M/s Sinhal Products (P) Ltd., Delhi V. ITO, New Delhi

CO 89/DEL/2010

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 6980 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 29-02-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 21-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS S MOHANTHY
• Keywords: Audit objection; Additional evidence; Deemed dividend; Assessment record; Onus to prove; Reassessment proceedings
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NOS.3852, 3853 & 3854/DEL/2009 ASSESSMENT YEARS : 2002-03, 2003-04 & 2004-05 ITO, WARD 8(4), ROOM NO.196A, CR BUILDING, NEW DELHI. VS. SINHAL PRODUCTS (P) LTD., C-56/1, WAZIARPUR INDUSTRIAL AREA-1, DELHI. PAN : AABCS2658C C.O. NOS.89, 90 & 91/DEL/2010 (ITA NOS.3852, 3853 & 3854/DEL/2009) ASSESSMENT YEARS : 2002-03, 2003-04 & 2004-05 SINHAL PRODUCTS (P) LTD., C-56/1, WAZIARPUR INDUSTRIAL AREA-1, DELHI. PAN : AABCS2658C VS. ITO, WARD 8(4), ROOM NO.196A, CR BUILDING, NEW DELHI. PAN : AAACB1247M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.N. GUPTA, CA REVENUE BY : MRS. S. MOHANTHY, DR ORDER PER BENCH: THE APPEALS ARE FILED BY THE REVENUE AND THE CROSS OB JECTIONS BY THE ASSESSEE. ALL OF THEM ARE DIRECTED AGAINST THE CONSO LIDATED ORDER DATED 26 TH JUNE, 2009 PASSED BY THE CIT (A) IN RESPECT OF ASSESSMENT YEAR 2002-03, 2003-04 AND 2004-05. ORIGINALLY, THE GROUNDS OF APPEAL FILED BY THE REVENUE WERE AS UNDER:- ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IN DELETING THE ADDITIONS OF RS.1,00,000/- MADE BY THE A.O UNDER SECTION 68 OF THE IT ACT. 2. THE APPELLANT CRAVES TO AMEND, MODIFY, ALTER, ADD O R FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 1.1. SUBSEQUENTLY, VIDE LETTER DATED 11 TH MARCH, 2011 THE GROUNDS WERE REVISED. THE GROUNDS OF APPEAL FOR ASSESSMENT YEAR 2004-05 ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) ERRED IN LAW AS WELL AS ON MERITS IN DELETING THE ADDI TION OF RS.21,50,000/- MADE BY THE A.O. U/S 68, AS THE ASSESS EE HAD FAILED TO SUBSTANTIATE GENUINETY OF SHARE APPLICATION MON EY TRANSACTION. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) ERRED IN LAW AS WELL AS ON MERITS IN ACCEPTING THE ADDITIONAL EVIDENCE IN CONTRAVENTION TO RULE 46A OF IT RULE, 1962 WITHOUT AF FORDING ANY OPPORTUNITY TO THE DEPARTMENT FOR EXAMINATION OF THE SA ME. 3. THE APPELLANT CRAVES TO AMEND, MODIFY, ALTER, ADD OR F OREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 1.2. THE GROUNDS OF APPEAL IN ALL THE YEARS ARE SAME E XCEPT DIFFERENCE IN FIGURES. THE FIGURES FOR OTHER YEARS AR E AS UNDER:- ASSESSMENT YEAR 2002-03 RS.1,00,000/- ASSESSMENT YEAR 2003-04 RS.43,00,000/- 1.3. THE GROUNDS OF CROSS OBJECTIONS ARE IDENTICAL AND READ AS UNDER:- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XI, NE W DELHI ERRED IN HOLDING THAT THE REASSESSMENT PROCEEDINGS INITI ATED BY THE ASSESSING OFFICER ON THE BASIS OF AN AUDIT OBJECTIO N WITHOUT APPLICATION OF HIS MIND WERE VALID IN LAW. ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 3 2. THE IMPUGNED ASSESSMENT ORDERS ARE PASSED U/S 143(3)/148 OF THE INCOME-TAX ACT DATED 31 ST DECEMBER, 2007. THE RETURNS OF THE ASSESSEE EARLIER WERE PROCESSED U/S 143 (1) AND NONE OF TH E ASSESSMENT WAS FRAMED U/S 143(3). THE REASSESSMENTS HAVE BEEN MADE ON THE BASIS OF AUDIT OBJECTION IN WHICH PRINCIP ALLY IT WAS THE CASE OF THE REVENUE THAT SHARE APPLICATION MONEY SHOWN TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM M/S SINHAL OVERSEAS PVT. LTD . (SOPL), AN ASSOCIATE CONCERN OF THE ASSESSEE, WAS IN THE NATURE OF DE EMED DIVIDEND AND WAS ASSESSABLE TO INCOME-TAX UNDER THE PROV ISIONS OF SECTION 2 (22) (E) [APPEARS TO HAVE WRONGLY BEEN WR ITTEN IN THE REASONS AS 2 (22) (C)]. NOT GOING INTO THE TECHNICALI TIES, THE ONLY REASON UPON WHICH THE IMPUGNED ASSESSMENT YEARS HAVE BEEN SUBJECTED TO RE-ASSESSMENTS IS THE ESCAPEMENT OF INCOME OF THE ASSESSEE ON ACCOUNT OF ASSESSEE HAVING RECEIVED SHARE APPLIC ATION MONEY FROM ITS ASSOCIATE CONCERN WHICH ACCORDING TO DE PARTMENT WAS ASSESSABLE IN THE SHAPE OF DEEMED DIVIDEND. HOWEVER, TH E ASSESSING OFFICER WHILE MAKING THE RE-ASSESSMENT HAS ALSO REFERRED TO SECTION 68 OF THE ACT ACCORDING TO WHICH THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM ITS ASSOCIATE CONCERN HAS BEEN CONSIDERED AS UNEXPLAINED MONEY. THE AMOUNT INVOLVED IN EACH YEA R IS AS UNDER:- ASSESSMENT YEAR 2002-03 RS. 1 LAC ASSESSMENT YEAR 2003-04 RS.43 LAC ASSESSMENT YEAR 2004-05 RS.21.5 LAC 3. BEFORE CIT (A) INITIATION OF RE-ASSESSMENT PROCEEDIN GS WERE ALSO CHALLENGED AND LEARNED CIT (A) HAS HELD THIS ISSUE AGAI NST THE ASSESSEE. LEARNED CIT (A) ALSO HELD THAT THOUGH THE AUT HORIZED APITAL OF THE ASSESSEE WAS ONLY ` 10 LAC WHICH WAS ALSO EXHAUSTED, RECEIPT OF SHARE APPLICATION MONEY WAS IN ACCORDANCE WITH THE PR OVISIONS OF SECTION 94 OF THE COMPANIES ACT ACCORDING TO WHICH C OMPANY CAN ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 4 INCREASE ITS CAPITAL IF IT IS SO PROVIDED IN THE ARTICL ES OF ASSOCIATION. HE FOUND THAT THE ASSESSEE COMPANY IS SO AUTHORIZED TO INCRE ASE THE CAPITAL AS PER CLAUSES 17 TO 21 OF THE ARTICLES OF ASSOCI ATION. HE ALSO NOTED THAT NO PERMISSION OF ROC WAS NEEDED TO INCREASE THE AUTHORIZED CAPITAL AND THE COMPANY WAS REQUIRED ONLY TO GIVE INTIMATION OF INCREASE IN THE CAPITAL TO ROC BY FILI NG PRESCRIBED FORM NO.5 AS PER SECTION 97 OF THE COMPANIES ACT AND TO PA Y THE FEE AS PER PRESCRIBED RATE. HE ALSO NOTED THE FACT THAT THERE I S NO SPECIFIC BAR IN THE PROVISION TO RECEIVE SHARE APPLICATION MONEY MORE THAN THE AUTHORIZED CAPITAL THOUGH A COMPANY MAY NOT BE PERM ITTED TO ISSUE THE SHARES IN EXCESS OF AUTHORIZED CAPITAL. HE ALSO FOU ND THAT DURING ALL THESE THREE YEARS SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE REMAINED AS IT IS AS NO ALLOTMENT OF SHARE WAS MADE . HOWEVER, ON 31 ST MARCH, 2007, THE SAID RESOLUTION WAS PASSED BY THE BOARD OF DIRECTORS FOR INCREASING THE AUTHORIZED CAPI TAL FROM ` 10 LAC TO ` 1 CRORE AND ON THE SAME DATE 65500 SHARES WERE ALLOT TED TO THE SHARE APPLICANT (ASSOCIATE CONCERN OF THE ASSESSEE) IN LIE U OF THE SHARE APPLICATION MONEY RECEIVED EARLIER AND THE APPLICAT ION FOR ALLOTMENT OF ADDITIONAL SHARES WAS ALSO FILED TO ROC IN FORM NO.2. THUS, HE HELD THAT IT WAS IN THE NATURE OF SHARE APPLICATION MONEY ON WHICH SECTION 2 (22)(E) WAS NOT APPLICABLE. 4. ON MERITS, LEARNED CIT (A) FOUND THAT SECTION 68 COULD NOT BE INVOKED AS THERE IS NO DOUBT ABOUT THE SOURCE OF RECEI PT OF MONEY. THE SHARE APPLICANT IS A GROUP COMPANY ITSELF AND THE AMOUNT IS DULY REFLECTED IN THE BALANCE SHEET OF BOTH THE PARTIES. THEREFORE, THE AMOUNT CANNOT BE SAID TO BE IN THE NATURE OF UNEXPLA INED CREDIT. 5. THE DEPARTMENT IN ITS APPEAL IS CONTESTING THE DELE TION OF THE ADDITION MADE ON ACCOUNT OF SHARE APPLICATION MONEY IN ALL THE THREE YEARS AND THE ASSESSEE IN ITS CROSS OBJECTIONS IS AGITATING T HE DECISION ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 5 OF LEARNED CIT (A) VIDE WHICH HE HAS UPHELD THE VALI DITY OF REASSESSMENT PROCEEDINGS. 6. IT WAS SUBMITTED BY THE LEARNED DR THAT THE RE-ASSESSM ENT PROCEEDINGS WERE INITIATED BY THE DEPARTMENT ON THE BASIS OF SECTION 2 (22) (E). SHE SUBMITTED THAT THE ASSESSING OFFICER HAS M ADE ADDITION BY REFERRING TO BOTH THE SECTIONS I.E., SECTION 2 (2 2)(E) AND SECTION 68 OF THE ACT. SHE SUBMITTED THAT SHE WOULD PREFER TO F IRST REFER TO THE ISSUE RELATING TO APPLICABILITY OF PROVISIONS OF SECTIO N 2 (22)(E). SHE SUBMITTED THAT THOUGH IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE CIT (A) THAT ACCORDING TO THE SPECIAL BENCH DECISION OF ITAT IN THE CASE ACIT VS. BHAUMIK COLOURS PVT. LTD. 118 ITD 1 (MUM) (S B), WHERE RECIPIENT COMPANY IS NOT REGISTERED SHAREHOLDER OF THE PAYER COMPANY, THE PROVISIONS OF SECTION 2 (22)(E) COULD NOT BE APPL IED. SHE SUBMITTED THAT SECTION 2 (22)(E) IS APPLICABLE AND, F OR THIS PURPOSE, SHE HAS REFERRED TO THE DECISION OF HONBLE DELHI HIGH CO URT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. NATIONAL TRAVEL SERVICE S 2011-TIOL- 644-HC-DEL-IT. IN THAT CASE LOAN WAS GIVEN BY CLOSELY HELD COMPANY TO PARTNERSHIP FIRM WHERE SHAREHOLDER OF THE COMPANY WAS ALSO PARTNER AND IT WAS HELD BY HONBLE HIGH COURT THAT PARTNERSHI P IS TO BE TREATED AS SHAREHOLDER AND IT IS NOT NECESSARY THAT IT HAS TO BE A REGISTERED SHAREHOLDER. THEREFORE, SHE PLEADED THAT THE ADDITI ON SHOULD HAVE AT LEAST BEEN UPHELD BY LEARNED CIT (A) U/S 2 (22) (E) O F THE ACT. 7. SHE FURTHER PLEADED THAT ADDITION HAS ALSO WRONGLY BEEN DELETED BY THE LEARNED CIT (A) BY HOLDING THAT SECTION 68 W AS NOT APPLICABLE. SHE SUBMITTED THAT WHILE DELETING THE ADDITION, LEAR NED CIT (A) HAS CONSIDERED THE ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A. THEREFORE, SHE PLEADED THAT THE MATTER SHOULD BE RESTO RED BACK TO THE FILE OF ASSESSING OFFICER. ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 6 8. ON THE OTHER HAND, IT WAS SUBMITTED BY THE LEARNED AR THAT SECTION 2 (22)(E) WAS NOT APPLICABLE AT ALL. HE SUBMI TTED THAT ACCORDING TO THE FACTS AVAILABLE ON RECORD THE ASSESSEE BEING RECI PIENT COMPANY IS NOT REGISTERED SHAREHOLDER OF THE PAYER COMPANY, TH EREFORE, SECTION 2 (22)(E) COULD NOT BE APPLIED IN VIEW OF AFOREMENT IONED SPECIAL BENCH DECISION. HE SUBMITTED THAT HONBLE DELHI HIGH COURT HAS CONFIRMED THE VIEW TAKEN BY THE SPECIAL BENCH IN THE CASE OF B HAUMIK COLOURS PVT. LTD. (SUPRA) AND HE IN THIS REGARD REFERRED TO T HE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANKIT ECH (P) LTD. 242 CTR 129 (DEL). HE SUBMITTED THAT OTHERWISE ALSO THIS A MOUNT CANNOT BE CONSIDERED TO BE DIVIDEND AS IT WAS IN THE SHAPE OF SHARE APPLICATION MONEY AND LEARNED CIT (A) HAS RIGHTLY HE LD SO. 9. HE FURTHER SUBMITTED THAT NONE OF THE DOCUMENTS CO NSIDERED BY LEARNED CIT (A) FOR DELETING THE ADDITION ON MERIT CAN CONSTITUTE ADDITIONAL EVIDENCE AS ALL THESE DOCUMENTS WERE DULY F ILED BEFORE THE ASSESSING OFFICER AND THIS FACT IS RECORDED IN PARA 3.1 O F THE ORDER OF THE CIT (A). THEREFORE, HE PLEADED THAT THERE IS NO FORCE IN THE CLAIM OF THE DEPARTMENT THAT ANY ADDITIONAL EVIDENCE WAS FURN ISHED BY THE ASSESSEE BEFORE THE CIT (A). HE CARRIED US THROUGH THE PAPER BOOK IN WHICH THE EVIDENCE IN THE SHAPE OF BANK ACCOUNT OF T HE ASSESSEE COMPANY AND SHARE APPLICANT COMPANY ARE FILED ALONG WITH ACKNOWLEDGEMENT OF COPIES OF RETURN AND CONFIRMATION OF HAVING PAID SHARE APPLICATION MONEY AND HE PLEADED THAT THE ADDI TION HAS RIGHTLY BEEN DELETED BY LEARNED CIT (A) ON MERITS AND HIS ORD ER SHOULD BE UPHELD. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS I N THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE INITIATION OF RE- ASSESSMENT PROCEEDINGS IN THE PRESENT CASE IS BASED ON THE ESCAPEMEN T OF INCOME ON ACCOUNT OF APPLICATION OF SECTION 2 (22)(E). IT IS THE CASE OF THE ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 7 ASSESSEE THAT IT BEING RECIPIENT OF AMOUNT IS NOT REGISTE RED SHAREHOLDER OF PAYER COMPANY AS ON THE DATE WHEN THE SHARE APPLIC ATION MONEY WAS ADVANCED BY THE PAYER COMPANY. FOR THIS PURPOSE, RELEVANT EVIDENCE WAS ALSO SUBMITTED AND IT HAS BEEN ONE OF THE CONTENTIONS OF THE ASSESSEE BEFORE THE CIT (A) THAT SECTION 2 (22)(E) WAS NOT APPLICABLE IN ACCORDANCE WITH THE AFOREMENTIONED DE CISION OF THE SPECIAL BENCH IN THE CASE OF BHAUMIK COLOURS PVT. LTD . (SUPRA). THE VIEW TAKEN BY SPECIAL BENCH IS LATER ON APPROVED BY HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANKITECH (P) LTD. (SUPRA) . THEREFORE, TO THE EXTENT OF APPLICABILITY OF SECTION 2 (22)(E), WE HO LD THAT INCOME OF THE ASSESSEE COULD NOT BE SAID TO HAVE ESCAPED INCOME THOUGH ON THE DIFFERENT GROUND FROM LEARNED CIT (A) IN WHICH IT H AS BEEN HELD THAT SECTION 2 (22)(E) WAS NOT APPLICABLE AS THE IMPUGNED AMOUNT WAS REPRESENTING SHARE APPLICATION MONEY. 11. SO FAR AS IT RELATES TO THE RELIANCE PLACED BY TH E LEARNED DR ON THE DECISION IN THE CASE OF CIT VS. M/S NATIONAL TRAVE L SERVICES (SUPRA), IN OUR CONSIDERED OPINION, THE SAME IS NOT APPLICABLE TO THE FACTS OF THIS CASE AS IN THAT CASE THE LOAN WAS GIVEN BY CLOSELY HELD COMPANY TO PARTNERSHIP FIRM WHERE THE SHAREHOLDER OF THE COMPANY WAS ALSO THE PARTNER, WHEREAS IN THE PRESENT CASE BOTH ARE CORPORAT E ASSESSEES AND THE DECISION WAS RENDERED BY THE HONBLE DELHI HIGH C OURT BY CONSIDERING THE FACT THAT PARTNERSHIP FIRM IS SYNONYM O F THE PARTNERS. THEREFORE, THE AFOREMENTIONED DECISION WAS RENDERED I N ENTIRELY DIFFERENT CONTEXT AND THE DECISION WHICH WOULD BE AP PLICABLE TO THE FACTS OF THE PRESENT CASE IS THE DECISION OF HONBLE DEL HI HIGH COURT IN THE CASE OF CIT VS. ANKITECH (P) LTD. (SUPRA). 12. NOW, COMING TO THE DELETION OF ADDITION ON MERI TS, IT WILL BE RELEVANT TO REPRODUCE PARA 3.1 FROM THE ORDER OF TH E CIT (A) WHICH READ AS UNDER:- ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 8 3.1 IN THE APPEAL PROCEEDINGS IT WAS SUBMITTED THAT IN S UPPORT OF THE SHARE APPLICATION MONEY RECEIVED BY THE APPELLA NT FROM SOPL, COPY OF CONFIRMATION LETTER, BANK STATEMENT, RETURN ACKNOWLEDGEMENT OF SOPL WERE FILED BEFORE THE A.O. T HE BALANCE SHEET OF SOPL WAS ALSO FILED BEFORE THE A.O. TO SHOW THAT THE AMOUNT PAID TO THE APPELLANT COMPANY WAS REFLECTE D BY SOPL UNDER THE HEAD LOANS AND ADVANCES (ASSET) AS S HARE APPLICATION MONEY PENDING ALLOTMENT OF SHARES. COPY OF ANNUAL RETURN FROM ROC WAS ALSO SUBMITTED TO SHOW THAT SHARE APPLICATION MONEY RECEIVED FROM SOPL SHARES WERE ALL OTTED IN SUBSEQUENT YEARS. IN VIEW OF THIS THE APPELLANT COMPAN Y HAD DISCHARGED ITS ONUS TO PROVE THE IDENTITY AND CREDIT WORTH INESS OF THE PARTY THAT IS SOPL AND ALSO GENUINENESS OF TRANSA CTION AS THE PAYMENT WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE D ULY REFLECTED IN THE BANK STATEMENT. IN VIEW OF THIS THE A.O. WAS NOT JUSTIFIED IN TREATING THE AMOUNT RECEIVED FROM SOPL AS UNEXPLAINED AND ADDED U/S 68 OF THE IT ACT. IT WAS STA TED THAT SECTION 2 (22)(E) WAS NOT APPLICABLE TO THE APPELLANTS CASE BECAUSE THE AMOUNT RECEIVED WAS SHARE APPLICATION MONE Y AND NOT IN THE NATURE OF LOANS & ADVANCES RECEIVED. THERE FORE THE ADDITION MADE BY THE A.O. IN ALL THE THREE YEARS WAS NO T JUSTIFIED. 13. THE ABOVE PARA WILL CLEARLY REVEAL THAT ALL THE EVIDENCES ON THE BASIS OF WHICH LEARNED CIT (A) HAS DELETED THE ADDITIO N WERE FILED BEFORE THE ASSESSING OFFICER AND NO ADDITIONAL DOCUMENT WAS CONSIDERED BY THE LEARNED CIT (A) FOR DELETION OF AD DITION. PARA 3.2 OF LEARNED CIT (A) ALSO REVEAL THAT HE HAS VERIFIED THE ASSESSMENT RECORD OF THE ASSESSEE. THEREFORE, WE FIND NO FORCE IN THE CO NTENTION OF THE REVENUE THAT THE ADDITION HAS BEEN DELETED BY THE LE ARNED CIT (A) ON THE BASIS OF SOME ADDITIONAL EVIDENCE. 14. IT MAY BE MENTIONED HERE THAT IT IS NOT A CASE WH ERE DEPARTMENT HAS RECEIVED ANY INFORMATION THAT THE SHARE APPLICAN T WAS A BOGUS ENTITY OR IT IS IN THE SHAPE OF ACCOMMODATION ENTRY. THE SHARE APPLICANT IS ASSOCIATE CONCERN OF THE ASSESSEE AND IS ALSO B EING ASSESSED TO INCOME-TAX. COPIES OF INCOME-TAX RETURNS HAV E ALSO BEEN FILED. THE EVIDENCE WHICH HAS BEEN RELIED BY THE LE ARNED CIT (A) FOR DELETING THE ADDITION IS COPY OF CONFIRMATION LETTER , COPY OF BANK ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 9 STATEMENT, RETURN ACKNOWLEDGEMENT OF SOPL, THE BALAN CE SHEET OF SOPL AND THE ALLOTMENT OF SHARE TO SOPL IN SUBSEQUENT YEARS. THE ASSESSING OFFICER HAS NOT POINTED OUT ANY DISCREPANCY IN THE SAID EVIDENCE AND HAS JUST APPLIED SECTION 68. LEARNED CI T (A) HAS RIGHTLY HELD THAT THE ASSESSEE HAS DISCHARGED ITS INITIAL ONUS TO P ROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRAN SACTION AND HIS SUCH FINDINGS ARE BASED ON THE MATERIAL MADE AVAILABLE BY THE ASSESSEE TO THE ASSESSING OFFICER. THE RELEVANT EVIDENCE W AS ALSO REFERRED BEFORE US AND WE FIND THAT THERE WAS NO DISCR EPANCY AND THE LEARNED DR ALSO COULD NOT POINT OUT ANY DISCREPANCY I N THOSE EVIDENCES. IN THIS VIEW OF THE SITUATION, WE ARE OF T HE OPINION THAT THE SAID AMOUNT COULD NOT BE TREATED TO BE AN UNEXPLAINE D CASH CREDIT UNDER THE PROVISIONS OF SECTION 68 AS THE ASSESSEE HAD ADD UCED EVIDENCE TO SHOW THE IDENTITY, CREDIT WORTHINESS AND G ENUINENESS OF THE CREDITOR (SHARE APPLICANT). THEREFORE, FINDING NO INFIRMITY IN THE ORDER OF THE CIT (A) , WE HOLD THAT THE ADDITION HA S RIGHTLY BEEN DELETED AND FOR DELETION OF THE ADDITION LEARNED CIT (A) HA S NOT CONSIDERED ANY ADDITIONAL EVIDENCE. THE DEPARTMENTAL APPEALS BEING DEVOID OF MERITS ARE DISMISSED. 15. SINCE WE ARE DISMISSING THE DEPARTMENTAL APPEALS, T HE CROSS OBJECTIONS IN WHICH THE ASSESSEE HAS ONLY OBJECTED TO THE VALIDITY OF RE- ASSESSMENT PROCEEDINGS HAVE BECOME INFRUCTUOUS AND THEY A RE ALSO DISMISSED. ITA NOS.3852, 3853 & 3854/D/2009 C.O. NOS.89, 90 & 91/DEL/2010 10 16. IN THE RESULT, THE DEPARTMENTAL APPEALS AS WELL AS THE CROSS OBJECTIONS, BOTH ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.03.20 12. [T.S. KAPOOR] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, , 2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES