ACIT, Jaipur V. HMG GRANITES P LTD., Jaipur

ITA 16/JPR/2005

• Counselvise Citation: 1623114 RSA 2005
• Duration Of Justice: 10 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 1997-1998
• Appeal Filed On: 04-01-2005
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S L JAIN DHK
• Keywords: Bogus Share capital; Business income; Depreciation; Opportunity of being heard; Additional evidence; Onus to prove
• Section: 143(3); 142(1); 234B; 131; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 16/JP/2005 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 1997-98 . ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR. CUKE VS. M/S. H.M.G. GRANITES (INDIA) PVT. LTD. 113, NANDPURI, CIVIL LINES, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAACH 4338 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 510/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 1997-98 . M/S. H.M.G. GRANITES (INDIA) PVT. LTD. 113, NANDPURI, CIVIL LINES, JAIPUR. CUKE VS. THE DCIT, CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAACH 4338 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. JAIN (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/10/2015. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2015. 2 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. VKNS'K@ ORDER PER SHRI T.R. MEENA, A.M. THE BRIEF FACTS ARE THAT IN THIS CASE THE AO SCRUT INIZED THE CASE UNDER SECTION 143(3)/148 ON 26.3.2002 AND FOLLOWING ADDIT IONS WERE MADE :- FRESH SHARE CAPITAL RAISED RS. 7,09,000/- UNSECURED LOANS U/S 68 RS. 8,25,000/- INCOME FROM BUSINESS RS. 1,89,119/- THE ASSESSEE PREFERRED APPEAL BEFORE LD. CIT (A)-I, JAIPUR WHO HAD ALLOWED THE APPEAL PARTLY. THE LD. CIT (A) DIRECTED TO THE AO TO CONSIDER THE LOSS OF RS. 10,00,000/- INSTEAD OF BUSINESS INCOME AT RS. 1,89, 119/- AND HE FOUND THAT THE ISSUE HAS BEEN EXPLAINED, BUT CONFIRMED THE ADDITIO N ON ACCOUNT OF UNEXPLAINED SHARE CAPITAL OF RS.1,00,000/- AS AGAINST ORIGINAL ADDITION AT RS. 7,09,000/-. 2. THE REVENUE APPEALED BEFORE US. THIS BENCH IN IT A NO. 16/JP/2005 DATED 31.07.2009 FOR THE A.Y. 1997-98 HAS CONFIRMED THE B USINESS ADDITION MADE BY THE AO AT RS. 1,89,119/- WHEREAS THE OTHER TWO ISSUES, NAMELY, UNSECURED LOANS U/S 68 AT RS. 8,25,000/- AND SHARE CAPITAL AT RS. 7,09, 000/- WERE SET ASIDE TO THE AO. 2.1. THE ASSESSEE COMPANY FILED MISCELLANEOUS APPLI CATION NO. 28/JP/2012 ON 03.05.2012 WHICH WAS ALLOWED BY THIS BENCH VIDE ORD ER DATED 05.09.2014. THE LD. COUNSEL FOR THE ASSESSEE HAD NOT INFORMED THE BENCH THAT THE SECOND ROUND APPEAL BEFORE THE ITAT IS ALSO PENDING FOR THE SAME YEAR WHICH WAS ARISING OUT OF THE ORDER OF LD. CIT (A) DATED 26.02.2013 ON THE SA ME ISSUE. THEREFORE, THIS 3 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. BENCH HAS MISTAKENLY RECALLED THE ITATS ORDER DATE D 31.07.2009. THUS, WE ARE DECIDING BOTH THE APPEALS BY CONSIDERING THE FINDIN GS GIVEN BY THE AO VIDE ORDER DATED 26.03.2002 AND CIT (A) VIDE ORDER DATED 15.00 .2004 AND ALSO ITOS SET ASIDE PROCEEDING ORDER DATED 29.12.2010 AND CIT (A) S ORDER DATED 26.10.2013. THE AO HAD CONSIDERED BOTH THE ISSUES IN SET ASIDE PROCEEDINGS AND ISSUED NOTICE UNDER SECTION 143(2) AND 142(1) ON 26.10.2010 THROU GH REGISTERED POST AT THE LAST KNOWN ADDRESS AND AS PER ADDRESS ON PAN OF THE ASSESSEE FIXING THE CASE FOR 02.11.2010. THE SAID NOTICES WERE RECEIVED BACK UND ELIVERED WITH POSTAL REMARKS LEFT WITHOUT ADDRESS. VARIOUS OTHER NOTICES WERE ISSUED TO THE ASSESSEE BUT NO ONE APPEARED. THEREFORE, IN ABSENCE OF ANY COMMUNIC ATION FROM THE ASSESSEE, THE AO DECIDED THE CASE ON THE BASIS OF MATERIAL AV AILABLE ON RECORD. THE AO ALSO ISSUED SUMMONS UNDER SECTION 131 ON 13.12.2010 TO T HE DISPUTED PARTIES AS DIRECTED BY THE ITAT. IN COMPLIANCE TO THE SUMMON, NONE APPEARED. HOWEVER, THE AR OF THE ALLEGED CREDITORS APPEARED AND FILED REPLY DATED 22.12.2010. THE LD. A/R WAS ASKED TO PRODUCE THE PARTIES. HOWEVER, ON THE SAID DATE, NO PARTY WAS PRODUCED. THE ASSESSEE HAS SHOWN TWO UNSECURED LOAN S FROM RAJESH KUMAR JAIN FOR RS. 2,50,000/- AND FROM MADHU TRANSPORT CO. FOR RS. 5,75,000/-. THE AO EXAMINED THE IDENTITY OF THE CREDITOR, CREDITWORTHI NESS AND GENUINENESS OF THE TRANSACTION CASE OF BOTH THE CASH CREDITORS. THE AO SENT SUMMONS UNDER SECTION 131 TO SHRI SUBHASH CHAND JAIN AND THE A/R OF THE C REDITOR ALSO ASKED TO PRODUCE THE PARTIES BUT NO PARTY APPEARED BEFORE THE AO. TH ERE WAS NEITHER ANY 4 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. CONFIRMATION FILED BY THE CASH CREDITORS NOR PRODUC ED COPIES OF BALANCE SHEETS BEFORE THE AO NOR BANK ACCOUNTS WERE PRODUCED TO SH OW THAT ALLEGED PARTIES WERE HAVING CREDITWORTHINESS. IN ABSENCE OF BANK A CCOUNT, DETAILS OF ALLEGED D.D. REMAIN UNVERIFIABLE AS HELD BY THE AO. MERE P AYMENT BY DD OR EVEN FOR THAT MATTER BY CHEQUE DOES NOT MAKE ANY TRANSACTION GENUINE AS HELD BY VARIOUS COURTS. THE LD. A/R ONLY PRODUCED COPY OF PAN CARD AND PASSPORT, COPY OF ASSESSMENT ORDER FOR THE A.Y. 1997-98. HOWEVER, TH E AO HELD THAT IN ABSENCE OF PRODUCTION OF THE PARTY AND ITS PERSONAL BALANCE SH EET, IDENTITY OF THE CREDITOR AND HIS CREDITWORTHINESS REMAINED UNESTABLISHED. SIMILA R FINDINGS WERE GIVEN FOR THE CASH CREDITOR M/S. MADHU TRANSPORT CO BY THE AO. 2.2. THE ASSESSEE HAD SHOWN