MAHALAXMI TECHNOCAST LTD., RAIPUR V. D.C.I.T. CENTRAL CRICLE, RAIPUR

CO 43/BIL/2015

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3082 (ITAT-RAIPUR)
• Duration Of Justice: 6 year(s) 8 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Keywords: Unexplained cash credit; Capital asset; Income from undisclosed sources; Search and seizure; Loose papers; Document seized; Share purchase agreement; Accommodation entries; Onus to prove; Documents seized; Set aside
• Section: 143(3); 153A; 133(6); 195; 251; 208; 43; 13; 153; 22; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI PAWAN SINGH, JUDICIAL MEMBER ./ I.T.A. NOS. 256 TO 259/RPR/2014 A/W. CROSS OBJECTION NOS. 42 TO 45/RPR/2015 ( ASSESSMENT YEARS : 2006-07, 2009-10, 2010-11 & 2011 - 12) THE DEPUTY COMMISSIONER OF INCOME-TAX (CENTRAL), AAYAKAR BHAWAN, CENTRAL REVENUE BUILDING, CIVIL LINES, RAIPUR (C.G.) / VS. MAHALAXMI TECHNOCAST LTD. MAHAMAYA TOWER, 3 RD & 4 TH FLOOR, IN FRONT OF ANUPAM NAGAR, NEAR VARUN HONDA, G. E. ROAD, RAIPUR (CG) ./ ./PAN/GIR NO. : AACCM8216B ( APPELLANT / RESPONDENT ) .. ( RESPONDENT / CROSS OBJECTOR ) /REVENUE BY : SHRI R. K. SINGH, CIT.DR / ASSESSEE BY : SHRI VEEKAAS S SHARMA, A.R. DATE OF HEARING 10/08/2021 ! / DATE OF PRONOUNCEMENT 25/10/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEALS ARE DIRECTED AT THE INSTANCE OF REVENUE IN RESPECT OF ASSESSEE CAPTIONED ABOVE ARISING FROM THE COMMON AND COMBINED ORDER OF THE COMMISSIONER OF INCOME TAX (A PPEALS) (CIT(A)) FOR ALL ASSESSMENT YEARS. THE ASSESSEE ALSO FILED CROSS OBJECTIONS IN ALL REVENUES APPEALS AS TABULATED HE REUNDER: ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 2 - ITA NOS. NAME OF ASSESSEE AY COMBINED ORDER OF CIT(A) DATED COMBINED ORDER OF AO DATED AOS ORDER UNDER SECTION 256 TO 259 /RPR/14 A/W. CO NOS. 42 TO 45/RPR/2015 MAHALAXMI TECHNOCAST LTD. 2006-07, 2009-10 TO 2011- 12 17.07.14 27.03.14 153A R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) 2. THE ISSUES BEING COMMON, INTERLINKED AND SIMILAR AND ARISING FROM A COMMON ORDER OF CIT(A), ALL THE CAPTIONED RE VENUES APPEALS IN RESPECT OF THE CAPTIONED ASSESSEE HAVE B EEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. 3. AS PER ITS GROUNDS OF APPEAL, THE REVENUE HAS BR OADLY CHALLENGED THE RELIEF GRANTED BY THE CIT(A) ON; (1) ADDITIONS OF RS.1,25,00,000/- (A.Y. 2006-07), RS.3,75,00,000/- ( A.Y. 2009-10), (3) RS.5,45,00,000/- (A.Y.2010-11) & RS.70,00,000/- (A.Y. 2011- 12) CARRIED OUT BY THE AO UNDER THE PROVISIONS OF S ECTION 68 OF THE ACT IN RESPECT OF RECEIPT OF SHARE APPLICATION/SHAR E CAPITAL. 4. AS PER ITS CROSS OBJECTIONS FOR THE VARIOUS ASSE SSMENT YEARS IN QUESTION SPANNING OVER A.YS. 2006-07, 2009-10 TO 20 11-12, THE ASSESSEE HAS ASSAILED THE ORDER OF CIT(A) ON THE P OINT OF JURISDICTION AND PRIMARILY RAISED A LEGAL OBJECTION THAT THE JURISDICTION OF THE AO GETS OUSTED UNDER S.153A OF THE ACT IN SO FAR AS THE ADDITION UNCONNECTED TO THE INCRIMINATING MA TERIAL IN RESPECT OF UNABATED AND CONCLUDED ASSESSMENTS CONCERNING A. YS. 2006-07 TO 2009-10 ARE CONCERNED. ADDITIONALLY, THE ASSESSE E HAS ALSO SIMULTANEOUSLY SUPPORTED THE ACTION OF THE CIT(A) I N REVERSING THE ADDITIONS MADE BY THE AO WHILE ADJUDICATING ON MERI TS. 5. BRIEFLY STATED, THE ASSESSEE IS DERIVING INCOME FROM RENT, INTEREST ETC. A SEARCH WAS CONDUCTED ON THE RESIDEN TIAL/ BUSINESS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 3 - PREMISES OF THE ASSESSEE GROUP, NAMELY, MAHAMAYA GR OUP ON 21.06.2011 INCLUDING THE ASSESSEE HEREIN. A SUM OF RS.20,400/- WAS FOUND IN CASH IN MAIN OFFICE AT TATIBANDH, RAIPUR. NO SEIZURE OF CASH FOUND WAS MADE. CONSEQUENT UPON SEARCH, NOTICE S UNDER S.153A OF THE ACT WERE ISSUED ON THE ASSESSEE. PURS UANT THERETO, THE ASSESSEE FILED RETURN OF INCOME UNDER S.153A OF THE ACT. THE ASSESSMENT WAS FRAMED UNDER S.143(3) R.W.S. 153A OF THE ACT FOR A.YS. 2006-07 TO AY 2011-12 IN QUESTION. A COMMON & COMBINED ASSESSMENT ORDER FOR ALL THE ASSESSMENT YEARS FROM AY 2006-07 TO AY 2011-12 IN QUESTION WAS PASSED HAVING REGARD TO COMMON ISSUES INVOLVED IN ALL THESE ASSESSMENT YEARS. IN THE COU RSE OF THE SEARCH ASSESSMENT NOTED ABOVE, THE AO INTER ALIA OBSERVED THAT CREDITS IN RESPECT OF SHARE APPLICATION MONEY TO THE TUNE OF RS.1,25,00,000(A.Y.2006-07); RS.3,75,00,000/- (A.Y. 2009-10); (3)RS.5,45,00,000/- (A.Y.2010-11) & RS.70,00,000/- (A.Y. 2011-12) IN THE BOOKS DOES NOT SATISFY THE REQUIREMENTS OF S ECTION 68 OF THE ACT TOWARDS SATISFACTORY EXPLANATION. IT WAS ESSEN TIALLY OBSERVED THAT THE ASSESSEE HAS FAILED TO DISCHARGE ONUS TOWA RDS GENUINENESS AND CREDITWORTHINESS OF THE SHARE APPLICANTS (SUBSC RIBERS). 6. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) CHALLENGING THE AFORESAID ADDITIONS IN ALL THESE IM PUGNED ASS. YEARS. 7. IN THE FIRST APPEAL, THE ASSESSEE FILED DETAILED SUBMISSIONS BEFORE THE CIT(A) AND THE DOCUMENTARY EVIDENCES TO SUBSTANTIATE ITS CHALLENGE ON ADDITIONS UNDER S.68 OF THE ACT ON ACC OUNT OF SHARE APPLICATION MONEY. A LEGAL OBJECTION WAS ALSO SIMUL TANEOUSLY RAISED ON VALIDITY OF ADDITIONS UNDER S. 153A IN RESPECT O F ASSESSMENTS REMAINING UNABATED AND CONCLUDED PRIOR TO SEARCH. T HE CIT(A) TOOK NOTE OF FACTUAL AND LEGAL SUBMISSIONS SO MADE AND F OUND SUBSTANCE IN THE DEFENSE OF THE ASSESSEE TOWARDS ADDITIONS UN DER S. 68 ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 4 - INVOLVED ON MERITS. HOWEVER, THE LEGAL OBJECTIONS O F THE ASSESSEE QUESTIONING SCOPE & LEGALITY OF ADDITIONS UNDER S. 153A WAS DISCARDED. 8. THE CIT(A) ADDRESSED THE ISSUE ON ADDITIONS MADE BY THE AO UNDER S.68 OF THE ACT IN FAVOUR OF THE ASSESSEE ON MERITS FOR WHICH THE RELEVANT OPERATIVE PARA READS AS UNDER: 5. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORD ER AND SUBMISSIONS OF THE APPELLANT. AS REGARDS ALLEGATION OF THE A.O. REGARDING NON-MAINTENANCE OF STATUTORY RECORDS, THE APPELLANT WAS ASKED TO FURNISH THE COPY OF STATEMENTS RECORDED DU RING THE COURSE OF PROCEEDINGS U/S 132, IT HAS BEEN SUBMITTED BY THE A PPELLANT THAT THE STATEMENT OF NONE OF THE APPELLANT COMPANYS REPRES ENTATIVE WAS RECORDED AND IT HAS ALSO BEEN SUBMITTED BY THE APPE LLANT THAT NONE OF THE OFFICER OF SEARCH TEAM EVER VISITED THE REGISTE RED OFFICE PREMISES OF THE APPELLANT COMPANY. WITH A VIEW TO ASCERTAIN THE FACTS, DURING THE COURSE OF APPELLATE PROCEEDINGS OF OTHER COMPANIES COVERED IN THE MAHAMAYA GROUP OF CASES AND IN APPEAL BEFORE THE UN DERSIGNED, NAMELY (1) MAHAMAYA STEEL INDUSTRIES LIMITED, (2) A BHISHEK STEEL INDUSTRIES LIMITED, (3) DEVI IRON & POWER PRIVATE L IMITED AND (4) SHREE SHYAM SPONGE & POWER LIMITED, WERE ASKED TO F URNISH COPY OF STATEMENTS OF ALL THE PERSONS RECORDED BY THE SEARC H TEAM DURING THE PROCEEDINGS U/S 132. THE STATEMENTS WERE FURNISHED BY THE SAID COMPANIES. I HAVE CAREFULLY GONE THROUGH ALL THE ST ATEMENTS OF ALL THE PERSONS RECORDED DURING THE PROCEEDINGS U/S 132 ON 21/22.06.2011. I AM IN AGREEMENT WITH THE SUBMISSIONS OF THE APPELLA NT COMPANY THAT NO STATEMENT OF APPELLANT COMPANYS REPRESENTATIVE WAS RECORDED DURING THE SEARCH PROCEEDINGS. THE STATEMENTS OF OTHER PER SONS BELONGING TO THE AFORESAID COMPANIES ALSO DOES NOT, IN ANY WAY, LEAD TO AN INFERENCE THAT THE GROUP COMPANIES OR THE APPELLANT COMPANY D O NOT MAINTAIN STATUTORY RECORDS / REGISTERS. IT IS ALSO SEEN THAT THE APPELLANT COMPANY HAD MADE SPECIFIC REQUEST BEFORE THE A.O. VIDE ITS LETTER SUBMITTED ON 14.03.2014 AND 18.03.2014 TO DISPEL THE DOUBTS OF T HE A.O. REGARDING NON-MAINTENANCE OF STATUTORY RECORDS AND REGISTERS. FROM THE ASSESSMENT ORDER, IT APPEARS THAT THE A.O. DID NOT TAKE ANY COGNIZANCE OF THE ASSERTION MADE BY THE APPELLANT REGARDING MA INTENANCE OF STATUTORY RECORDS AND REGISTERS IN ACCORDANCE WITH THE PROVISIONS OF COMPANIES ACT AND WITHOUT VERIFYING THE VERIFIABLE FACTS REGARDING MAINTENANCE OR OTHERWISE OF STATUTORY RECORDS AND R EGISTERS, THE A.O SIMPLY SEEMS TO HAVE FOUND IT CONVENIENT TO REMAIN SILENT AND SIT BACK AFTER MAKING THE ALLEGATION WITHOUT ANY PROPER BASI S. I DO FIND CONSIDERABLE FORCE IN THE SUBMISSIONS OF THE APPELL ANT THAT THE A.O. MERELY MADE THE ALLEGATION, HOWEVER, THE A.O. HAS N OT BROUGHT ON RECORD ANY BASIS FOR SUCH ALLEGATION. IT IS NOT THE CASE OF THE A.O. THAT THE SEARCH TEAM DID VISIT THE REGISTERED OFFICE PRE MISES OF THE APPELLANT COMPANY AND HAD ASKED A SPECIFIC QUERY TO THE APPELLANT COMPANYS REPRESENTATIVE WITH REGARD TO MAINTENANCE OF STATUTORY RECORDS AND THAT THE APPELLANT COMPANYS REPRESENTA TIVE FAILED TO ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 5 - PRODUCE THE STATUTORY RECORDS OR REGISTERS OR EXPRE SSED THEIR INABILITY TO PRODUCE THE SAME OR HAD ADMITTED THAT NO SUCH RE CORDS ARE BEING MAINTAINED. I FIND THAT ON ONE HAND, THE A.O MADE T HE ALLEGATION, HOWEVER, WITHOUT BRINGING ON RECORDS ITS BASIS AND ON THE OTHER HAND, THE A.O. DID NOT ALSO ADHERE TO THE APPELLANT COMPA NYS SPECIFIC REQUEST TO VERIFY THE STATUTORY RECORDS THAT ARE BE ING MAINTAINED BY THE APPELLANT COMPANY, SUCH AN ACTION OF THE A.O. HAS M ADE THE ASSESSMENT ORDER VITIATED BY ONE SIDED CONCLUSION BY THE A.O. NEITHER FROM THE ASSESSMENT ORDER NOR FROM THE STATEMENTS RECORDED D URING SEARCH PROCEEDINGS, IT IS EMERGING THAT THERE WAS ANY ATTE MPT TO LOCATE SUCH STATUTORY RECORDS. 5.2 THE APPELLANT HAS SUBMITTED THAT THE ENTIRE SHA RE APPLICATION MONEY OF RS. 990 LACS RECEIVED FROM ESCORT FINVEST PRIVATE LIMITED WAS REFUNDED IN THE F.Y 20012-13 THROUGH ACCOUNT PAYEE CHEQUE, THE APPELLANT SUBMITTED THE LEDGER OF SAID COMPANY TO S UBSTANTIATE ITS SUBMISSION. I HAVE VERIFIED THE FACTUM OF REFUND FR OM THE LEDGER PLACED IN PAGE NO.15 OF VOLUME 3 OF THE PAPER BOOK, I AM C ONVINCED THAT THE APPELLANT DID REFUND THE SAID SUM TO ESCORT FIVNEST PRIVATE LIMITED WAS REFUNDED IN THE F.Y 2012-13. I FIND THAT IN COMMISS IONER OF INCOME-TAX, RAJKOT-I V. AYACHI CHANDRASHEKHAR NARSANGJI. [2014] 42 TAXMANN.COM 251 (GUJARAT), IT WAS HELD THAT IT IS REQUIRED TO NOTE THAT AS SUCH AN AMOUNT OF RS. 1,00,00,000 VIDE CHEQUE NO. 102110 AN D AN AMOUNT OF RS. 60 LAKHS VIDE CHEQUE NO. 102111 WAS GIVEN TO TH E ASSESSEE AND OUT OF THE TOTAL LOAN OF RS. 1.60 CRORES, RS. 15 LAKHS VIDE CHEQUE NO. 196107 WAS REPAID AND THEREFORE, AN AMOUNT OF RS. 1 ,45,00,000 REMAINED OUTSTANDING TO BE PAID TO IA. IT HAS ALSO COME ON RECORD THAT THE SAID LOAN AMOUNT HAS BEEN REPAID BY THE ASSESSE E TO 'IA' IN THE IMMEDIATELY NEXT YEAR AND THE DEPARTMENT HAD ACCEPT ED THE REPAYMENT OF LOAN WITHOUT PROBING INTO IT. IN THE AFORESAID F ACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE TRIBUNAL HAS HE LD THAT THE MATTER IS NOT REQUIRED TO BE REMANDED AS NO OTHER VIEW WOULD BE POSSIBLE, THERE WAS NO REASON TO INTERFERE WITH THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. I AM CONVINCED THAT THERE IS NO QUESTION OF MAKING ANY ADDITION U/S 68 GIVEN THE FACT THAT THE SHARE APPLI CATION MONEY RECEIVED FROM DEVI IRON AND POWER PRIVATE LIMITED STOOD REFU NDED, HENCE, THERE WAS NO OBLIGATION ON THE APPELLANT TO EVEN ESTABLIS H THE IDENTITY OR CREDITWORTHINESS OF SAID COMPANY OR GENUINENESS OF THE TRANSACTION, THEREFORE, THE ADDITION CANNOT BE SUSTAINED IN THE LIGHT OF THIS UNDISPUTED FACT. FOR ACADEMIC PURPOSES, THE DISCHARGE OR OTHERWISE O F THE ONUS U/S 68 HAS BEEN INDEPENDENTLY EVALUATED AND EXAMINED. THE APPELLANT HAS SUBMITTED THAT DEVI IRON AND POWER PRIVATE LIMITED IS A GROUP COMPANY, THE APPELLANT HAS PLACED ON RECORD, COPY O F ASSESSMENT ORDER IN THE CASE OF ESCORTS FINVEST PRIVATE LIMITED FOR THE ASSESSMENT YEAR 2006-07 AND 2007-08. 5.3 IT IS SEEN THAT ESCORTS FINVEST PRIVATE LIMITED WAS ASSESSED U/S 143(3) AND THE ITO, WARD-1(4), KOLKATA RECORDED A S PECIFIC FINDING THAT THE SAID COMPANY HAD SHARE CAPITAL AND SHARE P REMIUM RESERVE OF RS.5,64,50,200/- AND RS.44,37,90,000/- AS ON 31.3.2 006 AND THAT THE ITO, WARD-1(4), KOLKATA HAD CONDUCTED ENQUIRIES WIT H THE VARIOUS SHAREHOLDERS OF ESCORTS FINVEST PRIVATE LIMITED BY ISSUING NOTICES U/S 133(6) AND VERIFYING THEIR RESPONSES. I FIND THAT I TO, WARD-1(4), ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 6 - KOLKATA WAS SATISFIED WITH THE GENUINENESS OF ADDIT ION TO SHARE CAPITAL AND RESERVES OF ESCORTS FINVEST PRIVATE LIMITED INA SMUCH AS NO ADVERSE INFERENCE WAS DRAWN BY ITO, WARD-1(4), KOLKATA WITH REGARD TO SAID ADDITION TO SHARE CAPITAL AND RESERVES OF ESCORTS F INVEST PRIVATE LIMITED. APART FROM THE AUDITED FINANCIAL STATEMENT S IN SUPPORT OF CREDIT WORTHINESS OF THE SAID COMPANY, I AM CONVINC ED THAT NO ADVERSE VIEW CAN BE TAKEN REGARDING IDENTITY OR CREDIT WORT HINESS OF THE SAID COMPANY WHEN THE SAID COMPANY HAS BEEN DULY ASSESSE D AND THE SHARE CAPITAL AND RESERVES I.E. THE NET WORTH OF THE SAID COMPANY WAS DULY ACCEPTED IN SCRUTINY ASSESSMENT PROCEEDINGS, IN THE FACTUAL MATRIX OF THIS CASE, I AM CONVINCED THAT THE APPELLANT HAS NO T ONLY EXPLAINED THE SOURCE OF RECEIPT OF SHARE APPLICATION / CAPITAL MO NEY, THE APPELLANT HAS ALSO EXPLAINED THE SOURCE OF SOURCE BY PLACING ON RECORD ASSESSMENT ORDER IN THE CASE OF ITS SUBSCRIBER COMP ANY NAMELY ESCORTS FINVEST PRIVATE LIMITED. FURTHERMORE, I FIND THAT T HE SAID INVESTOR COMPANY WAS IN EXISTENCE EVEN PRIOR TO THE PERIOD C OVERED UNDER THE PRESENT SEARCH ASSESSMENT PROCEEDINGS, THEREFORE, E VEN ASSUMING WITHOUT ACCEPTING THE CONTENTION OF THE A.O., NO UN DISCLOSED INCOME CAN BE ADDED IN THE PRESENT SEARCH ASSESSMENT PROCE EDINGS AS THE SAME ARE BEYOND THE PERIOD COVERED UNDER THE PRESENT SEA RCH ASSESSMENT PROCEEDINGS. 5.4 IT IS ALSO SEEN THAT THE APPELLANT WAS ASSESSED IN THE PAST AND CASE OF ASSESSMENT YEAR 2006-07 AND 2007-08 WAS UND ER SCRUTINY ASSESSMENT U/S 143(3) AND IN THE SAID ASSESSMENT PR OCEEDINGS, THE ADDITION TO SHARE APPLICATION / SHARE CAPITAL WAS D ULY ACCEPTED AS GENUINE. 5.5 IT IS SEEN THAT THE ADDITION TO SHARE APPLICATI ON AND CAPITAL WAS DULY ACCEPTED IN THE SCRUTINY ASSESSMENT PROCEEDING S, THE PRESENT ACTION OF THE A.O IS NOT CULMINATING FROM ANY SPECI FIC FINDING AGAINST THE APPELLANT THAT IT WAS A BENEFICIARY OF ANY RACK ET WHICH HAS BEEN UNEARTHED AS A RESULT OF SEARCH PROCEEDINGS NOR HAS THE A.O BROUGHT ON RECORD ANY OTHER EVIDENCE TO INDICATE THAT THE APPE LLANT DID MAKE UNDISCLOSED INCOME AND SUCH EVIDENCE CAME ON THE SU RFACE AS A RESULT OF SEARCH PROCEEDINGS. THE A.O HAS NOT REBUTTED THE DETAILS OF TANGIBLE NET WORTH SUBMITTED BY THE APPELLANT TO DEMONSTRATE THAT THE SUBSCRIBERS HAD SUFFICIENT MEANS TO INVEST IN THE S HARE APPLICATION/CAPITAL OF THE APPELLANT COMPANY, I HAV E PERUSED THE DETAILS OF NET WORTH OF THE SUBSCRIBERS WITH REFERENCE TO T HE AUDITED FINANCIAL STATEMENTS OF THE SUBSCRIBERS AND FOUND SATISFACTOR Y. IN THIS BACKGROUND, IN MY CONSIDERED VIEW, THERE IS NO SCOP E AND REASON TO TAKE A CONTRARY VIEW THAN THAT TAKEN BY THE THEN A. O WITHOUT THERE BEING ANY DOCUMENTARY EVIDENCE AGAINST THE APPELLAN T TO DEMONSTRATE THAT THE SHARE APPLICATION MONEY WAS NOTHING BUT UN DISCLOSED INCOME OF THE APPELLANT. 5.6 FURTHERMORE, I AM IN AGREEMENT WITH THE SUBMISS IONS OF THE APPELLANT THAT THE SAME A.O HAS ACCEPTED THE ADDITI ON TO PREFERENCE SHARE CAPITAL IN THE CASE OF MAHAMAYA STEEL INDUSTR IES LIMITED RECEIVED FROM ESCORTS FINVEST PRIVATE LIMITED AND T HEREFORE, THE IDENTITY AND CREDITWORTHINESS OF ESCORTS FINVEST PR IVATE LIMITED WAS UNDISPUTEDLY ACCEPTED AND GENUINENESS OF ADDITION W AS ALSO DULY ACCEPTED, HENCE, THERE CANNOT BE ANY REASON TO TAKE A CONTRARY VIEW IN THE CASE OF APPELLANT. THE A.O CANNOT BE PERMITTED TO TAKE TWO ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 7 - DIVERGENT VIEWS ON SAME SET OF FACTS AND ON SAME SE T OF EVIDENCES, WHEN THE SAME A.O UNDISPUTEDLY ACCEPTED THE GENUINENESS OF ADDITION TO SHARE CAPITAL OF MAHAMAYA STEEL INDUSTRIES LIMITED, THERE WAS NO REASON FOR HIM TO TAKE A CONTRARY VIEW IN THE CASE OF THE APPELLANT. 5.7 IT IS AN UNDISPUTED FACT THAT THE NAMES, ADDRES SES AND ASSESSMENT PARTICULARS OF THE INVESTORS, THEIR ACTIVE STATUS A S PER THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS AND BANK STATEMENT OF THE APPLICANTS HAD BEEN FURNISHED BY THE APPELLANT BEFORE THE AO. IT I S FURTHER OBSERVED THAT THE SHARE APPLICATION/CAPITAL MONEY HAS BEEN R ECEIVED BY WAY OF ACCOUNT PAYEE CHEQUES FROM THE INVESTORS MOST OF WH OM ARE COMPANIES AND IS DULY REFLECTED IN THE BANK ACCOUNT OF THE AP PELLANT. I HAVE PERUSED THE BANK STATEMENTS OF THE INVESTORS, THEIR AUDITED FINANCIAL STATEMENTS AND CONFIRMATION FOR MAKING SUCH INVESTM ENTS, WHICH CLEARLY ESTABLISHES THE FACTUM OF MAKING INVESTMENTS. THESE FACTS ARE CLEARLY ESTABLISHING THE IDENTITY OF THE INVESTORS AND THE GENUINENESS OF THE IMPUGNED TRANSACTIONS. 5.8 IT IS OBSERVED FROM THE RECORDS AND ASSESSMENT ORDER THAT FOR THE PURPOSE OF MAKING ADDITION AS UNEXPLAINED CASH CRED ITS, THE AO HAS HEAVILY RELIED UPON THE JUDICIAL PRONOUNCEMENTS, HO WEVER, THE APPELLANT HAS MADE ELABORATE SUBMISSIONS DISTINGUIS HING THE FACTS, I AM CONVINCED WITH THE EXPLANATION OF THE APPELLANT THA T THE DECISIONS RELIED UPON BY THE A.O ARE NOT APPLICABLE IN THE FA CTS OF THE PRESENT CASE AS THERE IS NOTHING ON RECORD WHICH CAN INDICA TE THAT THE RECEIPT OF SHARE APPLICATION MONEY WAS BY WAY OF ACCOMMODATION ENTRIES ONLY. IT IS ALSO NOT THE CASE OF THE A.O THAT THE INVESTORS HAVE ACCEPTED BY WAY OF STATEMENT THAT THE SUMS PAID TO THE APPELLANT WA S IN FACT RECEIVED FROM THE APPELLANT AND INVESTORS MERELY ROUTED THE UNDISCLOSED INCOME OF THE APPELLANT THROUGH MONEY LAUNDERING PROCESS I N THE FORM OF SHARE APPLICATION MONEY. ON THE CONTRARY, THE A.O HIMSELF HAS STATED IN THE ASSESSMENT ORDER THAT THE INVESTORS HAVE SENT CONFI RMATORY LETTERS, I HAVE GONE THROUGH THE CONFIRMATORY LETTERS, IT IS S EEN THAT THE LETTERS WERE SENT THROUGH REGISTERED/SPEED POST WHICH CANNO T BE SAID TO BE UNAUTHENTIC MODE, SECONDLY, THE INVESTORS HAVE CONF IRMED HAVING MADE THE INVESTMENT BY WAY OF AFFIDAVITS WHICH ARE DULY NOTARIZED, THE INVESTORS HAVE ALSO FURNISHED THE COPIES OF SHARE A PPLICATION FORMS, THEIR AUDITED FINANCIAL STATEMENTS, ITR, BANK STATE MENT. IN THE BACKDROP OF THESE FACTS AND DOCUMENTARY EVIDENCES , IN MY CO NSIDERED OPINION, THE IDENTITY AND CREDITWORTHINESS OF THE SUBSCRIBER S HAS BEEN ESTABLISHED AND CANNOT BE DOUBTED, IT IS NOT JUSTIF IED ON THE PART OF THE A.O TO SIMPLY REJECT THE DOCUMENTARY EVIDENCES ON R ECORD AND TAKE AN ADVERSE VIEW AND CLOTHING THE CASE OF THE APPELLANT WITH THE JUDICIAL PRONOUNCEMENTS WHICH HAVE BEEN RENDERED ON ABSOLUTE LY DIFFERENT FACTS AND CIRCUMSTANCES. 5.9 THE APPELLANT HAS RELIED UPON VARIOUS JUDICIAL PRONOUNCEMENTS AND CORRELATED THE FACTS IN THOSE DECISIONS WITH TH E FACTS IN THE CASE OF THE APPELLANT. I AM CONVINCED THAT THE DECISIONS RE LIED UPON BY THE APPELLANT ARE CERTAINLY APPLICABLE IN THE CASE OF T HE APPELLANT AS THE FACTS ARE NOT ONLY SIMILAR BUT IDENTICAL. THE APPEL LANT HAS ALSO RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT AND JURISDICTIONAL HIGH COURT WHICH CANNOT BE IGNORED. THE A.O HAS REF ERRED TO THE NOTICES ISSUED UNDER SECTION 133(6) WHICH HAVE BEEN RETURNED UN-SERVED IN SOME OF THE CASES. IT IS SEEN THAT IN THE SUBSEQ UENT PARAGRAPH, THE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 8 - A.O HIMSELF HAS GIVEN THE PARTICULARS OF RECEIPT OF REPLIES FROM THE INVESTORS, THEREFORE, IN MY CONSIDERED VIEW, NO ADV ERSE INFERENCE CAN BE DRAWN AGAINST THE APPELLANT FOR MERE NON SERVICE OF NOTICES INITIALLY, I HAVE CAREFULLY PERUSED THE EXPLANATION SUBMITTED BY THE APPELLANT IN RESPECT OF CASES WHERE THE NOTICES REMAINED UNSERVE D, THE SUBMISSIONS OF THE APPELLANT ARE FOUND TO BE CONVINCING. IT IS FURTHER OBSERVED THAT NO FURTHER ENQUIRY OR INVESTIGATION HAS BEEN CONDUC TED BY THE AO TO CORROBORATE OR SUPPORT THE CONCLUSIONS DRAWN IN THE ASSESSMENT ORDER SO AS TO ASSESS THE SHARE CAPITAL MONEY AS THE UNDI SCLOSED INCOME OF THE APPELLANT COMPANY. IN MY CONSIDERED OPINION, AP ART FROM DRAWING PRESUMPTIONS, THE AO HAS NOT BROUGHT ANY CLINCHING MATERIAL OR EVIDENCE ON RECORD TO PROVE THAT THE SAID SHARE CAP ITAL MONEY BELONGS TO THE APPELLANT SINCE NO NEXUS HAS BEEN ESTABLISHE D THAT THE MONEY FOR AUGMENTING THE INVESTMENT IN THE BUSINESS HAS FLOWN FROM APPELLANTS OWN MONEY WHICH IS AN ESSENTIAL PRE-REQUISITE FOR M AKING ADDITION IN SUCH CASES. I AM CONVINCED THAT THE CASE OF THE APP ELLANT IS SQUARELY COVERED BY THE THE DECISIONS RENDERED BY THE HONBL E APEX COURT IN THE CASE OF THE CIT VS. LOVELY EXPORTS (P) LTD. REPORTE D IN 216 CTR 195 AND THE JURISDICTIONAL HIGH COURT VIZ. THE CHHATTIS GARH HIGH COURT IN THE CASE OF THE ACIT VS. VENKATESHWAR ISPAT (P) LTD . REPORTED IN 319 ITR 393 FOR THE REASON THAT THE FACTS IN SUCH CASES ARE ENTIRELY SAME, PARTICULARLY, WHEN NO DIFFERENTIATION COULD BE EFFE CTIVELY DEMONSTRATED AND BROUGHT ON TO THE RECORD BY THE A.O. THE SUBMIS SIONS OF THE AO THAT THE DECISION OF THE HONBLE SUPREME COURT IN T HE CASE OF LOVELY EXPORTS (P) LIMITED WAS RENDERED IN THE LIGHT OF DI FFERENT FACTS INASMUCH AS THE SAID JUDGEMENT WAS RENDERED BY THE HONBLE SUPREME COURT IN THE CONTEXT OF PUBLIC ISSUE, IS DEVOID OF MERIT BECAUSE THE DECISION WAS RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS (P) LTD. WHICH IS A PRIVATE LIMITED COMPANY AND WHICH CANNOT BRING PUBLIC ISSUE OF SHARES. I FIND THAT TH E INVESTMENTS MADE BY THE SHARE APPLICANTS WERE DULY REFLECTED IN THE AUD ITED FINANCIAL STATEMENTS OF THE CORPORATE INVESTORS. IT IS A SETT LED PRINCIPLE OF LAW THAT REASON FOR SUSPICION, HOWEVER GRAVE IT MAY BE, CANNOT BE A BASIS FOR HOLDING ADVERSITY AGAINST APPELLANT. 5.10 THE ASSESSING OFFICER HAS DISREGARDED THE DOCU MENTARY EVIDENCES ADDUCED BY THE APPELLANT SUCH AS CONFIRMA TION FROM THE SHARE APPLICANTS, THEIR PAN, CERTIFICATE OF INCORPORATION OF SUBSCRIBER COMPANIES, RECORDS OF THE REGISTRARS OF COMPANIES ( ROC) GENERATED FROM THE WEBSITE, AFFIDAVITS FILED IN SUPPORT OF TH E FACT OF ADVANCING SHARE APPLICATIONS MONIES ETC. THE SUBSCRIPTION FOR THE SHARES WERE RECEIVED THROUGH CHEQUES. THE INVESTOR-COMPANIES WE RE ACTIVE AS PER THE WEBSITE OF THE MINISTRY OF CORPORATE AFFAIRS AN D THEY WERE DULY REGISTERED WITH ROC. THOSE COMPANIES WERE ALSO HAVI NG THEIR INCOME TAX PAN NUMBERS AND REGULARLY FILED RETURNS OF INCO ME. NO MATERIAL WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO S HOW THAT THE AFFIDAVITS FILED BY THE DIRECTORS OF THE INVESTOR- COMPANIES WERE NOT GENUINE. NO ENQUIRIES WERE CONDUCTED ABOUT THE CONT ENTS OF THE AFFIDAVITS. THE A.O DID NOT MAKE ANY ATTEMPT TO DIS CREDIT THE AFFIDAVITS. THE RESULT IS THAT THE CONTENTS OF THE AFFIDAVITS H AVE NOT BEEN DISPROVED. IT ALSO SHOWS THAT THE PARTIES (DEPONENTS) WERE PRE SENT AT THE GIVEN ADDRESSES AGAINST WHOM ACTION COULD HAVE BEEN TAKEN . NO MATERIAL WAS BROUGHT ON RECORD BY THE A.O INDEPENDENTLY OF THE I NFORMATION RECEIVED, IF ANY, FROM THE INVESTIGATION WING OF TH E INCOME TAX ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 9 - DEPARTMENT TO SHOW THAT THE MONIES REPRESENTED THE APPELLANT'S UNDISCLOSED INCOME. 5.11 THE HONBLE SUPREME COURT IN CIT VS. LOVELY EX PORT, 216 ITR 198 SC AND THE DELHI HIGH COURT IN DIVINE LEASING A ND FINANCE LIMITED, (2008) 299 ITR 268 HAVE HELD THAT IN THE C ASE OF MONEY RECEIVED TOWARDS SHARE CAPITAL ONLY THE IDENTITY OF THE SHARE HOLDERS NEEDS TO BE PROVED AND ONCE THAT IS ESTABLISHED AND IT IS ALSO SHOWN THAT THE MONEY DID IN FACT COME FROM THEM, IT IS NO T FOR THE ASSESSEE TO PROVE AS TO HOW THE SHARE APPLICANTS CAME TO BE IN POSSESSION OF THE MONEY. IN THE LIGHT OF THE ABOVE DISCUSSION, I AM I NCLINED TO AGREE WITH THE ARGUMENTS AND EVIDENCES PROVIDED BY THE APPELLA NT TO SUBSTANTIATE THAT THE TRANSACTION REGARDING SHARE APPLICATION MO NEY RECEIVED BY IT WERE GENUINE TRANSACTIONS AND THE SAME WERE NOT ACC OMMODATION ENTRIES. I ALSO DO NOT FIND ANY EVIDENCE COLLECTED BY THE A.O. WHICH COULD PROVE OTHERWISE. ACCORDINGLY, THE AO WAS NOT JUSTIFIED IN TREATING THE AMOUNT OF SHARE APPLICATION MONEY RECEIVED BY T HE APPELLANT AS ITS UNDISCLOSED INCOME. 5.12 THE CASE OF THE APPELLANT FINDS SUPPORT FROM T HE DECISION IN: A) CIT VS. KAMDHENU STEEL & ALLOYS LIMITED & ORS. (201 2) 68 DTR (DEL) 38; B) COMMISSIONER OF INCOME-TAX V. HLT FINANCE (P.) LTD. [2011] 12 TAXMANN.COM 247 (DELHI); C) COMMISSIONER OF INCOME-TAX-IV V. DWARKADHISH INVEST MENT (P.) LTD. [2010] 194 TAXMAN 43 (DELHI); D) COMMISSIONER OF INCOME-TAX V. WINSTRAL PETROCHEMICA LS (P.) LTD. [2011] 10 TAXMANN.COM 137 (DELHI); E) COMMISSIONER OF INCOME-TAX V. ARUNANANDA TEXTILES ( P.) LTD. [2011] 15 TAXMANN.COM 226 (KAR.); F) COMMISSIONER OF INCOME-TAX V. CREATIVE WORLD TELEFI LMS LTD. [2011] 15 TAXMANN.COM 183 (BOM.); 5.13 THE A.O HAS RELIED UPON THE DECISION IN CIT V . NOVA PROMOTERS & FINLEASE (P) LTD. [2012] 342 ITR 169/206 TAXMAN 2 07/18 TAXMANN.COM 217 (DELHI). HOWEVER, ON GOING THROUGH THE SAID DECISION IN NOVA PROMOTERS & FINLEASE (P) LTD. (SUPRA) I FIN D THAT THE FACTS ARE CLEARLY DISTINGUISHABLE. IN FACT, IN NOVA PROMOTERS & FINLEASE (P) LTD. (SUPRA) ITSELF THE HONBLE DELHI HIGH COURT HAS OBS ERVED, IN THE CONTEXT OF LOVELY EXPORTS (P) LTD. (SUPRA), AS UNDER:- 'THE RATIO OF A DECISION IS TO BE UNDERSTOOD AND AP PRECIATED IN THE BACKGROUND OF THE FACTS OF THAT CASE. SO UNDERSTOOD, IT WILL BE SEEN THAT WHERE THE COMPLETE PARTICULARS OF THE SHA RE APPLICANTS SUCH AS THEIR NAMES AND ADDRESSES, INCOME TAX FILE NUMBERS, THEIR CREDITWORTHINESS, SHARE APPLICATION FORMS AND SHARE HOLDERS' REGISTER, SHARE TRANSFER REGISTER ETC. ARE FURNISHED TO THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY INTO THE SAME OR HAS NO MATERIAL IN HIS POSSESSION TO SHOW THAT THOSE PARTICULARS ARE FALSE AND CANNOT BE ACTED UPON, THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE CO MPANY UNDER SEC.68 AND THE REMEDY OPEN TO THE REVENUE IS TO GO AFTER THE SHARE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 10 - APPLICANTS IN ACCORDANCE WITH LAW. WE ARE AFRAID THAT WE CANNOT APPLY THE RATIO TO A CASE, SUCH AS THE PRESENT ONE, WHERE THE ASSESSING OFFICER IS IN POSSESSION OF MATERIAL THAT DISCREDITS AND IMPEACHES THE PARTICULARS FURNISHED BY THE ASSESSEE AND ALSO ESTABLISHES THE LINK BETWEEN SELF-CONFESSED 'ACCOMM ODATION ENTRY PROVIDERS', WHOSE BUSINESS IT IS TO HELP ASSESSEES BRING INTO THEIR BOOKS OF ACCOUNT THEIR UNACCOUNTED MONIES THROUGH T HE MEDIUM OF SHARE SUBSCRIPTION, AND THE ASSESSEE. THE RATIO IS INAPPLICABLE TO A CASE, AGAIN SUCH AS THE PRESENT ONE, WHERE THE INVO LVEMENT OF THE ASSESSEE IN SUCH MODUS OPERANDI IS CLEARLY INDICATE D BY VALID MATERIAL MADE AVAILABLE TO THE ASSESSING OFFICER AS A RESULT OF INVESTIGATIONS CARRIED OUT BY THE REVENUE AUTHORITI ES INTO THE ACTIVITIES OF SUCH 'ENTRY PROVIDERS'. THE EXISTENCE WITH THE ASSESSING OFFICER OF MATERIAL SHOWING THAT THE SHAR E SUBSCRIPTIONS WERE COLLECTED AS PART OF A PRE- MEDITATED PLAN - A SMOKESCREEN - CONCEIVED AND EXECUTED WITH THE CONNIVANCE OR INVOL VEMENT OF THE ASSESSEE EXCLUDES THE APPLICABILITY OF THE RATIO. IN OUR UNDERSTANDING, THE RATIO IS ATTRACTED TO A CASE WHE RE IT IS A SIMPLE QUESTION OF WHETHER THE ASSESSEE HAS DISCHARGED THE BURDEN PLACED UPON HIM UNDER SEC.68 TO PROVE AND ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SHARE APPLICANT AND THE GENUINENESS OF THE TRANSACTION. IN SUCH A CASE, THE ASSESSING O FFICER CANNOT SIT BACK WITH FOLDED HANDS TILL THE ASSESSEE EXHAUS TS ALL THE EVIDENCE OR MATERIAL IN HIS POSSESSION AND THEN COM E FORWARD TO MERELY REJECT THE SAME, WITHOUT CARRYING OUT ANY VE RIFICATION OR ENQUIRY INTO THE MATERIAL PLACED BEFORE HIM. THE CA SE BEFORE US DOES NOT FALL UNDER THIS CATEGORY AND IT WOULD BE A TRAVESTY OF TRUTH AND JUSTICE TO EXPRESS A VIEW TO THE CONTRARY . 5.14 THE CASE OF THE APPELLANT ALSO FINDS SUPPORT F ROM THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- (A) COMMISSIONER OF INCOME-TAX-III V. NAMASTEY CHEMICAL S (P.) LTD. [2013] 33 TAXMANN.COM 271 (GUJARAT); (B) COMMISSIONER OF INCOME TAX V. KUBER PLORITECH LTD. [2010] 2 DTLONLINE 136 (DELHI); (C) COMMISSIONER OF INCOME-TAX V. TANIA INVESTMENTS (P. ) LTD. IT APPEAL NO. 15 OF 2009, HI HHHIGH COURT OF MUMBAI; (D) BHAV SHAKTI STEEL MINES (P.) LTD. V. COMMISSIONER O F INCOME-TAX [2009] 179 TAXMAN 25 (DELHI); (E) COMMISSIONER OF INCOME-TAX V. SAMIR BIO-TECH (P.) L TD. [2010] 325 ITR 294 (DELHI) (F) COMMISSIONER OF INCOME-TAX-I V. MICRO MELT (P.) LTD . [2009] 177 TAXMAN 35 (GUJ.) (G) COMMISSIONER OF INCOME-TAX-V V. REAL TIME MARKETING (P.) LTD. [2008] 173 TAXMAN 41 (DELHI) (H) ASSISTANT COMMISSIONER OF INCOME-TAX V. MANSAROVAR URBAN CO- OPERATIVE BANK LTD. [2009] 124 TTJ 269(LUCKNOW); (I) COMMISSIONER OF INCOME-TAX IV V. EMPIRE BUILDTECH (P.) LTD. [2014] 43 TAXMANN.COM 269 (DELHI); (J) COMMISSIONER OF INCOME-TAX V. MULBERRY SILK INTERNA TIONAL LTD. [2012] 19 TAXMANN.COM 31 (KAR.); (K) COMMISSIONER OF INCOME-TAX-III V. NILCHEM CAPITAL L TD. [2012] 18 TAXMANN.COM 350 (GUJ.); (L) COMMISSIONER OF INCOME-TAX V. JAY DEE SECURITIES & FINANCE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 11 - LTD. [2013] 32 TAXMANN.COM 91 (ALLAHABAD); (M) COMMISSIONER OF INCOME-TAX, DELHI-II V. KINETIC CAP ITAL FINANCE LTD. [2011] 14 TAXMANN.COM 150 (DELHI); (N) COMMISSIONER OF INCOME-TAX V. VLS FOODS (P.) LTD. [ 2011] 15 TAXMANN.COM 225 (DELHI); (O) COMMISSIONER OF INCOME-TAX V. AMBUJA GINNING PRESSI NG AND OIL CO. (P.) LTD. [2011] 15 TAXMANN.COM 273 (GUJ.); (P) COMMISSIONER OF INCOME-TAX V. ROCK FORT METAL & MIN ERALS LTD. [2011] 198 TAXMAN 497 (DELHI); (Q) COMMISSIONER OF INCOME-TAX V. SIRI RAM SYAL HYDRO P OWER (P.) LTD.[2011] 196 TAXMAN 441(DELHI); (R) COMMISSIONER OF INCOME-TAX V. ORBITAL COMMUNICATION (P.) LTD. [2010] 327 ITR 560 (DELHI); (S) COMMISSIONER OF INCOME-TAX-I V. HIMATSU BIMET LTD. [2011] 12 TAXMANN.COM 87 (GUJ.); 5.15 I AM CONVINCED THAT THE APPELLANT HAS BEEN ABL E TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE SUBSCRIBERS AS ALSO THE GENUINENESS OF THE TRANSACTIONS. IN MY CONSIDERED OPINION, THE RATIO O F THE AFORESAID JUDGEMENTS OF THE HONBLE SUPREME COURT IN LOVELY EXPORTS AND THAT OF JURISDICTIONAL HIGH COURT ARE CERTAINLY BINDING IN NATURE ON ALL T HE REVENUE AUTHORITIES AND COURTS ETC. AND FURTHER, THE JUDGEMENT OF THE JURIS DICTIONAL HIGH COURT AS WELL AS THAT OF THE HONBLE SUPREME COURT IN LOVELY EXPO RTS HAS BEEN RENDERED ON IDENTICAL FACTS. HENCE, IT IS IMPERMISSIBLE TO DEVI ATE FROM THE RATIO LAID DOWN THEREIN AND AGAINST THE LAW OF JUDICIAL PRECEDENTS. I AM CONVINCED THAT THE ACTION OF THE A.O IN MAKING THE ADDITION IN RESPECT OF EVEN THOSE SUMS WHICH WERE REFUNDED IS ILLEGAL AS THE SAME IS CLEARLY BEY OND THE PURVIEW OF SECTION 68. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE RATIO OF THE BINDING JUDGEMENTS, THE ADDITION OF SHARE APPLICATION/CAPIT AL MONEY OF RS.11,15,00,000/- AS UNEXPLAINED CASH CREDITS UNDER SECTION 68 IS UNCALLED FOR AND HENCE, DELETED. THE APPELLANT GETS RELIEF OF RS. 11,15,00,000/- AS TABULATED BELOW: A.Y. AMOUNT (RS.) 2006-07 1,25,00,000.00 2009-10 3,75,00,000.00 2010-11 5,45,00,000.00 2011-12 70,00,000.00 9. AS NOTED EARLIER, WHILE ADJUDICATING THE ISSUE O F ADDITIONS UNDER S. 68 INVOLVED IN FAVOUR OF THE ASSESSEE ON F ACTUAL MATRIX, THE LEGAL OBJECTION OF THE ASSESSEE ON POINT OF JURISDI CTION UNDER S. 153A TO ASSESS THE INCOME WITHOUT SHOWING ANY NEXUS WITH ANY INCRIMINATING DOCUMENT FOUND IN SEARCH IN RESPECT O F UNABATED ASSESSMENTS AY 2006-07 TO 2009-10, WAS HOWEVER SEEN WITH DISFAVOUR AND DECIDED AGAINST THE ASSESSEE BY THE C IT(A). ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 12 - 10. THE REVENUE IS AGGRIEVED BY THE RELIEF GRANTED TO THE ASSESSEE ON MERITS BY THE CIT(A). 11. THE ASSESSEE, ON THE OTHER HAND, HAS ALSO FILED CROSS OBJECTIONS CHALLENGING THE VERY LEGITIMACY OF ADDITIONS/ DISAL LOWANCES DEHORS ANY REFERENCE TO INCRIMINATING DOCUMENTS IN UNABATE D ASSESSMENTS I.E. AY 2006-07 TO AY 2009-10. 12. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEA RNED CIT-DR FOR THE REVENUE, AT THE OUTSET, STRONGLY RELIED UPO N THE FACTUAL MATRIX DISCUSSED IN ASSESSMENT ORDER FOR VARIOUS AS SESSMENT YEARS IN QUESTION. HOWEVER, THE VIEW OF THE CIT(A) ON THE L EGAL OBJECTION OF THE ASSESSEE WAS DEFENDED VOCIFEROUSLY. IT WAS C ONTENDED BY THE REVENUE THAT DISCOVERY OF ANY INCRIMINATING DOCUMEN T IS NOT A CONDITION PRECEDENT TO MAKE ADDITIONS OR DISALLOWAN CE UNDER S.153A OF THE ACT. IT WAS THUS CONTENDED THAT THE AO AND THE CIT(A) RIGHTLY OBSERVED THAT THE ISSUE OF WARRANT OF SEARC H AND SEIZURE UNDER S.132 OF THE ACT SUFFICIENTLY EMPOWERS THE AO TO INITIATE THE PROCEEDINGS UNDER S.153A OF THE ACT AND TO MAKE ALL CONSEQUENT ADDITIONS REGARDLESS OF PRESENCE OF INCRIMINATING D OCUMENTS OR OTHERWISE. IT WAS SUBMITTED THAT THE ONLY CONDITION FOR INITIATION OF PROCEEDINGS UNDER S.153A OF THE ACT IS OCCURRENCE O F A VALID SEARCH UNDER S.132 OF THE ACT. IT WAS REITERATED THAT SECT ION 153A OF THE ACT DOES NOT PROVIDE THAT ASSESSMENT/RE-ASSESSMENT SHOULD BE BASED ON INCRIMINATING MATERIAL ALONE AND THE AO IS EMP OWERED TO ASSESS OR RE-ASSESS THE TOTAL INCOME OF THE SIX F INANCIAL YEARS COVERED UNDER THE SEARCH REGARDLESS OF PRESENCE OF INCRIMINATING MATERIAL. ON MERITS, IT WAS ARGUED THAT THE ASSESS EE HAS FAILED TO DISCHARGE THE ONUS PLACED UPON IT TO PROVE THE CRED ITWORTHINESS AND GENUINENESS OF THE TRANSACTION OF SHARE APPLICATION MONEY AND CONSEQUENTLY, IN THE ABSENCE OF SATISFACTORY EXPLAN ATION TOWARDS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 13 - NATURE AND SOURCE OF RECEIPTS, THE AO HAS RIGHTLY I NVOKED SECTION 68 OF THE ACT. THE FINDINGS OF THE CIT(A) FOR REVERSAL OF ADDITIONS WERE THUS ASSAILED ON MERITS. 13. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSE E, TO BEGIN WITH, ADVERTED TO THE LEGAL OBJECTION AND POINTED O UT THAT THE A.YS. 2006-07 TO 2009-10 STOOD CONCLUDED AND COMPLETED PR IOR TO INITIATION OF SEARCH ON 21.06.2011 AND CONTENDED TH AT IN THE LIGHT OF THE LAW EXPOUNDED BY THE PLETHORA OF JUDICIAL PRECE DENTS OF DIFFERENT HIGH COURTS AND FOLLOWED BY THE CO-ORDINA TE BENCHES, THE ISSUE IS QUITE SETTLED. IT WAS CONTENDED THAT IN TH E ABSENCE OF ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARC H QUA THE ADDITIONS/DISALLOWANCES MADE, THE ACTION OF AO IS D EVOID OF LEGITIMACY WITHOUT SHOWING ITS CONNECTION TO THE IN CRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. IT WAS, HOW EVER, FAIRLY CONCEDED THAT THE ASSESSMENTS FOR A.YS. 2010-11 & A .Y. 2011-12 IN QUESTION WERE PENDING AT THE TIME OF SEARCH IN TERM S OF 2 ND PROVISO TO S. 153A AND HENCE, NORMAL AND REGULAR ASSESSMENT S UNDER S.153A R.W.S. 143(3) OF THE ACT WOULD BE PERMISSIBLE AS PE R THE SCHEMATIC INTERPRETATION OF THE LAW GOVERNING SEARCH ASSESSME NTS. 13.1 TURNING TO THE FACTS, THE LEARNED COUNSEL SUBM ITTED THAT A SEARCH AND SEIZURE OPERATION UNDER S.132(1) OF THE ACT WAS CARRIED OUT ON THE RESIDENTIAL AND BUSINESS PREMISES OF VAR IOUS COMPANIES AND ITS DIRECTORS ON 21.06.2011. HOWEVER, SIGNIFIC ANTLY, NO SEARCH ACTION WAS CARRIED OUT AT THE REGISTERED OFFICE OF THE ASSESSEE COMPANY WHERE THE SHARE CERTIFICATES, RELEVANT STAT UTORY RECORDS ARE KEPT AS REQUIRED IN LAW. NO ADVERSE INFORMATION IN RELATION TO SHARE APPLICANTS WERE FOUND IN THE COURSE OF SEARCH. NO Q UERIES WERE RAISED TOWARDS THE STATUTORY RECORDS BEING KEPT UND ER COMPANY LAW. IT WAS FURTHER ASSERTED THAT NO DOCUMENT RELATING T O VARIOUS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 14 - ASSESSMENT YEARS IN QUESTION WERE EITHER FOUND OR S EIZED WHICH CAN BE BRANDED TO BE INCRIMINATING IN NATURE INDICATING PRESENCE OF ANY UNDISCLOSED INCOME BY WAY OF SHARE APPLICATION IN Q UESTION. THE CASH FOUND IN SEARCH WAS MEAGER HAVING REGARD TO TH E SCALE OF OPERATIONS. THE DOCUMENTS FOUND AND SEIZED WERE OF ROUTINE NATURE MAINTAINED IN THE ORDINARY COURSE OF BUSINESS WHICH NATURALLY WILL BE FOUND IN THE BUSINESS PREMISES. THE DOCUMENTS F OUND RELATES TO THE ENTRIES ALREADY RECORDED IN THE BOOKS. HENCE, THE ASSESSMENTS FOR AYS 2006-07 TO 2009-10 WHICH STOOD CONCLUDED AN D REMAINED UNABATED IS BARRED BY PRINCIPLES OF FINALITY AND CO ULD NOT BE DISTURBED BY THE AO IN THE ABSENCE OF THE INCRIMINA TING MATERIAL. 13.2 TO BUTTRESS THE LEGAL POSITION THAT PRESENCE O F INCRIMINATING MATERIAL DISCOVERED IN THE COURSE OF SEARCH AS A SINE QUA NON FOR ADDITIONS/DISALLOWANCES IN RESPECT OF UNABATED ASSE SSMENT, THE LEARNED COUNSEL RELIED UPON THE DECISION RENDERED I N THE CASE OF KABUL CHAWLA (2016) 380 ITR 573 (DEL); PR.CIT VS. M EETA GUTGUTIA (2018) 96 TAXMANN.COM 468 (SC) AND A LONG SERIES OF DECISIONS GOVERNING THE FIELD. IN THE LIGHT OF JUDICIAL VIEW, IT WAS THUS ASSERTED THAT IN THE ABSENCE OF ANY INCRIMINATING M ATERIAL FOUND IN THE COURSE OF SEARCH, THE ACTION OF THE AO TO MAKE ADDITIONS IS A COMPLETE NON-STARTER. THE TIME LIMIT FOR ISSUANCE O F NOTICE UNDER S.143(2) OF THE ACT IS EITHER EXPIRED AT THE TIME O F SEARCH OR THE ASSESSMENTS WERE CONCLUDED UNDER SECTION 143(3), AS THE CASE MAY BE, AND HENCE COULD NOT BE DISTURBED FOR MAKING ADD ITIONS OF REGULAR & ROUTINE NATURE MERELY ON ACCOUNT OF SEARCH. THE L EARNED COUNSEL REITERATED THAT IN THE LIGHT OF JUDICIAL PRECEDENTS , THE LEGAL POSITION IS CRYSTAL CLEAR THAT IN UNABATED SEARCH ASSESSMENT S, NO ADDITION IS PERMISSIBLE MERELY ON THE BASIS OF RE-APPRECIATION OF REGULAR BOOKS, ACCOUNTS AND DOCUMENTS MAINTAINED BY THE ASSESSEE I N ORDINARY COURSE. THE LD. COUNSEL THUS SUBMITTED THAT IMPUGNE D ADDITIONS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 15 - MADE IN THE AY 2006-07 & 2009-10 IS ABSOLUTELY WITH OUT ANY LEGAL FOUNDATION AND DESERVES TO BE QUASHED AT THE THRESH OLD WITHOUT GOING IN MERITS. SOME OF THE OTHER PRECEDENTS IN TH IS REGARD AS CITED ARE NOTED HEREUNDER: (A) RAWAL DAS JASWANI VS. ASSISTANT COMMISSIONER OF INCOME TAX, ITA NO. 87/BLPR/2009, ITAT RAIPUR BENCH; (B) DCIT VS. R. K. TRANSPORT & CONSTRUCTIONS PVT L TD, ITA NOS. 236 TO 242/RPR/2014, ITAT RAIPUR BENCH; (C) MINDA INDUSTRIES LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX, (2018) 53 CCH 0287 DELTRIB; (D) ASSTT. COMMISSIONER OF INCOME TAX 1(2), RAIPU R VS. MARUTI CLEAN COAL & POWER LTD., ITA.NO:187/RAIPUR/2014& ITA.NO:95/RAIPUR/2012, ITAT RAIPUR BENCH; (E) DCIT, RAIPUR VS R. R. ENERGY LTD, ITA NOS.22 5 TO 231/RPR/2014, ITAT RAIPUR BENCH; (F) BEST INFRASTRUCTURE (INDIA) PVT. LTD. &ORS. V S. ACIT, (2016) 47 CCH 0159, ITAT DELHI BENCH; (G) MOON BEVERAGES LTD. &ANR VS. ACIT, (2018) 53 C CH 0120, ITAT DELHI BENCH; (H) CIT VS. SINHGAD TECHNICAL EDUCATION SOCIETY, (2017) 156 DTK 0161 SC; (I) ACIT & ANR. VS. MADHURI SUNIL KOTECHA &ANR, ( 2016) 55 CCH 0187, ITAT PUNE BENCH; (J) TRILOK CHAND CHAUDHARY VS. ACIT, (2019) 56 CC H 0435, ITAT DELHI BENCH; (K) COMMISSIONER OF INCOME TAX VS. DEEPAK KUMAR A GRAWAL & ORS., (2017) 398ITR586(BOM); (L) PCIT CENTAL-3 VS. ANAND KUMAR JAIN, TS-105-HC-2 021(DEL); (M) PRINCIPAL COMMISSIONER OF INCOME TAX VS. DIPA K JASHVANTLAL PANCHAL,(2017) 397 ITR 153 (GUJ); (N) RAJAT MINERALS (P) LTD. VS. DCIT (2020) 114 TA XMANN.COM 536 (RANCHI) 13.3 ON MERITS, THE LEARNED COUNSEL SUBMITTED THAT IT IS A MATTER OF RECORD THAT ASSESSEE HAS FILED SEVERAL DOCUMENTARY EVIDENCES OF SUBSCRIBERS BEFORE THE AO TO SUPPORT THE NATURE AND SOURCE OF SHARE APPLICATION MONEY: (A) PAN, ADDRESS, NAME (B) COI, MOA, AOA (C) AUDITED FINANCIAL STATEMENT (D) INCOME TAX RETURN (E) BANK STATEMENT (F) SHARE APPLICATION FORM (G) PAYMENT RECEIVED THROUGH BANKING CHANNEL (H) DETAILS OF PAYMENT RECEIVED ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 16 - 13.4 MOVING FURTHER, THE LEARNED COUNSEL ADVERTED T O PAGE NOS. 243-245 OF THE PAPER BOOK AND SUBMITTED THAT THE AS SESSEE HAS MADE SEVERAL PRO-ACTIVE REQUESTS BEFORE THE AO DURING TH E ASSESSMENT PROCEEDINGS SOME OF WHICH ARE NOTED HEREUNDER AS RE FERRED; (A) TO PROVIDE THE ASSESSEE COMPANY WITH THE COPY OF ALL THE LETTERS SENT BY THE LD. AO TO THE INVESTORS /SHARE APPLICAN TS REGARDING INVESTMENT MADE IN THE SHARES OF ASSESSEE COMPANY. (B) THE ASSESSEE COMPANY MAY KINDLY BE APPRAISED WI TH THE CASES I.E. THE NAME OF THE COMPANY ON WHOM LETTER SENT BY THE LD. AO REMAINED UN-SERVED. (C) THE ASSESSEE COMPANY MAY KINDLY BE MADE KNOWN WITH THE REASON COMMUNICATED BY THE POSTAL DEPARTMENT BEHIND NON-SE RVICE OF THE LETTERS SENT BY THE LD. AO. (D) THE ASSESSEE COMPANY MAY ALSO BE CONFRONTED WI TH THE ENQUIRY CONDUCTED BY THE LD. AO REGARDING ADDITION TO SHARE APPLICATION /SHARE CAPITAL. ' 13.5 IT WAS NEXT POINTED OUT THAT ASSESSMENT OF THE ASSESSEE WAS DULY COMPLETED UNDER S.143(3) OF THE ACT FOR A.Y. 2 006-07 & A.Y. 2007-08 PRIOR TO SEARCH AND THE ISSUE OF RECEIPT OF SHARE APPLICATION MONEY IN AY 2006-07 HAD ALREADY BEEN EXAMINED BY SE VERAL ROUNDS OF QUESTIONNAIRES IN THE SCRUTINY ASSESSMENT CARRIE D OUT UNDER S.143(3) OF THE ACT. IT WAS AFTER DUE VERIFICATION OF FACTUAL ASPECTS, THE NATURE AND SOURCE OF SHARE APPLICATION MONEY WA S FOUND SATISFACTORY BY THE AO. BEFORE US, THE LEARNED COU NSEL MAINLY RELIED UPON AN EXTENSIVE & OBJECTIVE ANALYSIS CARRI ED OUT BY THE CIT(A) WHICH IS CLAIMED TO BE SELF SPEAKING & SELF EXPLANATORY. IT WAS ALSO POINTED OUT THAT NEARLY WHOLE AMOUNT OF SH ARE APPLICATION WAS RECEIVED FROM A GROUP CO. ESCORTS FINVEST PVT. LTD. WHICH CARRIES VERY HIGH FINANCIAL NET-WORTH FOR LAST SEVE RAL YEARS AND IS REGULARLY ASSESSED TO TAX. IT WAS ALSO POINTED OUT THAT THE SHARE APPLICATION MONEY SO RECD. FROM ESCORTS WAS RETURNE D BACK IN THE SUBSEQUENT FINANCIAL YEARS WITHOUT ANY SUBSCRIPTION . IT WAS FURTHER CONTENDED THAT THE ADDITION MADE BY THE AO IS UNSUS TAINABLE IN THE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 17 - LIGHT OF THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF THE ACIT VS. VENKATESHWAR ISPAT (P) LTD. REPORTED IN 31 9 ITR 393(CHHATISGARH) . IT WAS THUS SUBMITTED THAT NO INTERFERENCE THEREWITH IS CALLED FOR ON MERITS. 14. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE MATERIALS PLACED ON RECORD AND REFERRED TO IN TERMS OF RULE18(6) OF THE INCOME TAX (APPELLATE TRIBUNAL), R ULES 1963. 14.1 BEFORE WE DEAL WITH ADDITIONS ON MERITS, IT WI LL BE DESIRABLE TO ADJUDICATE THE PERTINENT LEGAL OBJECTION OF OVERWHE LMING NATURE RAISED ON BEHALF OF THE ASSESSEE WHICH GOES TO THE ROOT OF THE MATTER AND AFFECTS THE VERY FOUNDATION OF ADDITIONS IN DIS PUTE. THE LEGAL QUESTION THAT ARISES AS PER CROSS OBJECTION IS WHET HER WHILE MAKING ASSESSMENT UNDER S.153A OF THE ACT, THE REVENUE IS ENTITLED TO INTERFERE WITH AN ALREADY CONCLUDED (AND NOT ABATED ) ASSESSMENT PASSED EITHER UNDER S.143(1) OF THE ACT OR UNDER S. 143(3) OF THE ACT AND NOT PENDING AT THE TIME OF SEARCH, IN THE ABSEN CE OF INCRIMINATING DOCUMENTS UNEARTHED AS A RESULT OF SE ARCH? AS A COROLLARY, THE SCOPE AND AMBIT OF ASSESSMENT PROCEE DINGS IN SEARCH CASES UNDER S.153A OF THE ACT IS PUT UNDER SCANNER. 14.2 IN THE FIRST APPEAL, THE CIT(A) DISMISSED THE LEGAL GROUND OF JURISDICTION BY OBSERVING AS UNDER: 8. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT OR DER AND SUBMISSIONS OF THE APPELLANT. WHERE A SEARCH HAS BE EN INITIATED U/S 132 OF THE ACT, THE A.O. IS ENTITLED TO ISSUE NOTICE FO R SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE YEAR IN WHICH SEARCH HAS BEEN INITIATED. AS SUCH, THE ASSESSMENT FOR THOSE SIX ASSESSMENT YEARS STANDS REOPENED. ONCE THE ASSESSMENT IS REOPENED, THE A.O. HAS FULL POWERS TO ASSESS THE INCOME WHICH HAS ESCAPED, WHETHER FOUND AS A RESULT OF SEARCH OR OTHERWISE. ACCORDINGLY, THE ADDITIONS MADE BY THE A .O ARE WITHIN THE POWERS ASSIGNED TO HIM U/S 153A AND FOR THIS REASON , THIS GROUND OF APPEAL IS HEREBY DISMISSED . ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 18 - 14.3 WE HAVE EXAMINED THE LEGAL OBJECTION ON JURISD ICTION TO MAKE ADDITIONS DEHORS REFERENCE TO ANY INCRIMINATING MATERIAL FOUND IN THE COURSE OF SEARCH. THE ISSUE IS NO LONGER RES INTEGRA AND ANSWERED IN FAVOUR OF THE ASSESSEE BY LARGE NUMBER OF JUDICIAL PRECEDENTS. AS CONSISTENTLY ECHOED BY THE HONBLE C OURTS OF DIFFERENT JURISDICTION, THE SCOPE OF SEARCH ASSESSM ENTS UNDER S.153A OF THE ACT IN RESPECT OF CONCLUDED AND UNABATED ASS ESSMENTS IS NARROWER IN ITS SWEEP AND RESTRICTS THE RIGHT OF TH E AO TO EXAMINE THE ISSUE EMANATING FROM SOME INCRIMINATING MATERIA L. 14.3.1 WE SHALL FIRST REFER TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF PR.CIT VS. MEETA GUTGUTIA (2017) 395 ITR 526 (DEL). THE HONBLE DELHI HIGH COURT REFERRED TO THE JUDGME NT IN THE CASE OF CIT VS. KABUL CHAWLA (2016) 380 ITR 573 (DEL); PR.CIT VS. SAUMYA CONSTRUCTIONS PVT. LTD. (2016) 38 7 ITR 529 (GUJ); PRINCIPAL COMMISSIONER OF INCOME TAX-1 VS. D EVANGI ALIAS RUPA 2017-TIOL-319-HC-AHM-IT; CIT VS. IBC KNOWLEDGE PARK PVT. LTD. (2016) 385 ITR 346 (KAR); PR. CIT-2 VS. S ALASAR STOCK BROKING LTD. 2016-TIOL-2099-HC-KOL-IT AND CIT VS. GURINDER SINGH BAWA (2016) 386 ITR 483 (BOM), REFERENCE IS ALSO MADE TO ANOTHER TWO DECISIONS OF HONBLE DELHI COURT IN PR. CIT VS. MAHESH KUMAR GUPTA 2016-TIOL-2994-HC-DEL AND THE DECISION DATED 7TH FEBRUARY, 2017 IN ITA NOS. 61/2017 AND 62/2017 IN THE PR. COMMISSIONER OF INCOME TAX-9 VS. RAM AVTAR VERMA WHERE THE DECISION IN KABUL CHAWLA (SUPRA) WAS FOLLOWED. THE HONBLE DELHI HIGH COURT MADE AN EXHAUSTIVE REFERENCE TO THE DECI SIONS NOTED ABOVE AND HELD THAT INVOCATION OF SECTION 153A OF T HE ACT TO REOPEN CONCLUDED ASSESSMENTS OF EARLIER ASSESSMENT YEARS W AS NOT PERMISSIBLE IN THE ABSENCE OF INCRIMINATING MATERIA L FOUND DURING SEARCH QUA EACH SUCH UNABATED ASSESSMENT YEARS. EVENTUALLY, THE HONBLE DELHI HIGH COURT IN MEETA GUTGUTIA (SUPRA) HELD THAT ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 19 - ADDITIONS BASED ON APPRECIATION OF FACTS DEHORS INCRIMINATING MATERIAL ARE NOT SUSTAINABLE IN LAW. THE SLP OF TH E REVENUE AGAINST THE AFORESAID DECISION OF THE HONBLE DELHI HIGH CO URT WAS DISMISSED BY THE HONBLE SUPREME COURT IN PR.CIT VS. MEETA GUTGUTIA (2018) 96 TAXMANN.COM 468 (SC). . 14.3.2 SIMILAR VIEW THAT NO ADDITIONS COULD BE MADE ON THE BASIS OF MATERIAL COLLECTED AFTER SEARCH AND IN THE ABSENCE OF ANY INCRIMINATING EVIDENCE FOUND OR SEIZED DURING SEARC H HAS BEEN ENDORSED BY THE HONBLE GUJARAT HIGH COURT IN PR.CIT VS. SUNRISE FINLEASE (P.) LTD. (2018) 89 TAXMANN.COM 1 (GUJ.). 14.3.3 THE HONBLE GUJARAT HIGH COURT IN PR.CIT VS. SAUMYA CONSTRUCTIONS PVT. LTD. (2016) 387 ITR 529 (GUJ) ALSO DECLINED TO AGREE WITH THE PLEA ON BEHALF OF THE REVENUE THAT T HE NEW PROCEDURE PROVIDED UNDER S.153A OF THE ACT IS DIFFERENT FROM EARLIER PROCEDURE PROVIDED UNDER S.158BC R.W.S. 158BB OF THE ACT AND CONSEQUENTLY, THE PLEA OF THE REVENUE THAT THERE IS NO CONDITION IN SECTION 153A OF THE ACT THAT ADDITIONS SHOULD BE MADE STRICTLY O N THE BASIS OF EVIDENCE FOUND DURING THE COURSE OF SEARCH WAS NOT APPROVED. THE HONBLE GUJARAT HIGH COURT ANALYZED THE POSITION OF LAW AND TOOK NOTE OF SEVERAL JUDICIAL PRECEDENTS AND CONCLUDED T HAT COMPLETED ASSESSMENTS CAN BE INTERFERED WITH BY THE AO WHILE MAKING THE ASSESSMENT UNDER S.153A OF THE ACT ONLY ON THE BASI S OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH OR REQUISITION OF DOCUMENTS ETC. THE HONBLE GUJARAT H IGH COURT NOTED THAT THE TRIGGER POINT FOR EXERCISE OF POWERS UNDER S.153A OF THE ACT IS A VALID SEARCH UNDER S.132 OF THE ACT OR A REQUI SITION UNDER S.132A OF THE ACT. ONCE A SEARCH OR REQUISITION IS MADE, THE MANDATE IS CAST UPON THE AO TO ISSUE NOTICE UNDER S .153A OF THE ACT AND COMPLETE THE ASSESSMENT OF 6 ASSESSMENT YEARS. THE HONBLE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 20 - GUJARAT HIGH COURT TOOK NOTE OF THE FACT THAT OBJEC T OF SCHEME LEGISLATED FOR ASSESSMENT IN SEARCH CASES IS TO BRI NG TO TAX THE UNDISCLOSED INCOME WHICH IS FOUND IN THE COURSE OF OR PURSUANT TO SEARCH OR REQUISITION AND THEREFORE ADDITIONS/DISAL LOWANCES MUST BE LINKED WITH SEARCH/REQUISITION. IT WAS NOTED BY TH E HONBLE COURT THAT ADDITIONS MADE ON THE BASIS OF SOME MATERIALS COLLECTED BY THE AO MUCH SUBSEQUENT TO THE SEARCH IS NOT PERMISSIBLE . 14.3.4 SIMILAR VIEW HAS BEEN EXPRESSED IN CATENA OF DECISIONS VIZ; PR.CIT VS. DEEPAK J. PANCHAL (GUJ) 397 ITR 153 (GUJ); CHETNABEN J. SHAH VS. ITO TAX APPEAL NO. 1437 OF 20 07 JUDGMENT DATED 14.07.2016; CIT VS. CONTINENTAL WAREHOUSING CORPORA TION (2015) 374 ITR 645 (BOM.); PR.CIT VS. DESAI CONSTRU CTION PVT. LTD. 387 ITR 552 (GUJ.); GURINDER SINGH BABA 386 ITR 483 (BOM); & CIT VS. DEEPAK KUMAR AGARWAL (2017) 398 ITR 586 (BO M.). 14.3.5 THE HONBLE DELHI HIGH COURT IN PR.CIT VS. SUBHASH KHATTAR ITA NO. 60/2017 JUDGMENT DATED 25.07.2017 ALSO HELD AGAINST THE REVENUE IN SIMILAR CIRCUMSTANCES WHERE SEARCH DID NOT RESULT IN DISCOVERY OF ANY INCRIMINATING MATERIAL QUA THE ASSESSEE. IT WAS OBSERVED BY THE HONBLE DELHI HIGH COURT THA T ENTIRE CASE AGAINST THE ASSESSEE WAS BASED ON WHAT WAS FOUND DU RING THE SEARCH OF THE PREMISES OF OTHER PARTIES AND THUS, IT IS AP PARENT ON THE FACE OF IT THAT NOTICE TO ASSESSEE UNDER S.153A OF THE A CT WAS MISCONCEIVED SINCE THE SO-CALLED INCRIMINATING MATE RIAL WAS NOT FOUND DURING THE SEARCH OF ASSESSEES PREMISES. 14.3.6 ON THE CONSPECTUS OF AFORESAID JUDGMENTS OF DIFFERENT COURTS, THE POSITION OF LAW IS LOUD AND CLEAR THAT ADDITIONS/DISALLOWANCES UNDER S.153A OF THE ACT TOW ARDS UNABATED ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 21 - ASSESSMENTS ARE PERMISSIBLE ONLY WHERE INCRIMINATIN G MATERIALS ARE FOUND IN SEARCH SHOWING UNACCOUNTED INCOME. 14.4 IN SUMMATION, IN THE LIGHT OF THE AFORESAID OV ERWHELMING JUDICIAL PRECEDENTS AS LAID DOWN BY THE HONBLE BOM BAY HIGH COURT, DELHI HIGH COURT & GUJARAT HIGH COURT AS ALS O VARIOUS BENCHES OF TRIBUNAL, THE CORRECT LEGAL POSITION IN RESPECT OF THE ASSESSMENTS UNDER S.153A OF THE ACT MAY BE SUMMARIZ ED AS FOLLOWS: (I) THE SCOPE OF ASSESSMENT UNDER S.153A OF THE ACT IS LIMITED TO THE INCRIMINATING EVIDENCE FOUND DURING THE SEARCH IN S O FAR AS UNABATED ASSESSMENTS ARE CONCERNED; THE ISSUES UNCONNECTED T O INCRIMINATING MATERIAL ARE INSULATED FROM EXAMINATION IN THE PROC EEDINGS UNDER S. 153A IN RESPECT OF SUCH CONCLUDED ASSESSMENTS & (II ) UNLESS THERE IS INCRIMINATING MATERIAL QUA EACH ASSESSMENT YEARS TO WHICH ADDITIONS ARE SOUGHT TO BE MADE IN RESPECT OF CONCLUDED ASSES SMENTS, THE ASSESSMENT UNDER S.153A OF THE ACT BY MAKING ADDITIONS/DISALLOWANCES WOULD BE VITIATED IN LAW. 14.5 AS DISCUSSED IN LENGTH, THE ISSUE HAS BEEN DYN AMIC AND A MATTER OF LEGAL INTERPRETATION. WE ARE GOVERNED BY THE SCHEMATIC INTERPRETATION GIVEN TO PROVISIONS OF SECTION 153A OF THE ACT BY DIFFERENT HONBLE COURTS. IN THE LIGHT OF JUDICIAL FIAT READING DOWN THE SCOPE AND SPECTRUM OF ASSESSMENT UNDER S.153A O F THE ACT IN NARROWER COMPASS, THE POSITION OF LAW IS EXPLICITLY CLEAR. IN THE ABSENCE OF ANY CONNECTION WITH THE INCRIMINATING MA TERIAL UNEARTHED IN SEARCH PROCEEDINGS OF ASSESSEE, ADDITIONS IN RES PECT OF CONCLUDED ASSESSMENT I.E. AYS. 2006-07 & 2009-10 IN INSTANT A PPEALS, ARE NOT PERMISSIBLE IN LAW. THE BURDEN OF PROOF TOWARDS EXI STENCE OF UNDISCLOSED INCOME DISCOVERED AS A RESULT OF SEARCH IS ON THE REVENUE. NO EVIDENCE HAS BEEN REFERRED TO BY AO OR BROUGHT ON RECORD AS CLAIMED TO BE FOUND AT SEARCH OF ASSESSEE TO SUGGEST ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 22 - EXISTENCE OF UNDISCLOSED INCOME AS PERCEIVED BY THE AO. THE REVENUE HAS FAILED TO REBUT THE FACTUAL ASSERTIONS MADE ON BEHALF OF THE ASSESSEE TOWARDS NON-DISCOVERY OF INCRIMINATING MATERIAL AT THE TIME OF DRASTIC ACTION OF SEARCH ON ASSESSEE AND RE FERENCE THERETO IN ASSESSMENT ORDER. THERE IS NOTHING ON RECORD THAT I NFORMATION CONTAINED IN SEIZED DOCUMENTS AS PER LIST OF INVENT ORY IN PANCHNAMA, WERE NOT RECORDED OR REFLECTED IN THE BO OKS OF ACCOUNTS. HENCE, THE ACTION OF THE AO TOWARDS MAKING ADDITION S IN RESPECT OF CONCLUDED ASSESSMENTS TOWARDS UNDISCLOSED INCOME IS CONTRARY TO THE JUDICIAL DICTA. IN CONSONANCE, WE ARE OF THE VI EW THAT VARIOUS ADDITIONS/DISALLOWANCES MADE BY THE AO ARE CLEARLY BEYOND THE SCOPE OF AUTHORITY VESTED UNDER S.153A OF THE ACT W ITHOUT DISCHARGING THE BURDEN TO SHOW PRESENCE OF ANY INCR IMINATING MATERIAL OR EVIDENCE DEDUCED AS A RESULT OF SEARCH IN SO FAR AS COMPLETED ASSESSMENTS ARE CONCERNED. ADDITIONS MADE IN ASSESSMENTS FRAMED UNDER S.153A OF THE ACT IN RESPE CT OF CAPTIONED ASSESSEE PERTAINING TO AYS. 2006-07 & 2009-10 ARE T HUS REQUIRED TO BE STRUCK DOWN ON THIS SCORE ITSELF. HOWEVER, THE ASSESSMENTS/RE- ASSESSMENTS PENDING ON THE DATE OF SEARCH I.E. AY 2 010-11 & AY 2011-12 IN QUESTION WHICH STOOD ABATED BY OPERATION OF LAW WILL CONTINUE TO BE GOVERNED BY ORDINARY POWERS OF ASSES SMENT UNDER S.153A OF THE ACT IN ACCORDANCE WITH LAW. 15. THE LEGAL GROUND OF JURISDICTION RAISED BY THE ASSESSEE AS PER THE CROSS OBJECTIONS, IS THUS ALLOWED IN RESPECT OF AY 2006-07 & 2009-10 IN QUESTION. THE ADDITIONS MADE UNDER S. 6 8 OF THE ACT WITHOUT SHOWING INCRIMINATING DOCUMENTS ARE BAD IN LAW AND THUS REQUIRES TO BE STRUCK DOWN FOR AY 2006-07 & AY 2009 -10. 16. NOTWITHSTANDING AND WITHOUT PREJUDICE, FOR THE SAKE OF COMPLETENESS, WE SHALL NOW ADVERT TO THE CORRECTNES S OF VARIOUS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 23 - ADDITIONS MADE IN A.YS. 2006-07, 2009-10, 2010-11 & 2011-12 ON MERITS. 17. AS NOTED EARLIER, THE AO HAS INVOKED SECTION 68 OF THE ACT AND MADE ADDITIONS ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FOR VARIOUS ASSESSMENT YEARS IN QUE STION AS UNEXPLAINED CASH CREDIT. THE CIT(A), HOWEVER, AFTER TAKING EXTENSIVE NOTE OF THE OBSERVATIONS MADE IN THE ASSE SSMENT ORDER AND ORAL & WRITTEN SUBMISSIONS MADE ON BEHALF OF THE AS SESSEE, FOUND SUBSTANTIAL MERITS IN THE PLEA OF THE ASSESSEE AND REVERSED THE ADDITIONS SO MADE. 17.1 THE CIT(A) HAS SUCCINCTLY ANALYZED THE ISSUE. THE DETAILED FINDINGS OF THE CIT(A) DEALING WITH THE ISSUE HAS B EEN REPRODUCED IN THE PRECEDING PARAGRAPH 9 OF THIS ORDER. 17.2 ON PERUSAL OF THE ORDER OF THE CIT(A), IT IS N OTICED THAT CIT(A) HAS RECORDED A FINDING ON FACT THAT ADDITION S ON ACCOUNT OF SHARE APPLICATION MONEY HAS BEEN MADE WITHOUT ANY R EFERENCE TO THE INCRIMINATING MATERIAL DETECTED IN THE COURSE OF SE ARCH. THE CIT(A) HAS RECORDED SOME NOTICEABLE OBSERVATIONS ON THE IS SUE OF SHARE APPLICATION MONEY AS SUMMARIZED HEREUNDER: 'THE A.O. DID NOT PAY ANY HEED TO THE REQUESTS SEEK ING SUPPLY OF RESULTS OF INQUIRY CONDUCTED IF ANY FOR ARRIVING AT SUCH CO NCLUSIONS. FURTHERMORE, THE LD. ARS POINTED OUT THAT ASSESSMEN TS IN THE CASE OF PROMOTERS/DIRECTORS AND FAMILY MEMBERS WERE MADE IN MOST OF THE CASES BUT NO SUCH VIEW EVEN TO SUPPORT HIS OWN PASSING RE MARKS WAS OFFERED. DETAILED EXPLANATIONS WERE SUBMITTED WITH RESPECT T O THE LOOSE PAPERS SEIZED AND NOT EVEN A SINGLE DOCUMENT OUT OF IT REL ATE TO OR SUGGEST THAT ANY UNDISCLOSED INCOME OF THESE PERSONS HAS BEEN RO UTED BACK IN THE FORM OF SHARE APPLICATION MONEY. (PARA 4.4 ON PAGE NO.7) THE PRESENT ACTION OF THE A. O IS NOT CULMINATING F ROM ANY SPECIFIC FINDING AGAINST THE APPELLANT THAT IT WAS A BENEFIC IARY OF ANY RACKET WHICH HAS BEEN UNEARTHED AS A RESULT OF SEARCH PROC EEDINGS NOR HAS THE A. O BROUGHT ON RECORD ANY OTHER EVIDENCE TO INDICA TE THAT THE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 24 - APPELLANT DID MAKE UNDISCLOSED INCOME AND SUCH EVID ENCE CAME ON THE SURFACE AS A RESULT OF SEARCH PROCEEDINGS. IN THIS BACKGROUND, IN MY CONSIDERED VIEW, THERE IS NO SCOPE AND REASON TO TAKE A CONTRARY VIEW THAN THAT TAKEN BY T HE THEN A.O WITHOUT THERE BEING ANY DOCUMENTARY EVIDENCE AGAINST THE AP PELLANT TO DEMONSTRATE THAT THE SHARE APPLICATION MONEY WAS NO THING BUT UNDISCLOSED INCOME OF THE APPELLANT. (PARA 5.5 ON PAGE NO.13) IN MY CONSIDERED OPINION, APART FROM DRAWING PRESUM PTIONS, THE AO HAS NOT BROUGHT ANY CLINCHING MATERIAL OR EVIDENCE ON RECORD TO PROVE THAT THE SAID SHARE CAPITAL MONEY BELONGS TO THE AP PELLANT SINCE NO NEXUS HAS BEEN ESTABLISHED THAT THE MONEY FOR AUGME NTING THE INVESTMENT IN THE BUSINESS HAS FLOWN FROM APPELLANT 'S OWN MONEY. (PARA 5.9 ON PAGE NO. 15) NO MATERIAL WAS BROUGHT ON RECORD BY THE A.O INDEPE NDENTLY OF THE INFORMATION RECEIVED, IF ANY, FROM THE INVESTIGATIO N WING OF THE INCOME TAX DEPARTMENT TO SHOW THAT THE MONIES REPRESENTED THE APPELLANT'S UNDISCLOSED INCOME. ' (PARA 5.10 ON PAGE NO. 16) 17.3. APART FROM THE FACTUAL POSITION TOWARDS ABSEN CE OF ANY INCRIMINATING MATERIAL AS NOTED BY THE CIT(A) REPRO DUCED IN PRECEDING PARA, THE CIT(A) HAS ALSO ANALYZED AND DE LINEATED THE FACTUAL MATRIX IN PROPER PERSPECTIVE WHILE DEALING ON MERITS OF ADDITIONS. THE CIT(A) FOUND THAT PRIMARY ONUS PLACE D UPON THE ASSESSEE UNDER S.68 OF THE ACT WAS SATISFACTORILY D ISCHARGED BY THE ASSESSEE. THE CIT(A) HAS EXAMINED THE FACTUAL MATRI X IN RELATION TO THE SUBSCRIBER NAMELY ESCORTS (AS EXTRACTED IN PAR A 8 OF THIS ORDER) AND FOUND THAT THE SUBSCRIBERS WERE DULY ASSESSED A ND PAYMENTS HAVE COME THROUGH BANKING CHANNELS. IT WAS FURTHER FOUND THAT THE TANGIBLE NET WORTH OF THE SUBSCRIBERS COMPANY IS SU FFICIENTLY ENOUGH TO MEET THE CRITERIA OF CREDITWORTHINESS AS UNDERST OOD IN ORDINARY PARLANCE. THE BANK STATEMENTS, AUDITED FINANCIAL ST ATEMENT AND CONFIRMATIONS WERE ANALYZED. THE SOURCE OF INVESTME NT WAS THUS FOUND TO BE EXPLAINED SATISFACTORILY IN THE FACTS O F THE CASE. IT WAS FURTHER NOTED THAT THE CREDIT FOR SHARE APPLICATION MONEY WAS ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 25 - ACCEPTED IN THE REGULAR ASSESSMENT UNDER S.143(3) O F THE ACT IN THE HANDS OF THE ASSESSEE CONCERNING A.Y. 2006-07 PRIOR TO SEARCH AFTER MAKING DUE ENQUIRIES. BESIDES, THE SUBSCRIBER CO. N AMELY ESCORT FINVEST PVT. LTD. PROVIDING SHARE APPLICATION MONEY IN AY 2009-10; 2010-11 & 2011-12 AGGREGATING TO RS. 9.90 CRORE WA S FOUND TO BE A GROUP COMPANY. A PERTINENT OBSERVATION WAS MADE THA T THE SAME AO IN THE CASE OF OTHER GROUP CONCERN (MAHAMAYA STEEL INDUSTRIES LTD.) ACCEPTED THE CREDITWORTHINESS OF THE INVESTOR COMPA NY NAMELY ESCORTS FINVEST PVT. LTD. FOR SUBSCRIPTION IN PRE F. SHARE CAPITAL. THE CIT(A) ESSENTIALLY NOTED THAT A SUBSTANTIAL PAR T OF APPLICATION MONEY HAS BEEN RECEIVED FROM ESCORTS (A GROUP CO.) WHICH WAS SUBSEQUENTLY REFUNDED IN FY 2012-13. THE ADVERSE IN FERENCE DRAWN BY THE AO WAS FOUND BY THE CIT(A) TO BE UNSUBSTANTI ATED AND IN THE REALM OF SUSPICION, SURMISES AND CONJECTURES. ON LE GAL POSITION, THE CIT(A) HAS REFERRED TO LARGE NUMBER OF JUDICIAL PRO NOUNCEMENTS. 17.4 AS POINTED OUT, THE SHARE APPLICATION MONEY WA S REFUNDED IN A.Y. 2012-13 THROUGH BANKING CHANNEL. THE JUDICIAL PRECEDENTS IN CIT VS. KARAJ SINGH 203 TAXMAN 218 (P&H); SMT. PANNA DEVI CHOWDHARY VS CIT (1994) 208 ITR 849 (BOM.) & CIT VS . AYACHI CHANDRASHEKHAR NARSANGJI 42 TAXMANN.COM 251 (GUJ.) HAVE ENDORSED THE VIEW THAT WHERE THE AMOUNT STOOD REPAI D AND ACCEPTED BY THE DEPTT., NO ADDITION UNDER S. 68 IS WARRANTED . 18. IT MAY ALSO BE PERTINENT TO BRIEFLY DEAL WITH T HE ARGUMENTS ADVANCED ON BEHALF OF THE REVENUE IN THE LIGHT OF D ECISION OF THE HONBLE SUPREME COURT IN PCIT VS. NRA IRON & STEEL P. LTD. 412 ITR 161 (SC) . THE FACTS IN NRA CASE WERE GROSS AND PECULIAR AND HARDLY BEARS ANY RESEMBLANCE WITH THE TELL-TALE FAC TS OF THE SHARE APPLICANT HEREIN. IN THE PRESENT CASE, THE FACT OF PAYMENT RECEIVED FOR PROPOSED SHARE SUBSCRIPTION IS FULLY SUBSTANTIA TED BY BANK ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 26 - STATEMENT AND OTHER TAX RECORDS OF THE SUBSCRIBERS AND ALSO THE AFFIDAVIT AND CONFIRMATION LETTER OF THE SUBSCRIBER . THE VERACITY OF TRANSACTION WITH EFPL AND CAPACITY OF THE SUBSCRIBE R WAS DULY ACCEPTED IN THE SEARCH ASSESSMENT OF GROUP COMPANY MSIL BY THE SAME AO. THE BOOK VALUE OF INVESTEE COMPANY ITSELF STANDS AT 43.50 PER SHARES. THE QUESTION OF SHARE PREMIUM DOE S NOT ARISE IN THE INSTANT CASE AS THE MONEY WAS REFUNDED WITHOUT ANY ALLOTMENT. THE FINANCIAL DATA CLEARLY SUGGESTS THAT THE INVEST EE CARRIES A VERY SOUND FINANCIAL STATUS AND CAPACITY FOR SUCH INVEST MENTS. BESIDES, WHEREAS THE SHAREHOLDERS IN NRA DID NOT EXPRESS THE IR WILLINGNESS TO APPEAR BEFORE THE AO, THE SUBSCRIBER IN THE INST ANT CASE NOT ONLY CAME FORWARD AND VOLUNTEERED ITS WILLINGNESS TO APP EAR BEFORE THE AO THROUGH DIRECTOR, AN AFFIDAVIT WAS ALSO FILED TO ASSERT THE FACTUM OF SHARE APPLICATION. NO FIELD ENQUIRIES WERE MADE BY THE AO IN THE INSTANT CASE, WHEREAS THE ADVERSE FINDINGS WERE GIV EN BY THE AO IN NRA IRON AND STEEL PVT. LTD. CASE BASED ON CERTAIN ENQUIRIES. THE BANK STATEMENTS OF THE SUBSCRIBER WERE NOT PLACED B EFORE THE IN NRA NOR WERE ANY RESPONSE FROM THE SO-CALLED INVEST ORS AVAILABLE. THE FACTUAL POSITION IS TOTALLY CONTRARY IN THE PRE SENT CASE. THUS, THE JUDGMENT RENDERED IN NRA STEEL, RENDERED IN OWN SET OF FACTS, WOULD NOT APPLY AS THE FACTS ARE POLES APART. 19. NOTICEABLY, THE BONAFIDES OF SHARE SUBSCRIPTION S WERE ACCEPTED BY THE AO WHILE PASSING THE ORDER UNDER S.143(3) OF THE ACT. AS FURTHER POINTED OUT ON BEHALF OF THE ASSESSEE, THE SAID PROPOSED SUBSCRIBER HAD ALSO MADE INVESTMENT IN THE PREFEREN CE SHARE CAPITAL OF GROUP COMPANY NAMELY MAHAMAYA STEEL INDUSTRIES L IMITED (MSIL) AND THE SEARCH ASSESSMENT OF MSIL WAS ALSO COMPLETED SIMULTANEOUSLY BY THE SAME AO WHEREIN NO ADVERSE IN FERENCE WAS DRAWN IN RESPECT OF PREFERENCE RAISED BY THE MSIL F ROM THE AFORESAID APPLICANT. AS REGARDS THE CREDITWORTHINES S, IT WAS POINTED ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 27 - OUT THAT NET WORTH OF EFPL AS ON 31.03.2012 STANDS AT RS.51.77 CRORES. SIMILAR NET WORTH IN THE VICINITY OF RS.50 CRORES OR THEREABOUT IS ENJOYED BY THE SUBSCRIBER AT LEAST FR OM F.Y. 2006-07 ONWARDS. THE PROPOSED SUBSCRIBER HAS ALSO CONFIRMED THE ACT OF PROPOSED INVESTMENTS IN THE ASSESSEE COMPANY AS NOT ED EARLIER. THE SHARE APPLICANT ALSO OFFERED FOR PERSONAL APPEARANC E BEFORE THE AO AND TO GIVE STATEMENT ON OATH BEFORE THE AO WHICH R EQUEST HOWEVER WAS NOT ACTED UPON BY AO. THIS APART, AN AFFIDAVIT WAS FILED BY THE SUBSCRIBER STATING FACTUM OF INVESTMENT. IN SHORT, IT IS ASSERTED THAT THE PRIMARY ONUS WAS DISCHARGED TO EXPLAIN THE NATU RE AND SOURCE OF THE MONEY RECEIVED. FURTHER, IT IS CONTENDED THAT N O LEGAL OBLIGATION IS PRESCRIBED UPON ASSESSEE IN LAW TO PROVE THE SO URCE OF SOURCE OF SUCH RECEIPTS IN VIEW OF THE PROSPECTIVE INSERTION OF PROVISO TO S.68 OF THE ACT FROM AY 2013-14 FOISTING SUCH OBLIGATION S. A REFERENCE HAS BEEN MADE TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. GAGANDEEP INFRASTRUCTURE PVT. LTD. 80 TAXMANN.COM 272 (BOM.) IN THIS REGARD. BESIDES, WITHOUT PREJUDICE TO EVERY ATTEMPT MADE BEFORE THE AO TO PROVE THE BO NAFIDES TO THE HILT BEING A GROUP COMPANY, A REFERENCE WAS ALSO MA DE TO THE DECISION OF LOVELY EXPORTS PVT. LTD. 319 ITR 5 (SC) WHEREIN IT WAS HELD THAT IN THE CASE OF ALLEGED BOGUS SHARE HOLDER S, THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THE INDIVIDUAL ASSESSM ENTS OF THE SUBSCRIBERS IN ACCORDANCE WITH LAW. RELIANCE WAS P LACED ON MULTIPLE DECISIONS INCLUDING THE BINDING PRECEDENT RENDERED BY THE HONBLE CHHATTISGARH HIGH COURT IN ACIT VS. VENKATESHWAR ISPAT (P) LTD. (2009) 319 ITR 393 B) & CIT VS. ABDUL AZIZ (2012) 251 CTR (CHHATTISGARH) 58 AS REFERRED TO ORDER OF CIT(A) IN PARA 4.9 OF HIS ORDER. THE JURISDICTIONAL HIGH COURT, AS STATED , HAS ANSWERED THE ISSUE IN FAVOUR OF ASSESSEE IN SIMILAR FACT SITUATI ON. THE ASSESSEE FURTHER CONTENDED THAT NO ADDITIONS CAN BE MADE MER ELY ON THE BASIS OF SOME OBLIQUE PERCEPTION OF CULPABILITY TOWARDS R ECEIPT OF SHARE ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 28 - APPLICATION MONEY IN THE INSTANT CASE. THE MONEY HA S BEEN TAKEN FROM A GROUP CO. OF A VERY SOUND FINANCIAL STANDING , WHICH WAS ALSO RETURNED WITHOUT SUBSCRIPTION. IN CONTRAST, THE AO HAS FAILED TO BRING ANY POSITIVE EVIDENCE AGAINST THE ASSESSEE FO R ASSAILING THE BONAFIDES OF SHARE APPLICATION MONEY RECEIVED FROM A SISTER CONCERN HOLDING A VERY HIGH NET WORTH. A REFERENCE WAS ALSO MADE TO PCIT VS. HIMACHAL FIBERS LTD., REPORTED IN [2018] 98 TAX MANN.COM 172 (DELHI) TO SUBMIT THAT WHERE THE IDENTITY OF SHARE APPLICA NT WAS FULLY REVEALED AND THE AO DID NOT CONDUCT ANY ENQUI RY THEREON, HE WAS NOT JUSTIFIED IN RESTING HIS CONCLUSIONS ON SUR MISES. IT IS THUS THE CASE OF ASSESSEE THAT THE REVENUE IS NEITHER JU STIFIED ON FACTS NOR ON THE TOUCHSTONE OF LAW TO EMBARK UPON THE IMP UGNED ADDITIONS UNDER S.68 OF THE ACT. 20. THE CIT(A), IN OUR VIEW, HAS ELOQUENTLY EXAMINE D AND WEIGHED ALL RELEVANT FACTS PECULIAR TO THE INSTANT CASE BY WAY OF A VERY SPEAKING ORDER. WITHOUT REITERATING THE DIFFER ENT FACETS ANALYZED BY THE CIT(A), WE FIND COMPLETE FORCE IN H IS VIEW. AFTER A DETAILED AND OBJECTIVE SCRUTINY OF FACTUAL & LEGAL POSITION, THE CIT(A) HAS SET ASIDE AND REVERSED THE ADDITIONS CAR RIED OUT WITHOUT SHOWING ANY IOTA OF INCRIMINATING MATERIAL TO SUPPO RT THE ALLEGATION OF ACCOMMODATION ENTRIES IN THE ABATED AS WELL AS U NABATED SEARCH ASSESSMENTS. THE SHARE APPLICATION MONEY WAS FOUND TO BE RETURNED. THE ACTION OF CIT(A) IS IN CONSONANCE WITH THE BIND ING PRECEDENT OF JURISDICTIONAL HIGH COURT. HENCE, WE SEE NO REASON TO DEPART FROM THE RATIONALE OF THE DECISION OF THE CIT(A) ON REVE RSAL OF ADDITIONS UNDER S.68 OF THE ACT PERTAINING TO A.Y. 2006-07; 2 009-10; 2010-11 & 2011-12 IN QUESTION. WE THUS DECLINE TO INTERFERE . 21. CONSEQUENTLY, REVENUE APPEAL CONCERNING ADDITIO NS UNDER S. 68 IN A.Y. 2006-07 & 2009-10 IS DISMISSED BOTH ON T HE POINT OF ITA NOS. 256 TO 259/RPR/2014 A/W. CO NOS. 42 TO 45/RPR/15 (MAHALAXMI TECHNOCAST LTD.) - 29 - JURISDICTION AS WELL AS ON MERIT WHEREAS ADDITIONS MADE IN 2010-11 & 2011-12 ARE DISMISSED ON MERITS. THE CROSS OBJECT IONS OF THE ASSESSEE IN RESPECTIVE APPEALS OF REVENUE STANDS AL LOWED. 22. RESULTANTLY, ALL THE CAPTIONED REVENUE APPEALS ARE DISMISSED WHEREAS ALL CROSS OBJECTIONS OF THE ASSESSEE ARE AL LOWED. SD/- SD/- (PAWAN SINGH) (PRADIP KUM AR KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S. K. SINHA / COPY OF ORDER FORWARDED TO:- $. / REVENUE 2. / ASSESSEE &. '() * / CONCERNED CIT 4. *- / CIT (A) -. ./0 122()3 ()!3 / DR, ITAT, RAIPUR 4. 056 7 / GUARD FILE. BY ORDER 3 SR. PRIVATE SECRETARY ITAT 3 RAIPUR (ON TOUR) ORDER PRONOUNCED ON 25 / 10 /2021 BY PLACING THE RESULT ON THE NOTICE BOARD AS PER RULE 34(4) OF THE INCOME TAX (A PPELLATE TRIBUNAL) RULE, 1963.