ITO, New Delhi v. M/s. Neelkanth Ispat Udhyog Pvt. Ltd., New Delhi

ITA 4194/DEL/2011 | 2006-2007
Pronouncement Date: 24-11-2011 | Result: Dismissed

Appeal Details

RSA Number 419420114 RSA 2011
Assessee PAN AABCN9355P
Bench Delhi
Appeal Number ITA 4194/DEL/2011
Duration Of Justice 2 month(s) 4 day(s)
Appellant ITO, New Delhi
Respondent M/s. Neelkanth Ispat Udhyog Pvt. Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 24-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 24-11-2011
Date Of Final Hearing 17-11-2011
Next Hearing Date 17-11-2011
Assessment Year 2006-2007
Appeal Filed On 19-09-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `E : NEW DELHI) BEFORE SHRI A.D. JAIN JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER ITA NO.4194/DEL./2011 (ASSESSMENT YEAR : 2006-07) ITO WARD 8(3) VS. NEELKANTH ISPATUDHYOG (P) LTD . NEW DELHI. (PREVIOUSLY KNOWN AS SHRI GANPATI CONCAST PVT. LTD.) 307-308 AGARWAL TOWER H-6 NETAJI SUBHASH PALACE DISTT. CENTRE WAZIRPUR DELHI-110052. (PAN/GIR NO.AABCN9355P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SAMPATH ADV. REVENUE BY : SHRI R.S. NEGI SR.DR ORDER PER A.D. JAIN: JM THIS IS DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 20 06-07 TAKING THE FOLLOWING GROUNDS: 1. THE CIT(A) ERRED IN LAW AND ON THE FACTS AND CI RCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS.1 00 40 000/- MADE BY T HE ASSESSING OFFICER U/S 68 OF THE I.T. ACT 1961. 2. THE CIT(A) ERRED IN LAW AND ON THE FACTS AND CIR CUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS.2 51 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF COMMISSION PAID TO ENTRY OPERATORS. 2. THE ASSESSING OFFICER OBSERVED THAT DURING THE Y EAR THE ASSESSEE COMPANY HAD RECEIVED A SUM OF RS.1 00 40 000/- AS SHARE APPLICA TION MONEY AS FOLLOWS: S.NO. NAME & ADDRESS AMOUNT(RS.) DETAILS OF CHEQUE/DD/PO NO. & BANK 1. SH. VIRENDER SINGH (1)9 00 000/- (2)14 70 000/- (3)4 60 000/- (4)9 00 000/ THE KANGRA COOPERATIVE BANK LTD. (1) CHEQUE NO.554498 DATED 20-03-2006 (2) CHEQUE NO.554508 DATED 22-03-2006 I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 2 2 (5)5 00 000/- (6) 2 60 000/- (3) CHEQUE NO.554500 DATED 24-03-3006 (4) CHEQUE NO.5 54509 DATED 24-03-2006 (5) CHEQUE NO.554400 DATED 24-03-2006 (6) CHEQUE NO.554510 DATED 27-03-2006 2. M/S U.P. ELECTRICALS PVT. LTD.. 2A/65 RAMESH NAGAR NEW DELHI. 25 00 000/- KOTAK MAHINDRA BANK LTD. NORTH WEST AVENUE ROAD CLUB ROAD PUNJABI BAGH NEW DELHI-26 CHEQUE NO.000078 DATED 21-03-2006 3. M/S SALWAN DEVELOPERS & PROMOTERS PVT. LTD. A- 4/181 SECTOR 17 ROHINI NEW DELHI-85. 12 50 000 THE BANK OF RAJASTHAN LTD. VIKASPURI NEW DELHI. CHEQUE NO.112147 DATED 24-03-2006 4. M/S JAIN PROJECT & FINANCIAL CONSULTANTS PVT. LTD. A-24 2 ND FLOOR TAGORE MARKET KIRTI NAAR DELHI. 18 00 000/- H.D.F.C. BANK RAJINDER NAGAR NEW DELHI. CHEQUE NO.806983 DATED 20-03-2006 & CHEQUE NO.806982 DATED 20-03-2006. THE ASSESSING OFFICER OBSERVED THAT THE COMPANIES M /S U.P. ELECTRICAL PVT. LTD. M/S SALWAN DEVELOPERS & PROMOTERS PVT. LTD. AND JAIN PR OJECTS & FINANCIAL CONSULTANTS PVT. LTD. HAD BEEN SUBJECTED TO CERTAIN ENQUIRIES AND IN VESTIGATION BY THE INVESTIGATION WING OF THE DEPARTMENT WHEREIN IT HAD BEEN FOUND THAT T HESE COMPANIES WERE CORPORATE ENTITIES ONLY IN THE NAME AND WERE NOT ENGAGED IN A NY ACTUAL BUSINESS ACTIVITIES AND THAT THEY WERE MERELY PAPER ENTITIES FLOATED FOR THE PUR POSE OF ARRANGING ACCOMMODATION ENTRIES. IT WAS ALSO FOUND THAT THESE COMPANIES DI D NOT HAVE ANY CREDITWORTHINESS NOR DID THEY HAVE ANY WORTHWHILE SOURCE OF INCOME AND THAT THE BANK ACCOUNTS EXISTING IN THE NAMES OF THESE COMPANIES WERE BEING USED AS CONDUIT S FOR THE PURPOSE OF ARRANGING ACCOMMODATION ENTRIES. 3. ON QUERY VIDE WRITTEN SUBMISSION DATED 11.7.08 THE ASSESSEE FURNISHED CONFIRMATIONS FROM THE PARTIES ALONG WITH I.T.R. AC KNOWLEDGEMENTS FOR ASSESSMENT YEAR 2005-06 AND COPIES OF BANK STATEMENTS. THE ASSESS ING OFFICER OBTAINED BANK STATEMENTS AND ACCOUNT OPENING FORMS OF THE SAID THREE COMPANI ES FROM THEIR RESPECTIVE BANKS. IT WAS SEEN THAT THESE COMPANIES BELONGED TO THE MUKES H GUPTA GROUP OF COMPANIES. MUKESH GUPTA AND HIS ASSOCIATES GAVE SELF INCRIMINA TING STATEMENTS U/S 131 OF THE I.T. I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 3 3 ACT 1961 BEFORE THE INVESTIGATION WING OF THE DEPA RTMENT ADMITTING THAT THESE COMPANIES WERE BOGUS COMPANIES USED FOR ACCOMMODATI ON ENTRY PURPOSES. THE ASSESSING OFFICER THUS ISSUED SUMMONS TO THE PRINCI PAL OFFICERS OF THESE COMPANIES. THE NOTICE ISSUED TO M/S U.P. ELECTRICAL PVT. LTD. WAS RECEIVED BACK WITH THE POSTAL REMARK LEFT WHEREAS THOSE ISSUED TO THE OTHER TWO COMPA NIES REMAINED UNCOMPLIED WITH. ON THIS THE ASSESSEE WAS ASKED TO EXPLAIN THE CREDITW ORTHINESS OF THESE COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS. IN RESPONSE THE ASSESSEE SUBMITTED THAT IT HAD FILED CONFIRMATIONS FROM THESE COMPANIES ALONG WITH THEIR ASSESSMENT PARTICULARS ETC.; THAT THE STATEMENTS OF MUKESH GUPTA AND HIS ASSOCIATES WERE GIVEN PRIOR TO THE PERIOD DURING WHICH THE ASSESSEE COMPANY HAD RECEIVED THE SHARE A PPLICATION MONEY AND THAT THE ASSESSEE BE PROVIDED AN OPPORTUNITY TO CROSS EXAMIN E THE PERSONS MAKING THESE STATEMENTS; AND THAT THE ASSESSEE HAD RECEIVED THE PAYMENT THROUGH NORMAL BANKING CHANNELS. 4. THE ASSESSING OFFICER HOWEVER REFUSED TO AGREE WITH THE STAND TAKEN BY THE ASSESSEE. OPPORTUNITY TO CROSS EXAMINE MUKESH GUPT A AND HIS ASSOCIATES WAS DENIED OBSERVING THAT IT WAS NOT AN ABSOLUTE RIGHT AVAILAB LE TO THE ASSESSEE. THE EVIDENCE PRODUCED BY THE ASSESSEE BY WAY OF RETURNS OF INCOM E AND CONFIRMATIONS ETC. WAS REJECTED BY THE ASSESSING OFFICER. IT WAS OBSERVED THAT THE SAID EVIDENCE DID NOT FACILITATE CROSS VERIFICATION; THAT THERE HAD BEEN NO COMPLIAN CE FROM THESE COMPANIES WITH THE ASSESSING OFFICERS CALL U/S 131 OF THE ACT; THAT T HE ASSESSEE HAD ALSO NOT PRODUCED THEM; THAT THE CONFIRMATIONS WERE JUST SELF-SERVING DOCUM ENTS INSUFFICIENT TO PROVE THE CREDITWORTHINESS OF THE PERSONS OR THE GENUINENESS OF THE TRANSACTIONS; THAT EVEN THE INSPECTOR OF THE INCOME TAX WARD WHEN DEPUTED TO M AKE ENQUIRY REPORTED THAT THESE COMPANIES WERE NOT EXISTING AS THERE WAS NO SIGN O F BUSINESS IN THE FORM OF ANY TRADING/MANUFACTURING ACTIVITY OF ANY SERVICES BEI NG RENDERED OR IN THE FORM OF EMPLOYEES ASSETS/APPARATUS OR ANY OTHER EVIDENCE O F ANY BUSINESS ACTIVITY WHATSOEVER; AND THAT THESE COMPANIES EXISTED ONLY AS MERE ADDRE SSES; THAT THE AFFIDAVITS FILED BY THE ASSESSEE WERE ALSO OF NO EVIDENTIARY VALUE; THAT TH E STAMP PAPERS OF THESE AFFIDAVITS HAD BEEN PURCHASED FROM THE SAME VENDOR AND BORE SUCCES SIVE SERIAL NUMBERS; THAT THE ADDRESSES MENTIONED IN THE AFFIDAVITS WERE THE SAM E AS THOSE MENTIONED IN THE DETAILS FILED; THAT AS SUCH THESE AFFIDAVITS WERE MERELY SE LF-SERVING DOCUMENTS SENT ONLY AT THE I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 4 4 INSTANCE OF THE ASSESSEE COMPANY WITHOUT PRODUCING THE CONCERNED PERSONS OF THESE COMPANIES. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE COMPANY WAS A PRIVATE LIMITED COMPANY; THAT IN THE CASE OF PRIVATE LIMITE D COMPANIES THERE IS A CLOSE AND PROXIMATE RELATIONSHIP BETWEEN THE PROMOTERS AND DI RECTORS OF THE SHAREHOLDERS; THAT CLOSELY HELD COMPANIES ARE PERMITTED TO ACCEPT THE SUBSCRIPTIONS OF SHARE CAPITAL FROM DEPOSITS ONLY FROM FRIENDS OR RELATIVES OF THE PROM OTERS/DIRECTORS AND SUCH COMPANIES ARE NOT ALLOWED TO ACCEPT SUBSCRIPTION OR DEPOSITS FROM THE GENERAL PUBLIC; THAT AS SUCH IT WOULD NOT HAVE BEEN DIFFICULT FOR THE ASSESSEE TO P RODUCE THE SO-CALLED INVESTORS IF THESE COMPANIES WERE REALLY NOT MERELY A CONDUIT TO PLOUG H BACK THE UNACCOUNTED MONEY OF THE ASSESSEE COMPANY IN THE GARB OF SHARE APPLICATION M ONEY. THE ASSESSING OFFICER FURTHER OBSERVED THAT MERE PAYMENT BY ACCOUNT PAYEE CHEQUES IS NOT SACROSANCT AND IT CANNOT MAKE A NON-GENUINE TRANSACTION A GENUINE TRANSACTI ON; THAT FROM THE BANK ACCOUNTS OF THE THREE COMPANIES IT HAD BEEN SEEN THAT THERE WAS A UNIFORM PATTERN TO THE TRANSACTIONS INASMUCH AS INVARIABLY THE ISSUANCE OF CHEQUES WAS IMMEDIATELY PRECEDED BY THE DEPOSITS OF EQUIVALENT AMOUNTS IN THE ACCOUNT EITH ER IN CASH OR THROUGH CHEQUE/TRANSFER ENTRIES AND THAT THUS THERE WAS A DEFINITE TRAIL O F CASH HAVING BEEN DEPOSITED IN ONE OF THE ACCOUNTS AND THE SAME HAVING BEEN ROUTED THROUGH TW O/THREE ACCOUNTS. IN THIS MANNER THE ASSESSING OFFICER TREATED THE TOTAL AMOUNT OF R S.55 50 000/- ALLEGEDLY RECEIVED BY THE ASSESSEE FROM THESE THREE COMPANIES AS THE ASSESSEE S OWN UNACCOUNTED MONEY AND ADDED IT BACK TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 5. APROPOS SHARE APPLICATION MONEY OF RS.44 90 000/ - ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE COMPANY FROM SHRI VIRENDER SINGH THE ASSESSEE FURNISHED BEFORE THE ASSESSING OFFICER VIDE WRITTEN SUBMISSI ONS DATED 11.07.2008 A COPY OF HIS I.T.R. ACKNOWLEDGEMENT FOR ASSESSMENT YEAR 2005-06 AND A COPY OF HIS BANK STATEMENT. THE NOTICE SENT TO SHRI VIRENDER SINGH BY THE ASSES SING OFFICER U/S 131 WAS RECEIVED BACK UNSERVED WITH THE POSTAL REMARK LEFT. THE A SSESSEE HOWEVER CONTENDED THAT NO ADDITION COULD BE MADE IN THE ASSESSEES HAND IN V IEW OF CIT VS. LOVELY EXPORTS P. LTD. 216 CTR (SC) 195. THE ASSESSING OFFICER HO WEVER REJECTING THE ASSESSEES CONTENTION ADDED THE AMOUNT OF RS.44 90 000/- TO T HE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. A SUM OF RS.2 51 000/- I.E. 2.5% OF THE TOTAL AMOUNT OF RS.1 00 40 000/- WAS I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 5 5 ALSO ADDED AS COMMISSION PAID TO THE ENTRY OPERATOR S OUT OF THE ASSESSEES UNDISCLOSED INCOME. 6. BY VIRTUE OF THE IMPUGNED ORDER THE CIT(A) HAS DELETED BOTH THE ADDITIONS MADE BY THE ASSESSING OFFICER LEADING TO THE PRESENT AP PEAL BEING PREFERRED BY THE DEPARTMENT. 7. BEFORE US THE LD.SR.DR. HAS CONTENDED THAT CIT( A) HAS ERRED IN DELETING THE ADDITIONS OF RS.1 00 40 000/- AND RS.2 51 000/- MAD E U/S 68 OF THE ACT. RELIANCE HAS BEEN PLACED ON CIT VS. OASIS HOSPITALITY P. LTD. 333 I.T.R. 119 (DEL.). PARTICULAR STRESS HAS BEEN LAID BY THE LD.SR.DR ON THE FOLLOWI NG OBSERVATIONS IN CIT VS. OASIS HOSPITALITY P. LTD. (SUPRA): ON THE BASIS OF SUCH STATEMENT WITHOUT AN IOTA OF DOCUMENTARY EVIDENCE TO SUPPORT WE ARE OF THE OPINION THAT THE FINDINGS OF THE AUTHORITIES BELOW CANNOT BE TREATED AS PERVERSE. IT IS ON PROPER ANALYSIS OF T HE STATEMENTS OF THESE PERSONS WHICH WERE RECORDED BY THE ASSESSING OFFICER. WHEN WE KEEP IN MIND THE PRINCIPLE OF LAW LAID DOWN IN THE RATIO IN THE AFOR ESAID DECISIONS AND APPLY THE SAME TO THE FACTS OF THIS CASE IT IS DIFFICULT TO FIND FAULT WITH THE APPROACH OF THE TRIBUNAL. WE HAVE TO KEEP IN MIND THAT THE RATIO I N A DECISION CANNOT BE APPLIED IN EACH CASE. THE FACTS AND CIRCUMSTANCES OF EACH CASE ARE TO BE WEIGHTED AND EXAMINED AS TO WHETHER A PARTICULAR RATIO DECIDED I N A PARTICULAR CASE COULD BE APPLIED. AS NOTED ABOVE THE INITIAL ONUS IS UPON THE ASSESSEE TO ESTABLISH THREE THINGS NECESSARY TO OBVIATE THE MISCHIEF OF SECTION 68 OF THE ACT. THESE ARE : (I)THE IDENTITY OF INVESTORS; (II)THEIR CREDITWORTH INESS/INVESTMENTS AND (III) THE GENUINENESS OF THE TRANSACTION. ONLY WHEN THESE TH REE INGREDIENTS ARE ESTABLISHED PRIMA FACIE IT IS ONLY THEN THE DEPARTMENT IS REQU IRED TO UNDERTAKE FURTHER EXERCISE AS DISCUSSED ABOVE. IN THE INSTANT CASE NO SUCH DOCUMENTS ARE FILED AND NO STEPS TAKEN BY THE ASSESSEE WHICH COULD ESTABLIS H THE AFORESAID THREE INGREDIENTS. 8. THE LD.COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER CONTENDING THAT THE ASSESSEE HA D DULY DISCHARGED ITS ONUS U/S 68 OF THE ACT AND THEREFORE THE CIT(A) HAS CORRECTLY DEL ETED THE ADDITIONS WRONGLY MADE. RELIANCE HAS BEEN PLACED ON CIT VS. LOVELY EXPORTS PVT. LTD. (SUPRA) AND CIT I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 6 6 KOLKATA-III VS. DATAWARE PRIVATE LIMITED PASSED B Y THE HONBLE CALCUTTA HIGH COURT ON 21.9.2011 IN I.T.A. NO.263 OF 2011 (GA NO.2856 OF 2011) (COPY PLACED ON RECORD). OASIS HOSPITALITIES P. LTD. (SUPRA). 9. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL ON RECORD. THE ASSESSEE IT IS SEEN HAD FURNISHED BEFORE THE ASSESSING OFFI CER THE CONFIRMATIONS OF ALL THE FOUR PERSONS FROM WHOM THE MONEY HAD BEEN RECEIVED. CO PIES OF THEIR I.T.R. WERE ALSO FILED. THE AMOUNTS WERE ADMITTEDLY RECEIVED THROUGH ACCOUN T PAYEE CHEQUES. THE ASSESSEE HAD FILED FORM NO.2 WITH THE ROC IN RESPECT OF ALLOTMEN T OF SHARE CAPITAL OF RS.1 00 40 000/- . A COPY THEREOF WAS ALSO PROVIDED TO THE ASSESSI NG OFFICER. THE PARTIES WERE ALSO NOT PROVED TO BE NON-EXISTENT. IT WAS ON THE BASIS OF THESE FACTS THAT THE CIT(A) DELETED AND IN OUR CONSIDERED OPINION RIGHTLY SO THE ADDITION S WRONGLY MADE. AS CORRECTLY OBSERVED BY THE CIT(A) THE HONBLE DELHI HIGH COURT IN THE CASE OF DWARKADHISH CAPITAL PVT. LTD. IN I.T.A. NOS.911 & 913/2010 VIDE ORDER DAT ED 02.08.2010 HAS HELD THAT THE ONUS OF PROOF IS NOT STATIC; THAT ONCE THE ASSESSEE HAS PROVED THE IDENTITY OF THE APPLICANTS BY FURNISHING THEIR PANS OR INCOME-TAX ASSESSMENT NUMB ERS AND SHOWS THE GENUINENESS OF THE TRANSACTIONS BY REFLECTING THE MONEY IN HIS BOO KS EITHER BY ACCOUNT PAYEE CHEQUES OR BY DRAFT OR BY ANY OTHER MODE THE ONUS OF PROOF S HIFTS TO THE REVENUE; THAT JUST BECAUSE CREDITORS/SHARE APPLICANTS COULD NOT BE FOUND AT TH E GIVEN ADDRESS IT WOULD NOT GIVE THE REVENUE THE RIGHT TO INVOKE SECTION 68 OF THE ACT; THAT IT IS THE REVENUE WHICH HAS ALL THE POWER AND WHEREWITHAL TO TRACE ANY PERSON; AND THAT MOREOVER IT IS WELL SETTLED THAT THE ASSESSEE NEED NOT PROVE THE SOURCE OF THE SOURCE. 10. IN KEEPING WITH CIT VS. LOVELY EXPORTS PVT. LT D. (SUPRA) IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE FROM ALLEGED BOGUS SHAREHOLDERS WHOSE DETAILS ARE GIVEN TO THE ASSESSING OFFICER AS IN THE PRESENT CASE THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN A CCORDANCE WITH LAW AND THE AMOUNT CANNOT BE TAKEN AS UNEXPLAINED INCOME IN THE HANDS OF THE ASSESSEE. THE ASSESSMENT ORDER HEREIN DOES NOT SHOW THE ASSESSING OFFICER A S RIGHTLY OBSERVED BY THE CIT(A) TO HAVE BROUGHT ANYTHING ON RECORD TO THE EFFECT THAT THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE DURING THE YEAR WAS ACTUALLY THE UN DISCLOSED INCOME OF THE ASSESSEE ITSELF. RATHER THE IDENTITY OF THE SHARE SUBSCRIBERS STOOD ESTABLISHED. SO WAS THE GENUINENESS OF THE TRANSACTIONS THESE TRANSACTIONS BEING THROUGH ACCOUNT PAYEE CHEQUES. AS SUCH THE I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 7 7 ASSESSING OFFICER OUGHT TO HAVE PROCEEDED AGAINST T HE IDENTIFIED SHARE SUBSCRIBERS WHICH WAS NOT DONE. THE STATEMENTS OF THE PERSONS RECORDE D BY THE INVESTIGATION WING OF THE DEPARTMENT I.E. MUKESH GUPTA AND HIS ASSOCIATES ON WHICH THE ASSESSING OFFICER PLACED RELIANCE RELATED TO THE PERIOD FROM DECEMBER 2003 TO JANUARY 2005. THE YEAR UNDER CONSIDERATION PRESENTLY HOWEVER IS ASSESSMENT YEA R 2006-07. THE CIT(A) HAS ALSO TAKEN NOTE OF THE FACT THAT THE SAID STATEMENTS DO NOT FIND MENTION OF THE COMPANIES FROM WHICH THE ASSESSEE STATES TO HAVE TAKEN THE SHARE A PPLICATION MONEY. RELIANCE ON THE SAID STATEMENT BY THE ASSESSING OFFICER HAS ALSO THEREF ORE RIGHTLY BEEN REJECTED BY THE CIT(A). 11. APROPOS THE REMAINING SHARE SUBSCRIBER I.E. VI RENDER SINGH HE WAS FOUND TO BE AN EXISTING PERSON. THE SHARE APPLICATION MONEY I N HIS NAME WAS RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CHEQUE. SHRI VIRENDER SI NGH HAD APPLIED FOR SHARES OF THE ASSESSEE COMPANY ON BEHALF OF POORVA TECHNO IMPEX P VT. LTD. WHICH IS ALSO ASSESSED TO TAX. THE DIRECTORS OF THAT COMPANY HAD PASSED A RE SOLUTION IN THAT REGARD. THE SHARE APPLICATION MONEY HAD ORIGINATED FROM THE BANK ACCO UNT OF THAT COMPANY. THE CIT(A) HAS DULY TAKEN INTO CONSIDERATION ALL THESE FACTS B EFORE DELETING THE ADDITION MADE. 12. APROPOS CIT VS.OASIS HOSPITALITIES P. LTD. (S UPRA) THE SAME IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN THAT CASE THE A SSESSEE HAD NOT EVEN FURNISHED BASIC REQUIREMENTS OF SHARE CAPITAL I.E. CHEQUE NUMBER DATE AMOUNT(S) AND DETAILS OF DRAWEE BANK ETC. THE ASSESSEES BANK ACCOUNT WAS ALSO NO T PRODUCED. IT WAS IN THIS BACKGROUND THAT IT WAS OBSERVED THAT THE ASSESSEE HAD NOT BEEN ABLE TO DISCHARGE ITS ONUS AND THAT THE ADDITION HAD BEEN RIGHTLY MADE. IN THE PRESENT CAS E HOWEVER AS DISCUSSED HEREINABOVE THE ASSESSEE HAS DULY FURNISHED ALL RELEVANT MATERI AL EVIDENCE BEFORE THE ASSESSING OFFICER THEREBY DISCHARGING ITS PRIMARY ONUS U/S 6 8 OF THE ACT IN KEEPING CIT VS. LOVELY EXPORTS PVT. LTD. (SUPRA) AND DWARKADISH C APITAL (SUPRA). 13. MOREOVER IN CIT KOLKATA-III VS. DATAWARE PRI VATE LIMITED(SUPRA) A DECISION DATED 21.9.2011 RENDERED BY THE HONBLE CALCUTTA H IGH COURT IN I.T.A. NO.263 OF 2011 (GA NO.2856 OF 2011) IT HAS BEEN HELD THAT WHERE T HE ASSESSING OFFICER OF THE ASSESSEE INSTEAD OF MAKING ENQUIRY FROM THE ASSESSING OFFICE R OF THE CREDITOR AS TO WHETHER THE RETURN SUBMITTED BY THE CREDITOR HAD BEEN ACCEPTED HIMSELF ARRIVED AT THE FINDING THAT THE PROCUREMENT OF MONEY BY THE CREDITOR WAS NOT GENUIN E AND ADDED THE AMOUNT TO THE I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 8 8 INCOME OF THE ASSESSEE THE ASSESSING OFFICER OF TH E ASSESSEE COULD NOT TAKE THE BURDEN OF ASSESSING THE PROFIT AND LOSS ACCOUNT OF THE CREDIT OR WHEN ADMITTEDLY THE CREDITOR HIMSELF WAS AN INCOME-TAX ASSESSEE; AND THAT THE ASSESSING OFFICER OF THE ASSESSEE COULD NOT HIMSELF ENTER INTO THE RETURN OF THE CREDITOR AND B RAND THE SAME AS UNWORTHY OF CREDENCE; AND THAT SO LONG AS IT IS NOT ESTABLISHED THAT THE RETURN SUBMITTED BY THE CREDITOR HAS BEEN REJECTED BY ITS ASSESSING OFFICER THE ASSESSING OF FICER OF THE ASSESSEE IS BOUND TO ACCEPT THE SAME AS GENUINE WHEN THE IDENTITY OF THE CREDI TOR AND THE GENUINENESS OF THE TRANSACTION THROUGH ACCOUNT PAYEE CHEQUE HAS BEEN E STABLISHED. IN THE PRESENT CASE AS DISCUSSED ABOVE THE IDENTITY OF THE CREDITORS AND THE GENUINENESS OF THE TRANSACTIONS THROUGH ACCOUNT PAYEE CHEQUES STAND DULY ESTABLISHE D. THE ASSESSING OFFICER OF THE ASSESSEE DID NOT CARRY OUT ANY INVESTIGATION WITH T HE CREDITORS OF THE ASSESSEE EVEN THOUGH THE CREDITORS WERE ADMITTEDLY INCOME-TAX AS SESSEES. THE ASSESSING OFFICER OF THE ASSESSEE WAS BOUND TO ACCEPT THE RETURNS SUBMITTED BY THE CREDITORS SINCE THOSE RETURNS WERE NOT SHOWN TO HAVE BEEN REJECTED BY THE ASSESSI NG OFFICER OF THE CREDITORS. 14. IN VIEW OF THE ABOVE FINDING NO SUBSTANCE IN T HAT GRIEVANCE SOUGHT TO BE RAISED BY THE DEPARTMENT BY WAY OF THE GROUNDS TAKEN GROUND NOS.1 & 2 ARE REJECTED. 15. GROUND NO.3 IS GENERAL 16. IN THE RESULT THE APPEAL FILED BY THE DEPARTME NT IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 24.11.2011. SD/- SD/- (SHAMIM YAHYA) (A.D. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED NOV. 24 2011. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XVI NEW DELHI 5.CIT(ITAT) NEW DELHI. AR/ITAT I.T.A. NO.4194/DEL./2011 (A.Y. : 2006-07) 9 9