ADDITION OF RS. 7,09,00 0/- ON ACCOUNT OF ADDITIONAL SHARE CAPITAL. THE AO ASKED TO FURNISH T HE DETAILS REGARDING SHARE CAPITAL BUT NO SHARE APPLICATION REGISTER, NO RECEI PTS OF SHARE APPLICATION OR CORRESPONDING ALLOTMENT OF SHARE DETAILS WERE PRODU CED BEFORE HIM. THERE WAS AN ARGUMENT BEFORE THE AO THAT SHARE CAPITAL UPTO R S. 2,44,000/- WERE RECEIVED IN F.Y. 1995-96 WHICH WERE SHOWN AS CURRENT LIABILI TY AS ON 31.3.1996 FOR WHICH ASSESSEE ALSO HAD NOT FILED ANY EVIDENCE TO CONSIDE R THE SHARE MONEY FOR RS. 2,44,000/-. THE SHARE CAPITAL HAS BEEN SHOWN IN THE NAME OF SHRI SUBHASH CHAND JAIN, SHRI ASHISH JAIN AND SHRI DEEPAK ASAWA. THESE SHAREHOLDERS WERE NOT PRODUCED BY THE ASSESSEE COMPANY. THE AO ASKED TO P ROVE THE GENUINENESS OF 5 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. THESE TRANSACTIONS, CREDITWORTHINESS AND IDENTITY O F THE CREDITOR BUT THE A/R OF THE ASSESSEE FILED COPY OF THE RETURN. SIMILAR FINDING S WERE GIVEN IN CASE OF SHRI ASHISH JAIN AND SHRI DEEPAK ASAWA. THUS HE AGAIN M ADE ADDITION OF RS. 8,25,000/- UNDER THE HEAD UNSECURED LOANS AND FRESH SHARE CAPITAL OF RS. 7,09,000/-. 3. ASSESSEE BEING AGGRIEVED BY THE ORDER OF AO, CAR RIED THE MATTER BEFORE LD. CIT (A) WHO HAD ALLOWED THE APPEAL PARTLY. 3.1. THE EFFECTIVE GROUND IN THE REVENUES APPEAL I N ITA NO. 16/JP/2005 ARE AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (APPEALS)-I, JAIPUR HAS ERRED : (1) IN DIRECTING THE AO TO CONSIDER THE LOSS OF RS. 10,00,000/- INSTEAD BUSINESS INCOME AT RS. 1,89,119/- MADE. (2) IN REDUCING THE ADDITION ON ACCOUNT OF UNSECURE D LOANS OF RS. 8,25,000/- AND ON ACCOUNT OF SHARE CAPITAL OF RS. 7 ,09,000/- TO RS. 1,00,000/-. 3.2. THE EFFECTIVE GROUND IN ASSESSEES APPEAL IN I TA NO. 510/JP/2013 ARE AS UNDER :- (1) THE AUTHORITIES BELOW HAVE ERRED IN LAW AS WEL L AS ON FACTS IN NOT SERVING ANY NOTICE U/S 143(2) & 142(1) ON THE A PPELLANT THUS NOT GIVING ANY OPPORTUNITY OF BEING HEARD TO THE AP PELLANT. (2) THE AUTHORITIES BELOW HAVE ERRED IN LAW AS WELL AS ON FACTS IN MAKING ADDITION OF RS. 2,65,000.00/- U/S 68 FOR SHA RE CAPITAL 6 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. IGNORING THE DOCUMENT AND PAPERS FILED BY SUCH CRED ITORS AND SHARE HOLDERS RELATING TO THEIR CREDIT WORTHINESS AND IDE NTITY. (3) THE AUTHORITIES BELOW HAVE ERRED IN LAW AS WELL AS ON FACTS IN CHARGING INTEREST U/S 234A, 234B AND 220(2) OF THE IT ACT. 4. THE REVENUES GROUND NO. 1 IS AGAINST DIRECTING THE AO TO CONSIDER THE LOSS OF RS. 10,00,000/- INSTEAD OF BUSINESS INCOME AT RS . 1,79,119/-. THE LD. D/R VEHEMENTLY SUPPORTED THE ORDER OF THE AO AND ARGUED THAT THE ITAT HAS CONSIDERED ALL THE EVIDENCES IN EARLIER ORDER. HOWE VER, THE LD. CIT (A) IN HIS ORDER DATED 15.10.2004 HAD WRONGLY ALLOWED THE BUSINESS L OSS OF RS. 10,00,000/- ON THE BASIS OF AUDIT REPORT ONLY. NO EVIDENCES WERE F ILED REGARDING EXPENSES CLAIMED UNDER THE HEAD INTEREST INCOME AT RS. 3,20, 622/-, INTEREST ON TERM LOAN AT RS. 27,42,809/- AND DEPRECIATION AT RS. 8,32,718 /-. THEREFORE, THE INCOME ASSESSED BY THE AO SHOULD HAVE BEEN ACCEPTED BY THE ITAT. 4.1. AT THE OUTSET, THE LD. A/R OF THE ASSESSEE SUB MITTED THAT THE AO HAS ARBITRARILY ESTIMATED THE NP @ 5% WITHOUT GIVING AN Y CREDIT OF DEPRECIATION-CUM- INTEREST ON LOAN AND OTHER EXPENSES DULY INCURRED B Y THE COMPANY AND AUDITED BY THE AUDITOR. AS THE BOOKS OF ACCOUNT AND RECORD WAS IN THE POSSESSION OF RIICO, THE ESTIMATED INCOME AT THE FIXED RATE OF 5% OF TOT AL TURNOVER WITHOUT GIVING ANY EFFECT OF EXPENDITURE AND DEPRECIATION ETC. IS NOT CORRECT. 7 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. 5. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAD DEBITED THE VARIOUS EXPENSES BUT NO EV IDENCES HAD BEEN SUBMITTED BEFORE THE AO. THEREFORE, NP WAS APPLIED BY THE AO @ 5% ON TURNOVER. THE LD. ARS ARGUMENT HAS NOT CONVINCED US THAT 95% REVENUE IS ALLOWED BY THE AO AGAINST THE EXPENSES. THE BURDEN TO PROVE THE CLAIM OF EXPENSES IS ON THE ASSESSEE WHICH HAS NOT BEEN DISCHARGED BEFORE THE L D. CIT (A) ALSO. THE LD. CIT (A) SIMPLY ALLOWED THE APPEAL ON THE BASIS OF AUDIT REPORT. THEREFORE, WE CONFIRM THE ORDER OF THE AO AND REVERSE THE ORDER OF LD. CI T (A) ON THIS GROUND. GROUND NO. 1 OF THE REVENUE IS THUS ALLOWED. 6. REVENUES GROUND NO. 2 IS AGAINST REDUCING THE A DDITION OUT OF UNSECURED LOAN OF RS. 8,25,000/- AND ON ACCOUNT OF SHARE CAPI TAL OF RS. 7,09,000/- TO RS. 1,00,000/-. 6.1. THE LD. D/R SUPPORTED THE ORDER OF THE AO AS T HE ASSESSEE HAS NOT PROVED THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHI NESS OF THE PARTY. THEREFORE, THE LD. CIT (A) WAS NOT RIGHT IN DELETING THE ADDIT ION ON ACCOUNT OF UNSECURED LOANS AS WELL AS SHARE CAPITAL. THEREFORE, ORDER OF THE AO MAY PLEASE BE CONFIRMED. 6.2. AT THE OUTSET, THE LD. A/R OF THE ASSESSEE ARG UED THAT THE LD. CIT (A) HAS SOUGHT THE REMAND REPORT ON 21 ST OCTOBER IN FIRST ROUND OF APPEAL ON THE BASIS OF 8 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. ADDITIONAL EVIDENCES FURNISHED BEFORE HIM. THE LD. CIT (A) HAS CONCLUDED THAT THE SHARE CAPITAL IN ALL OTHER CASES EXCEPT SHRI JAGDIS H PUNIA FOR RS. 1,00,000/- HAS BEEN EXPLAINED AND ALSO UNSECURED LOAN TO THE TUNE OF RS. 8,25,000/- LOAN AS PER PAPER BOOK WAS EXPLAINED TO THE EXTENT OF RS. 9.75 LACS. HE FURTHER DRAWN OUR ATTENTION ON BOTH THE ISSUES IN LAST ROUND OF APPEA L AND REMAND REPORT DATED 4.2.2013 SUBMITTED TO THE LD. CIT (A) WHEREIN THE A O CONCLUDED THAT LOAN IN THE NAME OF M/S. MADHU TRANSPORT CO., DELHI ROAD, MEERU T AT RS. 5,75,000/-, SHRI RAJNEESH KUMAR JAIN, PARTNER OF M/S. MADHU TRANSPOR T CO. AT RS. 2,50,000/- WERE SATISFIED WITH THE EVIDENCES FURNISHED BEFORE LD. C IT (A). WITH REFERENCE TO SHARE CAPITAL OF RS. 2,50,000/- IN THE NAME OF SHRI SUBHA SH CHAND JAIN, HE WAS NOT SATISFIED ON THE GROUND THAT CREDITWORTHINESS HAS N OT BEEN PROVED BY THE ASSESSEE BUT PAYMENT WAS MADE THROUGH DD TO THE ASS ESSEE COMPANY. HE FURTHER ARGUED THAT IN CASE OF SHARE CAPITAL IN THE NAME OF SHRI ASHISH JAIN FOR RS. 2,00,000/-, LD. AO IN REMAND REPORT HAD SATISFIED T HAT THE SHARE TRANSACTION IS GENUINE AND HAD NOT MADE ANY ADVERSE REMARKS IN HIS REMAND REPORT. THE ASSESSEE COULD NOT PRODUCE SHRI DEEPAK ASAWA IN WHO SE NAME SHARE CAPITAL HAS BEEN SHOWN AT RS. 15,000/- BEFORE THE AO AND ALSO N O SATISFACTORY EVIDENCES WERE FURNISHED. THEREFORE, LD. AO WAS NOT SATISFIED IN HIS REMAND REPORT ABOUT THE SHARE TRANSACTION OF RS. 15,000/- AS PER SECTION 68 OF THE IT ACT. IT IS FURTHER ARGUED THAT SHARE CAPITAL TO THE TUNE OF RS. 2,44,0 00/- WAS NOT PERTAINED TO ASSESSMENT YEAR UNDER CONSIDERATION AS ASSESSEE ALR EADY RECEIVED RS. 2,44,000/- 9 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. SHARE CAPITAL IN EARLIER YEAR AND SAME HAS BEEN SHO WN IN SCHEDULE 8 OF THE BALANCE SHEET AS ON 31.3.1996 UNDER THE HEAD CURREN T LIABILITY AND PROVISION, WHEREIN AT SL. NO. 3 THIS AMOUNT HAD BEEN CREDITED AS SHARE APPLICATION MONEY PENDING ALLOTMENT. HENCE TO THE EXTENT OF RS. 2,44, 000/- WAS NOT PERTAINED TO THE YEAR UNDER CONSIDERATION AND HAS BEEN CERTIFIED BY THE LD. AO IN HIS REMAND REPORT DATED 4.2.2013. HE FURTHER DRAWN OUR ATTENTI ON ON PAGE 36 OF THE PAPER BOOK WHEREIN THE STATEMENT OF SHRI MADHUKANT JAIN S /O SHRI SUBHASH CHAND JAIN WAS RECORDED ON SHARE CAPITAL OF RS. 2,50,000/- IN THE NAME OF HIS FATHER. HE CATEGORICALLY ADMITTED ON BEHALF OF HIS FATHER (AUT HORIZED UNDER GENERAL POWER OF ATTORNEY BY HIS FATHER) THAT HIS FATHER MADE INVEST MENT OF RS. 2.50 LACS BY WITHDRAWING THIS AMOUNT FROM ORIENTAL BANK OF COMME RCE BANK VIDE DD NO. 909872/OBC/MEERUT ON 10.5.1996 BUT HE COULD NOT PRO DUCE THE UPTO-DATE COPY OF BANK ACCOUNT BEFORE THE AO. THEREFORE, HE REQUES TED TO DELETE THE ADDITION UNDER BOTH THE HEADS. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAD NOT SUBMITTED THE COPY OF BALANCE SHEE T BEFORE US WHICH HAS NOT BEEN PROPERLY EXAMINED BY THE LOWER AUTHORITIES EIT HER IN ASSESSMENT ORDER OR IN APPELLATE ORDER. THE AO MADE ADDITION UNDER SECTION 68 ON ACCOUNT OF SHARE CAPITAL AT RS. 7,09,000/- AND ON ACCOUNT OF UNSECUR ED LOAN OF RS. 8,25,000/-. ON VERIFICATION OF DETAILS SUBMITTED BY THE ASSESSEE B EFORE THE LD. CIT (A) IN FIRST 10 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. APPELLATE ORDER, IT SHOWS THE SHARE CAPITAL AT RS. 5,50,000/- AND UNSECURED LOAN AT RS. 9,75,000/-. THE SHARE CAPITAL IN THE NAME O F SHRI ASHISH JAIN AND SHRI S.C. JAIN ARE MATCHING WITH THE PRESENT SUBMISSIONS MADE BEFORE LD. CIT (A) VIDE ORDER DATED 26.2.2013. HOWEVER, THE SHARE CAPITAL S HOWN IN THE NAME OF SHRI JAGDISH PUNIA AT RS. 1,00,000/- WHICH WAS REFLECTED IN THE FIRST APPELLATE ORDER HAS NOT BEEN SHOWN IN THE SECOND ASSESSMENT ORDER A S WELL AS SECOND APPELLATE ORDER. THEREFORE, IN ABSENCE OF RECONCILIATION OF S HARE CAPITAL, WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS NOT EXPLAINED THE SOURCE OF SHARE CAPITAL OF RS. 1,00,000/- IN THE NAME OF SHRI JAGDISH PUNIA WHICH WAS CONFIRMED BY LD. CIT (A) ON THE GROUND THAT SHRI PUNIA DID NOT HAVE CREDITWO RTHINESS TO INVEST RS. 1,00,000/- IN SHARES. THEREFORE, WE CONFIRM THE ORD ER OF FIRST CIT (A)S ORDER DATED 15.10.2004 ON ACCOUNT OF SHARE CAPITAL FOR RS . 1,00,000/-. 8. THE REMAINING SHARE CAPITAL HAS BEEN ACCEPTED IN REMAND REPORT BY THE AO AND LD. CIT (A) AS EXPLAINED. THEREFORE, WE CONFIRM BOTH THE ORDERS OF LD. CIT (A). 9. IN SECOND GROUND OF ASSESSEES APPEAL, THE ASSES SEE CHALLENGED THE PROCEEDINGS U/S 143(3) OF THE ACT AND ALSO CONFIRMI NG THE ADDITION U/S 68 OF THE ACT BEFORE US BUT AS EVIDENT FROM THE RECORD THAT R EQUIRED FEES HAS NOT BEEN PAID BY THE ASSESSEE EVEN REPEATED QUERY MADE BY THE AR OF THE OFFICE AS WELL AS BY THE BENCH. THE LD AR HAS EXPRESSED INABILITY TO FUL FILL THE CONDITION PRESCRIBED UNDER THE LAW I.E. REQUIRED FEES IS TO BE PAID. THE REFORE, WE ARE OF THE CONSIDERED 11 ITA NO. 16/JP/2005 & 510/JP/2013 A.Y. 1997-98 ACIT VS. M/S. HMG GRANITE (INDIA) PVT. LTD. VIEW THAT THE ASSESSEES APPEAL UNDER THE LAW IS NO T MAINTAINABLE IN ABSENCE OF REQUISITE FEES NOT PAID BY THE ASSESSEE. THEREFORE, THE ASSESSEES APPEAL IS DISMISSED. 10. IN THE RESULT, THE REVENUE IS ALLOWED PARTLY A ND ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.10.2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/10/ 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- ACIT CIRCLE-2, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- M/S. H.M.G. GRANITE (INDIA) PVT. LTD ., JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 16/JP/2005 & 510/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR