Indo Ashish Ice & Cold Storage Pvt. Ltd., New Delhi v. ITO, New Delhi

ITA 5491/DEL/2010 | 2002-2003
Pronouncement Date: 29-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 549120114 RSA 2010
Assessee PAN AAACI8565P
Bench Delhi
Appeal Number ITA 5491/DEL/2010
Duration Of Justice 7 month(s) 23 day(s)
Appellant Indo Ashish Ice & Cold Storage Pvt. Ltd., New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 29-07-2011
Date Of Final Hearing 21-07-2011
Next Hearing Date 21-07-2011
Assessment Year 2002-2003
Appeal Filed On 06-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI C.L.SETHI JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER I.T. A. NO.5491/DEL/2010 ASSESSMENT YEAR : 2002-03 INDO ASHISH ICE & COLD STORAGE PVT. LTD. INC OME-TAX OFFICER E-281 GREATER KAILASH-II VS. WARD-11( 4) NEW DELHI. NEW DELHI. PAN: AAACI8565P (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI O.P. MODY ADVOCATE. RESPONDENT BY: SHRI SALIL MISH RA SR. DR. O R D E R PER C.L. SETHI JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL AGAINST THE ORDER DATED 1 6.09.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SEC. 147/144 OF THE INCOME-TAX ACT 1961 (THE ACT) FOR THE ASSESSMENT YEAR 2002-03. 2. IN THE COURSE OF HEARING OF THIS APPEAL THE LEA RNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT OUT OF THE VARIOUS GROU NDS FROM GROUNDS NO.1 TO 16 THE ASSESSEE WAS PRESSING ONLY GROUND NOS.4 5 6 14 & 15 AND OTHER GROUNDS MAY BE TREATED AS WITHDRAWN. IN THE LIGHT OF THIS SUBMISSION OF THE 2 LEARNED COUNSEL FOR THE ASSESSEE WE PROCEED TO DIS POSE OF GROUNDS NO.4 5 6 14 & 15 ONLY. 3. GROUNDS NO.4 5 6 14 & 15 ARE REVOLVING AROUND ONLY ONE ISSUE REGARDING ADDITION OF RS.7 50 000/- ON ACCOUNT OF S HARE CAPITAL RECEIVED BY THE ASSESSEE DURING THE YEAR AND REGARDING THE ADDI TION OF RS.1 875/- BEING COMMISSION EXPENDITURE ALLEGEDLY INCURRED BY THE AS SESSEE IN RAISING THE SHARE CAPITAL OF RS.7 50 000/-. 4. THE ASSESSEE COMPANY WAS INCORPORATED ON 12.5.20 00. THERE WAS NO BUSINESS ACTIVITY CARRIED ON DURING THE RELEVANT PE RIOD. THE ASSESSEE FILED ITS RETURN OF INCOME ON 21.10.2002 DECLARING TOTAL INCO ME AT `NIL. THE SAID RETURN WAS PROCESSED UNDER SEC. 143(1) OF THE ACT O N 8.01.2003. SUBSEQUENTLY IN THE LIGHT OF THE INFORMATION RECEI VED BY THE ASSESSING OFFICER THE ASSESSING OFFICER REOPENED THE ASSESSM ENT U/S 147 OF THE ACT AFTER RECORDING REASONS REQUIRED UNDER SEC. 148 OF THE ACT. THE AO THEN ISSUED NOTICE U/S 148 OF THE ACT ON 5.03.2007 WHICH WAS SERVED UPON THE ASSESSEE. COPY OF REASONS RECORDED U/S 148 OF THE ACT FOR ISSUING THE NOTICE WAS ENCLOSED ALONG WITH THE NOTICE ISSUED U/S 148 O F THE ACT. THE ASSESSEE VIDE LETTER DATED 10.05.2007 STATED THAT THE RETURN FILED ON 21.10.2002 MAY BE TREATED AS THE RETURN FILED BY THE ASSESSEE COMP ANY IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. 3 5. IT WAS STATED BY THE AO THAT THE AO RECEIVED INF ORMATION FROM THE OFFICE OF THE DIT (INVESTIGATION) THAT THE ASSESSEE COMPANY HAD TAKEN ACCOMMODATION ENTRIES AS DETAILED BELOW:- I) RS.2 50 000/- FROM THE MELODE ELECTRONICS PVT. LTD. THROUGH CHEQUE DRAWN ON JAI LAXMI COOPERATIVE BANK FATEHPU RI DELHI. II) RS.2 50 000/- FROM THE RAJSHREE MARETING & SERVICES PVT. LTD. THROUGH CHEQUE DRAWN ON JAI LAXMI COOPERATIVE BANK FATEHPURI DELHI & III) RS.1 00 000/- FROM DIGNITY FINVEST PVT. LTD. THROUG H CHEQUE DRAWN ON VIJAYA BANK RAMNAGAR BRANCH DELHI. 6. WITH REGARD TO THE SHARE CAPITAL THE ASSESSEE C OMPANY STATED BEFORE THE AO THAT THE SAID AMOUNT WAS RECEIVED AS SHARE A PPLICATION MONEY AND THE SHARES WERE ALLOTTED TO THESE COMPANIES IN DUE COURSE OF TIME. THE ASSESSEE ALSO SUBMITTED THAT THE TRANSACTION OF RAI SING SHARE CAPITAL WAS GENUINE AND NO ACCOMMODATION ENTRY HAD BEEN TAKEN A S ALLEGED BY THE AO. THEREAFTER THE AO FIXED THE CASE FOR HEARING FROM TIME TO TIME. IN THE MEAN TIME THE AO CALLED FOR THE INFORMATION UNDER SEC. 133(6) OF THE ACT FROM THE CONCERNED BANK NAMELY JAI LAXMI COOPERATIVE BANK FATEHPURI DELHI REGARDING THE BANK ACCOUNT OF TWO SHAREHOLDERS AND FROM VIJAYA BANK RAMNAGAR DELHI REGARDING THE BANK ACCOUNT OF THE T HIRD SHAREHOLDER. 7. FROM THE BANK STATEMENTS OF THE SHAREHOLDER COMP ANIES IT WAS OBSERVED BY THE AO THAT THE SHAREHOLDERS ISSUED THE CHEQUES TO THE ASSESSEE 4 COMPANY AGAINST THE DEPOSIT MONEY IN CASH/TRANSFER OF CHEQUES AS DETAILED BELOW:- ACCOUNT OF A/C NO. AMOUNT & DATE OF CASH AMOUNT & DATE DEPOSIT OR CLG. OF CHEQUE OF CHEQUE CLEARANCE M/S. MELODE CA-3332 RS.2 50 000/- DT. 03 & 04 RS.2 50 000/- CH. ELECTRONICS PVT. LTD. JAN.02 (CASH DEPOSIT) NO.507994 DATED 05/01/2002. M/S. RAJSHREE CA-3334 RS.2 50 000/- DT.9/1/2002 RS.2 50 000/- CH. MKTG. & SERVICES (CASH DEPOSIT) NO.5080 21 DATED PVT. LTD. 10/01/2002. M/S. DIGNITY CA-2945 RS.2 50 000/- DT.24/12/2001 RS.2 50 000/- CH. FINVEST PVT. LTD. (AMOUNT TRFD. FROM NO.808356 DT. CA-2937) 24/12/2001 TOTAL AMOUNT FROM THESE PARTIES RS.7 50 000/- 8. IT WAS ALSO NOTED BY THE AO THAT THOUGH THE AMOU NT RECEIVED FROM THESE THREE COMPANIES WAS MENTIONED AT RS.6 00 000/ - AS PER THE INFORMATION FROM THE DIT(INVESTIGATION) THE ACTUAL AMOUNT WAS RECEIVED RS.7 50 000/- AS REVEALED FROM THE BANK STATEMENTS. THE AO THER EFORE TREATED THE AMOUNT OF RS.7 50 000/- TO BE AN AMOUNT WHICH HAD ESCAPED THE ASSESSMENT. 9. THE AO THEN STATED THE MODUS OPERANDI OF AVAILIN G ACCOMMODATION ENTRY BY THE BENEFICIARIES. THE AO THEN STATED THA T SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE COMPANY BUT THE ASSESSEE COMPANY WAS NOT COOPERATING IN FINALIZING THE ASSESSMENT. HE FURTH ER STATED THAT THE ASSESSMENT WAS GETTING BARRED BY LIMITATION AND THE REFORE HE LEFT WITH NO 5 OTHER ALTERNATIVE BUT TO COMPLETE THE ASSESSMENT EX PARTE ON THE BASIS OF FACTS AND MATERIAL/INFORMATION AVAILABLE ON RECORD. HE THEN EXAMINED THE FACTS OF THE CASE AND OPINED THAT THE ASSESSEE COMP ANY HAS NOT OFFERED ANY EXPLANATION ABOUT THE NATURE OF RECEIPTS GENUINENE SS AND CREDITWORTHINESS OF THE COMPANIES. HE THEREFORE ADDED THE SUM OF RS. 7 50 000/- AS UNEXPLAINED CREDIT UNDER SEC. 68 OF THE ACT. THE A O ALSO MADE AN ADDITION OF RS.1875/- BEING COMMISSION @ 0.5% FOR AVAILING T HE ACCOMMODATION ENTRY IN RESPECT OF SHARE CAPITAL OF RS.7 50 000/-. 10. BEING AGGRIEVED THE ASSESSEE PREFERRED AN APPE AL BEFORE THE LEARNED CIT(A). 11. THE LEARNED CIT(A) CONFIRMED THE ADDITIONS OF R S.7 50 000/- AND OF RS.1875/- MADE BY THE AO BY GIVING THE FOLLOWING RE ASONS:- (I) THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE IDENT ITY OF THE SUBSCRIBER. (II) THE ASSESSEE HAS ALSO FAILED TO ESTABLISH THE CREDI TWORTHINESS OF THE INVESTOR AS WELL AS THE GENUINENESS OF THE TRANSACT ION. (III) THAT THE CONCERNED INVESTING PERSONS HAVE NEITHER R ECEIVED ANY DIVIDEND NOR DERIVED ANY INCOME OF ANY NATURE BY IN VESTMENT IN SHARE CAPITAL AND THUS IT IS NOT UNDERSTOOD AS TO WHY THE PARTY WOULD INVEST RS.7 50 000/- WITHOUT ANY CLAIM OF ANY DIVIDEND OR EVEN THE PRINCIPAL AMOUNT. (IV) THE ENTIRE FUND OF RS.7 50 000/- INVESTED BY THE TH REE SHAREHOLDERS REMAINED INVESTED IN THE HANDS OF THE ASSESSEE EVEN AFTER A LAPSE OF 8 YEARS AT THE TIME OF FRAMING THE ORDER. 6 (V) THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE WHICH C OULD JUSTIFY THAT SHARE CERTIFICATES WERE AT ALL ISSUED AND SERV ED ON THE INVESTING COMPANIES OR PARTIES. (VI) IN SPITE OF REPEATED OPPORTUNITIES PROVIDED BY THE AO TO THE INVESTING COMPANIES THE PRINCIPAL OFFICER OF THE I NVESTING COMPANIES HAD NEITHER APPEARED NOR WAS PRODUCED BY THE ASSESSEE. (VII) THAT THE ASSESSEE HAS NO LIABILITY FOR ANY REPAYMEN T OF ANY AMOUNT TO THE INVESTING COMPANIES. 12. BEING AGGRIEVED WITH THE LEARNED CIT(A)S ORDER IN CONFIRMING THE AOS ACTION THE ASSESSEE IS IN FURTHER APPEAL BEFO RE THE TRIBUNAL. 13. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMIT TED THAT THE ASSESSEE HAS FURNISHED NECESSARY DETAILS AND EVIDENCES TO ES TABLISH THE IDENTITY OF THE SHAREHOLDERS THEIR CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTIONS. HE FURTHER SUBMITTED THAT THERE WAS NO CASH DEPOSIT IN ANY OF THE THREE BANK ACCOUNTS OF THE SHAREHOLDERS BEFORE THE CHEQUES WER E ISSUED BY SHAREHOLDERS TO THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE ASSESSING OFFICER HAS WRONGLY STATED THAT CASH WAS DEPOSITED IN THE BANK ACCOUNT OF M/S. MELODE ELECTRONICS PVT. LTD. AND M/ S. RAJSHREE MARKETING & SERVICES PVT. LTD. BEFORE THE CHEQUES WERE ISSUED BY THEM TO THE ASSESSEE TOWARDS SHARE CAPITAL. THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE VARIOUS DOCUMENTS AND PAPERS CONTA INING IN 128 PAGES PLACED IN THE PAPER BOOK FILED BY THE ASSESSEE TO J USTIFY THAT THE ASSESSEE HAS 7 BEEN ABLE TO ESTABLISH THE IDENTITY OF THE SHAREHOL DERS AS WELL AS THEIR CREDITWORTHINESS ALONG WITH GENUINENESS OF THE TRAN SACTIONS. 14. THE LEARNED DR ON THE OTHER HAND SUPPORTED TH E ORDERS OF THE AUTHORITIES BELOW TO CONTEND THAT THE ASSESSEE HAS NOT FURNISHED ANY RELIABLE EVIDENCES OR DOCUMENTS BEFORE THE AO TO ESTABLISH T HE IDENTITY OF THE SHAREHOLDERS THEIR CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTION AND THEREFORE THE AUTHORITIES BELOW WERE VERY MUCH JUS TIFIED IN MAKING THE ADDITIONS IN QUESTION. 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO CAREFULLY PERUSED VARIOUS PAPERS PLACED IN THE PAPER BOOK FILED BY THE ASSESSEE. 16. IN THIS CASE THE ASSESSING OFFICER HAS INITIAT ED RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT BY ISSUING THE NOTIC E U/S 148 OF THE ACT IN THE LIGHT OF THE INFORMATION RECEIVED FROM THE INVESTIG ATION WING. THE AOS ACTION IN ISSUING THE NOTICE U/S 148 OF THE ACT HAS NOT BEEN CHALLENGED BY THE ASSESSEE AND THE GROUND RELATING THERETO HAS BEEN WITHDRAWN IN THE COURSE OF HEARING OF THIS APPEAL. THE AOS ACTION IN COMPLET ING THE ASSESSMENT U/S 144 OF THE ACT IS ALSO NOT IN DISPUTE. IN THIS APP EAL THE ASSESSEE HAS DISPUTED THE ADDITIONS OF RS.7 50 000/- AND RS.1 87 5/- MADE BY THE AO ON ACCOUNT OF SHARE CAPITAL RECEIVED BY THE ASSESSEE. THE ASSESSEE HAS ARGUED 8 THE MATTER ON MERIT AS TO WHETHER THE ADDITIONS OF RS.7 50 000/- AND RS.1 875/- IS CALLED FOR. WE THEREFORE CONFINED OURSELVES THE MERIT OF THE AFORESAID ADDITION MADE BY THE AO. 17. IN THIS CASE IT IS NOT IN DISPUTE THAT THE ASS ESSEE HAS RECEIVED A SUM OF RS.2 50 000/- EACH FROM THREE PARTIES BY CHEQUE NO .507994 DATED 5.01.2002 AND CHEQUE NO.508021 DATED 10.01.2002 DRAWN ON JAI LAXMI COOPERATIVE BANK FATEHPURI DELHI BY WAY OF SHARE APPLICATION FROM M/S. MELODE ELECTRONICS PVT. LTD. AND M/S. RAJSHREE MARKETING & SERVICES PVT. LTD. RESPECTIVELY AND BY CHEQUE NO.808356 DATED 24.12.20 01 DRAWN ON VIJAYA BANK RAMNAGAR BRANCH DELHI FROM DIGNITY FINVEST P VT. LTD. IT IS ALSO NOT IN DISPUTE THAT THE AO HAS COLLECTED THE BANK ACCOU NT OF THE AFORESAID THREE PARTIES DIRECTLY FROM THE CONCERNED BANK. FROM THE SE FACTS IT IS THUS CLEAR THAT ALL THESE THREE SHAREHOLDERS WERE MAINTAINING BANK ACCOUNT WITH RESPECTIVE BANKS WHICH GOES TO SHOW AND ESTABLISH THAT THESE THREE SHAREHOLDERS WERE IN EXISTENCE. IT IS NOT THE AOS CASE THAT THE BANK ACCOUNT OPENED IN THE NAMES OF THESE THREE PARTIES IS BOGU S OR FICTITIOUS AND NOT PROPERLY OPENED AS PER BANKING NORMS. THE ASSESSEE HAS PRODUCED THE FOLLOWING DOCUMENTS IN RESPECT OF THE SHAREHOLDER M /S. DIGNITY FINVEST PVT. LTD.:- 9 (I) COPY OF SHARE APPLICATION FORM STATING THAT SUM OF RS.2 50 000/- HAS BEEN PAID TOWARDS SHARE APPLICATION MONEY VIDE CHEQUE NO.808353 DATED 3.09.2001. (II) AFFIDAVIT FROM THE DIRECTOR OF DIGNITY FINVEST PVT. LTD. CONFIRMING THE TRANSACTION AND STATING THE PERMANENT ACCOUNT N UMBER AS AACD-4651-R. (III) COPY OF MINUTES OF BOARDS MEETING AUTHORIZING TO I NVEST RS.2 50 000/- TOWARDS SHARE CAPITAL OF THE PRESENT ASSESSEE COMPANY. (IV) ACKNOWLEDGEMENT OF INCOME-TAX RETURN FOR THE ASSESS MENT YEAR 2004-05. (V) STATEMENTS OF ACCOUNTS FOR THE YEARS ENDED ON 31.03 .2004 31.03.2005 AND 31.03.2006. (VI) MEMORANDUM AND ARTICLES OF ASSOCIATION AND CERTIFIC ATE OF INCORPORATION. (VII) COPY OF BANK STATEMENT OF DIGNITY FINVEST PVT. LTD. (VIII) COPY OF MASTER DATA FROM THE REGISTRAR OF COMPANIES . (IX) COPY OF PAN CARD. 18. IN RESPECT OF SHAREHOLDER NAMELY M/S. MELODE EL ECTRONICS PVT. LTD. SIMILAR PAPERS AND EVIDENCES HAVE BEEN FILED. 19. IN RESPECT OF RAJSHREE MARKETING & SERVICES PVT . LTD. IDENTICAL EVIDENCES HAVE BEEN FILED. 20. THE ASSESSEE HAS ALSO FILED COPY OF RETURN OF A LLOTMENT OF SHARES FILED WITH THE REGISTRAR OF COMPANIES SHOWING ALLOTMENT O F SHARES MADE BY THE 10 ASSESSEE COMPANY AS ON 31.03.2002 AS WELL AS LATEST POSITION AS ON 31.03.2010. 21. WE HAVE GONE THROUGH ALL THESE PAPERS AND DOCUM ENTS AND FIND THAT ALL THE THREE SHAREHOLDER COMPANIES ARE INCOME-TAX ASSESSEES. REQUISITE PAN NO. HAS ALSO BEEN ALLOTTED TO THEM. THESE COMP ANIES ARE REGISTERED UNDER THE COMPANIES ACT. THEY ARE MAINTAINING BANK ACCOUNT. THESE COMPANIES HAVE CONFIRMED OF HAVING PAID SHARE CAPIT AL OF RS.2 50 000/- EACH FOR ACQUIRING SHARE OF THE ASSESSEE COMPANY. THE SHARES WERE ALLOTTED TO THEM IN THE YEAR ENDED ON 31.03.2003 AND ARE CON TINUED IN THEIR NAMES TILL 31.03.2010. ON PERUSAL OF BANK ACCOUNT OF M/S. DIG NITY FINVEST PVT. LTD. WE FIND THAT A SUM OF RS.2 50 000/- WAS DEPOSITED I N THE BANK ACCOUNT ON 24.12.2001 BY WAY OF TRANSFER FROM CA 2937 AND NO C ASH MONEY WAS ACTUALLY DEPOSITED IN THE BANK ACCOUNT. THE SAID A MOUNT OF RS.2 50 000/- HAS BEEN PAID BY CHEQUE TO THE ASSESSEE VIDE CHEQUE NO.808356 ON 24.12.2011. ON PERUSAL OF THE BANK ACCOUNT OF M/S. MELODE ELECTRONICS PVT. LTD. WE FIND THAT SUM OF RS.1 15 000/- AND RS.1 35 000/- WERE CREDITED IN THE BANK BY WAY OF TRANSFER ON 03.01.2002 AND 04.01 .2002 AND OUT OF WHICH A SUM OF RS.2 50 000/- WAS WITHDRAWN BY CLEARING ON 05.01.2002 VIDE CHEQUE NO.507994. IN THE CASE OF RAJSHREE MARKETIN G & SERVICES PVT. LTD. AS STATED BY THE AO HIMSELF THE AMOUNT OF RS.2 50 000/- WAS CREDITED ON 11 09.01.2002 BY WAY OF TRANSFER AND THEN SUM OF RS.2 50 000/- WAS WITHDRAWN BY CHEQUE NO.508021 ON 10.01.2002. 22. IN THIS CONNECTION REFERENCE MAY BE MADE TO TH E DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. OASIS HOSPI TALITIES PVT. LTD. 333 ITR 119 WHEREBY IT HAS BEEN HELD THAT IN ORDER TO D ISCHARGE THE INITIAL BURDEN OF THE ASSESSEE THE ASSESSEE IS REQUIRED TO PROVE (1) THE IDENTITY OF THE SHAREHOLDER (2) GENUINENESS OF THE TRANSACTION & (3) THE CREDITWORTHINESS OF THE SHAREHOLDERS. IF THE CREDITOR OR SUBSCRIBER IS A COMPANY THEN TH E DETAILS IN THE FORM OF REGISTERED ADDRESS OR PAN IDENTITY ETC. CAN BE FURNISHED. WHEN THE MONEY RECEIVED BY CHEQUE AND IS TRANSACTED THROUGH BANKING OR OTHER INDISPUTABLE CHANNEL THE GENUINENESS OF THE TRANSA CTION WOULD BE PROVED. OTHER DOCUMENTS SHOWING THE GENUINENESS OF THE TRAN SACTION COULD BE COPIES OF THE SHAREHOLDERS REGISTER SHARE APPLICATION FO RMS SHARE TRANSFER REGISTER ETC. AS FAR AS THE CREDITWORTHINESS OR FINANCIAL S TRENGTH OF THE CREDIT/SUBSCRIBER IS CONCERNED THAT CAN BE PROVED BY PRODUCING THE BANK STATEMENT OF THE CREDITORS/SUBSCRIBERS SHOWING THAT IT HAD SUFFICIENT BALANCE IN ITS ACCOUNT TO ENABLE IT TO SUBSCRIBE TO THE SHA RE CAPITAL. ONCE THESE DOCUMENTS ARE PRODUCED THE ASSESSEE WOULD HAVE SAT ISFACTORILY DISCHARGED THE ONUS CAST UPON HIM. THEREAFTER IT IS FOR THE AO TO SCRUTINIZE THE SAME AND IN CASE HE NURTURES ANY DOUBT ABOUT VERACITY OF THE DOCUMENTS TO PROVE THE MATTER FURTHER. HOWEVER TO DISCREDIT THE DOCU MENTS PRODUCED BY THE ASSESSEE ON THE ASPECTS THERE HAVE TO BE SOME COGE NT REASONS AND MATERIALS FOR THE AO AND HE CANNOT GO INTO THE REALM OF SUSPI CION. 12 23. IN THE LIGHT OF THE EVIDENCES DISCUSSED ABOVE IT IS CLEAR THAT THE ASSESSEE HAS BEEN ABLE TO ESTABLISH THE IDENTITY OF THE SHAREHOLDERS AND HAS ALSO ESTABLISHED THE FACT THAT MONEY HAS BEEN TRANS FERRED FROM THE SHAREHOLDERS BANK ACCOUNT TO THE ASSESSEES ACCOUN T AND SHARES WERE ACTUALLY ALLOTTED TO THE SHAREHOLDERS WHICH ARE STI LL BEING HELD BY THE SAME SHAREHOLDERS AS ON 31.03.2010. 24. IN THIS CASE THE ASSESSING OFFICER HAS MADE TH E ADDITION ON THE BASIS OF INFORMATION FROM THE OFFICE OF DIT(INVESTIGATION ) NEW DELHI THAT THE ASSESSEE COMPANY HAD TAKEN ACCOMMODATION ENTRIES. IN THE ASSESSMENT ORDER NO MATERIAL OR EVIDENCE HAS BEEN DISCUSSED O R ANALYZED AS TO ON WHAT BASIS IT WAS INFORMED BY THE DIT (INVESTIGATION) T HAT THE ASSESSEE HAD TAKEN ACCOMMODATION ENTRIES. THE DETAILS OF ENQUIRY IF ANY MADE BY THE DIT(INVESTIGATION) ARE NOT STATED IN THE ASSESSMENT ORDER. EVEN THE INFORMATION SUPPLIED BY THE DIT(INVESTIGATION) WAS NOT CORRECT WITH REGARD TO THE TOTAL AMOUNT OF SHARE CAPITAL STATED BY INVE STIGATION WING TO BE RS.6 LAKHS THOUGH AS PER DETAILS COLLECTED FROM THE BA NK THE TOTAL AMOUNT TAKEN BY THE ASSESSEE FROM THREE SHAREHOLDERS WAS RS.7 50 000/-. THE AO HAS MERELY STATED THAT AS PER INFORMATION RECEIVED FROM THE DIRECTOR OF INCOME- TAX (INVESTIGATION) NEW DELHI THE CHEQUES WERE RE CEIVED BY THE ASSESSEE AS ACCOMMODATION ENTRY. THE BASIS OF CONCLUDING SO H AS NOWHERE BEEN 13 DISCUSSED IN THE ASSESSMENT ORDER. THE AO HAS NOT MADE ANY ENQUIRY FROM THE SHAREHOLDERS NOR THEIR RETURNS OF INCOME WERE EXAMINED. THE AOS FINDING THAT IN THE BANK ACCOUNTS OF SHAREHOLDERS DEPOSITS WERE MADE FOR THE PURPOSE OF ROUTING THE ILLEGAL TRANSACTIONS IS ALSO NOT BASED ON ANY ADEQUATE MATERIAL OR EVIDENCES EXCEPT DRAWING A SUSPICION. IN THIS CASE THE AO HAS NOT BROUGHT ANY REBUTTABLE EVIDENCE TO PROVE AND ES TABLISH THAT IT IS THE ASSESSEES OWN MONEY INTRODUCED IN THE GARB OF SHAR E CAPITAL. 25. SINCE THE ASSESSEE HAS BEEN ABLE TO DISCHARGE I TS BURDEN AND REVENUE HAS NOT BROUGHT ANY CONCLUSIVE REBUTTABLE EVIDENCE TO THE CONTRARY WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION OF RS.7 50 00 0/-TOWARDS SHARE CAPITAL RECEIPTED BY THE ASSESSEE ALONG WITH THE ADDITION O F RS.1 875/- ON ACCOUNT OF ALLEGED EXPENSES IS NOT CALLED FOR. WE THEREFORE DELETE THE SAME. 26. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED IN THE MANNER AS INDICATED ABOVE. 27. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 29 TH JULY 2011. SD/- SD/- (K.G. BANSAL) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JULY 2011. 14 ITA NO.5491/DEL/2010. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR ITAT.