ITO, New Delhi V. M/s. Shantam Fashion Fabrics Pvt. Ltd., New Delhi

ITA 1216/DEL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97969 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 12-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RICHA RASTOGI SENIOR
• Assessee Lawyers: R S AHUJA
• Keywords: Deemed to accrue or arise in india
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.1216/DEL./2012 (ASSESSMENT YEAR : 2007-08) ITO, WARD 8 (1), VS. M/S. SHANTAM FASHION FABRICS PVT. LTD., NEW DELHI. 2230, GALI ANAR, KINARI BAZAR, DELHI 110 006. (PAN : AAHCS9972K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.S. AHUJA, CA REVENUE BY : SMT. RICHA RASTOGI, SENIOR DR DATE OF HEARING : 10.11.2015 DATE OF PRONOUNCEMENT : 27.11.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE REVENUE, IS FIL ED AGAINST THE ORDER OF CIT (APPEALS)-XI, NEW DELHI DATED 02.11.2011 FOR TH E ASSESSMENT YEAR 2007- 08. 2. THE SOLITARY GROUND TAKEN BY THE REVENUE IS AGAI NST THE DELETION OF ADDITION OF RS.20 LAKHS MADE BY THE AO UNDER SECTIO N 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER THE ACT). ITA NOS.1216/DEL./2012 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF CLOTHS INCLUDING VELVET. DURING THE ASS ESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAD RECEIVED A SUM OF RS .20 LAKHS (BEING RS.4 LAKHS FOR SHARE CAPITAL AND RS.16 LAKHS AS SHARE PR EMIUM) FROM THE FOLLOWING PARTIES :- (I) M/S. TAJINDER FABRICATIONS P. LTD. RS.5,00,00 0/- 301, HIMALAYA PLACE, 65, VIJAY BLOCK, LAXMI NAGAR, DELHI. (II) M/S. AUROCHEM ESTATE PVT. LTD. RS.5,00,000/ - U-75, MAIN VIKASH MARG, SHAKARPUR, DELHI. (III) M/S. INDIAN HOSIERY PVT. LTD. RS.5,00,000/ - B-114, SHAKARPUR, DELHI. (IV) M/S. SHAILY BUILDERS PVT. LTD. RS.5,00,000/ - U-75, SHAKARPUR, DELHI. IN SUPPORT OF THE EVIDENCE FOR CREDIT OF THESE RS.2 0 LAKHS IN ITS BOOKS, THE ASSESSEE HAD FILED THE COPIES OF INCOME TAX RETURNS OF THESE COMPANIES FOR AY 2007-08 ALONG WITH THEIR BALANCE SHEET ETC. & BANK STATEMENTS. THE AO MADE DETAILED INQUIRIES FROM THE BANK AND FROM THE ASSES SEE BY ISSUING SUMMONS TO THE DIRECTORS OF THE AFORESAID COMPANIES. THE AO O BSERVED THAT FOR PROVING A CREDIT IN BOOKS U/S 68, THE THREE MAIN INGREDIENTS TO BE PROVED ARE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . AND HE NOTED THAT THE DEPOSIT OF CASH IN THE BANK ACCOUNTS OF THESE FOUR COMPANIES EITHER ON THE ITA NOS.1216/DEL./2012 3 SAME DATE OR IMMEDIATELY PRIOR TO THE DATE ON WHICH THE AMOUNT OF CHEQUE WAS DEBITED TO ITS ACCOUNT WHICH, ACCORDING TO HIM, CLEARLY CALLED FOR SERIOUS EXAMINATION AS TO THE CREDITWORTHINESS AND GENUINEN ESS OF TRANSACTION. FOR THIS PURPOSE, THE AO ISSUED SUMMONS ALONG WITH A LE TTER DATED 03.11.2009 TO THE DIRECTORS THEREOF FOR PERSONAL DEPOSITION ON 13 .11.2009 BUT NONE ATTENDED AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE ASSE SSEE COMPANY VIDE LETTER DATED 16.11.2009. THE AO FURTHER TOOK NOTE THAT TH E CHARTERED ACCOUNTANT WHO IS AUDITING THE BALANCE SHEET OF ALL THESE FOUR COMPANIES WAS THE SAME AND WAS ALSO HAVING HIS OFFICE IN THE SAME PREMISES WHERE THOSE COMPANIES WERE HAVING THEIR REGISTERED OFFICES. SO THE AO CA ME TO AN IRRESISTIBLE CONCLUSION THAT THESE COMPANIES WERE MERELY NAME TE NDERS. HE ALSO MENTIONS ABOUT ONE M/S SHAILY BUILDERS PVT LTD WHIC H WAS AN ASSESSEE IN HIS WARD (PAN AAECS1133M) AND ITS ASSESSMENT OF AY 07-0 8 WAS COMPLETED U/S 143(3) OF THE ACT ON 24.12.2009 AND NOTES THAT THE GENERATION OF FUNDS IN THAT CASE WAS ALSO THROUGH RECEIPT OF SHARE APPLICA TION MONEY IN CASH WHICH HAD BEEN TREATED AS ITS INCOME. IN VIEW OF THE ABO VE DISCUSSION, THE AO HELD THAT THE ASSESSEE HAD MISERABLY FAILED TO PROVE THE CREDIT WORTHINESS OF THESE FOUR COMPANIES AS ALSO THE GENUINENESS OF THE TRANS ACTION AND HENCE THE RECEIPT OF RS.20 LAKHS WAS TREATED AS CREDIT NOT SA TISFACTORILY PROVED AND ITA NOS.1216/DEL./2012 4 ACCORDINGLY, HELD THAT THE AMOUNT OF RS.20 LAKHS WA S DEEMED AS INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 3.1 AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY AND THE LD. CIT (A) DELETED THE ADDITION BY OBSERVING AS UNDER:- I HAVE CONSIDERED THE FACTS OF THE CASE, THE SUBM ISSIONS MODE BY THE APPELLANT AND ALSO PERUSED THE EVIDENCE S FILED BY THE APPELLANT. THE ISSUE IN THIS CASE IS THE SHARE CAPITAL OF RS.20,00,000/- RECEIVED BY THE APPELLANT COMPANY DU RING THE YEAR. ADMITTEDLY THIS SHARE CAPITAL HAS BEEN RECEIV ED FROM M/S TAJINDER FABRICATIONS P. LTD, M/S AUROCHEM ESTATE P VT LTD, M/S INDIAN HOSIERY PVT LTD AND M/S SHAILY BUILDERS PVT LTD. THE APPELLANT IN THIS REGARD HAS FILED CONFIRMATION, BA NK ACCOUNT, OTHER DETAILS TO PROVE THE EXISTENCE OF THE COMPANI ES. BASED ON THESE DOCUMENTS AND EVIDENCES IT IS ESTABLISHED THA T M/S TAJINDER FABRICATIONS P. LTD, M/S AUROCHEM ESTATE PVT LTD, M /S INDIAN HOSIERY PVT LTD AND MS SHAILY BUILDERS PVT LTD ARE IN EXISTENCE. ON GOING THROUGH THE ASSESSMENT ORDER, I NOTICE THA T THE AO IS RELYING ON THE THREE PARAMETERS OF SECTION 68 I.E I DENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . THE ISSUE OF SHARE CAPITAL HAS BEEN SETTLED IN VARIOUS JUDICIAL PRONOUNCEMENTS. IN MY OPINION THE LATEST JUDGEMENT OF THE HON'BLE D ELHI HIGH COURT IN THE CASE OF CIT VS OASIS HOSPITALITIES PVT LTD. DATED 31ST JANUARY, 2011 HAS DEALT WITH THE ISSUE AT LENG TH AND AFTER EXAMINING THE VARIOUS JUDGMENTS HAS SETTLED CERTAIN PARAMETERS TO DECIDE AN ISSUE LIKE THIS. AFTER ANALYZING THE P ROVISIONS OF THE COMPANIES ACT, SECTION 68 OF THE IT ACT AND THE JUD GEMENTS DELIVERED IN THE CASES OF CIT VS DIVINE LEASING & F INANCE LTD. 299 ITR 268 (DEL), CIT VS. SOPHIA FINANCE LTD. (199 4) 205 ITR 98 (DEL)(FB), CIT VS. DOLPHIN CANPACK LTD. 283 ITR 190, CIT VS. LOVELY EXPORTS PVT LTD. 216 CTR 195 IT WAS HELD THAT THE INITIAL BURDEN IS UPON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF SHARE APPLICATION MONEY RECEIVED BY THE A SSESSEE. THE COURT FURTHER OBSERVED IN CASE THE INVESTOR/SHAREHO LDER IS AN INDIVIDUAL SOME DOCUMENTS WILL HAVE TO BE FILED OR THE SAID SHAREHOLDER WILL HAVE TO BE PRODUCED BEFORE THE AO TO PROVE HIS IDENTITY. IF THE CREDITOR/SUBSCRIBER IS A COMPANY T HEN THE DETAILS ITA NOS.1216/DEL./2012 5 IN THE FORM OF RESOLUTION OR PAN IDENTITY, ETC. CAN BE FURNISHED. AS REGARDS THE GENUINENESS OF THE TRANSACTION TO BE DEMONSTRATED, THE COURT HELD THAT BY SHOWING THAT THE ASSESSEE HA D IN FACT RECEIVED MONEY FROM THE SAID SHAREHOLDER AND THE MO NEY CAME FROM THE CORPUS OF THAT VERY SHAREHOLDER THE GENUIN ENESS WAS DULY ESTABLISHED. THE DIVISION BENCH ALSO HELD THAT WHEN THE MONEY IS RECEIVED BY CHEQUE AND IS TRANSACTED THROU GH BANKING OR OTHER UNDISPUTABLE CHANNEL, THE GENUINENESS OF T HE TRANSACTION WOULD BE PROVED. OTHER DOCUMENTS SHOWING THE GENUIN ENESS OF THE TRANSACTION COULD BE COPIES OF THE SHAREHOLDER' S REGISTER, SHARE APPLICATION FORM, SHARE TRANSFER REGISTER, ETC. AS FAR AS CREDITWORTHINESS OR THE FINANCIAL STRENGTH OF THE C REDITOR OR SUBSCRIBER IS CONCERNED THAT CON BE PROVED BY PRODU CING BANK STATEMENT OF THE CREDITOR/SUBSCRIBER SHOWING THAT I T HAD SUFFICIENT BALANCE IN ITS ACCOUNT TO ENABLE IT TO SUBSCRIBE TO THE SHARE CAPITAL. ONCE THESE DOCUMENTS ARE PRODUCED THE ASS ESSEE WOULD HAVE SATISFACTORILY DISCHARGED THE ONUS PLACED UPON HIM. THEREAFTER, IT IS FOR THE AO TO SCRUTINIZE THE SAME AND IN CASE HE HAS ANY DOUBT ABOUT THE VERACITY OF THESE DOCUMENTS , TO PROBE THE MATTER FURTHER. HOWEVER, TO DISCREDIT THE DOCUMENTS PRODUCED BY THE ASSESSEE ON THE AFORESAID ASPECT, THERE HAS TO SOME REASON AND MATERIALS FOR THE AO AND HE CANNOT GO INTO THE REAL M OF SUSPICION. AFTER ANALYZING THE ABOVE FACTS, THE COU RT REFERRED TO THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. CREATIVE WORLD TELEFILMS LTD AND HELD THAT ONCE THE DOCUMENTS LIKE PAN OR BANK ACCOUNT DETAILS WERE GIVEN BY THE ASSESSEE THE ONUS SHIFTS TO THE AO AND IT IS UPTO HIM TO REACH T HE SHAREHOLDERS AND THE AO CANNOT BURDEN THE ASSESSEE MERELY ON THE GROUND THAT SUMMONS ISSUED TO THE INVESTORS WERE RETURNED, THER EAFTER THE COURT REFERRED TO THE JUDGMENT OF DELHI HIGH COURT IN THE CASE OF CIT VS VALUE CAPITAL SERVICES (P) LTD. 307 ITR 334 (DELHI) WHEREBY IT WAS OBSERVED THAT ADDITIONAL BURDEN WAS ON THE DEPARTMENT TO SHOW THAT EVEN IF THE APPLICANTS DID NOT HAVE THE MEANS TO MAKE THE INVESTMENT, THE INVESTMENT MADE B Y THEM ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE TO ENABLE IT TO BE TREATED AS THE UNDISCLOSED INCOME OF THE ASSESSE E. NOW APPLYING THE ABOVE JUDGMENT TO THE FACTS OF THI S CASE, IT IS AN ADMITTED FACT THAT M/S TAJINDER FABRICATIO NS P. LTD, M/S AUROCHEM ESTATE PVT LTD, M/S INDIAN HOSIERY PVT LTD AND M/S ITA NOS.1216/DEL./2012 6 SHAILY BUILDERS PVT LTD EXIST. THE APPELLANT HAS FI LED SUFFICIENT DOCUMENTS E.G COPY OF PAN CARD, BONK STATEMENT, ETC . TO ESTABLISH ITS IDENTITY. THE COPY OF THE BANK STATEM ENT OF THE SHARE SUBSCRIBER WHEREIN THE TRANSACTION IS REFLECTED AS WELL AS ITS BALANCE SHEET SHOWING INVESTMENT IN THE APPELLANT C OMPANY ON ITS ASSETS' SIDE ESTABLISH THE CREDITWORTHINESS OF THE PARTY WHILE THE GENUINENESS OF THE TRANSACTION IS BORNE OUT BY THE FACT THAT THE TRANSACTION WAS THROUGH BANKING CHANNELS. IN THIS REGARD, REFERENCE IS MADE TO THE DECISION O F THE HON'BLE APEX COURT DELIVERED IN THE CASE OF CIT VS LOVELY EXPORTS 216 CTR 195. IN THIS CASE IT WAS HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPA NY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN T O THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW, BUT IT CANNOT B E REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE. REFERENCE IS ALSO MADE TO THE DECISION OF THE HON'B LE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DW ARKADHISH INVESTMENT P LTD IN ITA NO. 911/2010 VIDE ORDER DAT ED 02.08.2010. THE RELEVANT PARAS OF THIS JUDGEMENT O F HON'BLE DELHI HIGH COURT I.E PARA NO.6, 7 & 8 ARE REPRODUCE D HEREIN BELOW:- 'IN OUR OPINION, AS SECTION 68 OF THE ACT, 1961 HAS BEEN INTERPRETED AS RECENTLY AS 2008 BY A DIVISION BENCH OF THIS COURT IN DIVINE LEASING AND FINANCE LTD. (SUPRA) AF TER CONSIDERING ALL THE RELEVANT JUDGEMENTS WE DO NOT H AVE TO RECONSIDER ALL THE JUDGEMENTS REFERRED TO BY MR. SO HNI WHICH ARE PRIOR IN DATE AND TIME TO THE AFORESAID JUDGEMENT. IN FACT, A SPECIAL LEAVE PETITION FILED AGAINST THE SAID DIVISION BENCH JUDGEMENT WAS DISMISSED BY THE SUPREME COURT BY WAY OF SPEAKING ORDER IN CIT VS LO VELY EXPORTS (P) LTD 216 CTR 195 (SC). THE SUPREME COURT IN LOVELY EXPORTS (P) LTD. (SUPRA) HAS HELD AS UNDER:- CAN THE AMOUNT OF SHARE MONEY BE REGARDED AS UNDISCLOSED INCOME U/S 68 OF THE IT ACT 1961. WE FIND NO MERIT IN THIS SPECIAL LEAVE PETITION FOR TH E ITA NOS.1216/DEL./2012 7 SIMPLE REASON THAT IF SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAMES ARE GIVEN TO THE AO, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW. HENCE, WE FIND NO INFIRMITY WITH THE IMPUGNED JUDGEMENT.' CONSEQUENTLY, THE DOCTRINE OF MERGER WOULD APPLY AND THE JUDGEMENT OF THE SUPREME COURT IN LOVELY EXPORTS (P) LTD (SUPRA) WOULD COVER THE FIELD WITH REGARD TO INTERPRETATION OF SECTION 68 OF THE ACT. IN ANY MANNER, THE ONUS OF PROOF IS NOT A STATIC O NE. THOUGH IN SECTION 68 PROCEEDINGS, THE INITIAL BURDE N OF PROOF LIES ON THE ASSESSEE YET ONCE HE PROVES THE I DENTITY OF THE CREDITORS/SHARE/APPLICANTS BY EITHER FURNISH ING THEIR PAN NUMBER OR INCOME TAX ASSESSMENT NUMBER AND SHOW S THE GENUINENESS OF TRANSACTION BY SHOWING MONEY/ HI S BOOKS EITHER BY ACCOUNT PAYEE CHEQUE OR BY DRAFT OR BY ANY OTHER MODE, THEN THE ONUS OF PROOF WOULD SHIFT TO THE REVENUE.' THE APPELLANT HAS BY PROVIDING THE DETAILS IN RESPE CT OF SHAREHOLDERS LIKE PAN NOS., COPIES OF AUDITED BALAN CE SHEET & P&L ACCOUNT, COPIES OF ASSTT ORDERS, NAMES AND ADDR ESSES OF ALL FOUR COMPANIES, BANK STATEMENTS, CLEARLY ESTABLISHE D THE IDENTITY OF THE SHAREHOLDERS, THEIR CREDIT WORTHINESS AND GE NUINENESS OF THE TRANSACTIONS. THE ADDITION OF RS.20 LACS MADE BY THE AO U/S 68 IS THEREFORE DELETED. 4. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFOR E US. 5. LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFI CER AND SUBMITTED THAT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE TRANSACTION HAS TO BE ITA NOS.1216/DEL./2012 8 PROVED FOR GETTING A CREDIT IN THE BOOKS U/S 68 OF THE ACT. HE SUBMITTED THAT THE LD. CIT (A) HAS NOT RIGHTLY APPRECIATED THE FAC TS ON WHICH THE AO BASED HIS DECISION FOR TREATING THE RECEIPT OF RS.20 LAKH S AS DEEMED INCOME OF THE ASSESSEE U/S 68 OF THE ACT AND UNDERSCORED THE FACT THAT THE CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTION HA S NOT BEEN PROVED. THEREFORE, HE PLEADED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE AO BE RESTORED. 6. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT DUR ING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THE FOLLOWING D OCUMENTS BEFORE THE AO :- (I) PAN OF ALL FOUR INVESTING COMPANIES; (II) NAME AND ADDRESS OF ALL FOUR COMPANIES; (III) COPY OF INCOME TAX RETURN FOR AY 2007-08 OF A LL THE FOUR COMPANIES; (IV) AUDITED BALANCE SHEET & PROFIT & LOSS ACCOUNT WITH ALL ANNEXURES. THE LD. AR FURTHER SUBMITTED THAT THE AO RAISED THE QUESTION OF GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE INVE STING COMPANIES AND IN THIS REGARD, THE ASSESSEE HAD SUBMITTED THE FOLLOWING DO CUMENTS TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE CREDITORS :- ITA NOS.1216/DEL./2012 9 (I) COPY OF APPLICATION FOR SHARES OF ALL FOUR COMPANIE S, WHICH INCLUDED ALL RELEVANT DETAILS OF INVESTING COMPANIE S, INCLUDING THEIR PAN WITH DETAILS OF THE ITO CONCERNED. THIS APPLICATION ALSO CONTAINED DETAILS OF PAYMENT VIZ. CHEQUE NUMBE R, NAME OF BANK AND ITS BRANCH ADDRESS TOO; (II) BANK STATEMENT OF THE ASSESSEE COMPANY, WHICH CONFI RMS THAT AMOUNT OF SHARE APPLICATION MONEY HAS BEEN RECEIVED VIDE ACCOUNT PAYEE CHEQUES IN THE BANK ACCOUNT OF THE AS SESSEE COMPANY; (III) COPY OF FORM 2 FILED WITH REGISTRAR OF COMPANIES AS RETURN OF ALLOTMENT OF SHARES; (IV) CONFIRMATION FROM ALL FOUR INVESTING COMPANIES. THE LD. AR FURTHER SUBMITTED THAT THE ENTIRE TRANSA CTION HAS BEEN DONE THROUGH PROPER BANKING CHANNEL AND NET WORTH OF THE COMPANI ES ARE MORE THAN ENOUGH FOR MAKING AN INVESTMENT OF RS.5 LAKHS. HE FURTHER CONTENDED THAT THE AO COULD NOT DENY THE FACT THAT THE MONEY HAS COME TO ASSESSEES ACCOUNT THROUGH BANK ONLY AND THE AO HAS ALSO AGREED THAT THESE COM PANIES DO EXIST BECAUSE OF THE FACT THAT THEY HAD CONFIRMED ABOUT THE INVES TMENT IN REPLY TO THE NOTICES ISSUED BY THE AO. IN SUCH A SCENARIO AND IN THE PR ESENCE OF THE AFORESAID DOCUMENTS, HE SUBMITTED THAT THE AO WAS NOT RIGHT T O REACH A CONCLUSION THAT THE TRANSACTIONS WERE NOT GENUINE. LD. AR POINTED OUT THAT THE AO HAS CALLED THE BANK STATEMENTS DIRECTLY FROM THE BANK IN RESPE CT OF THE AFORESAID FOUR COMPANIES AND THE STATEMENTS FURNISHED BY THE BANK CORROBORATED THAT THE ITA NOS.1216/DEL./2012 10 BANK STATEMENTS FILED BY THE ASSESSEE WAS CORRECT. HE ALSO SUBMITTED THAT MERELY BECAUSE SOME COMPANIES HAVE COMMON ADDRESS O R THAT THEY WERE HAVING SAME AUDITOR CANNOT LEAD TO A CONCLUSIVE CON CLUSION THAT THESE COMPANIES WERE MERELY NAME LENDERS. ACCORDING TO T HE LD. AR, THE ADVERSE INFERENCE DRAWN BY THE AO DUE TO THE AFORESAID REAS ON ALONE WAS TOTALLY BASELESS. THE LD. AR, RELYING ON THE DECISION OF T HE LD. CIT (A), WANT US NOT TO INTERFERE WITH THE ORDER OF THE LD. CIT (A). 7. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE AND PE RUSED THE MATERIAL. WE FIND THAT THE ASSESSEE IN ORDER TO DISCHARGE THE ON US ON IT FOR PROVING THE CREDIT ENTRY IN ITS BOOKS OF ACCOUNT, HAVE CLAIMED THAT TH E SAID AMOUNT OF RS.20 LAKHS WAS SHARE-SUBSCRIPTION MONEY IT HAS RECEIVED FROM F OUR COMPANIES I.E. M/S. TAJINDER FABRICATIONS P. LTD., M/S. AUROCHEM ESTAT E PVT. LTD., M/S. INDIAN HOSIERY PVT. LTD. AND M/S. SHAILY BUILDERS PVT. LTD . AND WHEN QUESTIONED BY THE AO TO PROVE ITS IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION HAS PROVIDED THE DETAILS IN RESPECT OF THE SAID SHAREHOLDERS WITH THE PAN NOS., COPIES OF AUDITED BALANCE SHEET & P&L ACC OUNT, COPIES OF ASSESSMENT ORDERS, NAMES AND ADDRESSES OF ALL FOUR COMPANIES, BANK STATEMENTS. HOWEVER, THE AO WAS NOT SATISFIED BY T HE AFORESAID DOCUMENTS PRODUCED BY THE ASSESSEE AND HELD IT TO BE UNDISCLO SED INCOME OF THE ASSESSEE U/S 68 OF THE ACT ON THE REASONING THAT THE LENDER COMPANIES HAD THE SAME ITA NOS.1216/DEL./2012 11 ADDRESS AND SAME AUDITOR, SO THEY WERE ONLY NAME LE NDERS. HOWEVER, ON APPEAL BEFORE THE LD. CIT (A), HE TOOK INTO CONSIDE RATION VARIOUS JUDICIAL PRONOUNCEMENTS AND RELIED ON THE FINDING OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. OASIS HOSPITALITIES PVT. LTD DA TED.31.01.2011 WHEREIN THE HONBLE HIGH COURT HELD THAT, ONCE THE DOCUMENTS LIKE PAN OR BANK ACCOUNT DETAILS WERE GIVEN BY THE ASSESSEE THE ONUS SHIFTS TO THE AO AND IT IS UPTO HIM TO REACH THE SHAREHOLDERS AND THE AO CANNOT BURDEN THE ASSESSEE MERELY ON THE GROUND THAT SUMMONS ISSUED TO THE INVESTORS WER E RETURNED. THEREAFTER THE LD. CIT (A) REFERRED TO THE JUDGMENT OF DELHI H IGH COURT IN THE CASE OF CIT VS VALUE CAPITAL SERVICES (P) LTD. 307 ITR 334 (DELHI) WHEREBY IT WAS OBSERVED THAT, ADDITIONAL BURDEN WAS ON THE DEPARTMENT TO SHOW THA T EVEN IF THE APPLICANTS DID NOT HAVE THE MEANS TO MAKE THE I NVESTMENT, THE INVESTMENT MADE BY THEM ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE TO ENABLE IT TO BE TREATED AS THE UNDISCLOSED INCOME OF THE ASSE SSEE. WE HAVE ALSO GONE THROUGH THE OTHER CASE LAWS RELIED UPON BY THE LD. CIT (A) WHILE TAKING A DECISION TO DELETE THE ADDITION MADE U/S 68 OF THE ACT AND ACCORDINGLY, WE ARE OF THE OPINION THAT THE ASSESSEE BY PRODUCING THE A DDRESS OF THE COMPANIES, PAN, CONFIRMATION FROM THE SHARE SUBSCRIBERS, ROC D ETAILS THAT SHARES HAVE BEEN ALLOTTED TO THESE COMPANIES, ASSESSMENT ORDER U/S 143(3) OF ONE LENDER COMPANY FOR AY 2007-08 IN WHICH THE AO HAS ACCEPTED THE TRANSACTION, THE ITA NOS.1216/DEL./2012 12 BANK DETAILS, BANK STATEMENTS, CHEQUE NUMBER, ETC., THE ASSESSEE HAS DISCHARGED THE PRELIMINARY ONUS ON IT TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IN QUESTION, THE AO MERELY ON SUSPICION AND SURMISES CANNOT MAKE ADDITION U/S 68 OF THE ACT , THEREFORE, THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION MADE U/S 68 OF THE ACT. WE ORDER ACCORDINGLY. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF NOVEMBER, 2015. SD/- SD/- (N.K. SAINI) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27 TH DAY OF NOVEMBER, 2015 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) -XXIII, NEW DELHI . 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.