEST FINANCIAL S ERVICES LTD.) HAVE INVESTED IN 20000 EQUITY SHARES OF RS. 10/- EACH IN THE ASSESSE E COMPANY (M/S. FIZAN COMMOTRADE PRIVATE LIMITED) ALLOTTED AT A PREMIUM OF RS.490/- PER SHARE. II) PAN CARD COPY OF WHICH WAS ENCLOSED. III) COPY OF INCOME-TAX RETURN FOR P&L ACCOUNT AND BALANCE SHEET IV) COPY OF SHARE APPLICATION LETTER ENCLOSED V) PHOTO COPY OF THE BANK STATEMENT IS ENCLOSED VI) CERTIFICATE OF SOURCE OF FUND AND PRAYED FOR DISPENSING WITH THE REQUIREMENT OF T HE PERSONAL APPEARANCE OF ITS DIRECTORS. THE LD. AR DREW OUR ATTENTION TO PAGE 61 OF THE PAP ER BOOK FROM WHERE WE NOTE THE PHOTO COPY OF THE PAN CARD AND PAGES 62 TO 64 THE FORM OF APPLICATION FOR EQUITY SHARES IS FOUND PLACED. RELEVANT BANK STATEMENT IS FOUND AT PAGES 55 TO 56 OF THE PAPER BOOK FROM WHERE IT IS DISCERNED THAT M/S. QUEST FINANCIAL SERVICES LTD . HAS TRANSFERRED AN AMOUNT OF RS. 1 CRORE BY RTGS ON 27.03.2012. PERUSAL OF PAGE 67 O F PAPER BOOK REVEALS THE SOURCE OF SOURCE OF THIS AMOUNT. THUS ACCORDING TO THE LD. A R THE ASSESSEE HAS DISCHARGED THE BURDEN ON IT TO PRIMA FACIE PROVE THE IDENTITY CRE DITWORTHINESS AND GENUINENESS OF M/S. QUEST FINANCIAL SERVICES LTD. WHICH FACT HAS NOT B EEN REBUTTED BY AO. 6. THEREAFTER HE DREW OUR ATTENTION TO THE NEXT CO RPORATE ENTITY M/S. ANURAG INFRASTRUCTURE LTD. WHICH SUBSCRIBED FOR SHARES IN ASSESSEE COMPANY. THE LD. AR DREW OUR ATTENTION TO THE FACT THAT M/S. ANURAG INFRASTRUCTU RE LTD. HAD FILED ITR ACKNOWLEDGMENT FOR THE AY 2012-13 AND ITS PAN IS AAJCA1464E AND IT IS ASSESSED BY ITO WARD-50(4) KOLKATA. LD. AR DREW OUR ATTENTION TO PAGES 69 TO 85 OF THE PAPER BOOK WHEREIN FINANCIAL STATEMENT (AUDITED ACCOUNTS) OF M/S. ANURAG INFRAST RUCTURE LTD. IS FOUND PLACED. HE DREW ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 5 | P A GE OUR ATTENTION TO PAGE 75 OF PAPER BOOK WHEREIN THE BALANCE SHEET AS ON 31.03.2012 IS FOUND PLACED. THEREAFTER THE LD. AR CONTENDED THAT THE SAID COMPANY HAD OWN FUNDS OF RS.81 LACS AS SHARE CAPITAL AND RS.39.20 CR. AS RES ERVE AND SURPLUS I.E. RS.40 CRORES APPROXIMATELY AS ON 31.03.2011 (AY 2011-12) WHICH I S THE OPENING BALANCE OF THIS RELEVANT ASSESSMENT YEAR 2012-13. THEREFORE ACCOR DING TO LD. AR M/S. ANURAG INFRASTRUCTURE LTD. HAD ENOUGH MONEY TO INVEST RS. 80 LACS IN THE ASSESSEE COMPANY (SHARE CAPITAL AND PREMIUM). ACCORDING TO THE LD. AR A P ERUSAL OF THE REPLY BY M/S. ANURAG INFRASTRUCTURE LTD. PURSUANT TO THE SUMMON U/S. 131 OF THE ACT (REFER PAGE 86 OF THE PAPER BOOK) WOULD REVEAL THAT THE SAID COMPANY [M/S. ANUR AG INFRASTRUCTURE LTD.] HAD CONFIRMED THAT IT HAD INVESTED IN 16000 EQUITY SHARES OF FAC E VALUE OF RS. 10/- EACH OF THE ASSESSEE COMPANY (M/S. FIZAN COMMOTRADE PVT. LTD.) WHICH WAS ALLOTTED AT A PREMIUM OF RS.490/- PER SHARE. FROM THE REPLY LETTER IT IS NOTED THAT THE SAID COMPANY HAD ENCLOSED/FURNISHED THE FOLLOWING DOCUMENTS TO SUBSTANTIATE THEIR IDENT ITY CREDITWORTHINESS AND GENUINENESS : I) M/S. ANURAG INFRASTRUCTURE LTD. CONFIRMED DIRECT LY TO THE AO PURSUANT TO THE NOTICE U/S. 131 OF THE ACT THAT THEY (M/S. QUEST FINANCIAL SERVICES LTD.) HAVE INVESTED IN 16000 EQUITY SHARES OF RS. 10/- EACH IN THE ASSESSEE COMP ANY (M/S. FIZAN COMMOTRADE PRIVATE LIMITED) ALLOTTED AT A PREMIUM OF RS.490/- PER SHAR E. II) PAN CARD COPY (REFER PAGE 87 OF PAPER BOOK). III) COPY OF INCOME-TAX RETURN FOR P&L ACCOUNT AND BALANCE SHEET (REFER PAGE 68 & 75 OF PAPER BOOK. IV) COPY OF SHARE APPLICATION FORM (REFER PAGES 88- 89 OF PAPER BOOK) V) PHOTO COPY OF THE BANK STATEMENT IS ENCLOSED (RE FER PAGES 90-92 OF PAPER BOOK) VI) CERTIFICATE OF SOURCE OF FUND (REFER PAGE 93 OF PAPER BOOK) 7. THE LD. AR DREW OUR ATTENTION TO PAGE 87 OF THE PAPER BOOK A PERUSAL OF WHICH SHOWS PHOTO COPY OF THE PAN PAGES 88 TO 89 ARE THE FORM OF APPLICATION FOR EQUITY SHARES AND BANK STATEMENT IS FOUND PLACED AT PAGES 90 TO 9 2 OF THE PAPER BOOK AND THE SOURCE OF INVESTMENT OF RS. 80 LACS IS FOUND AT PAGE 93 OF TH E PAPER BOOK. THUS ACCORDING TO THE LD. AR THE ASSESSEE HAD DISCHARGED THE BURDEN ON IT TO ESTABLISH THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. SO MERELY BEC AUSE THE DIRECTORS DID NOT APPEAR BEFORE THE AO THE SHARE CAPITAL AND PREMIUM FROM THE TWO CORPORATE ENTITIES COULD NOT HAVE BEEN ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 6 | P A GE ADDED U/S. 68 OF THE ACT AND RELIED ON THE RATIO OF THE DECISION OF HONBLE SUPREME COURT IN CIT VS. ORISSA CORPORATION PVT. LTD. 159 ITR 78 (SC ) AND THE HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF DY. CIT V. ROHINI BUILDERS [2002] 256 ITR 360 WHEREIN IT HAS BEEN HELD THAT THE ONUS OF THE ASSESSEE STANDS FULLY DIS CHARGED IF THE IDENTITY OF THE CREDITOR IS ESTABLISHED AND ACTUAL RECEIPT FROM SUCH CREDITORS IS PROVED THEN IN THAT EVENT NO ADDITION U/S. 68 OF THE ACT CAN BE MADE IN THE ASSESSEES HA ND AND IN CASE IF THE AO IS STILL NOT SATISFIED THEN HE SHOULD PROCEED AGAINST THE CRED ITORS. THE LD. AR ALSO CITED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT VS. DATAWARE PVT. LTD. (ITAT NO. 263 OF 2011 DATED 21.09.2011) WHEREIN THE HONB LE COURT OBSERVED THAT IF THE AO OF THE ASSESSEE IS NOT SATISFIED WITH THE CREDITWORTHI NESS OF THE CREDITOR THEN THE PROPER COURSE OF ACTION IS THAT HE (AO OF THE ASSESSEE) SHOULD UN DERTAKE IS THAT HE (THE AO OF THE ASSESSEE) SHOULD ENQUIRE FROM THE AO OF THE CREDITO R AND IF IT TURNS OUT THAT THE AO OF THE CREDITOR HAS ACCEPTED THE TRANSACTION I.E IF THE AO OF THE CREDITOR HAS ACCEPTED THE INVESTMENT MADE IN ASSESSEE COMPANY THEN NO ADVERS E VIEW SHOULD BE TAKEN AGAINST THE CREDITOR REGARDING THE CREDITWORTHINESS. THUS IT WAS PRAYED BY THE LD. AR THAT NO ADDITION U/S. 68 OF THE ACT WAS WARRANTED IN RESPECT OF THES E TWO CORPORATE ENTITIES IN THE LIGHT OF THE AFORESAID FACTS THAT WERE BROUGHT TO THE NOTICE OF BOTH AO & LD. CIT(A) WHICH HAS NOT BEEN DISPROVED BY THEM AND RATHER THEY ON THE BASIS OF SURMISES AND CONJECTURES HAVE SADDLED THE ADDITION WHICH NEEDS TO BE DELETED. 8. PER CONTRA THE LD. SR. DR FOR THE REVENUE SMT. RANU BISWAS ADDITIONAL CIT VEHEMENTLY OPPOSED THE PLEA OF THE LD. AR AND SUBMI TTED THAT THE DIRECTORS OF THE ASSESSEE COMPANY AS WELL AS SHARE SUBSCRIBING COMPANY FAILED TO APPEAR BEFORE THE AO WHICH RESULTED IN THE AO DISBELIEVING THE GENUINENESS OF THE TRANSACTION AND MADE THE ADDITION. ACCORDING TO HER THE LD. CIT(A) RIGHTLY RELIED ON THE DECISION OF THE HONBLE APEX COURT IN PCIT VS. NRA IRON & STEEL PVT. LTD. (SUPRA) TO C ONFIRM THE ADDITION AND ACCORDING TO HER THE ASSESSEE BY MERELY FILING DOCUMENTS WILL N OT DISCHARGE THE BURDEN CASTED UPON IT AND THEREFORE THE ADDITION MADE SHOULD NOT BE DIS TURBED AND PRAYED THAT WE SHOULD NOT INTERFERE IN THE IMPUGNED ORDER PASSED BY THE LD. C IT(A). ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 7 | P A GE 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE ASSESSEE COMPANY IN THIS ASSESSMENT YEAR HAS RECEIVED RS.2.10 CR. AS SHARE CAPITAL AND PREMIUM FROM FIVE (5) PERSONS WHICH INCLUDES THREE (3) INDIVIDUALS AND TWO (2) CORPORATE ENTITIES. THE AO HAS ACCEPTED THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE SHARE SUBSC RIBED BY THE INDIVIDUALS TO THE TUNE OF RS. 30 LACS. HOWEVER ACCORDING TO THE AO SINCE T HE DIRECTORS OF ASSESSEE COMPANY/SHARE SUBSCRIBING TWO (2) CORPORATE ENTITIES DID NOT APP EAR BEFORE HIM HE DREW ADVERSE INFERENCE AND MADE ADDITION OF RS. 1.80 CR. U/S. 68 OF THE A CT. ON APPEAL THE LD. CIT(A) ON THE SAME REASON HAS CONFIRMED THE ADDITION BY RELYING O N THE RATIO OF THE DECISION OF THE HONBLE APEX COURT IN NRA IRON & STEEL PVT. LTD. (S UPRA). ACCORDING TO THE LD. AR BY FILING THE DOCUMENTS THE ASSESSEE HAS DISCHARGED TH E ONUS OF PROVING THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION :- I) INCOME TAX RETURN OF THE TWO CORPORATE ENTITIES II) AUDITED ACCOUNTS OF THE SHAREHOLDERS III) SHARE APPLICATION FORMS IV) COPY OF BANK ACCOUNTS OF THE SHAREHOLDERS V) TRANSACTION WITH THE APPELLANT WAS DULY HIGHLIGH TED IN THE BANK STATEMENT VI) CONFIRMATION FROM THE SHAREHOLDERS AS TO THE RE SPECTIVE INVESTMENT VII) EVIDENCE OF SOURCE OF SOURCE OF THE SHAREHOLDE R 10. IN THE LIGHT OF THE AFORESAID DOCUMENTS THE ASS ESSEE PLEADS THAT NO ADDITION U/S. 68 OF THE ACT WAS WARRANTED. BEFORE WE ADJUDICATE AS TO WHETHER THE LOWER AUTHORITIES ACTION IS RIGHT LET US REFRESH OURSELVES THE PROVISIONS (SEC TION 68 OF THE ACT) AND THE SETTLED LEGAL POSITION. 11. SECTION 68 UNDER WHICH THE ADDITION HAS BEEN MA DE BY THE ASSESSING OFFICER READS AS UNDER: '68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS O F AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NA TURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE ASSESS ING OFFICER SATISFACTORY THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSES SEE OF THAT PREVIOUS YEAR. ' ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 8 | P A GE THE PHRASEOLOGY OF SECTION 68 IS CLEAR. THE LEGISLA TURE HAS LAID DOWN THAT IN THE ABSENCE OF A SATISFACTORY EXPLANATION THE UNEXPLAINED CASH CR EDIT MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. IN TH IS CASE THE LEGISLATIVE MANDATE IS NOT IN TERMS OF THE WORDS SHALL BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR'. THE SUPREME COURT WHILE INTERPRETIN G SIMILAR PHRASEOLOGY USED IN SECTION 69 HAS HELD THAT IN CREATING THE LEGAL FICTION THE PHRASEOLOGY EMPLOYS THE WORD 'MAY' AND NOT 'SHALL'. THUS THE UN-SATISFACTORINESS OF THE EX PLANATION DOES NOT AND NEED NOT AUTOMATICALLY RESULT IN DEEMING THE AMOUNT CREDITED IN THE BOOKS AS THE INCOME OF THE ASSESSEE AS HELD BY THE SUPREME COURT IN THE CASE O F CIT V. SMT. P. K. NOORJAHAN [1999] 237 ITR 570. WE NOTE THAT AGAINST THE SAID DECISION OF HON'BLE GUJARAT HIGH COURT THE SPECIAL LEAVE PETITION FILED BY THE REVENUE HAS ALS O BEEN DISMISSED BY THE HON'BLE APEX COURT. 12. THE MAIN PLANK ON WHICH THE AO MADE THE ADDITIO N WAS BECAUSE THE DIRECTORS OF THE SHARE SUBSCRIBERS DID NOT TURN UP BEFORE HIM. IN S UCH A CASE THE HON'BLE APEX COURT IN THE CASE OF ORISSA CORPN. (P) LTD. (SUPRA) 159 ITR 78 A ND THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF DY. CIT V. ROHINI BUILDERS [2002] 256 I TR 360 /[2003] 127 TAXMAN 523 HAS HELD THAT ONUS OF THE ASSESSEE (IN WHOSE BOOKS OF A CCOUNT CREDIT APPEARS) STANDS FULLY DISCHARGED IF THE IDENTITY OF THE CREDITOR IS ESTAB LISHED AND ACTUAL RECEIPT OF MONEY FROM SUCH CREDITOR IS PROVED. IN CASE THE ASSESSING OFF ICER IS DISSATISFIED ABOUT THE SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNTS OF THE CREDITOR S THE PROPER COURSE WOULD BE TO ASSESS SUCH CREDIT IN THE HANDS OF THE CREDITOR (AFTER MAK ING DUE ENQUIRIES FROM SUCH CREDITOR). IN ARRIVING AT THIS CONCLUSION THE HON'BLE COURT HAS FURTHER STRESSED THE PRESENCE OF WORD 'MAY' IN SECTION 68. RELEVANT OBSERVATIONS AT PAGES 369 AND 370 OF THIS REPORT ARE REPRODUCED HEREUNDER:- 'MERELY BECAUSE SUMMONS ISSUED TO SOME OF THE CREDI TORS COULD NOT BE SERVED OR THEY FAILED TO ATTEND BEFORE THE ASSESSING OFFICER CANNOT BE A GROUND TO TREAT THE LOANS TAKEN BY THE ASSESSEE FROM THOSE CREDITORS AS NON-GENUINE IN VIE W OF THE PRINCIPLES LAID DOWN BY THE SUPREME COURT IN THE CASE OF ORISSA CORPORATION [19 86] 159 ITR 78. IN THE SAID DECISION THE SUPREME COURT HAS OBSERVED THAT WHEN THE ASSESSEE F URNISHES NAMES AND ADDRESSES OF THE ALLEGED CREDITORS AND THE GIR NUMBERS THE BURDEN S HIFTS TO THE DEPARTMENT TO ESTABLISH THE REVENUE'S CASE AND IN ORDER TO SUSTAIN THE ADDITION THE REVENUE HAS TO PURSUE THE ENQUIRY AND TO ESTABLISH THE LACK OF CREDITWORTHINESS AND M ERE NON-COMPLIANCE OF SUMMONS ISSUED BY THE ASSESSING OFFICER UNDER SECTION 131 BY THE ALL EGED CREDITORS WILL NOT BE SUFFICIENT TO DRAW AND ADVERSE INFERENCE AGAINST THE ASSESSEE. IN THE CASE OF SIX CREDITORS WHO APPEARED BEFORE THE ASSESSING OFFICER AND WHOSE STATEMENTS WERE REC ORDED BY THE ASSESSING OFFICER THEY ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 9 | P A GE HAVE ADMITTED HAVING ADVANCED LOANS TO THE ASSESSEE BY ACCOUNT PAYEE CHEQUES AND IN CASE THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE CA SH AMOUNT DEPOSITED BY THOSE CREDITORS IN THEIR BANK ACCOUNTS THE PROPER COURSE WOULD HAVE B EEN TO MAKE ASSESSMENTS IN THE CASES OF THOSE CREDITORS BY' TREATING THE CASH DEPOSITS IN T HEIR BANK ACCOUNTS AS UNEXPLAINED INVESTMENTS OF THOSE CREDITORS UNDER SECTION 69. 13. IN THE CASE OF NEMI CHAND KOTHARI 136 TAXMAN 21 3 (SUPRA) THE HON'BLE GUAHATI HIGH COURT HAS THROWN LIGHT ON ANOTHER ASPECT TOUCH ING THE ISSUE OF ONUS ON ASSESSEE UNDER SECTION 68 BY HOLDING THAT THE SAME SHOULD BE DECI DED BY TAKING INTO CONSIDERATION THE PROVISION OF SECTION 106 OF THE EVIDENCE ACT WHICH SAYS THAT A PERSON CAN BE REQUIRED TO PROVE ONLY SUCH FACTS WHICH ARE IN HIS KNOWLEDGE. T HE HON'BLE COURT IN THE SAID CASE HELD THAT ONCE IT IS FOUND THAT AN ASSESSEE HAS ACTUALL Y TAKEN MONEY FROM DEPOSITOR/LENDER WHO HAS BEEN FULLY IDENTIFIED THE ASSESSEE/BORROWER CA NNOT BE CALLED UPON TO EXPLAIN MUCH LESS PROVE THE AFFAIRS OF SUCH THIRD PARTY WHICH HE IS NOT EVEN SUPPOSED TO KNOW OR ABOUT WHICH HE CANNOT BE HELD TO BE ACCREDITED WITH ANY KNOWLED GE. IN THIS VIEW THE HON'BLE COURT HAS LAID DOWN THAT SECTION 68 OF INCOME-TAX ACT SHOULD BE READ ALONG WITH SECTION 106 OF EVIDENCE ACT. THE RELEVANT OBSERVATIONS AT PAGE 260 TO 262 264 AND 265 OF THE REPORT ARE REPRODUCED HEREIN BELOW:- 'WHILE INTERPRETING THE MEANING AND SCOPE OF SECTIO N 68 ONE HAS TO BEAR IN MIND THAT NORMALLY INTERPRETATION OF A STATUTE SHALL BE GENE RAL IN NATURE SUBJECT ONLY TO SUCH EXCEPTIONS AS MAY BE LOGICALLY PERMITTED BY THE STA TUTE ITSELF OR BY SOME OTHER LAW CONNECTED THEREWITH OR RELEVANT THERETO. KEEPING IN VIEW THES E FUNDAMENTALS OF INTERPRETATION OF STATUTES WHEN WE READ CAREFULLY THE PROVISIONS OF SECTION 68 WE NOTICE NOTHING IN SECTION 68 TO SHOW THAT THE SCOPE OF THE INQUIRY UNDER SECTION 68 BY THE REVENUE DEPARTMENT SHALL REMAIN CONFINED TO THE TRANSACTIONS WHICH HAVE TAK EN PLACE BETWEEN THE ASSESSEE AND THE CREDITOR NOR DOES THE WORDING OF SECTION 68 INDICAT E THAT SECTION 68 DOES NOT AUTHORIZE THE REVENUE DEPARTMENT TO MAKE INQUIRY INTO THE SOURCE( S) OF THE CREDIT AND/OR SUB-CREDITOR. THE LANGUAGE EMPLOYED BY SECTION 68 CANNOT BE READ TO I MPOSE SUCH LIMITATIONS ON THE POWERS OF THE ASSESSING OFFICER. THE LOGICAL CONCLUSION THER EFORE HAS TO BE AND WE HOLD THAT AN INQUIRY UNDER SECTION 68 NEED NOT NECESSARILY BE KE PT CONFINED BY THE ASSESSING OFFICER WITHIN THE TRANSACTIONS WHICH TOOK PLACE BETWEEN T HE ASSESSEE AND HIS CREDITOR BUT THAT THE SAME MAY BE EXTENDED TO THE TRANSACTIONS WHICH HAV E TAKEN PLACE BETWEEN THE CREDITOR AND HIS SUB-CREDITOR. THUS WHILE THE ASSESSING OFFICER IS UNDER SECTION 68 FREE TO LOOK INTO THE SOURCE(S) OF THE CREDITOR AND/OR OF THE SUB-CREDITO R THE BURDEN ON THE ASSESSEE UNDER SECTION 68 IS DEFINITELY LIMITED. THIS LIMIT HAS BEEN IMPOS ED BY SECTION 106 OF THE EVIDENCE ACT WHICH READS AS FOLLOWS: 'BURDEN OF PROVING FACT ESPECIALLY WITHIN KNOWLEDGE .-WHEN ANY FACT IS ESPECIALLY WITHIN THE KNOWLEDGE OF ANY PERSON THE BURDEN) OF PROVING THA T FACT IS UPON HIM. ' ******** WHAT THUS TRANSPIRES FROM THE ABOVE DISCUSSION IS THAT WHITE SECTION 106 OF THE EVIDENCE ACT LIMITS THE ONUS OF THE ASSESSEE TO THE EXTENT O F HIS PROVING THE SOURCE FROM WHICH HE HAS RECEIVED THE CASH CREDIT SECTION 68 GIVES AMPLE FR EEDOM TO THE ASSESSING OFFICER TO MAKE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 10 | P A GE INQUIRY NOT ONLY INTO THE SOURCE(S)OF THE CREDITOR BUT ALSO OF HIS (CREDITOR'S) SUB-CREDITORS AND PROVE AS A RESULT OF SUCH INQUIRY THAT THE M ONEY RECEIVED BY THE ASSESSEE IN THE FORM OF LOAN FROM THE CREDITOR THOUGH ROUTED THROUGH TH E SUB-CREDITORS ACTUALLY BELONGS TO OR WAS OF THE ASSESSEE HIMSELF. IN OTHER WORDS WHILE SECTION 68 GIVES THE LIBERTY TO THE ASSESSING OFFICER TO ENQUIRE INTO THE SOURCE/SOURCE FROM WHERE THE CREDITOR HAS RECEIVED THE MONEY SECTION 106 MAKES THE ASSESSEE LIABLE TO DIS CLOSE ONLY THE SOURCE(S) FROM WHERE HE HAS HIMSELF RECEIVED THE CREDIT AND IT IS NOT THE B URDEN OF THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THE SOURCE(S) OF THE SUB-CREDIT ORS. IF SECTION 106 AND SECTION 68 ARE TO STAND TOGETHER WHICH THEY MUST THEN THE INTERPRE TATION OF SECTION 68 ARE TO STAND TOGETHER WHICH THEY MUST THEN THE INTERPRETATION OF SECTION 68 HAS TO BE IN SUCH A WAY THAT IT DOES NOT MAKE SECTION 106 REDUNDANT. HENCE THE HARMONIO US CONSTRUCTION OF SECTION 106 OF THE EVIDENCE ACT AND SECTION 68 OF THE INCOME- TAX ACT WILL BE THAT THOUGH APART FROM ESTABLISHING THE IDENTITY OF THE CREDITOR THE ASSE SSEE MUST ESTABLISH THE GENUINENESS OF THE TRANSACTION AS WELL AS THE CREDITWORTHINESS OF HIS CREDITOR THE BURDEN OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIONS AS WELL A S THE CREDITWORTHINESS OF THE CREDITOR MUST REMAIN CONFINED TO THE TRANSACTIONS WHICH HAV E TAKEN PLACE BETWEEN THE ASSESSEE AND THE CREDITOR. WHAT FOLLOWS AS A COROLLARY IS THAT IT IS NOT THE BURDEN OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIONS BETWEEN H IS CREDITOR AND SUB-CREDITORS NOR IS IT THE BURDEN OF THE ASSESSEE TO PROVE THAT THE SUB-CR EDITOR HAD THE CREDITWORTHINESS TO ADVANCE THE CASH CREDIT TO THE CREDITOR FROM WHOM T HE CASH CREDIT HAS BEEN. EVENTUALLY RECEIVED BY THE ASSESSEE. IT THEREFORE FURTHER LO GICALLY FOLLOWS THAT THE CREDITOR'S CREDITWORTHINESS HAS TO BE JUDGED VIS-A-VIS THE TRA NSACTIONS WHICH HAVE TAKEN PLACE BETWEEN THE ASSESSEE AND THE CREDITOR AND IT IS NO T THE BUSINESS OF THE ASSESSEE TO FIND OUT THE SOURCE OF MONEY OF HIS CREDITOR OR OF THE GENU INENESS OF THE TRANSACTIONS WHICH TOOK BETWEEN THE CREDITOR AND SUB-CREDITOR AND/OR CREDIT WORTHINESS OF THE SUB- CREDITORS FOR THESE ASPECTS MAY NOT BE WITHIN THE SPECIAL KNOWLED GE OF THE ASSESSEE. ' ********** ' ... IF A CREDITOR HAS BY ANY UNDISCLOSED SOURCE A PARTICULAR AMOUNT OF MONEY IN THE BANK THERE IS NO LIMITATION UNDER THE LAW ON THE PART OF THE ASSESSEE TO OBTAIN SUCH AMOUNT OF MONEY OR PART THEREOF FROM THE CREDITOR BY WAY OF CHEQUE IN THE FORM OF LOAN AND IN SUCH A CASE IF THE CREDITOR FAILS TO SATISFY AS TO HOW HE HAD ACTUALLY RECEIVED THE SAID AMOUNT AND HAPPENED TO KEEP THE SAME IN THE BANK THE SAID AMO UNT CANNOT BE TREATED AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCE. IN OTHER WORDS T HE GENUINENESS AS WELL AS THE CREDITWORTHINESS OF A CREDITOR HAVE TO BE ADJUDGED VIS-A-VIS THE TRANSACTIONS WHICH HE HAS WITH THE ASSESSEE. THE REASON WHY WE HAVE FORMED TH E OPINION THAT IT IS NOT THE BUSINESS OF THE ASSESSEE TO FIND OUT THE ACTUAL SOURCE OR SOURC ES FROM WHERE THE CREDITOR HAS ACCUMULATED THE AMOUNT WHICH HE ADVANCES AS LOAN TO THE ASSESSEE IS THAT SO FAR AS AN ASSESSEE IS CONCERNED HE HAS TO PROVE THE GENUINEN ESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CREDITOR VIS-A-VIS THE TRAN SACTIONS WHICH HAD TAKEN PLACE BETWEEN THE ASSESSEE AND THE CREDITOR AND NOT BETWEEN THE C REDITOR AND THE SUB-CREDITORS FOR IT IS NOT EVEN REQUIRED UNDER THE LAW FOR THE ASSESSEE TO TRY TO FIND OUT AS TO WHAT SOURCES FROM WHERE THE CREDITOR HAD RECEIVED THE AMOUNT HIS SPE CIAL KNOWLEDGE UNDER SECTION 106 OF THE EVIDENCE ACT MAY VERY WELL REMAIN CONFINED ONLY TO THE TRANSACTIONS WHICH HE HAD' WITH THE CREDITOR AND HE MAY NOT KNOW WHAT TRANSACTION(S) HA D TAKEN PLACE BETWEEN HIS CREDITOR AND THE SUB-CREDITOR ' ********** 'IN OTHER WORDS THOUGH UNDER SECTION 68 AN ASSESSI NG OFFICER IS FREE TO SHOW WITH THE HELP OF THE INQUIRY CONDUCTED BY HIM INTO THE TRANSACTIO NS WHICH HAVE TAKEN PLACE BETWEEN THE CREDITOR AND THE SUB-CREDITOR THAT THE TRANSACTION BETWEEN THE TWO WERE NOT GENUINE AND THAT THE SUB-CREDITOR HAD NO CREDITWORTHINESS IT W ILL NOT NECESSARILY MEAN THAT THE LOAN ADVANCED BY THE SUB-CREDITOR TO THE CREDITOR WAS IN COME OF THE ASSESSEE FROM UNDISCLOSED ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 11 | P A GE SOURCE UNLESS THERE IS EVIDENCE DIRECT OR CIRCUMST ANTIAL TO SHOW THAT THE AMOUNT WHICH HAS BEEN ADVANCED BY THE SUB-CREDITOR TO THE CREDITOR HAD ACTUALLY BEEN RECEIVED BY THE SUB- CREDITOR FROM THE ASSESSEE .' ********** 'KEEPING IN VIEW THE ABOVE POSITION OF LAW WHEN WE TURN TO THE FACTUAL MATRIX OF THE PRESENT CASE WE FIND THAT SO FAR AS THE APPELLANT IS CONCERNED HE HAS ESTABLISHED THE IDENTITY OF THE CREDITORS NAMELY NEMICHAND NAHATA AND SONS (HUF) AND PAWAN KUMAR AGARWALLA. THE APPELLANT HAD ALSO SHOWN IN ACCORDA NCE WITH THE BURDEN WHICH RESTED ON HIM UNDER SECTION 106 OF THE EVIDENCE ACT THAT THE SAID AMOUNTS HAD BEEN RECEIVED BY HIM BY WAY OF CHEQUES FROM THE CREDITORS AFOREMENTIONED . IN FACT THE FACT THAT THE ASSESSEE HAD RECEIVED THE SAID AMOUNTS BY WAY OF CHEQUES WAS NOT IN DISPUTE. ONCE THE ASSESSEE HAD ESTABLISHED THAT HE HAD RECEIVED THE SAID AMOUNTS F ROM THE CREDITORS AFOREMENTIONED BY WAY OF CHEQUES THE ASSESSEE MUST BE TAKEN TO HAVE PROV ED THAT THE CREDITOR HAD THE CREDITWORTHINESS TO ADVANCE THE LOANS. THEREAFTER T HE BURDEN HAD SHIFTED TO THE ASSESSING OFFICER TO PROVE THE CONTRARY. ON MERE FAILURE ON T HE PART OF THE CREDITORS TO SHOW THAT THEIR SUB-CREDITORS HAD CREDITWORTHINESS TO ADVANCE THE S AID LOAN AMOUNTS TO THE ASSESSEE SUCH FAILURE AS A COROLLARY COULD NOT HAVE BEEN AND OU GHT NOT TO HAVE BEEN UNDER THE LAW TREATED AS THE INCOME FROM THE UNDISCLOSED SOURCES OF THE ASSESSEE HIMSELF WHEN THERE WAS NEITHER DIRECT NOR CIRCUMSTANTIAL EVIDENCE ON RECOR D THAT THE SAID LOAN AMOUNTS ACTUALLY BELONGED TO OR WERE OWNED BY THE ASSESSEE. VIEWED FROM THIS ANGLE WE HAVE NO HESITATION IN HOLDING THAT IN THE CASE AT HAND THE ASSESSING OFFICER HAD FAILED TO SHOW THAT THE AMOUNTS WHICH HAD COME TO THE HANDS OF THE CREDITO RS FROM THE HANDS OF THE SUB-CREDITORS HAD ACTUALLY BEEN RECEIVED BY THE SUB-CREDITORS FRO M THE ASSESSEE. IN THE ABSENCE OF ANY SUCH EVIDENCE ON RECORD THE ASSESSING OFFICER COUL D NOT HAVE TREATED THE SAID AMOUNTS AS INCOME DERIVED BY THE APPELLANT FROM UNDISCLOSED SO URCES. THE LEARNED TRIBUNAL SERIOUSLY FELL INTO ERROR IN TREATING THE SAID AMOUNTS AS INC OME DERIVED BY THE APPELLANT FROM. UNDISCLOSED SOURCES MERELY ON THE FAILURE OF THE SU B-CREDITORS TO PROVE THEIR CREDITWORTHINESS. 14. FURTHER IN THE CASE OF CIT V. S. KAMALJEET SIN GH [2005] 147 TAXMAN 18(ALL.) THEIR LORDSHIPS ON THE ISSUE OF DISCHARGE OF ASSESSEE'S ONUS IN RELATION TO A CASH CREDIT APPEARING IN HIS BOOKS OF ACCOUNT HAS OBSERVED AND HELD AS U NDER:- '4. THE TRIBUNAL HAS RECORDED A FINDING THAT THE AS SESSEE HAS DISCHARGED THE ONUS WHICH WAS ON HIM TO EXPLAIN THE NATURE AND SOURCE OF CASH CRE DIT IN QUESTION. THE ASSESSEE DISCHARGED THE ONUS BY PLACING (I) CONFIRMATION LETTERS OF THE CASH CREDITORS; (II) THEIR AFFIDAVITS; (III) THEIR FULL ADDRESSES AND GIR NUMBERS AND PERMANENT ACCOUNT NUMBERS. IT HAS FOUND THAT THE ASSESSEE'S BURDEN STOOD DISCHARGED AND SO NO ADDIT ION TO HIS TOTAL INCOME ON ACCOUNT OF CASH CREDIT WAS CALLED FOR. IN VIEW OF THIS FINDING WE FIND THAT THE TRIBUNAL WAS RIGHT IN REVERSING THE ORDER OF THE AA C SETTING ASIDE THE ASSESSMENT ORDER. 15. WE ALSO TAKE NOTE OF THE DECISION OF THE HON' BLE HIGH COURT CALCUTTA IN THE CASE OF S.K. BOTHRA & SONS HUF V. INCOME-TAX OFFICER WARD - 46(3) KOLKATA 347 ITR 347 WHEREIN THE COURT HELD AS FOLLOWS: ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 12 | P A GE 15. IT IS NOW A SETTLED LAW THAT WHILE CONSIDERING THE QUESTION WHETHER THE ALLEGED LOAN TAKEN BY THE ASSESSEE WAS A GENUINE TRANSACTION TH E INITIAL ONUS IS ALWAYS UPON THE ASSESSEE AND IF NO EXPLANATION IS GIVEN OR THE EXPLANATION G IVEN BY THE APPELLANT IS NOT SATISFACTORY THE ASSESSING OFFICER CAN DISBELIEVE THE ALLEGED TR ANSACTION OF LOAN. BUT THE LAW IS EQUALLY SETTLED THAT IF THE INITIAL BURDEN IS DISCHARGED BY THE ASSESSEE BY PRODUCING SUFFICIENT MATERIALS IN SUPPORT OF THE LOAN TRANSACTION THE O NUS SHIFTS UPON THE ASSESSING OFFICER AND AFTER VERIFICATION HE CAN CALL FOR FURTHER EXPLANA TION FROM THE ASSESSEE AND IN THE PROCESS THE ONUS MAY AGAIN SHIFT FROM THE ASSESSING OFFICER TO ASSESSEE. 16. IN THE CASE BEFORE US THE APPELLANT BY PRODUCI NG THE LOAN-CONFIRMATION-CERTIFICATES SIGNED BY THE CREDITORS DISCLOSING THEIR PERMANENT ACCOUNT NUMBERS AND ADDRESS AND FURTHER INDICATING THAT THE LOAN WAS TAKEN BY ACCOUNT PAYEE CHEQUES NO DOUBT PRIMA FACIE DISCHARGED THE INITIAL BURDEN AND THOSE MATERIALS D ISCLOSED BY THE ASSESSEE PROMPTED THE ASSESSING OFFICER TO ENQUIRE THROUGH THE INSPECTOR TO VERIFY THE STATEMENTS. 16. IN A CASE WHERE THE ISSUE WAS WHETHER THE ASSE SSEE AVAILED CASH CREDIT AS AGAINST FUTURE SALE OF PRODUCT THE AO ISSUED SUMMONS TO TH E CREDITORS WHO DID NOT TURN UP BEFORE HIM SO AO DISBELIEVED THE EXISTENCE OF CREDITORS A ND SADDLED THE ADDITION WHICH WAS OVERTURNED BY LD. CIT(A). HOWEVER THE TRIBUNAL RE VERSED THE DECISION OF THE LD. CIT(A) AND UPHELD THE AOS DECISION WHICH ACTION OF TRIBU NAL WAS CHALLENGED BY THE HON'BLE HIGH COURT CALCUTTA IN THE CASE OF CRYSTAL NETWORK S (P.) LTD. V. COMMISSIONER OF INCOME- TAX 353 ITR 171 WHEREIN THE TRIBUNALS DECISION WAS OVERTURNED AND DECISION OF LD. CIT(A) UPHELD AND THE HONBLE HIGH COURT HAS HELD THAT WHEN THE BASIC EVIDENCES ARE ON RECORD THE MERE FAILURE OF THE CREDITOR TO APPEAR C ANNOT BE BASIS TO MAKE ADDITION. THE COURT HELD AS FOLLOWS: 8. ASSAILING THE SAID JUDGMENT OF THE LEARNED TRIBU NAL LEARNED COUNSEL FOR THE APPELLANT SUBMITS THAT INCOME-TAX OFFICER DID NOT CONSIDER TH E MATERIAL EVIDENCE SHOWING THE CREDITWORTHINESS AND ALSO OTHER DOCUMENTS VIZ. CO NFIRMATORY STATEMENTS OF THE PERSONS OF HAVING ADVANCED CASH AMOUNT AS AGAINST THE SUPPLY O F BIDIS. THESE EVIDENCE WERE DULY CONSIDERED BY THE COMMISSIONER OF INCOME-TAX (APPEA LS). THEREFORE THE FAILURE OF THE PERSON TO TURN UP PURSUANT TO THE SUMMONS ISSUED TO ANY WI TNESS IS IMMATERIAL WHEN THE MATERIAL DOCUMENTS MADE AVAILABLE SHOULD HAVE BEEN ACCEPTED AND INDEED IN SUBSEQUENT YEAR THE SAME EXPLANATION WAS ACCEPTED BY THE INCOME-TAX OFF ICER. HE FURTHER CONTENDED THAT WHEN THE TRIBUNAL HAS RELIED ON THE ENTIRE JUDGMENT OF T HE COMMISSIONER OF INCOME-TAX (APPEALS) THEREFORE IT WAS NOT PROPER TO TAKE UP SOME PORTIO N OF THE JUDGMENT OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND TO IGNORE THE OTHER PORTIO N OF THE SAME. THE JUDICIAL PROPRIETY AND FAIRNESS DEMANDS THAT THE ENTIRE JUDGMENT BOTH FAVO URABLE AND UNFAVOURABLE SHOULD HAVE BEEN CONSIDERED. BY NOT DOING SO THE TRIBUNAL COMMI TTED GRAVE ERROR IN LAW IN UPSETTING THE JUDGMENT IN THE ORDER OF THE COMMISSIONER OF INCOME -TAX (APPEALS). 9. IN THIS CONNECTION HE HAS DRAWN OUR ATTENTION TO A DECISION OF THE SUPREME COURT IN THE CASE OF UDHAVDAS KEWALRAM V. CIT [19671 66 ITR 462. IN THIS JUDGMENT IT IS NOTICED THAT THE SUPREME COURT AS PROPOSITION OF LAW HELD THAT THE T RIBUNAL MUST IN DECIDING AN APPEAL CONSIDER WITH DUE CARE ALL THE MATERIAL FACTS AND RECORD ITS FINDING ON ALL THE CONTENTIONS RAISED BY THE ASSESSEE AND THE COMMISSIONER IN THE LIGHT OF THE EVIDENCE AND THE RELEVANT LAW. ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 13 | P A GE 10. WE FIND CONSIDERABLE FORCE OF THE SUBMISSIONS O F 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 CREDI TORS OR FOR THAT MATTER THE CREDITWORTHINESS. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS TAKEN THE TROUBLE OF EXAMINING OF ALL OTHER MAT ERIALS AND DOCUMENTS VIZ. CONFIRMATORY STATEMENTS INVOICES CHALLANS AND VOUCHERS SHOWING SUPPLY OF BIDIS 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 ASSES SEE OR NOT. WHEN IT WAS FOUND BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON FACTS HAVIN G EXAMINED THE DOCUMENTS THAT THE ADVANCE GIVEN BY THE CREDITORS HAVE BEEN ESTABLISHE D THE TRIBUNAL SHOULD NOT HAVE IGNORED THIS -FACT FINDING. INDEED THE TRIBUNAL DID NOT REA LLY TOUCH THE AFORESAID FACT FINDING OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AS RIGHTLY POI NTED OUT BY THE LEARNED COUNSEL. THE SUPREME COURT HAS ALREADY STATED AS TO WHAT SHOULD BE THE DUTY OF THE LEARNED TRIBUNAL TO DECIDE IN THIS SITUATION. IN THE SAID JUDGMENT NOTE D BY US AT PAGE 464 THE SUPREME COURT HAS OBSERVED AS FOLLOWS: 'THE INCOME-TAX APPELLATE TRIBUNAL PERFORMS A JUDIC IAL FUNCTION UNDER THE INDIAN INCOME-TAX ACT; IT IS INVESTED WITH AUTHORITY TO DE TERMINE FINALLY ALL QUESTIONS OF FACT. THE TRIBUNAL MUST IN DECIDING AN APPEAL CONSIDER WITH DUE CARE ALL THE MATERIAL FACTS AND RECORD ITS FINDING ON ALL THE CONTENTIONS RAISED BY THE ASSESSEE AND THE COMMISSIONER IN THE LIGHT OF THE EVIDENCE AND THE RELEVANT LAW. ' 11. THE TRIBUNAL MUST IN DECIDING AN APPEAL CONSI DER WITH DUE CARE ALL THE MATERIAL FACTS AND RECORD ITS FINDING ON ALL CONTENTIONS RAISED BY THE ASSESSEE AND THE COMMISSIONER IN THE LIGHT OF THE EVIDENCE AND THE RELEVANT LAW. IT IS A LSO RULED IN THE SAID JUDGMENT AT PAGE 465 THAT IF THE TRIBUNAL DOES NOT DISCHARGE THE DUTY IN THE MANNER AS ABOVE THEN IT SHALL BE ASSUMED THE JUDGMENT OF THE TRIBUNAL SUFFERS FROM M ANIFEST INFIRMITY. 12. TAKING INSPIRATION FROM THE SUPREME COURT OBSER VATIONS WE ARE CONSTRAINED TO HOLD IN THIS MATTER THAT THE TRIBUNAL HAS NOT ADJUDICATED U PON THE CASE OF THE ASSESSEE IN THE LIGHT OF THE EVIDENCE AS FOUND BY THE COMMISSIONER OF INCOME -TAX (APPEALS). WE ALSO FOUND NO SINGLE WORD HAS BEEN SPARED TO UP SET THE FACT FINDING OF THE COMMISSIONER OF INCOME-TAX (APPEALS) THAT THERE ARE MATERIALS TO SHOW THE CASH CREDIT WA S RECEIVED FROM VARIOUS PERSONS AND SUPPLY AS AGAINST CASH CREDIT ALSO MADE. 13. HENCE THE JUDGMENT AND ORDER OF THE TRIBUNAL I S NOT SUSTAINABLE. ACCORDINGLY THE SAME IS SET ASIDE. WE RESTORE THE JUDGMENT AND ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS). THE APPEAL IS ALLOWED. 17. WHEN A QUESTION AS TO THE CREDITWORTHINESS OF A CREDITOR IS TO BE ADJUDICATED AND IF THE CREDITOR IS AN INCOME TAX ASSESSEE IT IS NOW W ELL SETTLED BY THE DECISION OF THE CALCUTTA HIGH COURT THAT THE CREDITWORTHINESS OF THE CREDITO R CANNOT BE DISPUTED BY THE AO OF THE ASSESSEE BUT THE AO OF THE CREDITOR. IN THIS REGARD S OUR ATTENTION WAS DRAWN TO THE DECISION OF THE HON'BLE HIGH COURT CALCUTTA IN THE COMMISSI ONER OF INCOME TAX KOLKA TA-ILL VERSUS DATAWARE PRIVATE LIMITED ITAT NO. 263 OF 2011 DATE: 21ST SEPTEMBER 2011 WHEREIN THE COURT HELD AS FOLLOWS: ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 14 | P A GE IN OUR OPINION IN SUCH CIRCUMSTANCES THE ASSESSI NG OFFICER OF THE ASSESSEE CANNOT TAKE THE BURDEN OF ASSESSING THE PROFIT AND LOSS ACCOUNT OF THE CREDITOR WHEN ADMITTEDLY THE CREDITOR HIMSELF IS AN INCOME TAX ASSESSEE. AFTER GETTING TH E PAN NUMBER AND GETTING THE INFORMATION THAT THE CREDITOR IS ASSESSED UNDER THE ACT THE AS SESSING OFFICER SHOULD ENQUIRE FROM THE ASSESSING OFFICER OF THE CREDITOR AS TO THE GENUINE NESS' OF THE TRANSACTION AND WHETHER SUCH TRANSACTION HAS BEEN ACCEPTED BY THE ASSESSING OFFI CER OF THE CREDITOR BUT INSTEAD OF ADOPTING SUCH COURSE THE ASSESSING OFFICER HIMSELF COULD NO T ENTER INTO THE RETURN OF THE CREDITOR AND BRAND THE SAME AS UNWORTHY OF CREDENCE. SO LONG IT IS NOT ESTABLISHED THAT THE RETURN SUBMI TTED BY THE CREDITOR HAS BEEN REJECTED BY ITS ASSESSING OFFICER THE ASSESSING OFFICER OF THE ASS ESSEE IS BOUND TO ACCEPT THE SAME AS GENUINE WHEN THE IDENTITY OF THE CREDITOR AND THE G ENUINENESS' OF TRANSACTION THROUGH ACCOUNT PAYEE CHEQUE HAS BEEN ESTABLISHED. WE FIND THAT BOTH THE COMMISSIONER OF INCOME TAX (A PPEAL) AND THE TRIBUNAL BELOW FOLLOWED THE WELL-ACCEPTED PRINCIPLE WHICH ARE REQUIRED TO B E FOLLOWED IN CONSIDERING THE EFFECT OF SECTION 68 OF THE ACT AND WE THUS FIND NO REASON TO INTERFERE WITH THE CONCURRENT FINDINGS OF FACT RECORDED BY BOTH THE AUTHORITIES. 18. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF THE HON'BLE SUPREME COURT WHILE DISMISSING SLP IN THE CASE OF LOVELY EXPORTS AS HAS BEEN REPORTED AS JUDGMENT DELIVERED BY THE CTR AT 216 CTR 295: 'CAN THE AMOUNT OF SHARE MONEY BE REGARDED AS UNDIS CLOSED INCOME UNDER SECTION 68 OF THE INCOME TAX ACT 1961? WE FIND NO MERIT IN THIS SPEC IAL LEAVE PETITION FOR THE SIMPLE REASON THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE- COMPANY FROM ALLEGED BOGUS SHAREHOLDERS WHOSE NAMES ARE GIVEN TO THE AO THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE W ITH LAW. HENCE WE FIND NO INFIRMITY WITH THE IMPUGNED JUDGMENT. 19. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT WHILE RELYING ON THE CASE OF LOVELY EXPORTS IN THE APPEAL OF COMISSIONER OF INCOME TAX KOLKATA-IV VS ROSEBERRY MERCANTILE (P) LTD. ITAT NO. 241 OF 2010 DATED 10- 01-2011 HAS HELD: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) OUGHT TO HAVE UPHELD THE ASSESSMENT ORDER AS THE TRANSACTION ENTERED INTO BY THE ASSESSEE WAS A SCHEME FOR LAUNDERING BLACK MONEY INTO WHITE MONEY OR ACCOUNTED MONEY AND THE LD. CIT (A) OUGHT TO HAVE HELD THAT THE ASSESSEE HAD NOT ESTABLISHED THE GENUINENESS OF THE TRANSACTION. ' IT APPEARS FROM THE RECORD THAT IN THE ASSESSMENT P ROCEEDINGS IT WAS NOTICED THAT THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSIDERATION HAD BRO UGHT RS. 4 00 000/- AND RS.20 00 000/- TOWARDS SHARE CAPITAL AND SHARE PREMIUM RESPECTIVEL Y AMOUNTING TO RS.24 00 000/- FROM FOUR SHAREHOLDERS BEING PRIVATE LIMITED COMPANIES. THE A SSESSING OFFICER ON HIS PART CALLED FOR THE DETAILS FROM THE ASSESSEE AND ALSO FROM THE SHARE A PPLICANTS AND ANALYZED THE FACTS AND ULTIMATELY OBSERVED CERTAIN ABNORMAL FEATURES WHIC H WERE MENTIONED IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER THEREFORE CONCLUDED THAT NA TURE AND SOURCE OF SUCH MONEY WAS QUESTIONABLE AND EVIDENCE PRODUCED WAS UNSATISFACTO RY. CONSEQUENTLY THE ASSESSING OFFICER INVOKED THE PROVISIONS UNDER SECTION 68/69 OF THE I NCOME TAX ACT AND MADE ADDITION OF RS.24 00 000/-. ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 15 | P A GE ON APPEAL THE LEARNED CIT (A) BY FOLLOWING THE DECI SION OF THE SUPREME COURT IN THE CASE OF CL. T. VS. M/S. LOVELY EXPORTS PVT. LTD. REPORTED IN (2008) 216 CTR 195 ALLOWED THE APPEAL BY HOLDING -THAT SHARE CAPITAL/PREMIUM OF RS. 24 00 00 0/- RECEIVED FROM THE INVESTORS WAS NOT LIABLE TO BE TREATED UNDER SECTION 68 AS UNEXPLAINE D CREDITS AND IT SHOULD NOT BE TAXED IN THE HANDS OF THE APPELLANT COMPANY. AS INDICATED EARLIER THE TRIBUNAL BELOW DISMISSED THE APPEAL FILED BY THE REVENUE. AFTER HEARING THE LEARNED COUNSEL FOR THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASE OF CL. T. VS. M/S. LOVELY EXPORTS PVT. LTD. [SUPRA] WE ARE AT ONE WITH THE TRIBUNAL BELOW THAT THE POINT INVOLVED IN THIS APPEAL IS COVERED BY THE SAID SUPREME COURT DECISION IN FAVOUR OF THE ASSESSEE AND THUS NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. THE APPEAL IS DEVOID OF ANY SUBSTANCE AND IS DISMISSED. 20. OUR ATTENTION WAS DRAWN TO THE DECISION OF THE HON'BLE HIGH COURT CALCUTTA IN THE CASE OF COMMISSIONER OF INCOME TAX VS M/S. NISHAN I NDO COMMERCE LTD DATED 2 DECEMBER 2013 IN INCOME TAX APPEAL NO.52 OF 2001 W HEREIN THE COURT HELD AS FOLLOWS: THE ASSESSING OFFICER WAS OF THE VIEW THAT THE INC REASE IN SHARE CAPITAL BY RS.52 03 500/- WAS NOTHING BUT THE INTRODUCTION OF THE ASSESSEE'S OWN UNDISCLOSED FUNDS/INCOME INTO THE BOOKS OF ACCOUNTS OF THE ASSESSEE COMPANY. THE ASSE SSING OFFICER ACCORDINGLY TREATED THE INVESTMENT AS UNEXPLAINED CREDIT UNDER SECTION 68 O F THE INCOME TAX ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFOR E THE COMMISSIONER OF INCOME TAX (APPEALS) BEING THE FIRST APPELLATE AUTHORITY AND C ONTENDED THAT THE ASSESSING OFFICER HAD NO MATERIAL TO SHOW THAT THE SHARE CAPITAL WAS THE INCOME OF THE ASSESSEE COMPANY AND AS SUCH THE ADDITION MADE BY THE ASSESSING OFFICER UND ER SECTION 68 OF THE ACT WAS WRONG. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AF TER HEARING THE DEPARTMENT AND THE ASSESSEE COMPANY DELETED THE ADDITION OF RS. 52 03 500/- TO THE INCOME OF THE ASSESSEE COMPANY DURING THE ASSESSMENT YEAR IN QUESTION. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS FOUND THAT THERE WERE AS MANY AS 2155 ALLOT TEES WHOSE NAMES ADDRESSES AND RESPECTIVE SHARES ALLOCATION HAD BEEN DISCLOSED. THE COMMISSIONER OF INCOME TAX APPEALS FURTHER FOU ND THAT THE ASSESSEE COMPANY RECEIVED THE APPLICATIONS THROUGH BANKERS TO THE ISSUE WHO HAD BEEN APPOINTED UNDER THE GUIDELINES OF THE STOCK EXCHANGE AND THE ASSESSEE COMPANY HAD BEEN ALLOTTED SHARES ON THE BASIS OF ALLOTMENT APPROVED BY THE STOCK EXCHANGE. THE ASSES SEE COMPANY HAD DULY FILED THE RETURN OF ALLOTMENT WITH THE REGISTRAR OF COMPANIES GIVIN G COMPLETE PARTICULARS OF THE ALLOTTEES. THE COMMISSIONER OF INCOME TAX (APPEALS) FOUND THAT INQUIRES HAD CONFIRMED THE EXISTENCE OF MOST OF THE SHAREHOLDERS AT THE ADDRESSES INTIMA TED TO THE ASSESSING OFFICER BUT THE ASSESSING OFFICER TOOK THE VIEW THAT THEIR INVESTME NT IN THE ASSESSEE COMPANY WAS NOT GENUINE ON THE BASIS OF SOME EXTRANEOUS REASONS. T HE COMMISSIONER OF INCOME TAX (APPEALS) TOOK NOTE OF THE OBSERVATION OF THE ASSES SING OFFICER THAT ENQUIRY CONDUCTED BY THE INCOME TAX INSPECTOR HAD REVEALED THAT NINE PERSONS MAKING APPLICATIONS FOR 900 SHARES WERE NOT AVAILABLE AT THE GIVEN ADDRESS AND RIGHTLY CONCLUDED THAT THE TOTAL SHARE CAPITAL ISSUED BY THE ASSESSEE COMPANY COULD NOT BE ADDED A S UNEXPLAINED CASH CREDIT UNDER 'SECTION 68 OF THE INCOME TAX ACT. MOREOVER IF THE NATURE AND SOURCE OF INVESTMENT BY ANY SHAREHOLDER IN SHARES OF THE ASSESSEE COMPANY REMA INED UNEXPLAINED LIABILITY COULD NOT BE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 16 | P A GE FOISTED ON THE COMPANY. THE CONCERNED SHAREHOLDERS WOULD HAVE TO EXPLAIN THE SOURCE OF THEIR FUND. THE LEARNED COMMISSIONER ON CONSIDERING THE SUBMISS IONS OF THE RESPECTIVE PARTIES AND CONSIDERING THE MATERIALS FOUND THAT THE ASSESSING OFFICER HAD APPLIED THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT ARBITRARILY AND IL LEGALLY AND IN ANY CASE WITHOUT GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF REPRESENTATION AND /OR HEARING. LEARNED TRIBUNAL AGREED WITH THE FACTUAL FINDINGS O F THE LEARNED COMMISSIONER AND ACCORDINGLY THE LEARNED TRIBUNAL DISMISSED THE APPE AL OF THE REVENUE AND AFFIRMED THE DECISION OF THE LEARNED COMMISSIONER. MR. DUTTA APPEARING ON BEHALF OF THE PETITIONERS CI TED JUDGMENT OF THE DIVISION BENCH OF THIS COURT IN COMMISSIONER OF INCOME TAX VS. RUBY TRADER S AND EXPORTERS LIMITED REPORTED IN 236 (2003) ITR 3000 WHERE A DIVISION BENCH OF THIS COURT HELD THAT WHEN SECTION 68 IS RESORTED TO IT IS INCUMBENT ON THE ASSESSEE COMPAN Y TO PROVE AND ESTABLISH THE IDENTITY OF THE SUBSCRIBERS THEIR CREDIT WORTHINESS AND THE GENUIN ENESS OF THE TRANSACTION. THE AFORESAID JUDGMENT WAS RENDERED IN THE CONTEXT OF THE FACTUAL BACKGROUND OF THE AFORESAID CASE WHERE DESPITE SEVERAL OPPORTUNITIES BEING GIVEN TO THE ASSESSEE NOTHING WAS DISCLOSED ABOUT THE IDENTITY OF THE SHAREHOLDERS. I N THE INSTANT CASE THE ASSESSEE DISCLOSED THE IDENTITY AND ADDRESS AND PARTICULARS OF SHARE ALLOC ATION OF THE SHAREHOLDERS. IT WAS ALSO FOUND ON THE FACTS THAT ALL THE SHAREHOLDERS WERE I N EXISTENCE. ONLY NINE SHAREHOLDERS SUBSCRIBING TO ABOUT 900 SHARES OUT OF 6 12 000 SH ARES WERE NOT FOUND AVAILABLE AT THEIR ADDRESSES AND THAT TOO IN COURSE OF ASSESSMENT PR OCEEDINGS IN THE YEAR 1994 I.E. ALMOST 3 YEARS AFTER THE ALLOTMENT. BY AN ORDER DATED 2ND MAY 2001 THIS COURT ADMITTE D THE APPEAL ON THREE QUESTIONS WHICH ESSENTIALLY CENTRE AROUND THE QUESTION OF WHETHER T HE APPELLATE COMMISSIONER ERRED IN LAW IN DELETING THE ADDITION OF RS. 52 03 500/- TO THE I NCOME OF THE ASSESSEE AS MADE BY THE ASSESSING OFFICER. WE ARE OF THE VIEW THAT THERE IS NO QUESTION OF LAW INVOLVED IN THIS APPEAL FAR LESS ANY SUBSTANTIAL QUESTION OF LAW. THE LEARNED TRIBUNAL HAS CONCURRED WITH THE LEARNED COMMISSIONER ON FACTS AND FOUND THAT THERE WERE MATERIALS TO SHOW THAT THE ASSESSEE HAD DISCLOSED THE PARTICULARS OF THE SHAREHOLDERS. THE FACTUAL FINDINGS CANNOT BE INTERF ERED WITH IN APPEAL. WE ARE OF THE VIEW THAT ONCE THE IDENTITY AND OTHER RELEVANT PARTICULA RS OF SHAREHOLDERS ARE DISCLOSED IT IS FOR THOSE SHAREHOLDERS TO EXPLAIN THE SOURCE OF THEIR F UNDS AND NOT FOR THE ASSESSEE COMPANY TO SHOW WHEREFROM THESE SHAREHOLDERS OBTAINED FUNDS. 21. FURTHER OUR ATTENTION WAS DRAWN TO THE DECISI ON OF THE HON'BLE HIGH COURT CALCUTTA IN THE CASE OF COMMISSIONER OF INCOME TAX VS M/S. L EONARD COMMERCIAL (P) LTD ON 13 JUNE 2011 IN ITAT NO 114 OF 2011 WHEREIN THE COURT HELD AS FOLLOWS: THE ONLY QUESTION RAISED IN THIS APPEAL IS WHETHER THE COMMISSIONER OF INCOME-TAX (APPEALS) AND THE TRIBUNAL BELOW ERRED IN LAW IN DE LETING THE ADDITION OF RS.8 52 000/- RS. 91 50 000/- AND RS. 13 00 000/- MADE BY THE ASSESSI NG OFFICER ON ACCOUNT OF SHARE CAPITAL SHARE APPLICATION MONEY AND INVESTMENT IN HTCCL RES PECTIVELY. AFTER HEARING MD. NIZAMUDDIN LEARNED ADVOCATE APPE ARING ON BEHALF OF THE APPELLANT AND AFTER GOING THROUGH THE MATERIALS ON RECORD WE FIN D THAT ALL SUCH APPLICATION MONEY WERE RECEIVED BY THE ASSESSEE BY WAY OF ACCOUNT PAYEE CH EQUES AND THE ASSESSEE ALSO DISCLOSED THE COMPLETE LIST OF SHAREHOLDERS WITH THEIR COMPLETE A DDRESSES AND GIR NUMBERS FOR THE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 17 | P A GE RELEVANT ASSESSMENT YEARS IN WHICH SHARE APPLICATIO N WAS CONTRIBUTED. IT FURTHER APPEARS THAT ALL THE PAYMENTS WERE MADE BY THE APPLICANTS BY ACC OUNT PAYEE CHEQUES. IT APPEARS FROM THE ASSESSING OFFICERS ORDER THAT H IS GRIEVANCE WAS THAT THE ASSESSEE WAS NOT WILLING TO PRODUCE THE PARTIES WHO HAD ALLEGEDLY AD VANCED THE FUND. IN OUR OPINION BOTH THE COMMISSIONER OF INCOME-TAX (APPEALS) AND THE TRIBUNAL BELOW WERE JUSTIFIED IN HOLDING THAT AFTER DISCLOSURE OF THE F ULL PARTICULARS INDICATED ABOVE THE INITIAL ONUS OF THE ASSESSEE WAS SHIFTED AND IT WAS THE DUT Y OF THE ASSESSING OFFICER TO ENQUIRE WHETHER THOSE PARTICULARS WERE CORRECT OR NOT AND I F THE ASSESSING OFFICER WAS OF THE VIEW THAT THE PARTICULARS SUPPLIED WERE INSUFFICIENT TO DETECT THE REAL SHARE APPLICANTS TO ASK FOR FURTHER PARTICULARS. THE ASSESSING OFFICER HAS NOT ADOPTED EITHER OF THE AFORESAID COURSES BUT HAS SIMPLY BLAMED THE ASSESSEE FOR NOT PRODUCING THOSE SHARE APPLICAN TS. IN OUR VIEW IN THE CASE BEFORE US SO LONG THE ASSE SSING OFFICER WAS UNABLE TO ARRIVE AT A FINDING THAT THE PARTICULARS GIVEN BY THE ASSESSEE WERE FALSE THERE WAS NO SCOPE OF ADDING THOSE MONEY UNDER SECTION 68 OF THE INCOME- TAX ACT AND THE TRIBUNAL BELOW RIGHTLY HELD THAT THE ONUS WAS VALIDLY DISCHARGED. WE THUS FIND THAT BOTH THE AUTHORITIES BELOW ON CONSIDERATION OF THE MATERIALS ON RECORD RIGHTLY APPLIED THE CORRECT LAW WHICH ARE REQUIRED TO BE APPLIED IN THE FACTS OF THE PRESENT CASE AND THUS WE DO NOT FIND ANY REASON TO INTERF ERE WITH THE CONCURRENT FINDINGS OF FACT BASED ON MATERIALS ON RECORD. THE APPEAL IS THUS DEVOID OF ANY SUBSTANCE AND IS DISMISSED SUMMARILY AS IT DOES NOT INVOLVE ANY SUBSTANTIAL QUESTION OF LAW. 22. IN THE LIGHT OF THE AFORESAID DECISION OF THE H ONBLE APEX COURT AND JURISDICTIONAL HIGH COURT AND OTHER HIGH COURTS LET US EXAMINE THE PRESENT CASE IN HAND. WE WILL EXAMINE EACH SHARE SUBSCRIBERS TOTALING TWO (2). T HE LD. AR TOOK US THROUGH THE RELEVANT FACTS IN RESPECT OF EACH SHARE SUBSCRIBERS AND THRE W LIGHT TO THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE SHARE SUBSCRIBERS. WE NOTE FROM PAGES 27 TO 67 OF THE PAPER BOOK THE DETAILS OF M/S. QUEST FINANCIAL SERVICES LTD . HAS BEEN FOUND PLACED. WE NOTE THAT THIS COMPANY WAS INCORPORATED THIRTY TWO (32) YEARS BAC K WHICH IS EVIDENT FROM A PERUSAL OF THE PAGE 28 OF THE PAPER BOOK WHICH SHOWS THAT THIS WAS THE 32 ND ANNUAL REPORT AND ACCOUNTS FOR FY 2011-12 (AY 2012-13). FROM A PERUSA L OF PAGE 36 OF PAPER BOOK WE NOTE THAT THIS IS A LISTED COMPANY IN THE CALCUTTA STOCK EXCHANGE AND LISTING FEE HAS BEEN PAID UPTO DATE. WE NOTE THAT THIS COMPANY INVESTED A SU M OF RS. 1 CR. IN THE APPELLANT/ASSESSEE COMPANY. WE FIND THAT THE SHARE APPLICATION MONEY WAS PAID THROUGH BANKING CHANNEL (RTGS) WHICH IS EVIDENT FROM THE BANK STATEMENT OF BANK OF BORADA BURRABAZAR KOLKATA FILED AT PAGES 65 AND 66 OF THE PAPER BOOK. THIS C OMPANY HAS DULY FILED ITS RETURN OF ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 18 | P A GE INCOME BEFORE ITO WARD-4(4) KOLKATA AND WAS HAVIN G PAN AAACQ0461C (PAGE 27 AND 61 OF PAPER BOOK). THIS COMPANY WAS HAVING A P AID UP CAPITAL WITH FREE RESERVE AND SURPLUS OF RS.123 CR. PLUS 48.57 CR. RESPECTIVELY A S ON 31.03.2012 AND ITS OPENING BALANCE AS ON 01.04.2011 WAS TO THE TUNE OF RS.16 CR. IN THIS YEAR AS PER THE ORDER OF THE HONBLE CALCUTTA HIGH COURT THREE (3) OTHER COMPANIES M/S. DRISTI SUPPLIERS M/S. PRAN JEEVAN DISTRIBUTORS AND M/S. REWARD AGENCIES WERE AMALGAM ATED WITH THE ASSESSEE COMPANY AND THE EFFECTIVE DATE OF AMALGAMATION WAS ON 28.09.20 11 (PAGE 36 OF PAPER BOOK). ON EXAMINATION OF THE BANK STATEMENT IT IS TAKEN NOTE THAT THERE IS NO DEPOSIT OF CASH BEFORE TRANSFER OF RS. 1 CRORE TO THE ASSESSEE COMPANY. T HE DETAILS OF SOURCE OF FUND FROM WHICH THE COMPANY HAD MADE THE SHARE APPLICATION ARE ALSO AVAILABLE FROM A PERUSAL OF THE BANK STATEMENT AND CONFIRMATION GIVEN BY THIS COMPANY IS SEEN PLACED AT PAGE 67 OF THE PAPER BOOK. 23. IN RESPECT OF M/S. ANURAG INFRASTRUCTURE LTD . THE LD. AR DREW OUR ATTENTION TO PAGES 68 TO 93 OF PAPER BOOK FROM WHERE WE NOTE THAT THIS COMPANY INVESTED A SUM OF RS. 80 LACS IN THE ASSESSEE COMPANY. THE SHARE APPLICATION WAS MADE THROUGH BANKING CHANNEL ON 28.03.2012 THROUGH CORPORATION BANK. THIS COMPANY HAS DULY FILED ITS RETURN OF INCOME BEFORE ITO WARD-50(4) KOLKATA AND WAS HAVING PAN AAJCA1464E. THIS COMPANY WAS HAVING A PAID UP CAPITAL WITH FREE RESERVE AND SURPLUS OF RS. 87 LACS AND RS.42.14 CR. ON 31.03.2012 RESPECTIVELY AND AS ON 31.03.2011 IT HAD ITS OWN FUNDS OF RS. 40 CR. (OPENING BALANCE FOR AY 2012-13) (REFER PAGE 75 OF PAPER BOOK). THE COPY OF THE BANK STATEMENT OF THE COMPANY IS AVAILABLE IN THE PAPER BOOK AT PAGES 90 TO 92 (CORPORATION BANK) AND ON EXAMINATION OF THE BANK STATEMENT IT IS TAKEN NOTE THAT THERE IS NO DEPOSIT OF CASH. THE DETAILS OF SOURCE OF FUNDS FROM WHICH TH IS COMPANY HAS MADE THE SHARE APPLICATION ARE ALSO AVAILABLE FROM A PERUSAL OF TH E BANK STATEMENT AND THE DOCUMENTS FILED AT PAGE 93 OF THE PAPER BOOK. 24. FROM THE DETAILS AS AFORESAID WHICH EMERGES F ROM THE PAPER BOOK FILED BEFORE US AS WELL AS BEFORE THE LOWER AUTHORITIES IT IS REVEALED THAT BOTH THE TWO CORPORATE SHARE APPLICANTS ARE (A) INCOME TAX ASSESSEES (B) THEY HAVE FILED THEIR RETURN OF INCOME (C) THE SHARE APPLICATION FORM IS AVAILABLE ON RECORD (D) SHARE APPLICATION MONEY WAS MADE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 19 | P A GE THROUGH BANKING CHANNEL (E) THE DETAILS OF THE BAN K ACCOUNT BELONGING TO THE SHARE APPLICANTS ARE PLACED ON RECORD (F) IN NONE OF THE TRANSACTIONS THE AO FOUND DEPOSIT OF CASH BEFORE ISSUING CHEQUES TO THE ASSESSEE COMPANY (G) THE APPLICANTS ARE HAVING SUBSTANTIAL CREDITWORTHINESS WHICH IS REPRESENTED B Y CAPITAL AND RESERVE AS NOTED ABOVE. 24. AS NOTED FROM THE JUDICIAL PRECEDENTS CITED AB OVE WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE THEN THERE IS A DUTY CA STED UPON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF CREDIT FOUND IN HIS BOOKS. IN THE INSTANT CASE THE CREDIT IS IN THE FORM OF RECEIPT OF SHARE CAPITAL WITH PREMIUM FROM SHARE APPLICANTS. THE NATURE OF RECEIPT TOWARDS SHARE CAPITAL IS SEEN FROM THE ENTRIES PASS ED IN THE RESPECTIVE BALANCE SHEETS OF THE COMPANIES AS SHARE CAPITAL AND INVESTMENTS. IN RES PECT OF SOURCE OF CREDIT THE ASSESSEE HAS TO PROVE THE THREE NECESSARY INGREDIENTS I.E. IDENT ITY OF SHARE APPLICANTS GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF SHARE APPLICAN TS. FOR PROVING THE IDENTITY OF SHARE APPLICANTS THE ASSESSEE FURNISHED THE NAME ADDRES S PAN OF SHARE APPLICANTS TOGETHER WITH THE COPIES OF BALANCE SHEETS AND INCOME TAX RETURNS . WITH REGARD TO THE CREDITWORTHINESS OF SHARE APPLICANTS AS WE NOTED SUPRA THESE COMPA NIES ARE HAVING CAPITAL IN SEVERAL CRORES OF RUPEES AND THE INVESTMENT MADE IN THE APPELLANT COMPANY IS ONLY A SMALL PART OF THEIR CAPITAL. THESE TRANSACTIONS ARE ALSO DULY REFLECTED IN THE BALANCE SHEETS OF THE SHARE APPLICANTS SO CREDITWORTHINESS IS PROVED. EVEN IF THERE WAS ANY DOUBT IF ANY REGARDING THE CREDITWORTHINESS OF THE SHARE APPLICANTS WAS STILL SUBSISTING THEN AO SHOULD HAVE MADE ENQUIRIES FROM THE AO OF THE SHARE SUBSCRIBERS AS H ELD BY HONBLE JURISDICTIONAL HIGH COURT IN CIT VS DATAWARE (SUPRA) WHICH HAS NOT BEEN DONE SO NO ADVERSE VIEW COULD HAVE BEEN DRAWN. THIRD INGREDIENT IS GENUINENESS OF THE TRANSACTIONS FOR WHICH WE NOTE THAT THE MONIES HAVE BEEN DIRECTLY PAID TO THE ASSE SSEE COMPANY BY ACCOUNT PAYEE CHEQUES OUT OF SUFFICIENT BANK BALANCES AVAILABLE IN THEIR BANK ACCOUNTS ON BEHALF OF THE SHARE APPLICANTS. IT WILL BE EVIDENT FROM THE PAPER BOOK THAT THE APPELLANT HAS EVEN DEMONSTRATED THE SOURCE OF MONEY DEPOSITED INTO THEIR BANK ACCOU NTS WHICH IN TURN HAS BEEN USED BY THEM TO SUBSCRIBE TO THE ASSESSEE COMPANY AS SHARE APPLICATION. HENCE THE SOURCE OF SOURCE OF SOURCE IS PROVED BY THE ASSESSEE IN THE INSTANT CASE THOUGH THE SAME IS NOT REQUIRED TO BE DONE BY THE ASSESSEE AS PER LAW AS IT STOOD/ APPLIC ABLE IN THIS ASSESSMENT YEAR. THE SHARE APPLICANTS HAVE CONFIRMED THE SHARE APPLICATION IN RESPONSE TO THE NOTICE U/S 133(6) OF THE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 20 | P A GE ACT AND HAVE ALSO CONFIRMED THE PAYMENTS WHICH ARE DULY CORROBORATED WITH THEIR RESPECTIVE BANK STATEMENTS AND ALL THE PAYMENTS ARE BY ACCOUNT PAYEE CHEQUES. 25. WE ALSO NOTE THAT RECENTLY THE ITAT KOLKATA IN SEVERAL CASES HAS DELETED THE ADDITION ON ACCOUNT OF SHARE APPLICATION IN SIMILAR CIRCUMSTANCES. THE RELEVANT PORTION OF THE DECISIONS ARE AS FOLLOWS: (A) THE LD ITAT KOLKATA. IN DC IT VS GLOBAL MERCANT ILES PVT.LTD IN ITA NO. 1669/KOL/2009 DATED 13-01-2016. IN THIS THE DECISIO N THE LD. TRIBUNAL HELD AS FOLLOWS: 3.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIALS AVAILABLE ON RECORD INCLUDING THE DETAILED PAPER BOOK FILED BY T HE ASSESSEE. THE FACTS STATED HEREINABOVE REMAIN UNDISPUTED ARE NOT REITERATED HE REIN FOR THE SAKE OF BREVITY. WE FIND THAT THE ASSESSEE HAD GIVEN THE COMPLETE DETAI LS ABOUT THE SHARE APPLICANTS CLEARLY ESTABLISHING THEIR IDENTITY CREDITWORTHINE SS AND GENUINENESS OF TRANSACTION PROVED BEYOND DOUBT AND HAD DULY DISCHARGED ITS ONU S IN FULL. NOTHING PREVENTED THE LEARNED AO TO MAKE ENQUIRIES FROM THE ASSESSING OFF ICERS OF THE CONCERNED SHARE APPLICANTS FOR WHICH EVERY DETAILS WERE VERY MUCH M ADE AVAILABLE TO HIM BY THE ASSESSEE. WE FIND THAT THE RELIANCE PLACED BY THE L EARNED LD. CIT(1) ON THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS LOV ELY EXPORTS (P) UD REPORTED IN (2008) 216 CTR 195 (SC) IS VERY WELL FOUNDED WHERE IN IT HAS BEEN VERY CLEARLY HELD THAT THE ONLY OBLIGATION OF THE COMPANY RECEIVING T HE SHARE APPLICATION MONEY IS TO PROVE THE EXISTENCE OF THE SHAREHOLDERS AND FOR WHI CH THE ASSESSEE HAD DISCHARGED THE ONUS OF PROVING THEIR EXISTENCE AND ALSO THE SO URCE OF SHARE APPLICATION MONEY RECEIVED. 3.4. 1. WE ALSO FIND THAT THE IMPUGNED ISSUE IS ALS O COVERED BY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS R OSEBERRY MERCANTILE (P) LTD IN GA NO. 3296 OF 2010 ITAT NO. 241 OF 2010 DATED 10.1 .2011 WHEREIN THE- QUESTIONS RAISED BEFORE THEIR LORDSHIPS AND DECISION RENDERED THEREON IS AS UNDER:- 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) OUGHT TO HAVE UPHELD THE ASSESSMENT ORDER AS THE TRANSACTION ENTE RED INTO BY THE ASSESSEE WAS A SCHEME FOR LAUNDERING BLACK MONEY INTO WHITE MONEY OR ACCOUNTED MONEY AND THE LD. CIT(A) OUGHT TO HAVE HELD THAT TH E ASSESSEE HAD NOT ESTABLISHED THE GENUINENESS OF THE TRANSACTION. ' IT A NO. 1669/KOI/2009-C-AM M/S. GLOBAL MERCANTILES PVT. LTD 11 HELD AFTER HEARING THE LEARNED COUNSEL FOR THE APPELLANT AND A FTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASES OF CIT VS M/S LOVELV EXPORTS PVT LTD WE ARE AT ONE WITH THE TRIBUNAL BELOW THAT THE POINT INVOLVED IN THIS APPEAL IS COVERED BY THE SAID SUPREME COURT DECISION IN FAVOUR OF THE ASSESSEE AN D THUS NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. THE APPEAL IS DEVOI D OF ANY SUBSTANCE AND IS DISMISSED. 3.4.2. IN VIEW OF THE AFORESAID FINDINGS AND RESPEC TFULLY FOLLOWING THE DECISION OF THE APEX COURT (SUPRA) AND JURISDICTIONAL HIGH COURT (S UPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) AND ACCORDINGLY THE GR OUND NO.2 RAISED BY THE REVENUE IS DISMISSED. 4. THE LAST GROUND TO BE DECIDED IN THIS APPEAL OF THE REVENUE IS AS TO WHETHER THE LEARNED CIT(A) IS JUSTIFIED IN DELETING THE ADDITIO N U/S 68 OF THE ACT MADE IN RESPECT ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 21 | P A GE OF ALLOTMENT OF SHARES TO 20 INDIVIDUALS FOR AN AMO UNT OF RS.57 00 000/- IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. 1. THE BRIEF FACT OF THIS ISSUE IS THAT THE ASSE SSEE HAD RECEIVED SHARE APPLICATION MONIES FROM 20 INDIVIDUALS IN THE EARLIER YEAR WHIC H WERE KEPT IN SHARE APPLICATION MONEY ACCOUNT. DURING THE ASST YEAR UNDER APPEAL T HE ASSESSEE ALLOTTED SHARES TO THESE 20 INDIVIDUALS OUT OF TRANSFERRING THE MONIES FROM SHARE APPLICATION MONEY ACCOUNT TO SHARE CAPITAL ACCOUNT. THE DETAILS OF 20 INDIVIDUALS ARE REFLECTED IN PAGE 6 & 7 OF THE LEARNED CIT(A) ORDER. THE LEARNED AO ASK ED THE ASSESSEE TO PRODUCE THE SHAREHOLDERS BEFORE HIM. HE FOUND THAT THE ASSESSEE DID NOT DO SO BUT FURNISHED COPIES OF PAY ORDERS USED FOR PAYMENTS TO THE ASSES SEE COMPANY AND ALSO FURNISHED INCOME TAX PARTICULARS AND BALANCE SHEETS OF ALL TH E SHAREHOLDERS. THE LEARNED AO ON ANALYZING ALL THE BALANCE SHEETS OBSERVED THAT T HE SHAREHOLDERS HAVE PALTRY INCOME AND SMALL SAVINGS AND NONE OF THEM HAVE ANY BANK ACCOUNT AND HUGE CASH BALANCES WERE SHOWN IN THEIR HANDS OUT OF WHICH PAY ORDERS WERE OBTAINED. BASED ON THIS THE LEARNED AO CONCLUDED THAT THESE SHAREH OLDERS DO NOT HAVE CREDITWORTHINESS TO INVEST IN THE ASSESSEE COMPANY AND BROUGHT THE ENTIRE SUM OF RS. 57 00 000/- TO TAX AS UNEXPLAINED CASH CREDIT U/S 6 8 OF THE ACT. 4.2. ON FIRST APPEAL THE LEARNED CIT(A) OBSERVED T HAT ENTIRE SHARE APPLICATION MONIES OF RS. 57 00 000/- WE RECEIVED DURING THE PR EVIOUS YEAR 2004-05 RELEVANT TO ASST YEAR 2005-06 FROM 20 PERSONS AND THE SHARES WE RE ALLOTTED TO THEM DURING THE ASST YEAR UNDER APPEAL. HE OBSERVED THAT THE ASSESS EE HAD FURNISHED DETAILS OF THE SHARE APPLICANTS GIVING THE DATE WISE RECEIPTS MOD E OF PAYMENT AMOUNT NAME ADDRESS INCOME TAX RETURNS PA NO. OF SHARE APPLIC ANTS ALONG WITH THEIR BALANCE SHEET. THE LEARNED CITA ALSO OBSERVED THAT THE ASSE SSEE IN ITS REPLY TO SHOW CAUSE NOTICE BEFORE THE LEARNED AO HAD REQUESTED HIM TO U SE HIS POWER AND AUTHORITY FOR THE PHYSICAL APPEARANCE OF THE SHAREHOLDERS WHICH W AS NOT EXERCISED BY THE LEARNED AO. INSTEAD THE LEARNED AO CONTINUED TO INSIST ON T HE ASSESSEE TO PRODUCE THE SHAREHOLDERS BEFORE HIM. HE ULTIMATELY CONCLUDED TH AT THE ASSESSEE HAD DULY DISCHARGED ITS ONUS OF PROVIDING COMPLETE DETAILS O F THE SHAREHOLDERS AND IN ANY CASE NO ADDITION COULD BE MADE U/S 68 OF THE ACT I N THE ASST YEAR UNDER APPEAL AS NO SHARE APPLICATION MONIES WERE RECEIVED DURING THE A SST YEAR UNDER APPEAL. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US BY FI LING THE FOLLOWING GROUND:- 'THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE U/S 68 IN RESPECT OF THE ALLOTMENT OF SHARES TO 20 NUMBERS OF INDIVIDUAL INVESTORS FOR AN AMOUNT OF RS . 57 LAKHS WHERE GENUINENESS OF THE TRANSACTIONS AND CREDITWORTHINES S OF THE INVESTORS WERE NOT ESTABLISHED. 4.3. THE LEARNED DR PRAYED FOR ADMISSION OF THE ADD ITIONAL GROUND RAISED BEFORE US AND VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED A O. IN RESPONSE TO THIS THE LEARNED AR FAIRLY CONCEDED TO ADMISSION OF THIS ADD ITIONAL GROUND AND VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT(A). 4.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE DETAILED PAPER BOOK FILED BY T HE ASSESSEE. WE FIND THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE SEPARATELY BEFORE US VIDE ITS COVERING LETTER DATED 9. 12.2011 IS ADMITTED AS IT APPEARS TO BE A GENUINE AND BONAFIDE ERROR OF OMISSION ON THE PART OF THE REVENUE FROM NOT RAISIN G THIS GROUND IN THE ORIGINAL GROUNDS OF APPEAL FILED ALONG WITH THE MEMORANDUM O F APPEAL. MOREOVER IT DOES NOT REQUIRE ANY FRESH EXAMINATION OF FACTS. HENCE THE S AME IS ADMITTED HEREIN FOR THE SAKE OF ADJUDICATION. ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 22 | P A GE 4.4. 1. WE FIND FROM THE DETAILS AVAILABLE ON RECOR D THAT THE SHARE APPLICATION MONIES FROM 20 INDIVIDUALS IN THE SUM OF RS.57 00 000/- HA S BEEN RECEIVED BY THE ASSESSEE DURING THE FINANCIAL YEAR 2004-05 RELEVANT TO ASST YEAR 2005-06 AND ONLY THE SHARES WERE ALLOTTED TO THEM DURING THE ASST YEAR UNDER AP PEAL. ADMITTEDLY NO MONIES WERE RECEIVED DURING THE ASST YEAR UNDER APPEAL AND HENC E THERE IS NO SCOPE FOR INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT. HENCE WE H OLD THAT THE ORDER PASSED BY THE LEARNED CITA IN THIS REGARD DOES NOT REQUIRE ANY IN TERFERENCE. ACCORDINGLY THE GROUND NO. 3 RAISED BY THE REVENUE IS DISMISSED. (B) THE ITAT KOLKATA IN R.B HORTICULTURE & ANIMAL PROJECTS CO. LTD ITA NO. 632/KOLL2011 DATED 13-01-2016. IN THIS THE DECISION THE LD. TRIBUNAL HELD AS FOLLOWS: 6. WE HAVE HEARD THE LEARNED DR AND WHEN THE CASE WAS CALLED ON FOR HEARING NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER WE FIND FROM THE FILE THAT THE ASSESSEE HAD FILED A DETAILED PAPER BOOK AND WRITTEN SUBMISSIONS. HENCE THE CASE IS DISPOSED OFF BASED ON THE ARGUMENTS OF THE LEARNED DR AND WRITTEN SUBMISSIONS AND PAPER BOOK ALREADY AVAILABLE ON RECORD. THE FACTS STATED IN THE LEARNED CIT(A) WERE NOT CONTROVERTED BY THE LEARNED DR BEFORE US. WE FIND THAT THE ASSESSEE HAD GIVEN THE COMPLETE DETAILS ABOUT THE SHARE APPLICANTS CLEARLY ESTABLISHING THEIR IDENTITY CREDITWORTHINE SS AND GENUINENESS OF TRANSACTION PROVED BEYOND DOUBT AND HAD DULY DISCHARGED ITS ONUS IN FU LL. NOTHING PREVENTED THE LEARNED AO TO MAKE ENQUIRIES FROM THE ASSESSING OFFICERS OF THE C ONCERNED SHARE APPLICANTS FOR WHICH EVERY DETAILS WERE VERY MUCH MADE AVAILABLE TO HIM BY THE ASSESSEE. WE FIND THAT THE RELIANCE PLACED BY THE LEARNED CITA ON THE DECISION OF THE H ON'BLE APEX COURT IN THE CASE OF CIT VS LOVELV EXPORTS (P) LTD REPORTED IN (2008) 216 CTR 1 95 (SC) IS VERY WELL FOUNDED WHEREIN IT HAS BEEN VERY CLEARLY HELD THAT THE ONLY OBLIGATION OF THE COMPANY RECEIVING THE SHARE APPLICATION MONEY IS TO PROVE THE EXISTENCE OF THE SHAREHOLDERS AND FOR WHICH THE ASSESSEE HAD DISCHARGED THE ONUS OF PROVING THEIR EXISTENCE AND ALSO THE SOURCE OF SHARE APPLICATION MONEY RECEIVED. 6. 1. WE ALSO FIND THAT THE IMPUGNED ISSUE IS ALSO COVERED BY THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS ROSEBERRV MERCANTI LE (P) LTD IN GA NO. 3296 OF 2010 ITAT NO. 241 OF 2010 DATED 10.1.2011 WHEREIN THE QUESTI ONS RAISED BEFORE THEIR LORDSHIPS AND DECISION RENDERED THEREON IS AS UNDER:- - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) OUGHT TO HAVE UPHELD THE ASSESSMENT ORDER AS THE TRANSACTION ENTERED INT O BY THE ASSESSEE WAS A SCHEME FOR LAUNDERING BLACK MONEY INTO WHITE MONEY OR ACCO UNTED MONEY AND THE LD. CIT(A) OUGHT TO HAVE HELD THAT THE ASSESSEE HAD NOT ESTABLISHED THE GENUINENESS OF THE TRANSACTION.' HELD AFTER HEARING THE LEARNED CO UNSEL FOR THE APPELLANT AND AFTER GOING THROUGH THE DECISION OF THE SUPREME COURT IN THE CASES OF CIT VS M/S LOVELY EXPORTS PVT LTD WE ARE AT ONE WITH THE TRIBUNAL BE LOW THAT THE POINT INVOLVED IN THIS APPEAL IS COVERED BY THE SAID SUPREME COURT DECISIO N IN FAVOUR OF THE ASSESSEE AND THUS NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. THE APPEAL IS DEVOID OF ANY SUBSTANCE AND IS DISMISSED. 6.2. WE FIND THAT THE ISSUE IS ALSO COVERED BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS VALUE CAPITAL SERVICES P LTD REPORTE D IN (2008) 307 ITR 334 (DEL) WHEREIN IT WAS HELD THAT: 'IN RESPECT OF AMOUNTS SHOWN AS RECEIVED BY THE ASS ESSEE TOWARDS SHARE APPLICATION MONEY FROM 33 PERSONS THE ASSESSING OFFICER REQUIR ED THE ASSESSEE TO PRODUCE ALL THESE PERSONS. WHILE ACCEPTING THE EXPLANATION AND ITA NO. 632/KOI12011--C-AM M/S. R.B HORTICULTURE 6 & ANIMAL PROJ. CO. LTD THE STATEMENTS GIVEN BY THREE PERSONS THE ASSESSING OFFICER FOUND THAT THE RESPON SE FROM THE OTHERS WAS EITHER NOT ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 23 | P A GE AVAILABLE OR WAS INADEQUATE AND ADDED AN AMOUNT OF RS. 46 LAKHS PERTAINING TO 30 PERSONS TO THE INCOME OF THE ASSESSEE. THE COMMISSIONER (APPEALS) UPHELD THE DECISION OF T HE ASSESSING OFFICER. ON APPEAL THE TRIBUNAL SET ASIDE THE ORDER OF THE COM MISSIONER (APPEALS) AND DELETED THE ADDITIONS. ON FURTHER APPEAL: HELD DISMISSING THE APPEAL THAT THE ADDITIONAL BU RDEN WAS ON THE DEPARTMENT TO SHOW THAT EVEN IF THE SHARE APPLICANTS DID NOT HAVE THE MEANS TO MAKE THE INVESTMENT THE INVESTMENT MADE BY THEM ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE SO AS TO ENABLE IT TO BE TREATED AS THE UNDISCLOSED INCOM E OF THE ASSESSEE. NO SUBSTANTIAL QUESTION OF LAW AROSE. ' 6.3. WE FIND THAT THE ARGUMENT OF THE LEARNED DR TO SET ASIDE THIS ISSUE TO THE FILE OF THE LEARNED AO FOR VERIFICATION OF SHARE SUBSCRIBERS WO ULD NOT SERVE ANY PURPOSE AS THE RATIO DECIDED IN THE ABOVE CASES IS THAT IN ANY CASE NO ADDITION COULD BE MADE IN THE HANDS OF THE RECIPIENT ASSESSEE. IN VIEW OF THE AFORESAID FINDIN GS AND RESPECTFULLY FOLLOWING THE DECISION OF THE APEX COURT (SUPRA) JURISDICTIONAL HIGH COURT ( SUPRA) AND DELHI HIGH COURT (SUPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A ) AND ACCORDINGLY THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. (C) THE LD. ITAT KOLKATA IN ITA NO.1061/KO1/2012 I N THE CASE OF ITO WD.3(2) KOL VS. M/S. STEEL EMPORIUM LTD DATED 05-02-2016. IN TH IS THE DECISION THE LD. TRIBUNAL HELD AS FOLLOWS: 10. WE HAVE HEARD BOTH THE RIVAL PARTIES AND PERUS ED THE MATERIALS AVAILABLE ON RECORD. THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE AO. BE FORE US THE LD. AR SUBMITTED THAT THE ASSESSEE RAISED SHARE APPLICATION MONEY DURING THE YEAR FROM 25 APPLICANTS. THE AO WAS FURNISHED WITH THE COPY OF FORM 2 OF ALLOTMENT OF S HARES TO THE APPLICANTS AS FILED WITH THE REGISTRAR OF COMPANIES WEST BENGAL. ON THE DATE OF RECEIPT OF SHARE APPLICATIONS FROM THE APPLICANTS THEY FURNISHED THEIR ADDRESSES WHICH W ERE RECORDED IN THE REGISTER OF MEMBERS. THE AO OBSERVED THAT AS PER ROC RECORDS THE ADDRESS ES OF THE NINE COMPANIES WERE DIFFERENT FROM THE ADDRESS AS PER FORM FILED WITH HIM. THE AO ISSUED NOTICES U/S.133(6) TO ALL THE COMPANIES AT THE ADDRESSES FURNISHED IN FORM 2 AS F ILED WITH HIM WHICH WERE DULY SERVED AT THE GIVEN ADDRESSES. THE A0 ARGUED THAT THE LETTERS SHOULD NOT HAVE BEEN SERVED AT THE GIVEN ADDRESS BY THE ASSESSEE. HE SERVED A SHOW A CAUSE N OTICE DATED 09.12.2011 ASKING FOR THE EXPLANATION FROM THE ASSESSEE AS TO HOW THE NOTICES U/S. 133(6) COULD BE SERVED TO THESE NINE COMPANIES WHO HAD DIFFERENT ADDRESS AS PER ROC RECO RDS. THE AO WAS EXPLAINED VIDE LETTER DATED 20.12.2011 OF THE ASSESSEE THAT THOSE COMPANI ES HAD CHANGED THEIR ADDRESSES SINCE FILING OF FORM 2 WITH THE REGISTRAR. FURTHER IT WA S NONE OF THE BUSINESS OF THE ASSESSEE TO QUESTION THE ADDRESSES OF THE APPLICANTS AS LONG AS THEY AFFIRM THE ADDRESS. THE APPLICANTS WERE DULY INCORPORATED BODIES UNDER THE COMPANIES A CT. 1956 SINCE LONG. THEY HAVE BEEN REGULARLY FILING THEIR RETURNS OF INCOME UNDER THE INCOME TAX ACT AND ARE BEING ASSESSED BY THE REVENUE SINCE LONG. SOME OF THEM ARE EVEN REGIS TERED AS NON-BANKING FINANCIAL COMPANIES WITH RESERVE BANK OF INDIA. THEY HAVE BE EN FILING RETURNS REGULARLY WITH REGISTRAR OF COMPANIES AND RBI SINCE LONG. THE LETT ERS MIGHT HAVE BEEN RECEIVED AT THEIR OLD ADDRESSES BECAUSE IN CASE OF CHANGE IN THE ADDRESS PEOPLE INSTRUCT THE INCUMBENTS AT OLD ADDRESSES NOT TO REFUSE THE RECEIPT OF LETTERS AND RECEIVE THE SAME. JUST BECAUSE A LETTER WAS RECEIVED AT THE OLD ADDRESS INSTEAD OF PRESENT ADDR ESS IT CANNOT BE SAID THAT THE IDENTITY OF THE APPLICANT HAS NOT BEEN VERIFIED. ALL OF THESE C OMPANIES HAD DULY REPLIED TO NOTICE U/S. 133(6) AND CONFIRMED THE TRANSACTION WITH ALL THE E VIDENCES. THE AO HAS NOT RAISED ANY OBJECTION ON ANY OF THE INFORMATION FURNISHED BEFOR E HIM. THE AO HAS NOT ASKED THE RESPECTIVE COMPANY APPLICANTS ALSO TO EXPLAIN THE A LLEGED DISCREPANCY IN THE ADDRESS. THE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 24 | P A GE AO HAS NOT BROUGHT ANY MATERIAL ON ACCOUNT OF RECOR D TO DISBELIEF THE EVIDENCES FURNISHED WITH HIM AND TREAT THE TRANSACTION AS NOT GENUINE. THE ASSESSEE SUBMITTED THE FOLLOWING MATERIAL AT THE TIME OF ASSESSMENT. A) COPY OF SHARE APPLICATIONS FROM THE SHARE APPLIC ANTS (COPIES ENCLOSED) B) COPY OF FORM 2 FILED WITH REGISTRAR OF COMPANIES WEST BENGAL (COPY ENCLOSED) C) COPY OF FORM 18 ABOUT THE REGISTERED OFFICE OF T HE APPLICANTS FOR CHANGE OF ADDRESS SUBSEQUENT TO THE DATE OF ALLOTMENT I.E. 31.03.200 9 (COPIES ENCLOSED) D) MEMBERS REGISTER E) SHARE APPLICATION & ALLOTMENT REGISTER F) COPY OF BOARD RESOLUTION. G) REPLIES FROM SHARE APPLICANTS TO THE NOTICE U/S. 133(6) ISSUED TO THEM BY THE AO SEEKING INFORMATION AND DOCUMENTS ABOUT THE SOURCES AND TO EXAMINE THEIR IDENTITY GENUINENESS OF THE TRANSACTION AND THEIR CREDITWORTHINESS. (COPY E NCLOSED). H) COPY OF AUDITED ACCOUNTS. I) COPY OF BANK STATEMENTS. J) COPY OF INCOME TAX ACKNOWLEDGMENT OF RETURN FILE D FOR AY 2009- K) COPY OF PAN CARD. L) DETAILS OF SOURCES OF FUNDS. M) COPY OF COVERING LETTER FOR DELIVERY OF SHARES. N) COPY OF MASTER DATA AS PER MINISTRY OF COMPANY A FFAIRS RECORDS. O) COPY OF ANNUAL RETURN. P) COPY OF MEMORANDUM AND ARTICLES OF ASSOCIATION. FINALLY THE LD. AR RELIED ON THE ORDER OF THE LD. C IT(A 10. 1 FROM THE AFORESAID DISCUSSION WE FIND THAT THE AO HAS MADE THE ADDITION OF THE SH ARE APPLICATION MONEY BECAUSE ALL THE NINE COMPANIES WERE HAVING THE COMMON ADDRESS AND T HE NOTICE SENT UNDER SECTION 133(6) WAS RECEIVED BY THE SINGLE PERSON. ACCORDINGLY THE AO OPINED THAT THE ASSESSEE HAS USED ITS UNACCOUNTED MONEY IN THE SHARE APPLICATION TRANSACT IONS. HOWEVER WE FIND THAT ALL THE MONEY RECEIVED IN THE FORM OF SHARE CAPITAL IS DULY SUPPORTED WITH THE REQUISITE DOCUMENT AS DISCUSSED ABOVE. TO OUR MIND THE BASIS ON WHICH THE ADDITION WAS MADE BY THE AO IS NOT TENABLE. THE LD. DR ALSO COULD NOT BROUGHT ANYTHING ON RECORD TO CONTROVERT THE FINDINGS OF THE LD. CIT(A). IN VIEW OF ABOVE WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE ID. CIT(A). ACCORDINGLY THE GROUND RAISED BY REVENUE IS DISMISS ED. (D) THE LD ITAT KOLKATA IN ITO VS CYGNUS DEVELOPERS (I) P LTD IN ITA NO. 282/KOL/2012 DATED 2.3.2016. IN THIS THE DECISION THE LD. TRIBUN AL HELD AS FOLLOWS: 6. ON APPEAL BY THE ASSESSEE THE CIT(A) DELETED TH E ADDITION MADE BY THE AO OBSERVING AS FOLLOWS ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 25 | P A GE '6) I HAVE CONSIDERED THE SUBMISSION OF THE APPELLA NT AND PERUSED THE ASSESSMENT ORDER. I HAVE ALSO GONE THROUGH THE DETAILS AND DOCUMENTS FI LED BY THE APPELLANT COMPANY IN THE COURSE OF ASSESSMENT: PROCEEDINGS VIDE LETTER DT. 3 -10-2007. ON CAREFUL CONSIDERATION OF THE FACTS AND IN LAW I AM OF THE OPINION THAT THE AO WA S NOT JUSTIFIED IN MAKING THE ADDITION AGGREGATING TO RS.54 00 000/- U/S.68 OF THE ACT BEI NG THE AMOUNT OF SHARE APPLICATION MONEY BY HOLDING THAT THE APPELLANT COMPANY HAS FAILED TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS AS WELL AS THE GENUINENESS OF TRAN SACTIONS. IT IS OBSERVED THAT ALL THE THREE SHARE APPLICANT COMPANIES I.E. M/S. SHREE SHYAM TRE XIM PVT. LTD. M/S NAVALCO COMMODITIES PVT. LTD. AND M/S. JEWELLOCK TREXIM PVT. LTD. HAD F ILED THEIR CONFIRMATIONS WHEREIN EACH OF THEM CONFIRMED THAT THEY HAD APPLIED FOR SHARES OF THE APPELLANT -COMPANY. ALL THE THREE COMPANIES PROVIDED- THE CHEQUE NUMBER COPY OF BANK STATEMENTS AND THEIR PAN. IT IS OBSERVED THAT THESE COMPANIES ALSO FILED COPIES OF THEIR RETURN OF INCOME AND FINANCIAL STATEMENTS FOR AS WELL AS COPY OF THEIR ASSESSMENT ORDER U/S. 143(3) OF THE I. T ACT FOR AY 2005-06. IN THE CASE OF M/S. JEWELLOCK TREXIM PVT. LTD. THE ASSESSMENT FOR AY 2005-06 WAS COMPLETED BY THE ITO WARD 9(3) KOLKATA AND THE ASS ESSMENTS IN THE CASE OF M/S. NAVALCO COMMODITIES PVT. LTD. AND M/S. SHREE SHYAM TREXIM P VT. LTD. FOR A. Y.2005-06 AND AY.2004- 05 RESPECTIVELY WERE COMPLETED BY THE I TO WARD 9( 4) KOLKATA. UNDER THE CIRCUMSTANCES I AM OF THE OPINION THAT THE AO WAS NOT JUSTIFIED IN HOLDING THAT THE SHARE APPLICANT COMPANIES WERE NOT IN EXISTENCE. THE ASSESSMENT ORDERS WERE C OMPLETED ON THE ADDRESS AS PROVIDED BY THE APPELLANT COMPANY IN THE COURSE OF ASSESSMENT P ROCEEDINGS. IT IS NOT KNOWN AS TO HOW THE AO'S INSPECTOR HAD REPORTED THAT THE AFORESAID COMP ANIES WERE NOT IN EXISTENCE AT THE GIVEN ADDRESS. SINCE THE APPELLANT COMPANY HAD PROVIDED S UFFICIENT DOCUMENTARY EVIDENCES IN SUPPORT OF ITS CLAIM OF RECEIPT OF SHARE APPLICATIO N MONEY I AM OF THE OPINION THAT THE NO ADDITION U/S.68 COULD BE MADE IN THE HANDS OF APPEL LANT COMPANY. ON GOING THROUGH THE VARIOUS JUDICIAL PRONOUNCEMENTS RELIED UPON BY THE APPELLANT IT IS OBSERVED THAT THE VIEW TAKEN AS ABOVE IS ALSO SUPPORTED BY THEM. IN VIEW O F ABOVE THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.54 00 000/ -. THE GROUND NOS. 2 AND 3 ARE ALLOWED ' 7. AGGRIEVED BY THE ORDER OF CIT{A) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 8. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED DR WHO RELIED ON THE ORDER OF AO. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF 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 WH EREIN THE HON 'BLE ALLAHABAD HIGH COURT TOOK A VIEW THAT NON PRODUCTION OF THE DIRECT OR 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 AL SO TO THE SIMILAR RULING OF THE ITAT KOLKATA BENCH IN THE CASE OF ITO VS DEVINDER SINGH SHANT IN IT A NO.20BIKO112009 VIDE ORDER DATED 17.04.2009. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE A RE OF THE VIEW THAT ORDER OF 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 THE SHAREHOLDER. IN THIS REGARD IT IS SEEN THAT FOR A Y.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 A Y.2005-06 BY I TO WARD- 9(4) KOLKATA BY ORDER DAT ED 20.03.2007. SIMILARLY JEWELLOCK TREXIM PVT. LTD WAS ASSESSED TO TAX FOR A Y.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 T KOLKATA BENCH ON WHICH RELIANCE WAS PLACED BY THE LEARNED COUNSEL FOR THE ASSESSEE ALSO SUPPORTS THE VIEW THAT FOR NON PRODUCTION OF DIRECT ORS OF THE INVESTOR COMPANY FOR EXAMINATION BY THE AO IT CANNOT BE HELD THAT THE ID ENTITY OF A LIMITED COMPANY HAS NOT BEEN ESTABLISHED. FOR THE REASONS GIVEN ABOVE WE UPHOLD THE ORDER OF CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. ' ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 26 | P A GE 26. RELIANCE IN THIS REGARD IS ALSO PLACED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS GANGESHWARI METAL (P) LTD (ITA NO. 5 97 OF 2012) DATED 21.01.2012. IN THIS CASE THE ASSESSEE HAD RECEIVED SHARE APPLICAT ION MONEY OF RS.55.50 LACS DURING THE YEAR IN QUESTION. THE ASSESSEE FILED THE COMPLETE N AMES ADDRESSES OF THE SHARE APPLICANTS CONFIRMATORY LETTERS FROM THEM COPIES OF BANK STAT EMENTS OF BOTH THE COMPANY AS WELL AS THE SHARE APPLICANTS AND COPIES OF SHARE APPLICATIO N FORMS. IN SPITE OF THE AFORESAID DOCUMENTARY EVIDENCES THE AO HELD THE EXPLANATION T O BE UNACCEPTABLE AND TREATED THE SHARE APPLICATION AS UNEXPLAINED CASH CREDIT THEREB Y MAKING ADDITION UNDER SECTION 68 OF THE INCOME-TAX ACT 1961. ON APPEAL THE CIT(APPEALS ) DELETED THE AFORESAID ADDITION HOLDING THAT THE IDENTITY OF THE SHARE APPLICANTS S TOOD ESTABLISHED BEYOND DOUBT ALL THE PAYMENTS WERE THROUGH ACCOUNT PAYEE CHEQUES AND THE SHARE APPLICANTS WERE REGULAR INCOME-TAX ASSESSEES. THE CIT(APPEALS) FURTHER HELD THAT THE REVENUE DID NOT BRING ANY EVIDENCE ON RECORD TO SUGGEST THAT THE SHARE APPLIC ATION HAD BEEN RECEIVED BY THE ASSESSEE FROM ITS OWN UNDISCLOSED SOURCES NOR ANY MATERIAL W AS BROUGHT ON RECORD TO SHOW THAT .THE APPLICANTS WERE BOGUS. THE REVENUE WAS NEITHER ABLE TO CONTROVERT THE DOCUMENTARY EVIDENCES FILED BY THE APPELLANT NOR PROVE THAT THE SHARE APPLICATION WERE INGENUINE OR THE APPLICANTS WERE NON-CREDITWORTHY. THE FINDINGS OF T HE CIT(APPEALS) WERE UPHELD BY THE INCOME-TAX APPELLATE TRIBUNAL. ON APPEAL TO THE HIG H COURT THE REVENUE PLACED STRONG RELIANCE ON THE DECISION OF ANOTHER COORDINATE BENC H OF THE SAME COURT IN THE' CASE OF CIT VS NOVO PROMOTERS & FINLEASE (P) LTD (342 ITR 169). THE HIGH COURT HOWEVER HELD THAT THE AFORESAID JUDGMENT WAS DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE. THE COURT OBSERVED THAT IN THAT JUDGMENT THE ASSESSING OFFICE R HAD BROUGHT ON RECORD ENOUGH CORROBORATIVE EVIDENCE TO SHOW THAT THE ASSESSEE HA D ROUTED UNACCOUNTED MONIES INTO ITS BOOKS THROUGH MEDIUM OF SHARE SUBSCRIPTION. THE SHA RE APPLICANTS HAD CONFESSED THAT THEY WERE 'ACCOMMODATION ENTRY PROVIDERS'. THE ASSESSING OFFICER IN THE LATTER CASE WAS ABLE TO PROVE WITH ENOUGH MATERIAL THAT THE SHARE SUBSCRIPT ION WAS A PRE-MEDITATED PLAN TO ROUTE UNACCOUNTED MONIES. IN THE PRESENT CASE HOWEVER THE DEPARTMENT WAS UNABLE TO BRING ANY MATERIAL WHATSOEVER SHOWS THAT SHARE APPLICATION WA S IN THE NATURE OF ACCOMMODATION ENTRIES. THE COURT OBSERVED THAT THE APPELLANT HAD FILED SUFFICIENT DOCUMENTARY EVIDENCES TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANT AND THE GENUINENESS OF THE TRANSACTION. THE AO HOWEVER CHOSE TO SIT BACK WITH FOLDED HANDS TILL THE ASSESSEE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 27 | P A GE EXHAUSTED ALL THE EVIDENCE IN HIS POSSESSION AND TH EN MERELY REJECT THE SAME WITHOUT CONDUCTING ANY INQUIRY OR VERIFICATION WHATSOEVER. THE COURT THUS HELD THAT THE DECISION OF CIT VS NOVO PROMOTERS & FINLEASE (P) LTD (342 ITR 1 69) WAS NOT APPLICABLE TO THE FACTS OF THE CASE. INSTEAD IT WAS HELD THAT THE ISSUE IN HANDS WAS ON THE LINES OF THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS LOVELY EXPORTS PVT LTD (319 ITR 5). ACCORDINGLY THE ADDITION MADE UNDER SECTION 68 ON ACCOUNT OF SHARE APPLICATION WAS DELETED. 27. WE WOULD LIKE TO REPRODUCE THE HON'BLE HIGH CO URT ORDER IN CIT VS. GANGESHWARI METAL P. LTD. IN ITA NO. 597/2012 JUDGEMENT DATED 2 1.1.2013 THE HON'BLE HIGH COURT AFTER CONSIDERING THE DECISIONS IN THE CASE OF NOVA PROMOTERS AND FINLEASE PVT. LTD. 342 ITR 169 AND JUDGEMENT IN THE CASE OF CIT VS. LOVELY EXPORTS 319 ITR (SAT 5)(5. C) HELD AS FOLLOWS:- AS CAN BE SEEN FROM THE ABOVE EXTRACT TWO TYPES O F CASES HAVE BEEN INDICATED. ONE IN WHICH THE ASSESSING OFFICER CARRIES OUT THE EXERCISE WHIC H IS REQUIRED IN LAW AND THE OTHER IN WHICH THE ASSESSING OFFICER 'SITS BACK WITH FOLDED HANDS' TILL THE ASSESSEE EXHAUSTS ALL THE EVIDENCE OR MATERIAL IN HIS POSSESSION AND THEN COMES FORWAR D TO MERELY REJECT THE SAME ON THE PRESUMPTIONS. THE PRESENT CASE FALLS IN THE LATTER CATEGORY. HERE THE ASSESSING OFFICER AFTER NOTING THE FACTS MERELY REJECTED THE SAME. THIS WO ULD BE APPARENT FROM THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER TO TH E FOLLOWING EFFECT:- ''INVESTIGATION MADE BY THE INVESTIGATION WING OF T HE DEPARTMENT CLEARLY SHOWED THAT THIS WAS NOTHING BUT A SHAM TRANSACTION OF ACCOMMOD ATION ENTRY. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAID AMOUNT OF RS.1 11 50 000/- MAY NOT BE ADDED TO ITS INCOME. IN RESPONSE THE ASSESSEE HAS SUBMITTED THAT THERE IS NO SUCH CREDIT IN THE BOOKS OF THE ASSESSEE. RATHER THE ASSESSEE COMPANY HAS RECEIVED THE SHARE APPLICATION MONEY FOR ALLOTMENT OF ITS SHARE. IT WA S STATED THAT THE ACTUAL AMOUNT RECEIVED WAS RS.55 50 000/- AND NOT RS.1 11 50 000/ - AS MENTIONED IN THE NOTICE. THE ASSESSEE HAS FURNISHED DETAILS OF SUCH RECEIPTS AND THE CONTENTION OF THE ASSESSEE IN RESPECT OF THE AMOUNT IS FOUND CORRECT. AS SUCH THE UNEXPLAINED AMOUNT IS TO BE TAKEN AT RS.55 50 000/-. THE ASSESSEE HAS FURTHER TRIES T O EXPLAIN THE SOURCE OF THIS AMOUNT OF RS.55 50 000/- BY FURNISHING COPIES OF SHARE APP LICATION MONEY BALANCE4 SHEET ETC. OF THE PARTIES MENTIONED ABOVE AND ASSERTED TH AT THE QUESTION OF ADDITION IN THE INCOME OF THE ASSESSEE DOES NOT ARISE. THIS EXPLANA TION OF THE ASSESSEE HAS BEEN DULY CONSIDERED AND FOUND NOT ACCEPTABLE. THIS ENTRY REM AINS UNEXPLAINED IN THE HANDS OF THE ASSESSEE AS HAS BEEN ARRIVED BY THE INVESTIGATI ON WING OF THE DEPARTMENT. AS SUCH ENTRIES OF RS.5~50/000/- RECEIVED BY THE ASSESSEE A RE TREATED AS AN UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSEE AND ADDED TO IT S INCOME. SINCE I AM SATISFIED THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS O F ITS INCOME/ PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) ARE BEING INITIATED SEPARAT ELY. THE FACTS OF NOVA PROMOTERS AND FINLEASE (P) LTD. ( SUPRA) FALL IN THE FORMER CATEGORY AND THAT IS WHY THIS COURT DECIDED IN FAVOUR OF THE REV ENUE IN THAT CASE. HOWEVER THE FACTS OF THE PRESENT CASE ARE CLEARLY DISTINGUISHABLE AND FALL I N THE SECOND CATEGORY AND ARE MORE IN LINE WITH FACTS OF LOVELY EXPORTS (P) LTD. (SUPRA). THER E WAS A CLEAR LACK OF INQUIRY ON THE PART OF THE ASSESSING OFFICER ONCE THE ASSESSEE HAD FURNISH ED ALL THE MATERIAL WHICH WE HAVE ALREADY REFERRED TO ABOVE. IN SUCH AN EVENTUALITY NO ADDITI ON CAN BE MADE UNDER SECTION 68 OF THE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 28 | P A GE INCOME TAX ACT 1961. CONSEQUENTLY THE QUESTION IS ANSWERED IN THE NEGATIVE. THE DECISION OF THE TRIBUNAL IS CORRECT IN LAW 28. THE CASE ON HAND CLEARLY FALLS IN THE CATEGORY WHERE THERE IS LACK OF ENQUIRY ON THE PART OF THE A. O. AS IN THE CASE OF GANJESHWARI MET ALS (SUPRA). B) IN THE CASE OF FINLEASE PVT LTD. 342 ITR 169 (SU PRA) IN ITA 232/2012 JUDGEMENT DT. 22.11.2012 AT PARA 6 TO 8/ IT WAS HELD AS FOLLO WS. '6. THIS COURT HAS CONSIDERED THE SUBMISSIONS OF TH E PARTIES. IN THIS CASE THE DISCUSSION BY THE COMMISSIONER OF INCOME TAX (APPEA LS) WOULD REVEAL THAT THE ASSESSEE HAS FILED DOCUMENTS INCLUDING CERTIFIED CO PIES ISSUED BY THE ROC IN RELATION TO THE SHARE APPLICATION AFFIDAVITS OF THE DIRECTOR S FORM 2 FILED WITH THE ROC BY SUCH APPLICANTS CONFIRMATIONS BY THE APPLICANT FOR COMPA NY'S SHARES CERTIFICATES BY AUDITORS ETC. UNFORTUNATELY THE ASSESSING OFFICER CHOSE TO BASE HIMSELF MERELY ON THE GENERAL INFERENCE TO BE DRAWN FROM THE READING OF T HE INVESTIGATION REPORT AND THE STATEMENT OF MR. MAHES GARG. TO ELEVATE THE INFEREN CE WHICH CAN BE DRAWN ON THE BASIS OF READING OF SUCH MATERIAL INTO JUDICIAL CON CLUSIONS WOULD BE IMPROPER MORE SO WHEN THE ASSESSEE PRODUCED MATERIAL. THE LEAST T HAT THE ASSESSING OFFICER OUGHT TO HAVE DONE WAS TO ENQUIRE INTO THE MATTER BY IF NEC ESSARY INVOKING HIS POWERS UNDER SECTION 131 SUMMONING THE SHARE APPLICANTS OR DIREC TORS. NO EFFORT WAS MADE IN THAT REGARD. IN THE ABSENCE OF ANY SUCH FINDING THAT THE MATERIAL DISCLOSED WAS UNTRUSTWORTHY OR LACKED CREDIBILITY THE ASSESSING O FFICER MERELY CONCLUDED ON THE BASIS OF ENQUIRY REPORT WHICH COLLECTED CERTAIN FA CTS AND THE STATEMENTS OF MR.MAHESH GARG THAT THE INCOME SOUGHT TO BE ADDED F ELL WITHIN THE DESCRIPTION OFS.68 OF THE INCOME TAX ACT 1961. HAVING REGARD TO THE ENTIRETY OF FACTS AND CIRCUMSTANCES THE COURT IS SATISFIED THAT THE FIND ING OF THE TRIBUNAL IN THIS CASE ACCORDS WITH THE RATIO OF THE DECISION OF THE SUPRE ME COURT IN LOVELY EXPORTS (SUPRA). THE DECISION IN THIS CASE IS BASED ON THE PECULIAR FACTS WHICH ATTRACT THE RATIO OF LOVELY EXPORTS (SUPRA). WHERE THE ASSESSEE ADDUCES EVIDENCE IN SUPPORT OF THE SHARE APPLICATION MONIES IT IS OPEN TO THE ASSESSING OFF ICER TO EXAMINE IT AND REJECT IT ON TENABLE GROUNDS. IN CASE HE WISHES TO RELY ON THE R EPORT OF THE INVESTIGATION AUTHORITIES SOME MEANINGFUL ENQUIRY OUGHT TO BE CO NDUCTED BY HIM TO ESTABLISH A LINK BETWEEN THE ASSESSEE AND THE ALLEGED HAWALA OP ERATORS SUCH A LINK WAS SHOWN TO BE PRESENT IN THE CASE OF NOVA PROMOTERS & FINLE ASE (P) LTD. (SUPRA) RELIED UPON BY THE REVENUE. WE ARE THEREFORE NOT TO BE UNDERSTO OD TO CONVEY THAT IN ALL CASES OF SHARE CAPITAL ADDED UNDER SECTION THE RATIO OF LOVELY EXPORTS (SUPRA) IS ATTRACTED I RRESPECTIVE OF THE FACTS EVIDENCE AND MATERIAL. ' 29. IN THIS CASE ON HAND THE ASSESSEE HAD DISCHAR GED ITS ONUS TO PROVE THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE SHARE APPLI CANTS THEREAFTER THE ONUS SHIFTED TO AO TO DISPROVE THE DOCUMENTS FURNISHED BY ASSESSEE. IF HE COULD NOT DO SO THEN EVIDENCE FURNISHED BY ASSESSEE CANNOT BE BRUSHED ASIDE BY TH E AO TO DRAW ADVERSE VIEW AND SUCH AN ACTION CANNOT BE COUNTENANCED. IN THE ABSENCE OF AN Y INVESTIGATION MUCH LESS GATHERING OF EVIDENCE BY THE ASSESSING OFFICER AGAINST THE ASSES SEE WE HOLD THAT ADDITION CANNOT BE ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 29 | P A GE SUSTAINED MERELY BASED ON INFERENCES DRAWN BY CIRCU MSTANCE. APPLYING THE PROPOSITIONS LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THIS C ASE WE ARE INCLINED TO DELETE THE ADDITION CONFIRMED BY THE LD. CIT(A). 30. TO SUM UP SECTION 68 OF THE ACT PROVIDES THAT I F ANY SUM FOUND CREDITED IN THE YEAR IN RESPECT OF WHICH THE ASSESSEE FAILS TO EXPLAIN T HE NATURE AND SOURCE OF IT SHALL BE ASSESSED AS ITS UNDISCLOSED INCOME. IN THE FACTS OF THE PRES ENT CASE BOTH THE NATURE & SOURCE OF THE SHARE APPLICATION AND PREMIUM RECEIVED BY IT WAS FU LLY EXPLAINED BY THE ASSESSEE. THE ASSESSEE HAD DISCHARGED ITS ONUS TO PROVE THE IDENT ITY CREDITWORTHINESS AND GENUINENESS OF THE SHARE APPLICANTS. THE PAN DETAILS BANK ACCOUNT STATEMENTS AUDITED FINANCIAL STATEMENTS AND INCOME TAX ACKNOWLEDGMENTS WERE PLAC ED BEFORE THE AO. ACCORDINGLY THE ASSESSEE HAD DISCHARGED ITS ONUS TO PROVE THE IDENT ITY CREDITWORTHINESS AND GENUINENESS OF THE SHARE APPLICANTS THEREAFTER THE ONUS SHIFTED T O AO TO DISPROVE THE MATERIALS PLACED BEFORE HIM. WITHOUT DOING SO THE ADDITION MADE BY THE AO IS BASED ON CONJECTURES AND SURMISES CANNOT BE JUSTIFIED. IN THE FACTS AND CIR CUMSTANCES OF THE CASE AS DISCUSSED ABOVE NO ADDITION WAS WARRANTED UNDER SECTION 68 OF THE A CT. THEREFORE WE ARE INCLINED TO DIRECT DELETION OF THE ADDITION MADE BY THE AO WHICH WAS CONFIRMED BY THE LD. CIT(A) AND CONSEQUENTLY THE APPEAL OF ASSESSEE IS ALLOWED. 31. IN THE RESULT THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH 2021. SD/- SD/- (J.S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03.03.2021 JD SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- M/S. FIZAAN COMMOTRADE PVT. LTD. 187 R ABINDRA SARANI 1 ST FLOOR KOLKATA-700 007. 2. RESPONDENT ITO WARD-15(1) KOLKATA. ITA NO. 166/KOL/2020 FIZAAN COMMOTRADE PVT. LTD. A.Y. 2012-13 30 | P A GE 3. THE CIT(A)-5 KOLKATA. (SENT THROUGH E-MAIL) 4. CIT- KOLKATA 5. DR KOLKATA BENCHES KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT KOLKATA BENCHES KOLKATA