ITO 13(2)(3), MUMBAI v. SHREEDHAM CONSTRUCTORS P.LTD, MUMBAI

ITA 3754/MUM/2017 | 2008-2009
Pronouncement Date: 14-11-2017 | Result: Allowed

Appeal Details

RSA Number 375419914 RSA 2017
Assessee PAN AAACS8662H
Bench Mumbai
Appeal Number ITA 3754/MUM/2017
Duration Of Justice 5 month(s) 22 day(s)
Appellant ITO 13(2)(3), MUMBAI
Respondent SHREEDHAM CONSTRUCTORS P.LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2017
Appeal Filed By Department
Tags No record found
Order Result Allowed
Bench Allotted E
Tribunal Order Date 14-11-2017
Assessment Year 2008-2009
Appeal Filed On 23-05-2017
Judgment Text
ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENCH E MU MBAI BEFORE SHRI R. C. SHARMA ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO.3754/MUM/2017 (ASSESSMENT YEAR- 2008-09) ITA NO.3755/MUM/2017 (ASSESSMENT YEAR- 2009-10) ITA NO.3756/MUM/2017 (ASSESSMENT YEAR- 2012-13) INCOME TAX OFFICER 13(2)(3) 1 ST FLOOR ROOM NO. 1146B AAYAKAR BHAVAN M.K. ROAD MUMBAI-400020 VS. M/S SHREEDHAM CONSTRUCTION PVT LTD 105/106 VIJAY INDUSTRIAL ESTATE NEW LINK ROAD CHINCHOLI BUNDER MALAD (W) MUMBAI-400064 PAN:AAACS8662H (APPELLANT) (RESPONDENT) ITA NO.2948/MUM/2017 (ASSESSMENT YEAR- 212-13) M/S SHREEDHAM CONSTRUCTION PVT LTD 105/106 VIJAY INDUSTRIAL ESTATE NEW LINK ROAD CHINCHOLI BUNDER MALAD (W) MUMBAI-400064 PAN:AAACS8662H VS. INCOME TAX OFFICER 13(2)(3) 1 ST FLOOR ROOM NO. 1146B AAYAKAR BHAVAN M.K. ROAD MUMBAI-400020 (APPELLANT) (RESPONDENT) ASSESSEE REPRESENTED B Y SH. NEELKANTH KHANDELWAL-ADVOCATE REVENUE REPRESENTED BY -- SH. V. JUSTINE DR DATE OF HEARING: 17.10.2017 DATE OF ORDER: 14.11.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 2 PER PAWAN SINGH JUDICIAL MEMBER: 1. THIS GROUP OF FOUR APPEALS ARE DIRECTED AGAINST DIF FERENT ORDERS OF COMMISSIONER (APPEALS)-21 MUMBAI DATED 20.03.2017 FOR ASSESSMENT YEARS (AY) 2008-09 2009-10 AND 2012-13. OUT OF WHI CH THREE APPEALS BY REVENUE FOR AY 2008-09 2009-10 AND 2012-13 AND ONE CROSS APPEAL BY ASSESSEE FOR ASSESSMENT YEAR 2012-13. IN ALL APPEAL S THE REVENUE HAS RAISED IDENTICAL GROUNDS OF APPEAL EXCEPT VARIATION OF FIG URES IN ADDITIONS THUS ALL THE APPEALS WERE CLUBBED TOGETHER HEARD AND AR E DECIDED BY CONSOLIDATED ORDER. FOR APPRECIATION OF FACTS FIRST WE ARE TAKING APPEAL FOR ASSESSMENT YEAR 2008 -09. THE REVENUE HAS RAISED F OLLOWING GROUNDS OF APPEAL; (1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER (APPEALS) WAS CORRECT IN DELET ING THE ADDITION OF RS.1 50 00 000/- ON ACCOUNT OF SHARE PREMIUM/SHA RE APPLICATION MONEY/UNEXPLAINED CASH CREDIT UNDER SECTION 68 WITH OUT APPRECIATING THE FACT THAT SHRI PRAVEEN KUMAR JAIN WAS PROVED TO BE ONE OF THE LEADING ENTRY PROVIDERS OPERATING IN MUMBAI WHO COU LD NOT BE PRODUCED BY THE ASSESSEE AS HIS WITNESS DURING THE ASSESSMENT PROCEEDING BEFORE THE ASSESSING OFFICER. (2) THE APPELLANT PRAYS THAT THE ORDER OF COMMISSIONER (APPEALS) ON THE GROUNDS BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED . 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE COMPANY I S ENGAGED IN THE CONSTRUCTION BUSINESS. THE ASSESSEE FILED ITS RETUR N OF INCOME FOR RELEVANT ASSESSMENT YEAR ON 29 SEPTEMBER 2008 DECLARING TOTA L INCOME OF RS.1 13 354/-. THE RETURN WAS PROCESSED AND ACCEPTE D UNDER SECTION 143(1) OF THE INCOME TAX ACT. SUBSEQUENTLY THE ASSESSMENT WAS REOPENED ON 18 ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 3 MARCH 2015 UNDER SECTION 147 AFTER RECORDING THE RE ASONS OF REOPENING. NOTICE UNDER SECTION 148 DATED 18 MARCH 2015 WAS SE RVED ON THE ASSESSEE. ASSESSEE CONTESTED THE REOPENING OF THE ASSESSMENT. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 03.03.2016 UNDER SECTIO N 143(3) READ WITH SECTION 147 OF THE ACT. THE ASSESSING OFFICER WHILE COMPLETING ASSESSMENT MADE THE ADDITION OF RS. 1.5 CRORE AS UNEXPLAINED C ASH CREDIT UNDER SECTION 68 OF THE ACT. THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE RECEIVED THE SHARE APPLICATION MONEY FROM THE INVESTOR WHOSE IDENTITY CREDITWORTHY AND GENUINENESS IS NOT PROVED. THE CREDITWORTHINESS OF THE INVESTORS IS DUBIOUS. ON APPEAL BEFORE COMMISSIONER (APPEALS) TH E ENTIRE ADDITION WAS DELETED. THUS AGGRIEVED BY THE ORDER OF COMMISSION ER (APPEALS) THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. DR FOR THE REVENUE AND THE LD . AR FOR THE ASSESSEE AND HAVE PERUSED THE RECORD OF THE CASE. THE LD. DR FOR THE REVENUE ARGUED THAT THE DURING THE RELEVANT FINANCIAL YEAR THE ASS ESSEE RECEIVED SHARE APPLICATION MONEY FROM SEVERAL PERSON. THE INVESTIG ATION WING OF THE DEPARTMENT MADE A SEARCH ON ONE PRAVEEN KUMAR JAIN WHO WAS ENGAGED IN PROVIDING ACCOMMODATION ENTRY. DURING THE SEARCH PR AVEEN KUMAR JAIN ACCEPTED THAT HE HAD PROVIDED ACCOMMODATION ENTRY T O VARIOUS PARTIES. FROM THE RECORD SEIZED DURING THE SEARCH THE NAME OF ASSESSEE WAS FOUND IN THE DETAILS CONTAINED IN THE PEN DRIVE OF PRAV EEN KUMAR JAIN (P.K.JAIN). NOTICE UNDER SECTION 131WAS SENT TO PRA VEEN KUMAR JAIN WHO ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 4 DID NOT APPEARED BEFORE ASSESSING OFFICER. THE ALLE GATION OF ASSESSEE BEFORE COMMISSIONER (APPEALS) THAT NO OPPORTUNITY FOR CROS S EXAMINATION OF P.K. JAIN WAS GIVEN TO THE ASSESSEE WAS WRONG. P.K. JAIN WAS THE WITNESS OF THE ASSESSEE. THERE WAS SUFFICIENT CIRCUMSTANTIAL EVIDE NCE AGAINST THE ASSESSEE. IN SUPPORT OF HIS SUBMISSION THE LD DR FOR THE REVE NUE RELIED ON THE DECISION OF HONBLE APEX COURT IN CIT VS P. MOHANKA LA [2007] 161 TAXMAN 169 (SC)/ [2007] 291 ITR 278 (SC)/ (291 ITR 278) CIT VS DIVINE LEASING AND FINANCE LTD [2008] 299 ITR 68(SC ) DECISION OF MUMBAI TRIBUNAL IN ROYAL RICH DEVELOPER VS DCIT IT A NO. 1836/M/2014 DATED 24.08.2016 DISHA N. LALWANI VS I TO IN ITA NO.6398/M/2012 DECISION OF HONBLE CALCUTTA HIGH C OURT IN RAJMANDIR ESTATE PVT LTD VS PCIT IN ITA NO.113 OF 2016 DELHI HIGH COURT IN CIT VS JANSAMPARAK ADVERTISING AND MARKETING (P) LTD IN ITA 525/2014 AND IN CIT VS N.R. PORTFOLIO ITA NO.134/2012. THE LD. D R PRAYED THAT THE ORDER OF LD COMMISSIONER (APPEALS) BE SET-ASIDE AND THE ORDER OF ASSESSING OFFICER BE RESTORED. 4. ON THE OTHER HAND THE LD. AR FOR THE ASSESSEE STRON GLY OBJECTED THE SUBMISSION OF THE LD. DR AND SUPPORTED THE ORDER OF THE LD. COMMISSIONER (APPEALS). IT WAS ARGUED THAT THE ASSESSEE RECEIVED SHARE APPLICATION MONEY FROM THIRTEEN PEOPLE DURING THE RELEVANT FINA NCIAL YEAR. ALL THE PARTIES WERE GENUINE. THE SHARE APPLICATION MONEY W AS RECEIVED BY THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUES OR BY RTGS. ALL PAYMENTS WERE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 5 CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE A SSESSEE ALLOTTED EQUITY SHARE OF THE COMPANY TO THE SHARE APPLICANTS AFTER PASSING A RESOLUTION. ALL THE DETAILS OF THE SHARE APPLICANTS ALONG WITH THEI R ITR ACKNOWLEDGEMENT AUDITED ACCOUNTS REPORT PAN CARDS AND RELEVANT EXT RACT OF BANK ACCOUNT OF SHARE APPLICATIONS WERE GIVEN TO THE ASSESSING O FFICER. THE ASSESSEE PROVED THE IDENTITY CAPACITY OF THE PARTIES AND TH E GENUINENESS OF THE TRANSACTION. ALL THE SHARE APPLICANTS WERE RESPONDE D TO THE NOTICES ISSUED BY ASSESSING OFFICER UNDER SECTION 133(6) OF THE IN COME TAX ACT. ALL APPLICANTS COMPLIED AND FILED THE REQUIRED DETAILED REQUIRED BY ASSESSING OFFICER. THE COPY OF THE DOCUMENTS FILED BY ASSESSE E CONSISTING COPY OF INCOME TAX RETURNS FOR AY 2008-09 COPY OF PAN CARD S COPY OF AUDITED ANNUAL REPORTS COPY OF CONFIRMATION COPY OF BANK STATEMENTS. COPIES OF ALL THOSE DOCUMENTS ARE PLACED ON RECORD IN THE FOR M OF PAPER BOOK (PAGE NO. 1 TO 347). THE ASSESSING OFFICER RELIED UPON TH E THIRD-PARTY INFORMATION AND THE STATEMENT RECORDED AT THE BACK OF THE ASSES SEE. THE COPY OF STATEMENT OF PRAVEEN KUMAR JAIN ALLEGEDLY RECORDED BY THE INVESTIGATION PARTY WAS NOT SUPPLIED TO THE ASSESSEE. THE ASSESS ING OFFICER NOT PROVIDED OPPORTUNITY TO THE ASSESSEE FOR CROSS EXAMINATION O F PRAVEEN KUMAR JAIN. THOUGH THE ASSESSEE PROVIDED ALL NECESSARY INFORMA TION TO DISCHARGE ITS PRIMARY ONUS DURING THE RE-ASSESSMENT PROCEEDING. T HE ASSESSING OFFICER NOT REFEREED EVEN A SINGLE DOCUMENT IN HIS ORDER WH ILE PASSING THE ASSESSMENT ORDER. THE ASSESSING OFFICER SOLELY RELI ED UPON THE STATEMENT OF ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 6 PRAVEEN KUMAR JAIN. AS PER INFORMATION OF THE ASSES SEE SAID PRAVEEN KUMAR JAIN HAD ALREADY RETRACTED FROM THE STATEMENT ON 15.05.2014 BEFORE PASSING THE ASSESSMENT ORDER. THE ASSESSEE WAS NOT INFORMED OR DISCLOSED OR SHARED AS WHAT WAS THE CIRCUMSTANTIAL EVIDENCE A GAINST THE ASSESSEE. NO INQUIRY WAS MADE AGAINST THE ASSESSEE. THE LEARNED COMMISSIONER (APPEALS) CONSIDERED THE DOCUMENTARY EVIDENCE AND T HE WRITTEN SUBMISSION FURNISHED BY ASSESSEE. ON THE SUBMISSION OF ASSESSEE LEARNED COMMISSIONER (APPEALS) REFERRED THE SUBMISSION OF A SSESSEE TO THE ASSESSING OFFICER FOR HIS COMMENT IN WRITING. THE L D. ASSESSING OFFICER FURNISHED HIS SUBMISSION/ REPORT BEFORE THE LEARNED COMMISSIONER (APPEALS). AFTER CONSIDERING THE REMAND REPORT OF T HE ASSESSING OFFICER THE LEARNED COMMISSIONER (APPEALS) GRANTED RELIEF TO TH E ASSESSEE. IN SUPPORT OF HIS SUBMISSION THE LANDED AR OF THE ASSESSEE REL IED UPON THE FOLLOWING DECISION; (A) ON THE ISSUE OF CROSS EXAMINATION; (I) KISHIN CHAND CHELLARAM VS CIT 125 ITR 713(SC) (II) ANAND RAM TIMBER INDUSTRIES VS CCE CIVIL APPEAL NO .4228 OF 2006 (SC) (III) H.R. MEHTA VS ACIT 378 ITR 561(BOM) (IV) SUNIL PRAKASH VS ACIT ITA NO. 6494/M/2014 (B) ON ADDITION UNDER SECTION 68 OF ACT (I) CIT VS GAGANDEEP INFRASTRUCTURE (P) LTD 349 ITR 680 (BOMBAY) (II) CIT VS ORCHARD INDUSTRIES PRIVATE LTD ITA 1433 OF 2 014(BOM) (III) CIT VS LAXMAN INDUSTRIAL RESOURCES LTD ITA NO. 169 OF 2017(DEL) ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 7 (IV) CIT VS SUPERTECH DIAMONDS TOOLS (P) LIMITED 44 TAXM AN.COM 460 (RAJ) (V) CIT VS ASHISH INTERNATIONAL ITA NO 4299 OF 2009 (B OMBAY) (VI) ACIT VS PARADISE INLAND SHIPPING PRIVATE LTD ITA NO . 327/PNJ/2015 (VII) PCIT VS PARADISE INLAND SHIPPING PRIVATE LTD 84 TAX MAN.COM 58(BOMBAY) (VIII) ANIL C. JAIN VS ACIT ITA NO. 369&370/M/2017 (IX) MARUTI IMPEX VS JCIT ITA 3823/M/2014 (X) NATHURAM PREMCHAND VS CIT 49 ITR 561(ALL). 5. IN THE REJOINDER ARGUMENTS THE LEARNED DR FOR THE R EVENUE ARGUED THAT THE RETRACTION OF PRAVEEN KUMAR JAIN WAS WITHOUT SUPPOR TING MATERIAL. IT WAS FURTHER ARGUED THAT MATTER MAY BE REMANDED BACK TO THE FILE OF ASSESSING OFFICER FOR VERIFICATION OF THE DOCUMENTARY EVIDENC ES FURNISHED BY ASSESSEE AND FOR CROSS EXAMINATION OF THE PARTIES. THE LEARN ED AR OF THE ASSESSEE STRONGLY OBJECTED TO THE SUBMISSION OF THE DR FOR R EVENUE AND WOULD SUBMIT THAT THE MATTER CANNOT BE KEPT OPEN FOR EVER WHEN THE LEARNED COMMISSIONER (APPEALS) HAS ALREADY CONSIDERED THE D OCUMENTARY EVIDENCES FURNISHED BY ASSESSEE AND THE ASSESSING O FFICER HAS ALSO GIVEN HIS REMAND REPORT DURING FIRST APPELLATE STAGE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. DURING THE RE-ASSESSMENT PRECEDING THE ASSESSING OFFICER OPINED THAT THE ASS ESSEE HAS RECEIVED SHARE APPLICATION MONEY FROM 13 PARTIES ALL THESE PARTIE S BELONGS TO PRAVEEN KUMAR JAIN GROUP OF COMPANY. THE ASSESSING OFFICER FURTHER NOTED THAT A ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 8 SEARCH ACTION WAS CONDUCTED ON THE PREMISES OF PRAV EEN KUMAR JAIN WHO WAS INVOLVED IN PROVIDING ACCOMMODATION ENTRY OF SH ARE APPLICATION MONEY AND THAT HE HAD ADMITTED ABOUT HIS INVOLVEMEN T IN PROVIDING ACCOMMODATION ENTRIES. THE ASSESSING OFFICER ISSUED SUMMON UNDER SECTION 131 TO PRAVEEN KUMAR JAIN. THE SUMMONS WAS SERVED. THE ASSESSING OFFICER RECORDED THAT DESPITE SERVICE OF SUMMONS PRAVEEN KUMAR JAIN NOT APPEARED BEFORE HIM. THE ASSESSING OFFICE R ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE AMOUNT RECEIVE D BY THEM SHOULD NOT TREATED AS DEEMED INCOME OF THE ASSESSEE UNDER SECT ION 68 OF THE INCOME TAX ACT. THE ASSESSEE FILED RETURN ITS REPLY VIDE R EPLY DATED 23 RD FEBRUARY 2016. IN REPLY THE ASSESSEE ALSO CONTENDED THAT IN RESPONSE TO THE NOTICE UNDER SECTION 133(6) ALL THE INVESTOR HAS DULY COMP LIED AND FILED THEIR DETAILS REPLIED CALLED FOR. THE ASSESSING OFFICER D ID NOT ACCEPT THE SUBMISSION OF THE ASSESSEE HOLDING THAT THE SUMMONS WAS ISSUED TO THE INVESTOR; THE INVESTOR IS THE WITNESSES OF THE ASSE SSEE AND NOT THE WITNESS OF DEPARTMENT. THE ASSESSING OFFICER REJECTING THE CON TENTION OF THE ASSESSEE MADE THE ADDITION OF AGGREGATE OF SHARE APPLICATION MONEY AS UNEXPLAINED CRASH CREDIT UNDER SECTION 68 OF THE ACT. THE ASSES SEE URGED THE SIMILAR CONTENTION AND FILED ALL DOCUMENTARY EVIDENCES BEFO RE THE COMMISSIONER (APPEALS). THE ASSESSEE ALSO MADE THE SUBMISSION TH AT THE ASSESSING OFFICER DISREGARDED THE EVIDENCES FURNISHED BY ASSESSEE HAD MADE ADDITION OF THE MONEY RECEIVED AGAINST SHARE APPLICATIONS. THE ASSE SSING OFFICER MADE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 9 ADDITION WITHOUT BRINGING ANY INCRIMINATING EVIDENC E AGAINST THE ASSESSEE. THE ASSESSING OFFICER IS RELYING ON THE STATEMENT O F PRAVEEN KUMAR JAIN. THE ASSESSEE SPECIFICALLY CONTENDED BEFORE COMMISSI ONER (APPEALS) THAT ASSESSEE VIDE ITS APPLICATION DATED 22 ND MACH 2016 PRAYED TO THE ASSESSING OFFICER TO ALLOW THE OPPORTUNITY OF CROSS EXAMINATI ON OF WITNESSES ON WHICH THE ASSESSING OFFICER WAS RELYING HOWEVER N O SUCH OPPORTUNITY OF CROSS EXAMINATION WAS PROVIDED TO THE ASSESSEE. WE HAVE FURTHER SEEN THAT THE ASSESSEE HAS GIVEN ITS DETAILED REPLY TO THE CO MMENTS OF ASSESSING OFFICER WHICH HAVE BEEN RECORDED BY LEARNED COMMISS IONER (APPEALS) IN PARA 8 OF HIS ORDER. WE HAVE FURTHER NOTED THAT ON THE SUBMISSION OF ASSESSEE THE LEARNED COMMISSIONER (APPEALS) VIDE H IS ORDER DATED 07 NOVEMBER 2016 SOUGHT THE REMAND REPORT FROM ASSESSI NG OFFICER. THE ASSESSING OFFICER FURNISHED INTERIM REMAND REPORT O N 9 TH NOVEMBER 2016. AND FINAL REMAND REPORT ON 6 JANUARY 2017. IN THE R EPORT DATED 6 JANUARY 2017 THE ASSESSING OFFICER CONTENDED THAT SUMMONS U NDER SECTION 131 WERE ISSUED TO THE ASSESSEE AND ITS INVESTOR. NEITHER TH E ASSESSEE NOR ANY OTHER PERSON ATTENDED THE OFFICE OF ASSESSING OFFICER. T HE ASSESSEE DID NOT APPEAR TO AVAIL THE OPPORTUNITY GIVEN TO THEM TO CROSS EXA MINE THE WITNESSES. THE ASSESSEE WAS INFORMED BY LEARNED COMMISSIONER (APPE ALS) ON 17 JANUARY 2017 ABOUT THE REPORT OF ASSESSING OFFICER AND TO E XPLAIN FOR NON- COMPLIANCE OF THE SUMMON UNDER SECTION 131 ISSUED B Y ASSESSING OFFICER. THE ASSESSEE DISPUTED THE REPORT OF THE ASSESSING O FFICER. THE ASSESSEE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 10 CONTENDED THAT THEY WERE PRESENT IN RESPONSE TO THE NOTICE OF ASSESSING OFFICER BUT THE WITNESS SUMMONED BY ASSESSING OFFIC ER DID NOT ATTENDED. THE ASSESSEE LEFT THE OFFICE OF ASSESSING OFFICER O N THAT DAY WITH HIS PERMISSION. THE ASSESSEE SPECIFICALLY CONTENDED THA T THEIR PRESENCE CAN BE VERIFIED FROM THE CCTV FOOTAGE IN THE OFFICE OF ASS ESSING OFFICER. AFTER CONSIDERING THE EVIDENCES ON RECORD AND THE CONTENT ION OF BOTH THE PARTIES AND THE LEARNED COMMISSIONER (APPEALS) PASSED THE FOLLOWING ORDER: 15. I HAVE EXAMINED THE CONTENTIONS OF THE APPELLA NT AS WELL AS THE ASSESSMENT ORDER AND THE REMAND REPORT CAREFULLY. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THOUGH THE CONCLUSIONS OF THE INVESTIGATION WING HAS BEEN REFERRED TO IN THE ASSESSMENT ORDER THERE ARE NO SPECIFIC REFERENCE TO THE APPELLANT COMPANY. THERE ARE NO EVIDENCES BROUGHT ON RECORD TO SHOW THAT THERE IS ANY CASH TRAIL IN RESP ECT OF THE AMOUNTS RECEIVED BY THE APPELLANT COMPANY FROM THE INVESTOR S. THOUGH THE AO WAS SPECIFICALLY ASKED TO FURNISH SPECIFIC INCRIMIN ATING EVIDENCES IT IS NOTED THAT THE AO HAS NOT BEEN ABLE TO PIN POINT TH E SPECIFIC EVIDENCES RELATING TO APPELLANT COMPANY WHICH WOULD CLEARLY S HOW THAT THE SHARE APPLICATION MONEY HAS BEEN RECEIVED IN LIEU OF CASH . IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS REFERRED TO THE STA TEMENT OF SHRI PRAVIN JAIN RECORDED AT THE TIME OF SEARCH BUT HAS NOT CON SIDERED THE RETRACTION THEREAFTER IN WHICH IT WAS STATED THAT STATEMENT RE CORDED AT THE TIME OF SEARCH WAS UNDER UNDUE PRESSURE AND THAT SUCH STATE MENTS HAD BEEN RETRACTED. 16. THE FACTS REMAINS THAT INVESTOR COMPANIES ARE A SSESSED TO TAX AND HAVE FILED THEIR RETURNS OF INCOME. THE PARTIES HAV E RESPONDED TO THE NOTICES U/S 133(6). THE APPELLANT HAS FILED AUDITED ACCOUNTS OF THE INVESTORS AND CONTENDED THAT THEY HAVE GENUINE BUSI NESS ACTIVITY. THE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 11 APPELLANT HAS SUBMITTED THAT NOTICES WERE SERVED ON THE INVESTORS IN ALL CASES. THEREFORE IT CANNOT BE SAID THAT THE PARTIES DID NOT EXIST AT THEIR ADDRESSES. DOCUMENTARY EVIDENCES WERE ALREADY FILED BY THE APPELLANT EARLIER IN THE ASSESSMENT PROCEEDINGS. CONFIRMATION LETTERS WITH COPY OF PAN AND ADDRESS BANK STATEMENTS OF APPLICANTS INC OME TAX RETURN ACKNOWLEDGEMENT AND AUDITED ACCOUNTS BALANCE SHEET AND P&L ACCOUNT OF THE INVESTOR COMPANIES HAVE BEEN FILED BEFORE TH E ASSESSING OFFICER AND ALSO IN THE APPELLATE PROCEEDINGS. 17. I DO NOT FIND ANY MERIT IN THE CONTENTION OF TH E APPELLANT THAT THE INVESTMENT BEING A SHARE CAPITAL IS A CAPITAL RECEI PT AND THEREFORE CANNOT BE CONSIDERED AS INCOME IN THE HANDS OF THE APPELLA NT. THE CREDITS FALL WITHIN THE SCOPE OF SECTION 68 WHICH IS A DEEMING P ROVISION. SEVERAL CASE LAWS INCLUDING THOSE OF THE APEX COURT AND HIG H COURT HAVE CONSIDERED CREDITS MADE TO CAPITAL ACCOUNT OF THE A SSESSEE'S TO BE COVERED UNDER THE PROVISIONS OF SECTION 68 AND THEREFORE DE EMED INCOME. THE RULE FOR APPLICATION OF SECTION 68 IS THAT THE IDEN TITY AND CREDIT WORTHINESS OF THE INVESTOR/LENDER / CREDITOR HAS TO BE ESTABLI SHED AND THE GENUINENESS OF THE TRANSACTION HAS TO BE ESTABLISHED. I ALSO DO NOT FIND MERIT IN THE ARGUMENT THAT MERELY BECAUSE THERE IS A SPECIFIC AM ENDMENT TO SECTION 68 IN RESPECT OF CREDIT IN THE FORM OF SHARE CAPITA L OR SHARE APPLICATION MONEY IN THE CASE OF PRIVATE COMPANY REQUIRING THE PERSON IN WHOSE NAME SUCH CREDIT IS THERE TO EXPLAIN THE NATURE AND SOURCE OF SUCH SUM WHICH IS BROUGHT ON STATUTE W.E.F . 01.04.2013 HEN CE NO SUCH ADDITION U/S 68 CAN BE MADE IN EARLIER YEARS. THE AMENDMENT ONLY MAKES THE ONUS MORE SEVERE IN SUCH CASES BUT IT IS INCORRECT TO RE AD IT AS IF NO SUCH ADDITIONS COULD BE MADE U/S 68 IN RESPECT OF SHARE APPLICATION MONEY IN THE EARLIER ASSESSMENT YEARS. 18. THE APEX COURT UPHELD THE ADDITION U/S 68 IN TH E CASE OF CREDITS AS SHARE CAPITAL IN THE CASE OF N. TARIKA PROPERTY INV EST. (P.) LTD. V. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 12 COMMISSIONER OF INCOME-TAX [2014] 51 TAXMANN.COM 38 7 (SC) BY DISMISSING THE SLP FILED BY THE APPELLANT. 19. SECTION 68 CASTS THE INITIAL BURDEN OF PROOF ON THE ASSESSE TO SHOW PRIMA FACIE AND TO EXPLAIN THE NATURE AND SOURCE OF CREDIT FOUND IN ITS BOOKS. WHEN THE STATUTE PLACES THE BURDEN OF PROOF IN INCOME TAX CASES ON THE TAX PAYER IT IS UNDERSTOOD TO BE ONLY THE I NITIAL BURDEN. WHEN THE TAX PAYER EXPLAINS THE CREDIT BY PROVIDING EVIDENCE OF IDENTITY CONFIRMATION AND CREDIT WORTHINESS THE BURDEN SHIF TS ON THE REVENUE TO SHOW THAT THE EXPLANATION IS NOT SATISFACTORY OR IN CORRECT. IN THE CASE OF CREDIT AS SHARE CAPITAL BY CORPORATE ENTITY WHOSE EXISTENCE IS SHOWN BY ITS REGISTRATION WITH REGISTRAR OF COMPANIES AND IT S FILING OF TAX RETURNS ADVERSE CONCLUSION IS NOT JUSTIFIED MERELY BECAUSE ITS DIRECTORS ARE NOT PRODUCED PERSONALLY BEFORE THE ASSESSING OFFICER BY THE TAX PAYER. 20. IN THE REMAND PROCEEDINGS ONLY THE LEGAL REQUIR EMENT WAS INDICATED THAT IF ANY STATEMENTS OF THIRD PARTIES ARE TO BE R ELIED UPON OPPORTUNITY FOR CROSS EXAMINATION MUST BE PROVIDED. FURTHER IN STEAD OF AND OTHER THAN GENERALITIES THE ASSESSING OFFICER WAS GIVEN AN OPPORTUNITY TO PUT TOGETHER APPELLANT SPECIFIC EVIDENCE JUSTIFYING THE ADDITION. 21. IT CAN BE SEEN FROM THE OBSERVATION OF THE ASSE SSING OFFICER THAT HE HAS ONLY REFERRED TO THE INFORMATION RELATED TO THE OUTCOME OF SEARCH IN THE CASE OF SHRI PRAVIN KUMAR JAIN GROUP WHO WERE A LLEGEDLY PROVIDING ACCOMMODATION ENTRIES BUT THE LD. ASSESSING OFFICER HAS FAILED TO DEMONSTRATE ANY SUCH SPECIFIC EVIDENCE THAT THE APP ELLANT HAS IN REALITY OBTAINED ANY ACCOMMODATION ENTRIES. THERE IS NO DIR ECT SPECIFIC MENTION OF THE APPELLANT BY THE DIRECTOR OR KEY PERSONS OF THE INVESTOR COMPANIES. THERE IS NO EVIDENCE OF CASH DEPOSITS LINKED TO THE INVESTORS. THE ASSESSING OFFICER DID NOT BRING SPECIFIC INCRIMINAT ING EVIDENCE LINKING THE INVESTOR TO THE APPELLANT. THE ONLY LINK IS THAT TH E INVESTORS HAVE INVESTED IN APPELLANT COMPANY. THAT THE APPELLANT HAS GIVEN CASH TO THE INVESTORS IN LIEU OF ENTRY IS MERELY ALLEGED BUT NOT DEMONSTR ATED. LAYERING OF ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 13 TRANSACTIONS IS ALLEGED BUT NOT DEMONSTRATED. OPPOR TUNITY FOR CROSS EXAMINATION IS NOT PROVIDED TO THE APPELLANT. PAPER S/EVIDENCE FOUND IN THE SEARCH ACTION RAISES PRESUMPTION BUT THE SAME I S AVAILABLE IN THE CASE OF PERSON SEARCHED BUT NOT IN THE CASE OF THIRD PAR TIES UNLESS PROVED AND CORROBORATED. SIMILARLY RETRACTION MAY BE REJECTED AS MOTIVATED BUT THE SAME CAN BE CONSIDERED ONLY AGAINST THE PERSON WHO HAS RETRACTED IN HIS ASSESSMENT. SUCH STATEMENT IN THE CASE OF ANOTHER P ERSON LOSES ITS SANCTITY UNLESS OPPORTUNITY OF CROSS EXAMINATION IS GRANTED AND / OR IS CORROBORATED WITH OTHER EVIDENCES. WHEN THE INVESTO R COMPANY IS FILING REGULAR RETURN OF INCOME AND THERE IS A TRANSACTION THROUGH BANKING CHANNEL NO ADDITION CAN BE MADE WITHOUT HAVING ANY CONTRARY OR COGENT EVIDENCES IN POSSESSION. OVER SUCH ISSUE THERE ARE PLETHORA OF JUDGEMENTS TO SUPPORT THE APPELLANT. SOME OF THEM A RE DISCUSSED HERE BELOW:- (I) THE HON'BLE SUPREME COURT IN THE CASE OF CIT V /S LOVELY EXPORTS 6 DTR 308 HAS HELD AS UNDER: 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIV EN TO THE ASSESSING OFFICER THEN THE DEPARTMENT IS FREE TO PR OCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY' . (II) THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF C IT V/S CREATIVE WORLD TELEFLLMS LTD 333 ITR 100 HAS HELD A S UNDER: 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIV EN TO THE ASSESSING OFFICER THEN THE DEPARTMENT CAN ALWAYS PR OCEED AGAINST THEM AND IF NECESSARY REOPEN THEIR INDIVIDUAL ASSES SMENTS. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 14 HELD DISMISSING THE APPEAL THAT THERE WAS NO DISP UTE THAT THE ASSESSEE HAD GIVEN THE DETAILS OF NAMES AND ADDRESS ES OF THE SHAREHOLDERS THEIR PAN/ GIR NUMBERS AND HAD ALSO G IVEN THE CHEQUE NUMBERS NAME OF THE BANKERS. THE ASSESSING OFFICER OUGHT TO HAVE FOUND OUT THEIR DETAILS THROUGH PAN CARDS BANK STA TEMENTS. THUS THE VIEW TAKEN BY THE TRIBUNAL COULD NOT BE FAULTED. (III) THE HON'BLE SUPREME COURT OF INDIA IN THE CAS E OF CIT VS. ORISSA CORPORATION REPORTED IN 159 ITR 78 (SC) HAS HELD AS UNDER: 'THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAM ES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF T HE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEE'S. THEIR IN DEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOTICE UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOU RCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY ARE CREDITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CALLED AL LEGED CREDITORS. IN THOSE CIRCUMSTANCES THE RESPONDENT COULD NOT DO AN YTHING FURTHER. IN THE PREMISES IF THE TRIBUNAL CAME TO THE CONCLUSIO N THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE'. RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISIONS: I. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S VALUE CAPITAL SERVICES P.LTD. (2008) 307 ITR 33 4 (DELHI). II. HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE O F COMMISSIONER OF INCOME TAX V/SO GP INTERNATIONAL LT D. (2010) 325 ITR 25 (P&H). ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 15 III. HON'BLE MADRAS HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME TAX V/SO ELECTRO POLYCHEM LTD (2007) 294 ITR 661 (M AD). IV. HON'BLE RAJASTHAN HIGH COURT IN CASE OF COMMISSIONE R OF INCOME TAX V/SO AKJ GRANITES P. LTD. (2008) 301 ITR 298 (R AJ.) V. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S OASIS HOSPITALITIES (PVT.) LTD. (2011) 51 DTR 7 4 (DELHI). SEC. 69 PLACES THE BURDEN OF PROOF ON THE TAX PAYER TO EXPLAIN THE NATURE AND SOURCE OF ANY CREDIT FOUND IN THE BOOKS. BUT WHEN ASSESSEE PROVES OR SUBMIT THE BASIC INFORMATION LIKE IDENTIF ICATION GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITO RS ONUS IS DISCHARGED BY HIM AND IF ASSESSING OFFICER DISBELIE VE THE GENUINENESS OF THE SAME HE HAS TO PROVE OTHERWISE MERELY DOU BTING OR POINTING OUT SOME DISCREPANCY IS NOT THE FOUNDATION FOR DISC ARDING THE GENUINENESS OF THE DEPOSIT OR SHARE MONEY OR SUBSTA NCE OF THE MATTER HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CI T V. GUJARAT HEAVY CHEMICALS LTD. (2002) 256 ITR 795 (SC). IN VIEW OF THE ABOVE THE QUESTION OF MAKING ANY ADD ITION U/S. 68 OF THE ACT DOES NOT ARISE. 22. FURTHER HON'BLE JURISDICTIONAL ITAT IN THE CAS E OF ITO-10(2)(3) VS. M/S J.J. MULTITRADE PVT. LTD. ITA NO.2158 & 2159/MU M/2014 ORDER DATED 11.03.2015 HAS DELETED ADDITIONS ON SIMILAR F ACTS. FURTHER THE HON'BLE JURISDICTIONAL ITAT IN THE CASE OF M/S S.D. B. ESTATE PVT. LTD. VS ITO-5(3)(2) ITA NO.584/M/2015 HAS DELETED SIMILAR A DDITION MADE U/S 68 OF THE I.T. ACT. THE HON'BLE ITAT (JAIPUR BENCH) IN THE CASE OF BHARTI SYNTEX LTD. VS. DCIT ITA NOS.172 & 173/JP/2010 HAS HELD IN PARA 24.4 AS UNDER:- '24.4 IN THIS CASE ALSO NO CROSS EXAMINATION WAS AL LOWED TO THE ASSESSEE. THEREFORE ADVERSE INFERENCE CANNOT BE DR AWN ONLY ON THE STATEMENT OF SHRI MUKESH CHOKSI. WE FURTHER NOTED T HAT ALL OTHER ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 16 NECESSARY DETAILS HAVE BEEN FILED BEFORE AG. AMOUNT S WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUE. BOTH THE COMPANIES AR E ASSESSED TO TAX IN MUMBAI. CONFIRMATION ALONG WITH COPIES OF SHARE CERTIFICATE BANK STATEMENT MEMORANDUM OF ARTICLES COPY OF SHARE AP PLICATION MONEY AUDITED BALANCE SHEET AND P&L A/C OF THESE PARTIES WERE FILED. THESE ARE SIMILAR DETAILS AS WERE FILED IN CASE OF THREE OTHER COMPANIES FOR ASST. YR. 2005-06. WE HAVE ALREADY DISPOSED OF THE APPEAL FOR ASST. YR. 2005-06 WHEREBY WE HAVE HELD THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY FILING NECESSARY DETAILS AND FURTHER HAVE R ELIED ON THE DECISIONS OF HON'BLE SUPREME COURT AND HON 'BLE DEL HI HIGH COURT ALONG WITH VARIOUS OTHER DECISIONS OF TRIBUNAL AND HAVE HELD THAT ADDITION CANNOT BE MADE UNDER S.68 IN THE HANDS OF THE ASSESSEE COMPANY. THEREFORE IN VIEW OF THE SAME REASONING WE CANCEL THE ENTIRE ADDITION MADE AND CONFIRMED BY THE LOWER AUT HORITIES HERE ALSO. THE ABOVE DECISION OF ITAT ALSO RELATED TO MR.MUKES H CHOKSI'S CASE OF INVESTMENT IN SHARE APPLICATION MONEY. ON PERUSA L OF ABOVE CASE IT IS CLEAR THAT IF A BOGUS SHAREHOLDER HAS INVESTED T HE MONEY AND IF APPELLANT RECEIVES SUCH MONEY AS SHARE APPLICATION MONEY AND APPELLANT DURING ASSESSMENT PROCEEDINGS PROVIDES TH E DETAILS LIKE NAME &ADDRESS OF THE CORPORATE ENTITY PAN NO. ROC NO. THEN ITAT HELD THAT THIS MAY BE REFERRED TO THE CONCERNE D A.O. FOR PROCEEDING AGAINST SUCH BOGUS SHAREHOLDERS INSTEAD OF ADDING THE AMOUNT U/S. 68 OF THE IT ACT IN THE NAME OF THE COM PANY. 23. IT IS NOTED THAT NO SPECIFIC INCRIMINATING MATE RIAL LINKING INVESTOR TO THE APPELLANT OR SHOWING THE INVESTMENT TO BE BOGUS IS PROVIDED. ALSO OPPORTUNITY FOR CROSS EXAMINATION ALSO WAS NOT PROV IDED TO THE APPELLANT. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO BRING ON RECORD ANY DIRECT OR CORROBORATIVE EVIDENCE THAT THE SHARE APPLICATION M ONEY RECEIVED IS UNEXPLAINED AS COVERED U/S 68 EVEN AFTER OPPORTUNIT Y WAS GIVEN IN THE REMAND PROCEEDINGS. THE ORIGINAL STATEMENT OF SHRI PRAVEEN JAIN DOES ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 17 NOT NAME THE APPELLANT SPECIFICALLY. HE HAS SUBSEQU ENTLY RETRACTED EVEN THAT ORIGINAL STATEMENT. IN ANY CASE IT IS CARDINA L PRINCIPLE OF NATURAL JUSTICE THAT BEFORE CONCLUSIONS ARE DRAWN AGAINST A PERSON BASED ON STATEMENT OF A THIRD PARTY HE MUST BE ALLOWED AN O PPORTUNITY FOR CROSS EXAMINATION. THIS HAS NOT BEEN PROVIDED. THERE IS A LIMIT TO THE CAPACITY OR RESPONSIBILITY EXPECTED OF AN ASSESSEE TO PROVE FACTS. THE ASSESSING OFFICER HAS' NOT INQUIRED INTO OR REPORTED ON ASSES SMENT IN THE CASE OF THE INVESTOR COMPANIES. IF THE STATEMENTS RECORDED OF S HRI PRAVIN JAIN AND OTHERS (WHICH WERE RETRACTED) ARE IGNORED THERE IS NO SPECIFIC EVIDENCE CITED BY THE ASSESSING OFFICER IN RESPECT OF THE IN VESTOR COMPANIES AND THE APPELLANT WHICH WOULD SHIFT THE BURDEN BACK ON THE APPELLANT U/S 68. THE ASSESSING OFFICER HAS STATED THAT THE APPELLANT HAS NOT DISPROVED THE FINDINGS OF THE DEPARTMENT. NOW THE QUESTION IS WHA T ARE THE APPELLANT SPECIFIC FINDINGS THAT HAS TO BE DISPROVED IS NOT S PELT OUT. IN THIS FACT MATRIX AND THE JUDICIAL DECISIONS COVERING THE SCO PE OF SECTION 68 THE ADDITION MADE OF RS 1 50 00 000/- U/S 68 IN THE CAS E OF THE APPELLANT IS DELETED. THE GROUNDS OF APPEAL IN THIS REGARD ARE A LLOWED AS ABOVE. 7. THE HONBLE BOMBAY HIGH COURT IN A RECENT DECISION IN PCIT VS PARADISE INLAND SHIPPING (P) LTD (SUPRA) ON SIMILAR ISSUES H ELD AS UNDER; 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATIONS TO THE RIVAL CONTENTIONS OF THE LEARNED COUNSEL AND WE HAVE ALSO GONE THROUG H THE RECORDS. THE BASIC CONTENTION OF THE LEARNED COUNSEL APPEARING F OR THE APPELLANTS REVOLVES UPON THE STAND TAKEN BY THE APPELLANTS WHE THER THE SHAREHOLDERS WHO HAVE INVESTED IN THE SHARES OF THE RESPONDENTS ARE FICTITIOUS OR NOT. IN THIS CONNECTION THE RESPONDE NTS IN SUPPORT OF THEIR STAND ABOUT THE GENUINENESS OF THE TRANSACTION ENTE RED INTO WITH SUCH COMPANIES HAS PRODUCED VOLUMINOUS DOCUMENTS WHICH INTER ALIA HAVE BEEN NOTED AT PARA 3 OF THE JUDGMENT OF THE CI T APPEALS WHICH READS THUS : ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 18 'THE ASSESSMENT IS COMPLETED WITHOUT REBUTTING TH E 550 PAGE DOCUMENTS WHICH ARE UNFLINCHING RECORDS OF THE COMP ANIES. THE LIST OF DOCUMENTS SUBMITTED ON 09.03.2015 ARE AS FOLLOWS : 1. SONY FINANCIAL SERVICES LTD. - CIN U74899DL1995PLC068362- DATE OF REGISTRATION 09/05/1995 (A) MEMORANDUM OF ASSOCIATION AND ARTICLE OF ASSOCIATIO N (B) CERTIFICATE OF INCORPORATION (C) CERTIFICATE OF COMMENCEMENT OF BUSINESS (D) ACKNOWLEDGMENT OF THE RETURN OF INCOME AY 08-09 (E) AFFIDAVIT OF THE DIRECTOR CONFIRMING THE INVESTMENT (F) APPLICATION FOR ALLOTMENT OF SHARES (G) PHOTOCOPY OF THE SHARE CERTIFICATE (H) AUDITED ACCOUNT AND DIRECTORS REPORT THEREON INCLUD ING BALANCE SHEET PROFIT AND LOSS ACCOUNT AND SCHEDULES FOR TH E YEAR ENDED 31.03.2009 (I) AUDITED ACCOUNT AND DIRECTORS REPORT THEREON INCLUD ING BALANCE SHEET PROFIT AND LOSS ACCOUNT AND SCHEDULES FOR TH E YEAR ENDED 31.03.2010 (J) THE BANK STATEMENT HIGHLIGHTING RECEIPT OF THE AMOU NT BY WAY OF RTGS (K) BANKS CERTIFICATE CERTIFYING THE RECEIPT OF THE AMO UNT THROUGH BANKING CHANNELS 6. ON GOING THROUGH THE DOCUMENTS WHICH HAVE BEEN PRO DUCED WHICH ARE BASICALLY FROM THE PUBLIC OFFICES WHICH MAINTA IN THE RECORDS OF THE COMPANIES. THE DOCUMENTS ALSO INCLUDE ASSESSMENT OR DERS FOR LAST THREE PRECEDING YEARS OF SUCH COMPANIES. 7. THE APPELLANTS HAVE FAILED TO EXPLAIN AS TO HOW SU CH COMPANIES HAVE BEEN ASSESSED THOUGH ACCORDING TO THEM SUCH COMPANI ES ARE NOT EXISTING AND ARE FICTITIOUS COMPANIES. BESIDES THE DOCUMENTS ALSO INCLUDED THE REGISTRATION OF THE COMPANY WHICH DISC LOSES THE REGISTERED ADDRESS OF SUCH COMPANIES. THERE IS NO M ATERIAL ON RECORD PRODUCED BY THE APPELLANTS WHICH COULD REBUT THE DO CUMENTS PRODUCED BY THE RESPONDENTS HEREIN. IN SUCH CIRCUMSTANCES T HE FINDING OF FACT ARRIVED AT BY THE AUTHORITIES BELOW WHICH ARE BASED ON DOCUMENTARY ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 19 EVIDENCE ON RECORD CANNOT BE SAID TO BE PERVERSE. L EARNED COUNSEL APPEARING FOR THE APPELLANTS WAS UNABLE TO POINT OU T THAT ANY OF SUCH FINDINGS ARRIVED AT BY THE AUTHORITIES BELOW WERE O N THE BASIS OF MISLEADING OF EVIDENCE OR FAILURE TO EXAMINE ANY MA TERIAL DOCUMENTS WHILST COMING TO SUCH CONCLUSIONS. UNDER THE GUISE OF THE SUBSTANTIAL QUESTION OF LAW THIS COURT IN AN APPEAL UNDER SECT ION 260A OF THE INCOME TAX ACT CANNOT RE-APPRECIATE THE EVIDENCE TO COME TO ANY CONTRARY EVIDENCE. CONSIDERING THAT THE AUTHORITIES HAVE RENDERED THE FINDINGS OF FACTS BASED ON DOCUMENTS WHICH HAVE NOT BEEN DISPUTED WE FIND THAT THERE ARE NO SUBSTANTIAL QUESTION OF LAW WHICH ARISES IN THE PRESENT APPEAL FOR CONSIDERATION. 8. THE APEX COURT IN THE CASE OF ORISSA CORPN. (P.) L TD. (SUPRA) HAS OBSERVED AT PARA 13 THUS : '13. IN THIS CASE THE ASSESSEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF T HE REVENUE THAT THE SAID CREDITORS WERE INCOME- TAX ASSESSEES. THEIR IN DEX NUMBER WAS IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOTICES UNDER S. 131 AT THE INSTANCE OF THE ASSESSEE DID N OT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WER E CREDIT-WORTHY OR WERE SUCH WHO COULD ADVANCE THE ALLEGED LOANS. THER E WAS NO EFFORT MADE TO PURSUE THE SO CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES THE ASSESSEE COULD NOT DO ANYTHING F URTHER. IN THE PREMISES IF THE TRIBUNAL CAME TO THE CONCLUSION TH AT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR B ASED ON NO EVIDENCE. IF THE CONCLUSION IS BASED ON SOME EVIDEN CE ON WHICH A CONCLUSION COULD BE ARRIVED AT NO QUESTION OF LAW AS SUCH ARISES.' 9. THIS COURT IN THE JUDGMENTS RELIED UPON BY THE LEA RNED COUNSEL APPEARING FOR THE RESPONDENTS HAVE COME TO THE CON CLUSION THAT ONCE THE ASSESSEE HAS PRODUCED DOCUMENTARY EVIDENCE TO E STABLISH THE EXISTENCE OF SUCH COMPANIES THE BURDEN WOULD SHIFT ON THE REVENUE- APPELLANTS HEREIN TO ESTABLISH THEIR CASE. IN THE P RESENT CASE THE APPELLANTS ARE SEEKING TO RELY UPON THE STATEMENTS RECORDED OF TWO ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 20 PERSONS WHO HAVE ADMITTEDLY NOT BEEN SUBJECTED TO C ROSS EXAMINATION. IN SUCH CIRCUMSTANCES THE QUESTION OF REMANDING TH E MATTER FOR RE- EXAMINATION OF SUCH PERSONS WOULD NOT AT ALL BE JU STIFIED. THE ASSESSING OFFICER IF HE SO DESIRED OUGHT TO HAVE ALLOWED THE ASSESSEE TO CROSS EXAMINE SUCH PERSONS IN CASE THE STATEMENT S WERE TO BE RELIED UPON IN SUCH PROCEEDINGS. APART FROM THAT THE VOLU MINOUS DOCUMENTS PRODUCED BY THE RESPONDENTS CANNOT BE DISCARDED MER ELY ON THE BASIS OF TWO INDIVIDUALS WHO HAVE GIVEN THEIR STATEMENTS CONTRARY TO SUCH PUBLIC DOCUMENTS. 10. WE FIND NO INFIRMITY IN THE FINDINGS ARRIVED AT BY THE ITAT AS WELL AS CIT APPEALS ON THE CONTENTIONS RAISED BY THE APPELL ANTS-REVENUE IN THE PRESENT CASE AND AS SUCH THE QUESTION OF INTE RFERENCE BY THIS COURT IN THE PRESENT PROCEEDINGS UNDER SECTION 260A OF TH E INCOME TAX ACT WOULD NOT AT ALL BE JUSTIFIED. APART FROM THAT AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL APPEARING FOR THE RESPONDENTS THE CIT APPEALS HAD ALSO NOTED THAT PROCEEDINGS UNDER SECTION 147 O F THE INCOME TAX ACT CANNOT LEAD TO RE- VERIFICATION OF THE RECORDS. THESE FINDINGS OF THE CIT APPEALS HAVE NOT BEEN ASSAILED BEFORE THE INCOM E TAX APPELLATE COURT. 8. IN VIEW OF THE ABOVE FACTUAL AND LEGAL DISCUSSION A ND CONSIDERING THE LATEST DECISION OF HONBLE JURISDICTIONAL HIGH COURT REFER RED ABOVE WE HAVE NOTED THAT THE LD COMMISSIONER (APPEALS) PASSED THE ORDER AFTER CONSIDERING THE ENTIRE MATERIAL AVAILABLE BEFORE HI M. WE HAVE SEEN THAT THE ORDER PASSED BY LD. COMMISSIONER (APPEALS) IS REASO NED ONE AND DOES NOT REQUIRE ANY FURTHER INTERFERENCE AT OUR END. THE FA CTS OF VARIOUS DECISION RELIED BY LD. DR IN RAJMANDIR ESTATE PVT LTD (SUPRA ) IN CIT VS JANSAMPARAK ADVERTISING AND MARKETING (P) LTD (SUPR A) IN CIT VS N.R. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 21 PORTFOLIO (SUPRA) THOUGH IS AT VARIANCE ON FACTS A ND IS OF NON JURISDICTIONAL HIGH COURT. THE DECISION OF JURISDICTIONAL HIGH COU RT IN PCIT VS PARADISE INLAND SHIPPING (P) LTD (SUPRA) IS BINDING PRECEDEN T ON THIS TRIBUNAL. IN THE RESULT THE GROUNDS OF APPEAL RAISED BY THE REVE NUE IS DISMISSED. 9. IN THE RESULT THE APPEAL BY REVENUE FOR AY 2008-0 9 IS DISMISSED. ITA NO. 3755/M/2017 FOR AY 2009-10 BY REVENUE . 10. THE REVENUE HAS RAISED IDENTICAL GROUNDS OF APPEAL AS RAISED IN APPEAL FOR AY 2008-09. THE FACTS FOR THE YEAR UNDER CONSIDERAT ION IS AT LITTLE VARIANCE. THE ASSESSMENT ORDER FOR THE YEAR UNDER CONSIDERATI ON WAS PASSED ON SIMILAR LINES BY THE ASSESSING OFFICER MAKING THE SIMILAR ADDITIONS UNDER SECTION 68 FOR RS.1 50 00 000/-. THE LD COMMISSION ER (APPEALS) DELETED THE SIMILAR ADDITIONS BY THE ORDER OF SAME DATE. 11. THE LD. DR FOR THE REVENUE ARGUED ON THE SIMILAR LI NES AS ARGUED THE APPEAL FOR EARLIER YEAR I.E. FOR AY 2008-09. ON THE OTHER HAND THE LD. AR FOR THE ASSESSEE SPECIFICALLY POINTED OUT THAT DURING THE R ELEVANT PERIOD THE ASSESSEE RECEIVED SHARE APPLICATION MONEY FOR RS.50 00 000/-. THE ASSESSEE ALSO RECEIVED ADVANCE MONEY RS. 1 00 00 000/- AGAIN ST THE SALE OF UNITS FROM THREE PARTIES. THE ASSESSEE PROVIDED ALL DETAI LS REQUIRED BY ASSESSING OFFICER TO PROVE THEIR CONTENTION. THE LD AR FOR AS SESSEE ARGUED THAT THE ASSESSEE HAS ALREADY RETURNED THE ADVANCE MONEY WHI CH WAS DULY SHOWN TO THE ASSESSING OFFICER IN THE BOOKS OF ACCOUNT. THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING ON THE SUBMISSIONS AND THE DOCUME NTARY EVIDENCES ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 22 FURNISHED BY ASSESSEE. THE ASSESSING OFFICER MADE A DDITIONS WITHOUT CONSIDERING THE SUBMISSIONS AND THE EVIDENCES FURNI SHED BEFORE HIM. THE LD COMMISSIONER (APPEALS) PASSED THE ORDER AFTER CA REFUL CONSIDERATION OF THE FACTS AND THE EVIDENCES. THE LD. AR MADE RELIAN CE ON ALL DECISIONS WHICH ARE RELIED IN APPEAL FOR ASSESSMENT YEAR FOR 2008-09. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND PERUSED THE RECORD AND THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE NOTED THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER ON TH E SIMILAR LINES AS MADE FOR EARLIER YEAR. THE ASSESSING OFFICER HAS NOT GIV EN SPECIFIC FINDING ON THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE. WE HAVE FURTHER NOTED THAT SIMILAR CONTENTIONS WERE MADE BEFORE LD COMMIS SIONER (APPEALS) BY ASSESSEE WHICH WERE CONSIDERED THE HIM. WE HAVE SE EN THAT THE LD COMMISSIONER (APPEALS) PASSED THE FOLLOWING ORDER; 18. I HAVE EXAMINED THE CONTENTIONS OF THE APPELLA NT AS WELL AS THE ASSESSMENT ORDER AND THE REMAND REPORT CAREF ULLY. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THOUGH T HE CONCLUSIONS OF THE INVESTIGATION WING HAS BEEN REFERRED TO IN T HE ASSESSMENT ORDER THERE ARE NO SPECIFIC REFERENCE TO THE APPEL LANT COMPANY. THERE ARE NO EVIDENCES BROUGHT ON RECORD TO SHOW TH AT THERE IS ANY CASH TRAIL IN RESPECT OF THE AMOUNTS RECEIVED BY THE APP ELLANT COMPANY FROM THE INVESTORS. THOUGH THE AO WAS SPECIFICALLY ASKED TO FURNISH SPECIFIC INCRIMINATING EVIDENCES IT IS NOT ED THAT THE AO HAS NOT BEEN ABLE TO PIN POINT THE SPECIFIC EVIDENCES RELAT ING TO APPELLANT COMPANY WHICH WOULD CLEARLY SHOW THAT THE SHARE APP LICATION MONEY HAS BEEN RECEIVED IN LIEU OF CASH. IN THE ASS ESSMENT ORDER THE ASSESSING OFFICER HAS REFERRED TO THE STATEMENT OF SHRI PRAVIN JAIN RECORDED AT THE TIME OF SEARCH BUT HAS NOT CONSIDER ED THE RETRACTION THEREAFTER IN WHICH IT WAS STATED THAT STATEMENT RE CORDED AT THE TIME OF SEARCH WAS UNDER UNDUE PRESSURE AND THAT SUCH STATE MENTS HAD BEEN RETRACTED. IT IS FURTHER NOTED FROM DETAILS CALLED AND SUBMITTED BY THE APPELLANT THAT THE ADVANCES WERE REPAID AS FOLLOWS: ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 23 SR. NO. NAME OF THE COMPANY AMOUNT DATE OF REPAYMENT 1. LEXUS INFOTECH LTD. 30 00 000 13/14.3.2013 2. RAGHUNANDAN RAYONS LTD. 35 00 000 13.3.2012 3. SANJIVANI ENVIRO PROTECTION LTD. 35 00 000 14.3.2012 TOTAL 1 00 00 000 19. THE FACT REMAINS THAT THE INVESTOR COMPANIES ARE AS SESSED TO TAX AND HAVE FILED THEIR RETURNS OF INCOME. THE PARTIES HAVE RESPONDED TO THE NOTICES U/S 133(6). THE APPELLANT HAS FILED AUDITED ACCOUNTS OF THE INVESTORS AND CONTENDED THAT THEY HAVE GENUINE BUSINESS ACTIV ITY. THE APPELLANT HAS SUBMITTED THAT NOTICES WERE SERVED ON THE INVESTORS IN ALL CASES. THEREFORE IT CANNOT BE SAID THAT THE PARTIES DID NOT EXIST AT TH EIR ADDRESSES. DOCUMENTARY EVIDENCES WERE ALREADY FILED BY THE APP ELLANT EARLIER IN THE ASSESSMENT PROCEEDINGS. CONFIRMATION LETTERS WITH C OPY OF PAN AND ADDRESS BANK STATEMENTS OF APPLICANTS INCOME TAX RETURN AC KNOWLEDGEMENT AND AUDITED ACCOUNTS BALANCE SHEET AND P 86 L ACCOUNT O F THE INVESTOR COMPANIES HAVE BEEN FILED BEFORE THE ASSESSING OFFICER AND AL SO IN THE APPELLATE PROCEEDINGS. 20. I DO NOT FIND ANY MERIT IN THE CONTENTION OF THE AP PELLANT THAT THE INVESTMENT BEING A SHARE CAPITAL IS A CAPITAL RECEI PT AND THEREFORE CANNOT BE CONSIDERED AS INCOME IN THE HANDS OF THE APPELLANT. THE CREDITS FALL WITHIN THE SCOPE OF SECTION 68 WHICH IS A DEEMING PROVISION. S EVERAL CASE LAWS INCLUDING THOSE OF THE APEX COURT AND HIGH COURT HAVE CONSIDE RED CREDITS MADE TO CAPITAL ACCOUNT OF THE ASSESSEE'S TO BE COVERED UND ER THE PROVISIONS OF SECTION 68 AND THEREFORE DEEMED INCOME. THE RULE FOR APPLIC ATION OF SECTION 68 IS THAT THE IDENTITY AND CREDIT WORTHINESS OF THE INVESTOR/ LENDER/CREDITOR HAS TO BE ESTABLISHED AND THE GENUINENESS OF THE TRANSACTION HAS TO BE ESTABLISHED. I ALSO DO NOT FIND MERIT IN THE ARGUMENT THAT MERELY BECAU SE THERE IS A SPECIFIC AMENDMENT TO SECTION 68 IN RESPECT OF CREDIT IN THE FORM OF SHARE CAPITAL OR SHARE APPLICATION MONEY IN THE CASE OF PRIVATE COM PANY REQUIRING THE PERSON IN WHOSE NAME SUCH CREDIT IS THERE TO EXPLAIN THE N ATURE AND SOURCE OF SUCH SUM WHICH IS BROUGHT ON STATUTE W.E.F. 1.4.20 13 HENCE NO SUCH ADDITION U/S 68 CAN BE MADE IN EARLIER YEARS. THE A MENDMENT ONLY MAKES THE ONUS MORE SEVERE IN SUCH CASES BUT IT IS INCORR ECT TO READ IT AS IF NO SUCH ADDITIONS COULD BE MADE U/S 68 IN RESPECT O F SHARE APPLICATION MONEY IN THE EARLIER ASSESSMENT YEARS. 21. THE APEX COURT UPHELD THE ADDITION U/S 68 IN THE CA SE OF CREDITS AS SHARE CAPITAL IN THE CASE OF N. TARIKA PROPERTY INV EST. (P.) LTD. V. COMMISSIONER OF INCOME-TAX [2014] 51 TAXMANN.COM 387 (SC) BY DISMISSING THE SLP FILED BY THE APPELLANT. 22. SECTION 68 CASTS THE INITIAL BURDEN OF PROOF ON THE ASSESSEE TO SHOW PRIMA FACIE AND TO EXPLAIN THE NATURE AND SOURCE OF CREDIT FOUND IN ITS BOOKS. WHEN THE STATUTE PLACES THE BURDEN OF PROOF IN INCO ME TAX CASES ON THE TAX ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 24 PAYER IT IS UNDERSTOOD TO BE ONLY THE INITIAL BURD EN. WHEN THE TAX PAYER EXPLAINS WE CREDIT BY PROVIDING EVIDENCE OF IDENTIT Y CONFIRMATION AND CREDIT WORTHINESS THE BURDEN SHIFTS ON THE REV ENUE TO SHOW THAT THE EXPLANATION IS NOT SATISFACTORY OR INCORRECT. IN TH E CASE OF CREDIT AS SHARE CAPITAL BY CORPORATE ENTITY WHOSE EXISTENCE IS SHOWN BY ITS REGISTRATION WITH REGISTRAR OF COMPANIES AND ITS FI LING OF TAX RETURNS ADVERSE CONCLUSION IS NOT JUSTIFIED MERELY. BECAUSE ITS DIR ECTORS ARE NOT PRODUCED PERSONALLY BEFORE THE ASSESSING OFFICER BY THE TAX PAYER. 23. IN THE REMAND PROCEEDINGS ONLY THE LEGAL REQUIREMEN T WAS INDICATED THAT IF ANY STATEMENTS OF THIRD PARTIES ARE TO BE RELIED UPON OPPORTUNITY FOR CROSS EXAMINATION MUST BE PROVIDED. FURTHER INSTE AD OF AND OTHER THAN GENERALITIES THE ASSESSING OFFICER WAS GIVEN AN OPP ORTUNITY TO PUT TOGETHER APPELLANT SPECIFIC EVIDENCE JUSTIFYING THE ADDITION . 24. IT CAN BE SEEN FROM THE OBSERVATION OF THE ASSESSI NG OFFICER THAT HE HAS ONLY REFERRED TO THE INFORMATION RELATED TO THE OUTCOME OF SEARCH IN THE CASE OF SHRI PRAVIN KUMAR JAIN GROUP WHO WERE ALLEG EDLY PROVIDING ACCOMMODATION ENTRIES BUT THE LD. ASSESSI NG OFFICER HAS FAILED TO DEMONSTRATE ANY SUCH SPECIFIC EVIDENC E THAT THE APPELLANT HAS IN REALITY OBTAINCD ANY ACCOMMODATION ENTRIES. THERE IS NO DIRECT SPECIFIC MENTION OF THE APPELLANT BY THE DIR ECTOR OR KEY PERSONS OF THE INVESTOR COMPANIES. THERE IS NO EVIDENCE OF CASH DE POSITS LINKED TO THE INVESTORS. THE ASSESSING OFFICER DID NOT BRING SPEC IFIC INCRIMINATING EVIDENCE LINKING THE INVESTOR TO THE APPELLANT. THE ONLY LINK IS THAT THE INVESTORS HAVE INVESTED IN APPELLANT COMPANY. THAT THE APPELLANT HAS GIVEN CASH TO THE INVESTORS IN LIEU OF ENTRY IS MER ELY ALLEGED BUT NOT DEMONSTRATED. LAYERING OF TRANSACTIONS IS ALLEGED B UT NOT DEMONSTRATED. OPPORTUNITY FOR CROSS EXAMINATION IS NOT PROVIDED T O THE APPELLANT. PAPERS/EVIDENCE FOUND IN THE SEARCH ACTION RAISES P RESUMPTION BUT THE SAME IS AVAILABLE IN THE CASE OF PERSON SEA RCHED BUT NOT IN THE CASE OF THIRD PARTIES UNLESS PROVED AND CORROBORATE D. SIMILARLY RETRACTION MAY BE REJECTED AS MOTIVATED BUT THE SAME CAN BE C ONSIDERED ONLY AGAINST THE PERSON WHO HAS RETRACTED IN HIS ASSESSM ENT. SUCH STATEMENT IN THE CASE OF ANOTHER PERSON LOSES ITS S ANCTITY UNLESS OPPORTUNITY OF CROSS EXAMINATION IS GRANTED AND/OR IS CORROBORATED WITH OTHER EVIDENCES. WHEN THE INVESTOR COMPANY IS FILING REGULAR RETURN OF INCOME AND THERE IS A TRANSACTION THROUGH BANKING CHANNEL NO ADDITION CA N BE MADE WITHOUT HAVING ANY CONTRARY OR COGENT EVIDENCES IN POSSESSION. OVE R SUCH ISSUE THERE ARE PLETHORA OF JUDGMENTS TO SUPPORT THE APPELLANT. SOM E OF THEM ARE DISCUSSED HERE BELOW. '(I) THE HONBLE SUPREME COURT IN THE CASE OF CIT VS LOV ELY EXPORT 6 DTR 308 HAS HELD AS UNDER:- 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIV EN TO THE ASSESSING OFFICER THEN THE DEPARTMENT IS FREE TO PROCEED TO R EOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY'. (II) THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V/ S CREATIVE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 25 WORLD TELEFLLMS LTD 333 ITR 100 HAS HELD AS UNDER: 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIV EN TO THE ASSESSING OFFICER THEN THE DEPARTMENT CAN ALWAYS PROCEED AGAI NST THEM AND IF NECESSARY REOPEN THEIR INDIVIDUAL ASSESSMENTS. HELD DISMISSING THE APPEAL THAT THERE WAS NO DISP UTE THAT THE ASSESSEE HAD GIVEN THE DETAILS OF NAMES AND ADDRESSES OF THE SHA REHOLDERS THEIR PAN/ GIR NUMBERS AND HAD ALSO GIVEN THE CHEQUE NUMBERS NAME OF THE BANKERS. THE ASSESSING OFFICER OUGHT TO HAVE FOUND OUT THEIR DE TAILS THROUGH PAN CARDS BANK STATEMENTS. THUS THE VIEW TAKEN BY THE TRIBUN AL COULD NOT BE FAULTED. THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF C IT VS. ORISSA CORPORATION REPORTED IN 159 ITR 78 (SC) HAS HERD AS UNDER 'THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAM ES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE R EVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEE'S. THEIR INDEX N UMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOTICE UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID AL LEGED CREDITORS TO FIND OUT WHETHER THEY ARE CREDITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO- CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES T HE RESPONDENT COULD NOT DO ANYTHING FURTHER. IN THE PREMISES IF THE TRIBUNAL TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE'. RELIANCE IS ALSO PLACED ON THE FOLLOWING FOLLOWIN G DECISIONS: I. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S. VALU CAPITAL SERVICES P.LTD. (2008) 307 IT R 334 'DELHI). II. HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V/S. GP INTERNATIONAL LTD. (2010) 325 ITR 25 IP&H). III. HON'BLE MADRAS HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME TAX V/S. ELECTRO POLYCHEM LTD (2007) 294 1TR 661 (MAD). IV. HON'BLE RAJASTHAN HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S. AKJ GRANITES P.LTD. (2008) 301 ITR 298 (RAJ.) V. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S. OASIS HOSPITALITIES (PUT.) LTD. (2011) 51 DTR 74 DELHI). SEC. 69 PLACES THE BURDEN OF PROOF ON THE TAX PAYER TO EXPLAIN THE NATURE AND SOURCE OF ANY CREDIT FOUND IN THE BOOKS. BUT WHEN ASSESSEE PROVE S OR SUBMIT THE BASIC INFORMATION LIKE IDENTIFICATION GENUINEN ESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS ONUS IS DISCHARG ED BY HIM AND IF ASSESSING OFFICER DISBELIEVE THE GENUINENESS OF THE SAME HE HAS TO PROVE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 26 OTHERWISE MERELY DOUBTING OR POINTING OUT SOME DI SCREPANCY IS NOT THE FOUNDATION FOR DISCARDING THE GENUINENESS OF TH E DEPOSIT OR SHARE MONEY OR SUBSTANCE OF THE MATTER HELD BY THE HON'BLE SUPREM E COURT IN THE CASE OF CIT V. GUJARAT HEAVY CHEMICALS LTD. (2002) 256 ITR 795 (SC). IN VIEW OF THE ABOVE THE QUESTION OF MAKING ANY ADDITION U/ S. 68 OF THE ACT DOES NOT ARISE.' 25. FURTHER THE HONBLE JURISDICTIONAL ITAT IN THE CASE OF ITO-10(2)(3) VS. M/S J.J. MULTITRADE PVT. LTD. ITA NO.2158 & 2159/MUM/20 14 ORDER DATED 11.03.2015 HAS DECIDED ADDITIONS ON SIMILAR FACTS. FURTHER THE HON'BLE JURISDICTIONAL ITAT IN THE CASE OF M/S S.D.B. ESTAT E PVT. LTD. VS ITO- 5(3)(2) ITA NO.584/M/2015 HAS DELETED SIMILAR ADDIT ION MADE U/S 68 OF THE I.T. ACT. THE HONBLE ITAT (JAIPUR BENCH)IN THE CASE OF BHARTI SYNTEX LTD. VS. DCIT ITA NOS.172 & 173/JP/2010 HAS HELD IN PARA 24.4 AS UNDER:- '24.4 IN THIS CASE ALSO NO CROSS EXAMINATION WAS AL LOWED TO THE ASSESSEE. THEREFORE ADVERSE INFERENCE CANNOT BE DRAWN ONLY O N THE STATEMENT OF SHRI MUKESH CHOKSI. WE FURTHER NOTED THAT ALL OTHER NECE SSARY DETAILS HAVE BEEN FILED BEFORE AG. AMOUNTS WERE RECEIVED THROUGH ACCO UNT PAYEE CHEQUE. BOTH THE COMPANIES ARE ASSESSED TO TAX IN MUMBAI. CONFIR MATION ALONG WITH COPIES OF SHARE CERTIFICATE BANK STATEMENT MEMORANDUM OF ARTICLES COPY OF SHARE APPLICATION MONEY AUDITED BALANCE SHEET AND P&L A/ C OF THESE PARTIES WERE FILED. THESE ARE SIMILAR DETAILS AS WERE FILED IN C ASE OF THREE OTHER COMPANIES FOR ASST. YR. 2005-06. WE HAVE ALREADY DISPOSED OF THE APPEAL FOR ASST. YR. 2005-06 WHEREBY WE HAVE HELD THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY FILING NECESSARY DETAILS AND FURTHER HAVE RELIED ON THE DECISIONS OF HON'BLE SUPREME COURT AND HON'BLE DELHI HIGH COURT ALONG WI TH VARIOUS OTHER DECISIONS OF TRIBUNAL AND HAVE HELD THAT ADDI TION CANNOT BE MADE UNDER S.68 IN THE HANDS OF THE ASSESSEE COMPANY. THEREFORE IN VIEW OF THE SAME REASONING WE CANCEL THE ENTIRE ADDITION MADE AND CONFIRMED BY THE LOWER AUTHORITIES HERE ALSO. THE ABOVE DECISION OF ITAT ALSO RELATED TO MR.MUKES H CHOKSI'S CASE OF INVESTMENT IN SHARE APPLICATION MONEY. ON PERUSAL OF ABOVE CASE IT IS CLEAR THAT IF A BOGUS SHAREHOLDER HAS INVESTED THE MONEY AND IF APPELLANT RECEIVES SUCH MONEY AS SHARE APPLICATION MONEY AND APPELLANT DURING ASSESSMENT PROCEEDINGS PROVIDES THE DETAILS LIKE NAME &ADDRESS OF THE CORPORATE ENTITY PAN NO. ROC NO. THEN ITAT HELD THAT THIS MAY BE R EFERRED TO THE CONCERNED A.O. FOR PROCEEDING AGAINST SUCH BOGUS SHAREHOLDERS INSTEAD OF ADDING THE AMOUNT U/ S. 68 OF THE I.T. ACT IN THE NAME OF THE COMPANY.' 26. IT IS NOTED THAT NO SPECIFIC INCRIMINATING MATE RIAL LINKING INVESTOR TO THE APPELLANT OR SHOWING THE INVESTMENT TO BE BOGUS IS PROVIDED. ALSO OPPORTUNITY FOR CROSS EXAMINATION ALSO WAS NOT PROV IDED TO THE APPELLANT. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO BRING ON RECORD ANY DIRECT OR CORROBORATIVE EVIDENCE THAT THE SHARE APPLICATION M ONEY RECEIVED/ ADVANCES RECEIVED IS UNEXPLAINED AS COVERED U/S 68 EVEN AFTE R OPPORTUNITY WAS GIVEN IN THE REMAND PROCEEDINGS. THE ORIGINAL STATEMENT OF S HRI PRAVEEN JAIN DOES NAME THE APPELLANT SPECIFICALLY. HE HAS SUBSEQUENTLY RET RACTED EVEN THAT ORIGINAL ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 27 STATEMENT. IN ANY CASE IT IS CARDINAL PRINCIPLE OF NATURAL JUSTICE THAT BEFORE CONCLUSIONS ARE DRAWN AGAINST A PERSON BASED ON STATEMENT OF A THIRD PARTY HE MUST BE ALLOWED AN OPPORTUNITY FOR CROSS EXAMINATION. THIS HAS NOT BEEN PROVIDED. THERE IS A LIMIT TO THE CAPACITY OR RESPONSIBILITY EXPECTED OF AN ASSESSEE TO PROVE FACTS. THE ASSESSING OFFICE R HAS NOT INQUIRED INTO OR REPORTED ON ASSESSMENT IN THE CASE OF THE INVESTOR COMPANIES. IF THE STATEMENTS RECORDED OF SHRI PRAVIN JAIN AND OTHERS (WHICH WERE RETRACTED) ARE IGNORED THERE IS NO SPECIFIC EVIDENCE CITED BY THE ASSESSIN G OFFICER IN RESPECT OF THE INVESTOR COMPANIES AND THE APPELLANT WHICH WOULD SH IFT THE BURDEN BACK ON THE APPELLANT U/S 68. THE ASSESSING OFFICER HAS STA TED THAT THE APPELLANT HAS NOT DISPROVED THE FINDINGS OF THE DEPARTMENT. NOW T HE QUESTION IS WHAT ARE THE APPELLANT SPECIFIC FINDINGS THAT HAS TO BE DISPROVE D IS NOT SPELT OUT. IN THIS FACT MATRIX AND THE JUDICIAL DECISIONS COVERING THE SCO PE OF SECTION 68 THE ADDITION MADE OF RS 50 00 000/- IN RESPECT OF SHARE CAPITAL AND RS 1 00 00 300 IN RESPECT OF ADVANCES U/S 68 IN THE CASE OF THE APPEL LANT IS DELETED. 13. IN VIEW OF THE ABOVE FACTUAL AND LEGAL DISCUSSION AND CONSIDERING THE FACTS THAT WE HAVE DISMISSED THE APPEAL FOR AY 2008-09 AN D THE GROUNDS OF APPEAL ARE IDENTICALLY WORDED EXCEPT VARIATION OF F IGURE. WE HAVE SEEN THAT THE ORDER PASSED BY LD. COMMISSIONER (APPEALS) IS R EASONED ONE AND DOES NOT REQUIRE ANY FURTHER INTERFERENCE AT OUR END. IN THE RESULT THE GROUNDS OF APPEAL RAISED BY THE REVENUE IS DISMISSED. ITA NO. 3756/M/2017 FOR AY 2012-13 BY REVENUE . 14. THE REVENUE HAS RAISED IDENTICAL GROUNDS OF APPEAL AS RAISED IN APPEAL FOR AY 2008-09 AND IN 2009-10 EXCEPT VARIATION OF FIGU RE OF ADDITION UNDER SECTION 68 OF THE ACT. THE FACTS FOR THE YEAR UNDE R CONSIDERATION ARE ALSO AT VARIANCE. THE ASSESSMENT ORDER FOR THE YEAR UNDER CONSIDERATION WAS PASSED ON SIMILAR LINES BY THE ASSESSING OFFICER M AKING THE SIMILAR ADDITIONS UNDER SECTION 68 OF THE ACT FOR RS.2 46 0 0 000/- THE LD. COMMISSIONER (APPEALS) HAS DELETED THE ENTIRE ADDI TIONS BY THE ORDER OF SAME DATE. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 28 15. THE LD. DR FOR THE REVENUE ARGUED ON THE SIMILAR LI NES AS ARGUED THE APPEAL FOR EARLIER YEAR AND RELIED ON ALL THOSE DECISIONS WHICH WERE RELIED BY HIM FOR AY 2008-09 & 2009-10. ON THE OTHER HAND THE LD . AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSMENT FOR THE YEAR UNDER CO NSIDERATION WAS COMPLETED UNDER SECTION 143(3) ON 31.03.2015. THE LD AR FOR THE ASSESSEE SPECIFICALLY POINTED OUT THAT DURING THE RELEVANT P ERIOD THE ASSESSEE HAS AVAILED LOAN FROM FIVE PARTIES. THE ASSESSEE PROVID ED ALL DETAILS REQUIRED BY ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE L OAN TRANSACTION. THE LD. AR FOR ASSESSEE ARGUED THAT THE ASSESSEE HAS PAID I NTEREST ON SUCH LOAN. THE ASSESSEE DEDUCTED TDS ON THE INTEREST PAYMENT. THE LOAN AVAILED BY ASSESSEE IS DULY SHOWN TO THE ASSESSING OFFICER IN THE BOOKS OF ACCOUNT. THE ASSESSEE PROVIDED ALL THE INFORMATION AND THE EVIDE NCES REQUIRED BY THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS . THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING ON THE SUBMISSIONS AND TH E DOCUMENTARY EVIDENCES FURNISHED BY ASSESSEE. THE ASSESSING OFFI CER MADE ADDITIONS WITHOUT CONSIDERING THE SUBMISSIONS AND THE EVIDENC ES FURNISHED BEFORE HIM. THE FINDINGS OF THE ASSESSING OFFICER ARE PERV ERSE. THE LD. COMMISSIONER (APPEALS) PASSED THE ORDER AFTER CAREF UL CONSIDERATION OF THE FACTS AND THE EVIDENCES. THE LD AR RELIED ON ALL TH E DECISION RELIED FOR EARLIER YEARS. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AND THE ORDERS OF THE AUTHORIT IES BELOW. WE HAVE ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 29 NOTED THAT THE ASSESSING OFFICER PASSED THE ASSESSM ENT ORDER ON THE SIMILAR LINES AS MADE FOR EARLIER YEAR. THE ASSESSING OFFIC ER HAS NOT GIVEN SPECIFIC FINDING ON THE DOCUMENTARY EVIDENCES FURNISHED BY T HE ASSESSEE. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R HAS NOT GIVEN DIFFERENT FINDING THOUGH THE FACTS FOR THE YEAR UNDER CONSIDE RATION WERE AT VARIANCE. THE ASSESSEE SPECIFICALLY CONTENTED THAT THEY HAVE PAID INTEREST ON THE LOAN AVAILED AND DEDUCTED TDS. THE LD COMMISSIONER (APPE ALS) WHILE CONSIDERING THE FACTS NOTED THAT THE ASSESSING OFFI CER HAS NOT CORRECTLY APPRECIATED THE LOAN AMOUNT FROM RAGHUVEER SALES NO R ITS SHARE CAPITAL AND RESERVE FUNDS. SIMILAR OTHER DISCREPANCIES WERE PO INTED OUT ABOUT VIRAJ MERCHANTILE P. LTD PARK TOOLS LTD AND UTAKANTHA TR ADING & PROPERTIES LTD. THE LD COMMISSIONER (APPEALS) ALSO NOTED THAT THE ASSESSMENT ORDER WAS PASSED IN A HURRIEDLY MANNER. AFTER APPRECIATIN G THE FACTS AND THE EVIDENCES THE LD COMMISSIONER (APPEALS) PASSED THE FOLLOWING ORDER:- 9.18. I HAVE EXAMINED THE CONTENTION OF THE APPE LLANT AS WELL AS THE ASSESSMENT ORDER AND THE REMAND REPORT CAREFULLY. IT IS NOTED THAT THE ASSESSING OFFICER HAS INCORRECTLY CONSIDERED THE LOAN FROM RA GHUVEER SALES LTD. AT ` .6 00 000/- WHEREAS IT IS ACTUALLY ` .60 00 000/- AND THUS THE TOTAL LOANS ARE ` .3 00 00 000/- AND NOT ` .2 46 00 000/- CONSIDERED BUT THE ASSESSING OFFICER . FURTHER THAT THE APPELLANT IS CORRECT IN POINTING O UT THAT THE SHARE CAPITAL AND RESERVES OF THIS COMPANY IS POSITIVE AND THE ASSESS ING OFFICER HAS INCORRECTLY REFERRED TO IT AS NEGATIVE IN THE CASE OF VIRAJ MER CANTILE P. LTD. THE CURRENT YEAR LOSS IS MAINLY 'N SO1RLT OF EXCHANGE LOSS OF R S 3.35 CRORES. THE CAPITAL AND RESERVES OF PARK TOOLS LTD. IS RS 43 54 392/- A ND NOT 34 29 392/- THE CAPITAL AND RESERVES OF UTAKANTHA TRADING & PROPERT IES LTD. IS RS.2 50 31 098/- AND NOT 24 31 098/- AS MENTIONED B Y THE ASSESSING OFFICER. THIS DOES INDICATE THAT THE ASSESSING OFFI CER HAS PASSED THE ASSESSMENT ORDER IN A HURRY WITHOUT CONFRONTING THE APPELLANT WITH A SHOW CAUSE NOTICE. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 30 9.19. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THOUGH THE CONCLUSIONS OF THE INVESTIGATION WING HAS BEEN REFERRED TO IN T HE ASSESSMENT ORDER THERE ARE NO SPECIFIC REFERENCE TO THE APPELLANT COMPANY. THERE ARE NO EVIDENCES BROUGHT ON RECORD TO SHOW THAT THERE IS ANY CASH TR AIL IN RESPECT OF THE AMOUNTS RECEIVED BY THE APPELLANT COMPANY FROM THE INVESTORS. THOUGH THE AO WAS SPECIFICALLY ASKED TO FURNISH SPE CIFIC INCRIMINATING EVIDENCES IT IS NOTED THAT THE AO HAS NOT BEEN ABL E TO PIN POINT THE SPECIFIC EVIDENCES RELATING TO APPELLANT COMPANY WHICH WOULD CLEARLY SHOW THAT THE SHARE APPLICATION MONEY HAS BEEN RECEIVED IN LI EU OF CASH. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS REFERRED TO THE STA TEMENT OF SHRI PRAVIN JAM RECORDED AT THE TIME OF SEARCH BUT HAS NOT CONSIDER ED THE RETRACTION THEREAFTER IN WHICH IT WAS STATED THAT STATEMENT RE CORDED AT THE TIME OF SEARCH WAS UNDER UNDUE PRESSURE AND THAT SUCH STATE MENTS HAD BEEN RETRACTED. FURTHER APART FROM VIRAJ MERCANTILE PVT . LTD. NONE OF THE OTHER FOUR COMPANIES ARE LISTED AS PRAVEEN JAIN COMPANY B UT HAS BEEN CONSIDERED AS PARTIES WHO HAVE GIVEN BOGUS ENTRIES BY THE ASSESSI NG OFFICER. 9.20. IT IS FURTHER NOTED FROM DETAILS CALLED AND S UBMITTED BY THE APPELLANT THAT THE ADVANCES WERE REPAID AS FOLLOWS. SR. NO. NAME OF THE COMPANY AMOUNT DATE OF REPAYMENT 1. VIRAJ MERCANTILE PVT. LTD. 5000000 2500000 11.3.2013 24.10.2013 2. RAGHUVEER SALES PVT. LTD. 600000 21.8.2013 3. PARK TOOLS LTD. 2500000 24.7.2012 4. REAL STONE EXPORTS LTD. 3500000 25.7.2012 5. UTKANTHA TRADING AND PROPERTIES PVT. LTD. 65 00 000 20 00 000 20 00 000 4.6.2012 24.7.2012 25.7.2012 TOTAL 24600000 9.21. THE FACT REMAINS THAT THE INVESTOR COMPANIES ARE ASSESSED TO TAX AND HAVE FILED THEIR RETURNS OF INCOME. THE PARTIES HAV E RESPONDED TO THE NOTICES U/S 133(6). THE APPELLANT HAS FILED AUD ITED ACCOUNTS OF THE INVESTORS AND CONTENDED THAT THEY HAVE GENUINE BUSI NESS ACTIVITY. THE APPELLANT HAS SUBMITTED THAT NOTICES WERE SERVED ON THE INVESTORS IN ALL CASES. THEREFORE IT CANNOT BE SAID THAT THE PARTIES DID NOT EXIST AT THEIR ADDRESSES. DOCUMENTARY EVIDENCES WER E ALREADY FILED BY THE APPELLANT EARLIER IN THE ASSESSMENT PR OCEEDINGS. CONFIRMATION LETTERS WITH COPY OF PAN AND ADDRESS BANK STATEMEN TS OF APPLICANTS INCOME TAX RETURN ACKNOWLEDGEMENT AND AUDITED ACCO UNTS BALANCE SHEET AND P& L ACCOUNT OF THE INVESTOR COMPANIES HA VE BEEN FILED BEFORE THE ASSESSING OFFICER AND ALSO IN THE APPELL ATE PROCEEDINGS. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 31 9.22. SECTION 68 CASTS THE INITIAL 'BURDEN OF PROOF ON THE ASSESSEE TO SHOW PRIMA FACIE AND TO EXPLAIN THE NATURE AND SOUR CE OF CREDIT FOUND IN ITS BOOKS. WHEN THE STATUTE PLACES THE BUR DEN OF PROOF IN INCOME TAX CASES ON THE TAX PAYER IT IS UNDERSTOOD TO BE ONLY THE INITIAL BURDEN. WHEN THE TAX PAYER EXPLAINS THE CRE DIT BY PROVIDING EVIDENCE OF IDENTITY CONFIRMATION AND CREDIT WORTH INESS THE BURDEN SHIFTS ON THE REVENUE TO SHOW THAT THE EXPLANATION IS NOT SATISFACTORY OR INCORRECT. IN THE CASE OF CREDIT AS LOANS BY CORPOR ATE ENTITY WHOSE EXISTENCE IS SHOWN BY ITS REGISTRATION WITH REGISTR AR OF COMPANIES AND ITS FILING OF TAX RETURNS ADVERSE CONCLUSION IS NO T JUSTIFIED MERELY BECAUSE ITS DIRECTORS ARE NOT PRODUCED PERSONALLY B EFORE THE ASSESSING OFFICER BY THE TAX PAYER. 9.23. IN THE REMAND PROCEEDINGS ONLY THE LEGAL REQU IREMENT WAS INDICATED THAT IF ANY STATEMENTS OF THIRD PARTIES A RE TO BE RELIED UPON OPPORTUNITY FOR CROSS EXAMINATION MUST BE PROVIDED. FURTHER INSTEAD OF AND OTHER THAN GENERALITIES THE ASSESSI NG OFFICER WAS GIVEN AN OPPORTUNITY TO PUT TOGETHER APPELLANT SPECIFIC E VIDENCE JUSTIFYING THE ADDITION. 9.24. IT CAN BE SEEN FROM THE OBSERVATION OF THE AS SESSING OFFICER THAT HE HAS ONLY REFERRED TO THE INFORMATION RELATE D TO THE OUTCOME OF SEARCH IN THE CASE OF SHRI PRAVIN KUMAR JAIN GROUP WHO WERE ALLEGEDLY PROVIDING ACCOMMODATION ENTRIES BUT THE LD. ASSESSI NG OFFICER HAS FAILED TO DEMONSTRATE ANY SUCH SPECIFIC EVIDENCE THAT THE APPELLANT HAS IN REALITY OBTAINED ANY ACCO MMODATION ENTRIES. THERE IS NO DIRECT SPECIFIC MENTION OF THE APPELLANT BY THE DIRECTOR OR KEY PERSONS OF THE INVESTOR COMPANIES. THERE IS NO EVIDENCE OF CASH DEPOSITS LINKED TO THE INVESTORS. THE ASSESSING OFFICER DID NOT BRING SPECIFIC INCRIMINATING EVIDENCE LINKI NG THE INVESTOR TO THE APPELLANT. THE ONLY LINK IS THAT THE INVESTORS HAVE LENT TO THE APPELLANT COMPANY. THAT THE APPELLANT HAS GIVEN CASH TO THE INVESTORS IN LIEU OF ENTRY IS MERELY ALLEGED BUT NOT DEMONSTRATED. LAYERING OF TRANSACTIONS IS ALLEGED BUT NOT DEMONSTRATED. OPPORTUNITY FOR CR OSS EXAMINATION IS NOT PROVIDED TO THE APPELLANT. PAPERS/EVIDENCE FOUN D IN THE SEARCH ACTION RAISES PRESUMPTION BUT THE SAME IS AV AILABLE IN THE CASE OF PERSON SEARCHED BUT NOT IN THE CASE OF THIR D PARTIES UNLESS PROVED AND CORROBORATED. SIMILARLY RETRACTION MAY BE REJECTED AS MOTIVATED BUT THE SAME CAN BE CONSIDERED ONLY AGAI NST THE PERSON WHO HAS RETRACTED IN HIS ASSESSMENT. SUCH ST ATEMENT IN THE CASE OF ANOTHER PERSON LOSES ITS SANCTITY UNLES S OPPORTUNITY OF CROSS EXAMINATION IS GRANTED AND /OR IS CORROBORATED WITH OTHER EVIDENCES WHEN THE INVESTOR COMPANY IS FILING REGUL AR RETURN OF INCOME AND THERE IS A TRANSACTION THROUGH BANKING C HANNEL NO ADDITION CAN BE MADE WITHOUT HAVING ANY CONTRARY OR COGENT EVIDENCES IN POSSESSION. OVER SUCH ISSUE THERE ARE PLETHORA OF JUDGMENTS TO SUPPORT THE APPELLANT. SOME OF THEM AR E DISCUSSED HERE BELOW:- '(I) THE HON'BLE SUPREME COURT IN THE CASE OF CIT WS LOVELY EXPORTS 6 DTR 308 HAS HELD AS UNDER:- ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 32 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIVEN TO THE ASSESSING OFFICER THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF ASSESSEE COMPANY'. (II) THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V/ S CREATIVE WORLD TELEFILMS LTD 333 ITR 100 HAS HELD AS UNDER:- 'IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHO'S NAME ARE GIV EN TO THE ASSESSING OFFICER THEN THE DEPARTMENT CAN ALWAYS PROCEED AGAI NST THEM AND IF NECESSARY REOPEN THEIR INDIVIDUAL ASSESSMENTS. HELD DISMISSING THE APPEAL THAT THERE WAS NO DISP UTE THAT THE ASSESSEE HAD GIVEN THE DETAILS OF NAMES AND ADDRESSES OF THE SHA REHOLDERS THEIR PAN/ GIR NUMBERS AND HAD ALSO GIVEN THE CHEQUE NUMBERS NAME OF THE THROUGH PAN CARDS BANK STATEMENTS. THUS THE VIEW TAKEN BY THE TRIBUNAL COULD NOT BE FAULTED. (III) THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. ORISSA CORPORATION REPORTED IN 159 ITR 78 (SC) HAS HELD AS UNDER: 'THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE A VENUE THAT THE SAID CREDITORS WERE INCOME - TAX ASSESSEE'S. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOT ICE UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY ARE CREDITWORTHY. THERE WAS NO EFF ORT MADE TO PURSUE THE SO-CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTA NCES THE RESPONDENT COULD NOT DO ANYTHING FURTHER. IN THE PREMISES IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE'. RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISIONS: I. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S. VALUE CAPITAL SERVICES P. LTD. (2008) 307 ITR 334 (DELHI). II. HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE O F COMMISSIONER OF INCOME TAX V/S. GP INTERNATIONAL LT D. (2010) 325 ITR 25 (P&H). III. HONBLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX V/S. ETECTRO POLYCHEM LTD ( 2007) 294 ITR 661 (MAD). IV. HONBLE RAJASTHAN HIGH COURT IN CASE OF COMMISSIONE R OF INCOME TAX VS AKJ GRANITES P. LTD. (2008) 301 ITR 2 98 (RAJ.) V. V. HON'BLE DELHI HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX V/S. OASIS HOSPITALITIES (PVT.) L W. (20 11) 51 ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 33 DTR 74 (DELHI). SEC. 69 PLACES THE BURDEN OF PROOF ON THE TAXPAYER TO EXPLAIN THE NATURE AND SOURCE OF ANY CREDIT FOUND IN THE BOOKS. BUT WHEN ASSESSEE PROVES OR SUBMIT THE BASIC INFORMATION LIKE IDENTIFICATION GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS ONUS IS DISCHARGED BY HIM AND IF ASSESSING OFFICER DISBELIEVE THE GENUINENESS OF THE SAME HE HAS TO PROVE OTHERWISE MERELY DOUBTI NG OR POINTING OUT SOME DISCREPANCY IS NOT THE FOUNDATION FOR DISCARDING THE GENUINENESS OF THE DEPOSIT OR SHARE MONEY OR SUBSTANCE OF THE MATTER HELD BY THE FION'BLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT HEAVY CHEMICALS LTD. (2002) 256 JTR 795 (SC). IN VIEW OF THE ABOVE THE QUESTION OF MAKING ANY ADDITION U/S. 68 OF THE ACT DOES NOT ARISE.' 9.25. FURTHER HON'BLE JURISDICTIONAL ITAT IN THE C ASE OF IT0-10(2)(3) VS. M/S J.J. MULTITRADE PVT. LTD. ITA NO.2158 & 2159/MUM/2014 ORDER DATED 11.03.2015 HAS DELETED ADDITIONS ON SIM ILAR FACTS. FURTHER THE HON'BLE JURISDICTIONAL ITAT IN THE CAS E OF M S S.D.B. ESTATE PVT. LTD. VS ITO-5(3)(2) ITA NO.584/M/2015 H AS DELETED SIMILAR ADDITION MADE U/S 68 OF THE I.T. ACT. THE HON'BLE I TAT (JAIPUR BENCH)IN THE CASE OF BHARTI SYNTEX LTD. VS. DCIT ITA NOS. 172 & 173/JP/2010 HAS HELD IN PARA 24.4 AS UNDER:- '24.4 IN THIS CASE ALSO NO CROSS EXAMINATION WAS AL LOWED TO THE ASSESSEE. THEREFORE ADVERSE INFERENCE CANNOT BE DRAWN ONLY O N THE STATEMENT OF SHRI MUKESH CHOKSI. WE FURTHER NOTED THAT ALL OTHER NECESSARY DETAILS HAVE BEEN FILED BEFORE AG. AMOUNTS WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUE. BOTH THE COMPANIES ARE ASSESSED TO TAX IN M UMBAI. CONFIRMATION ALONG WITH COPIES OF SHARE CERTIFICATE BANK STATEM ENT MEMORANDUM OF ARTICLES COPY OF SHARE APPLICATION MONEY AUDITED BALANCE SHEET AND P&L A/C OF THESE PARTIES WERE FILED. THESE ARE SIMILAR DETAILS AS WERE FILED IN CASE OF THREE OTHER COMPANIES FOR ASST. YR. 2005-06. WE HAVE ALREADY DISPOSED OF THE APPEAL FOR ASST. YR. 2005-06 WHEREBY WE HAVE HELD THAT THE ASSESSEE HAS DISCHARGED ITS ONUS BY FILING NECE SSARY DETAILS AND FURTHER HAVE RELIED ON THE DECISIONS OF 1-LON'BIE SUPREME C OURT AND HON'BLE DELHI HIGH COURT ALONG WITH VARIOUS OTHER DECISIONS OF TRIBUNAL AND HAVE HELD THAT ADDITION CANNOT MADE UNDER S.68 IN THE HANDS OF THE ASSESSEE COMPANY. THEREFORE IN VIEW OF THE SAM E REASONING WE CANCEL THE ENTIRE ADDITION MADE AND C ONFIRMED BY THE LOWER ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 34 AUTHORITIES HERE ALSO. THE ABOVE DECISION OF ITAT ALSO RELATED TO MR.MUKES H CHOKSI'S CASE OF INVESTMENT IN SHARE APPLICATION MONEY. ON PERUSAL O F ABOVE CASE IT IS CLEAR THAT IF A BOGUS SHAREHOLDER HAS INVESTED THE MONEY AND IF APPELLANT RECEIVES SUCH MONEY AS SHARE APPLICATI ON MONEY AND APPELLANT DURING ASSESSMENT PROCEEDINGS PROVIDES TH E DETAILS LIKE NAME &ADDRESS OF THE CORPORATE ENTITY PAN NO. ROC NO. THEN ITAT HELD THAT THIS MAY BE REFERRED TO THE CONCERNED A.O. FOR PROCEEDING AGAINST SUCH BOGUS SHAREHOLDERS INSTEAD OF ADDING THE AMOUNT U/ S. 68 OF THE I.T. ACT IN THE NAME OF THE COMPANY.' 9.26. IT IS NOTED THAT NO SPECIFIC INCRIMINATING MA TERIAL LINKING INVESTOR TO THE APPELLANT OR SHOWING THE LENDING TO BE BOGUS IS PROVIDED. ALSO OPPORTUNITY FOR CROSS EXAMINATION ALSO WAS NOT PROVIDED TO THE APPELLANT. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO BRING ON RECORD ANY DIRECT OR CORROBORATIVE EVIDENCE THAT THE SHARE APP LICATION MONEY RECEIVED/ ADVANCES RECEIVED IS UNEXPLAINED AS COVERED U/S 68 EVEN AFTER OPPORTUNITY WAS GIVEN IN THE REMAND PROCEEDINGS. TH E ORIGINAL STATEMENT OF SHRI PRAVEEN JAIN DOES NOT NAME THE APPELLANT SP ECIFICALLY. HE HAS SUBSEQUENTLY RETRACTED EVEN THAT ORIGINAL STATEMENT . IN ANY CASE IT IS CARDINAL PRINCIPLE OF NATURAL JUSTICE THAT BEFORE CONCLUSIONS ARE DRAWN AGAINST A PERSON BASED ON STATEMENT OF A THIRD PART Y HE MUST BE ALLOWED AN OPPORTUNITY FOR CROSS EXAMINATION. THIS HAS NOT BEEN PROVIDED. THERE IS A LIMIT TO THE CAPACITY OR RESPONSIBILITY EXPECTED OF AN ASSESSEE TO PROVE FACTS. THE ASSESSING OFFICER HAS NOT INQUIRED INTO OR REPORTED ON ASSESSMENT IN THE CASE OF THE I NVESTOR COMPANIES. IF THE STATEMENTS RECORDED OF SHRI PRAVIN JAIN AND OTHERS (WHICH WERE RETRACTED) IGNORED THERE IS NO SPECIFIC EVIDENCE CITED BY THE ASSESSING OFFICER IN RESPECT OF THE INVESTOR COMPANIES AND THE APPELLANT WHICH WOULD SHIFT THE BURDEN BACK ON THE APPELLANT U/S 68. THE ASSESSING OFFICER HAS STATED THE APPELLANT HAS NOT DISPROVED THE FINDINGS OF THE DEP ARTMENT. NOW THE QUESTION IS WHAT ARE THE APPELLANT SPECIFIC FINDING S THAT HAS TO BE DISPROVED IS NOT SPELT OUT. FOUR OF THE FIVE LENDER S ARE NOT EVEN IN THE LIST OF PRAVEEN JAIN AS PER THE ASSESSING OFFICER'S DETAILS. IT HAS ALREADY BEEN NOTED THAT THE ASSESSING OFFICER HAS HURRIEDLY DRAW N INCORRECT CONCLUSIONS FROM THE AUDITED ACCOUNTS OF THE LENDERS. THE BORRO WINGS CARRY INTEREST ARID INTEREST HAS BEEN PAID AFTER TDS. ALL THE LOANS HAV E BEEN SUBSEQUENTLY REPAID THROUGH BANKING CHANNELS. IN TH IS FACT MATRIX AND THE JUDICIAL DECISIONS COVERING THE SCOPE OF SECTION 68 THE ADDITION MADE OF RS 2 46 00 000/- IN RESPECT OF UNSECURED LOANS / ADVANCES U/S 68 IN THE CASE OF THE APPELLANT IS DELETED. THE GROUNDS OF APPEAL NO 6 IN THIS REGARD ARE ALLOWED AS ABOVE. 17. IN VIEW OF THE ABOVE DISCUSSION WE DO NOT FIND ANY INFIRMITY AND ILLEGALITY AND WE HAVE ALREADY CONFIRMED THE ORDER PASSED BY L D CIT(A) FOR AY ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 35 2008-09 AND 2009-10 HENCE THE APPEAL FOR THE YEAR CONSIDERATION IS ALSO DISMISSED WITH SIMILAR OBSERVATION. ITA NO. 2948/M/2017 FOR AY 2012-13 BY ASSESSEE 18. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA LS; (1) THE COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE A CTION OF ASSESSING OFFICER IN REDUCING TRANSPORTATION CHARGES RS. 52 0 00/- FROM WORK IN PROGRESS ON THE GROUND THAT THE SAID CHARGES DO NOT PERTAIN TO THE RELEVANT ASSESSMENT YEAR. THE APPELLANTS CONTEND THAT ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER (APPEALS) OUG HT NOT TO HAVE UPHELD THE ACTION OF ASSESSING OFFICER IN AS MUCH A S THE IMPUGNED CHARGES HAVE BEEN CORRECTLY RECORDED IN THE BOOKS O F ACCOUNT OF THE YEAR UNDER REFERENCE AND THE COMMISSIONER (APPEALS) HAS NOT CORRECTLY APPRECIATED THE FACTS OF THE CASE; AS SUCH THE CHAR GES OUGHT NOT TO HAVE BEEN REDUCED FROM THE WORK IN PROGRESS. (2) THE COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN REDUCING PURCHASE OF GOODS RS.45215/- FR OM WORK IN PROGRESS ON THE GROUND THAT THE SAID PURCHASES WERE MADE FRO M THE DEALERS WHICH WAS DECLARED AS SUSPICIOUS AS PER THE INFOR MATION POSTED ON THE WEBSITE OF MAHARASHTRA SALE TAX DEPARTMENT AND WAS INVOLVED IN PROVIDING ACCOMMODATION ENTRIES. THE APPELLANTS CONTEND THAT ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER (APPEALS) OUG HT NOT TO HAVE UPHELD THE ACTION OF ASSESSING OFFICER INASMUCH AS THE ASSESSING OFFICER HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUPPORT T HE IMPUGNED REDUCTION FROM WORK IN PROGRESS AND THAT THE COMMIS SIONER (APPEALS) IS NOT CORRECTLY APPRECIATED THE FACTS OF THE CASE AND HENCE THE REDUCTION OF THE PURCHASES FROM WORK IN PROGRESS IS UNTENABLE IN LAW. ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 36 (3) THE COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN REDUCING COMPENSATION PAID ON CANCELLATI ON OF FLAT BOOKING RS. 1 00 000/- FROM WORK IN PROGRESS IN VIEW OF SEC TION 40(A)(IA) OF THE ACT ON THE GROUND THAT THE PAYMENT IS IN NATURE OF PENAL INTEREST AND THAT THE PAYMENTS IS MADE WITHOUT DEDUCTION OF TAX AT SOURCE. THE APPELLANTS CONTEND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER (APPEALS) OUG HT NOT TO HAVE UPHELD THE ACTION OF ASSESSING OFFICER INASMUCH AS THE IMPUGNED PAYMENT BEING IN THE NATURE OF COMPENSATION FOR CO NSIDERATION OF FLAT BOOKING IS NOT EXIGIBLE TO THE PROVISIONS OF THE T DS AND HENCE THE INVOCATION OF THE PROVISIONS OF SECTION 40(A)(IA) O F THE ACT IS NOT WARRANTED AND CONSEQUENTLY THE REDUCTION OF THE SA ID PAYMENT FROM THE WORK IN PROGRESS IS UNTENABLE IN LAW. (4) THE COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE A CTION OF ASSESSING OFFICER IN REDUCING RENT PAID TO SLUM DWELLERS RS. 30 35 000/-FROM WORK IN PROGRESS ON THE GROUND THAT THE SLUM DWELLERS WE RE NOT ELIGIBLE AND THE APPELLANT WERE NOT REQUIRED TO PAY SUCH RENT. THE APPELLANTS CONTEND THAT ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER (APPEALS) OUGH T NOT TO HAVE UPHELD THE ACTION OF ASSESSING OFFICER INASMUCH AS THE DATE IS PAID WHOLLY AND EXCLUSIVELY IN THE PURSUIT OF THE BUSINE SS AND THAT THE COMMISSION APPEAL HAS NOT CORRECTLY APPRECIATED THE FACTS OF THE CASE; AND AS SUCH THE REDUCTION OF THE SAID PAYMENT FROM WORK IN PROGRESS IS UNTENABLE IN LAW. (5) THE COMMISSIONER (APPEALS) ERRED IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN REDUCING CASH PAYMENT MADE TO SLUM DWEL LERS RS.25 89 156/- FROM WORK IN PROGRESS IN VIEW OF THE PROVISIONS OF SECTION 40A(3) OF THE ACT. THE APPELLANTS CONTEND THAT ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW THE COMMISSIONER (APPEALS) OUGH T NOT TO HAVE UPHELD THE ACTION OF ASSESSING OFFICER INASMUCH COM MISSIONER ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 37 (APPEALS) HAS NOT CORRECTLY APPRECIATED THE FACTS O F THE CASE AND HENCE THE IMPUGNED REDUCTION OF THE SAID PAYMENTS FROM WO RK IN PROGRESS IS UNTENABLE IN LAW . 19. AT THE OUTSET OF HEARING OF THE APPEAL THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE; VIDE APPLICATION DATED 26 SEPT EMBER 2017. WE HAVE PERUSED THE APPLICATION FILED BY ASSESSEE FOR ADMIS SION OF ADDITIONAL EVIDENCE. IN THE APPLICATION THE ASSESSEE HAS CONT ENDED THAT THEY HAVE FILED A PAPER BOOK CONTAINING PAGE NO. 117 TO 172. IT IS ALSO CONTENDED IN THE APPLICATION THAT THESE EVIDENCE WERE SENT TO TH EIR CHARTERED ACCOUNTANT WHO WERE ATTENDING PROCEEDINGS BEFORE FIRST APPELLA TE AUTHORITY. THE REQUIRED DOCUMENTS WERE COMPILED BY MR. ANJAN BHAVS AR CHARTERED ACCOUNTANTS (CA) TO SEND TO THEIR AUTHORISED REPRES ENTATIVE. THE SAID CA MR. ANJAN BHAVSAR REMAINED UNDER A GENUINE BELIEF T HAT ALL THE DOCUMENTS HAVE BEEN SEND BY HIM TO THEIR REPRESENTATIVE. HOWE VER INADVERTENTLY CERTAIN PARTS OF PAPERS AND DOCUMENTS WERE NOT SENT DUE TO BONA FIDES MISTAKE AND DUE TO LAKE OF COORDINATION BETWEEN HI M AND THE AUTHORISED REPRESENTATIVE HENCE THOSE DOCUMENT COULD NOT BE FILED BEFORE COMMISSIONER (APPEALS). IN SUPPORT OF THE APPLICATI ON THE ASSESSEE HAS FILED AFFIDAVIT OF ANJAN BHAVSAR CA OF THE ASSESSEE COMPANY. 20. IT WAS ARGUED BY LEARNED AR OF THE ASSESSEE THAT A LL THESE DOCUMENTS HAVE DIRECT BEARINGS ON THE GROUNDS NO.1 TO 5 OF GROUNDS OF APPEAL RAISED BY THE ASSESSEE. IT WAS FURTHER PRAYED THAT THE ASSESSEE W OULD SUFFER PREJUDICE IF ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 38 THE DOCUMENT IS NOT CONSIDERED FOR ADJUDICATION OF THE GROUNDS OF APPEAL RAISED BY ASSESSEE. ON THE OTHER HAND LEARNED DR FO R THE REVENUE OPPOSED THE ADMISSION OF ADDITIONAL GROUND OF APPEAL AT THI S STAGE. THE LEARNED DR FOR THE REVENUE FURTHER CONTENDED THAT IF THE DOCUM ENTS ARE ADMITTED WILL REQUIRE VERIFICATION AT THE END OF ASSESSING OFFICE R. AND IN CASE THIS TRIBUNAL ARRIVES AT A CONCLUSION TO ADMIT THE ADDIT IONAL EVIDENCES ALL THE GROUNDS OF APPEAL MAY BE RESTORED TO THE FILE OF AS SESSING OFFICER FOR VERIFICATION OF THE EVIDENCE FURNISHED BY ASSESSEE AND TO DECIDE THE CLAIMS IN THE GROUNDS OF APPEAL RAISED BY ASSESSEE ACCORDI NGLY. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE EVIDENCES FURNISHED BY ASSESSEE. THE LE ARNED AR OF ASSESSEE HAS FURNISHED THE DOCUMENTARY EVIDENCES RELATED WIT H THE GROUNDS OF APPEAL NO. 1 TO 5 HAS RAISED IN THE PRESENT APPEAL. 22. THE DOCUMENTS FILED BY THE ASSESSEE ALONG WITH THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE CONSIST OF VOUCHER DATED 12.04.2011 TOGETHER WITH TRANSPORT BILL OF SONA TRANSPORT OF R S.52 000/- ( IN SUPPORT OF GROUND NO.1) COPY OF VOUCHER DATED 31.12.2011 WITH PURCHASE BILL OF AMAR TRADING CORPORATION( SUPPORTING GROUND NO.2) LEDGER ACCOUNT OF MANJULA DEEPAK NARKAR FOR PAYMENT OF RS. 1 00 000/- ( SUPPORTING GROUND NO.3) DETAILS OF THE STATEMENT OF PAYMENTS TO SLUM DWELLERS (SUPPORTING GROUND NO.4) AND COPY OF THE BANK STATEMENT SHOWING THE PAYMENTS TO SLUM DWELLERS BY CHEQUES (SUPPORTING GROUND NO.5) ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 39 23. IN OUR VIEW ALL THESE DOCUMENT FURNISHED BY ASSESS EE ARE RELEVANT AND HAVE MATERIAL BEARINGS ON THE GROUNDS OF APPEALS RA ISED BY ASSESSEE AND REQUIRED PROPER VERIFICATION AT THE END OF ASSESSIN G OFFICER. CONSIDERING THE RELEVANCY OF ADDITIONAL EVIDENCE FILED BEFORE US Q UA GROUND NO.1 TO 5 OF THE GROUNDS OF APPEAL WE ADMIT ALL THE EVIDENCES F URNISHED BY ASSESSEE AND FURTHER DEEM IT APPROPRIATE TO RESTORE ALL THE GROUNDS OF APPEAL TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE EVIDENCES AND DECIDED THE ISSUE AFRESH AFTER TAKING INTO CONSIDERATION THE EVIDENC ES FURNISHED BY ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE D OCUMENTARY EVIDENCES FURNISHED BY ASSESSEE AND PASS THE ORDER AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT ASSESSING OFFICER SHALL PROVID E SUFFICIENT AND ADEQUATE OPPORTUNITY BEFORE DECIDING THE CLAIMS/ ISSUES RAIS ED BY ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE AND PR OVIDE NECESSARY INFORMATION AND DOCUMENTS TO THE ASSESSING OFFICER. WITH THESE OBSERVATIONS THE GROUNDS OF APPEAL RAISED BY ASSESS EE IN GROUND NO. 1 TO 5 ARE ALLOWED FOR STATISTICAL PURPOSE. 24. IN THE RESULT APPEAL FILED BY ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 14.11.2017. SD/- SD/- R.C.SHARMA PAWAN SIN GH ACCOUNTANT MEMBER JUD ICIAL MEMBER MUMBAI DATED: 14.11.2017 COPY OF THE ORDER FORWARDED TO : ITA N0.3754 3755 3756 & 2948/M/2017 SHREEDHAM CONSTRUCTION 40 1. THE ASSESSEE; 2. THE REVENUE; 3. THE CIT(A); 4. THE CIT MUMBAI CITY CONCERNED; 5. THE DR ITAT MUMBAI; 6. GUARD FILE. BY ORDER SK PRIVATE SECRETARY (DY./ASSTT. REGISTRAR) ITAT MUMBAI