GOLDEN BOTTLING LIMITED, Jaipur V. ADDL. CIT, Alwar

ITA 183/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5192 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 1997-1998
• Appeal Filed On: 26-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Keywords: Depreciation; Salary income; Assessment record; Onus to prove
• Section: 142(1); 32; 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 HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 183/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 1997-98 GOLDEN BOTTLING LIMITED, C-780, PHASE-II, INDUSTRIAL AREA, BHIWADI. CUKE VS. ADDL.CIT, SPL. RANGE, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCG 5207 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24/06/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/07/2016 VKNS'K@ ORDER PER: LALIET KUMAR, J.M. THE PRESENT APPEAL FILED BY THE ASSESSEE ARISING OU T OF THE ORDER DATED 28/6/2011 PASSED BY THE LD CIT(A), ALWAR FOR TH E A.Y. 1997-98 WHEREIN THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN RAI SED. 1 BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS AND LAW FOR ENHANCEMENT BEING DISALLOWANCE OF DEPRECIATION ON THE PLANT & MACHINERY AMOUNTING TO RS. 29,18,090/-. EVEN THE QUANTUM AND RATE OF DISALLOWANCE IS DISPUTED. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 2 2. BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS A ND LAW FOR SUSTAINING THE ADDITION OF RS. 34,23,712/- U /S 68 AS CASH CREDIT FOR SHARES AND LOANS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLAN T COMPANY WAS INCORPORATED ON 18/07/1994. THE BUSINESS OF THE APP ELLANT COMPANY WAS TO MANUFACTURE MINERAL WATER. HOWEVER, CONSEQUENTLY, IT HAD STARTED BOTTLING OF LIQUOR. THE ASSESSEE FILED ITS RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING A LOSS OF RS. 53,78, 560/- ON 18/11/1997.THEREAFTER A NOTICE U/S 143(2) OF THE INC OME TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSUED ON 28/8/1998. HOWEVER, THE NOTICE WAS RETURNED BACK WITH A REMARK THAT CONCERNED PERSON WA S NOT AVAILABLE. THEREAFTER A LETTER WAS RECEIVED FROM THE ASSESSEE CO MPANY SEEKING ADJOURNMENT. THEREAFTER THE CASE WAS FIXED FOR 18/8/1 999. HOWEVER, ON THAT DATE, NO ONE ATTENDED THE PROCEEDINGS. ULTIMAT ELY, A NOTICE U/S 142(1) OF THE ACT ALONGWITH QUERY LETTER WAS ISSUED O N 12/8/1999. THE AR OF THE ASSESSEE APPEARED AND THE CASE WAS DISCUSS ED WITH THE ASSESSING OFFICER. IT WAS NOTICED THAT DURING THE YE AR UNDER REFERENCE, THE ASSESSEE COMPANY ALLOTTED 635100 SHARES OF RS. 10 EACH AND ALSO HAVING UNSECURED LOANS TO THE EXTENT OF RS. 69,92,9 81/-. THE LD ASSESSING OFFICER MADE OBSERVATION TO THE EXTENT OF CONCLUDING THAT THE ASSESSEE HAVE NOT EXPLAINED THE INVESTMENT MADE IN THE SHARES OF THE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 3 COMPANY. THEREFORE, THE LD ASSESSING OFFICER HAS DIS CUSSED IN DETAILS ABOUT THE INDIVIDUAL SHARE APPLICATIONS AS ALLEGED MADE BY THE ASSESSEE AND THEREAFTER THE LD ASSESSING OFFICER HAS INVOKED THE PROVISIONS OF LAW AND MADE ADDITION U/S 68 OF THE ACT FOR INVESTMENT IN SHARES AND UNSECURED LOANS RECEIVED BY THE ASSESSEE COMPANY. FURTHER THE ASSESSEE HAS ALSO CLAIMED DEPRECIATION ON PLANT AND MACHINERY INSTALLED BY IT. HOWEVER, THE LD ASSESSING OFFICER AFTER DISCU SSING THE FACTUAL MATRIX AND THE EXCISE REGISTER MAINTAINED BY THE AS SESSEE HAVE RESTRICTED THE CLAIM OF THE ASSESSEE TO 3/4 OF THE CLAIM. THE RELEVANT PARAGRAPH IS REPRODUCED AT PAGE NO. 20 TO 21 OF THE ASSESSMENT ORDER, WHICH IS REPRODUCED AS UNDER:- DURING THE COURSE OF PROCEEDINGS THE EXAMINATION O F ACCOUNT BOOKS SHOWED THAT POLY SLEEVES WERE PURCHASED FOR THE FIRST TIME ON 07/10/96. COPY OF PURCHASE VOUCHER OF STICK ERS AND SHRUNKS WAS NOT PRODUCED. POLY CUP FILM AND POLY SHR INK LABEL WERE PURCHASED FOR THE FIRST TIME ON 06/01/1997. EXC ISE REGISTER SHOWED THAT THE PRODUCTION STARTED FROM 28/ 09/1996. THE ASSESSEE HAS ALSO BEEN SHOWN SALES DURING THE MO NTH OF SEPTEMBER. FROM THE ABOVE, IT IS CLEAR THAT THE MAC HINERIES USING POLY SLEEVES, STICKERS AND SHRINK ETC. WERE NO T UTILIZED BEFORE 30/09/1996. THE ASSESSEES AR HAS FILED THE L IST OF MACHINERIES AND THE PURPOSE FOR WHICH THESE HAVE BEE N ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 4 UTILIZED. THE MONTH-WISE DETAILS OF SALES AS SUBMITTE D BY THE ASSESSEE COMPANY IS AS UNDER:- NAME OF MONTH AMOUNT SEPTEMBER, 96 RS. 9900/- OCTOBER, 96 NIL. NOVEMBER, 96 NIL. DECEMBER, 96 NIL. JANUARY, 97 RS. 154500/- FEBRUARY, 97 RS. 690195/- MARCH, 97 RS. 250756/- FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE COMPA NY HAS NOT USED ITS ENTIRE PLANT & MACHINERY FOR PRODUCTIO N IN THE MONTH OF SEPTEMBER, 96. IF IT WERE SO THEN THEY WOULD HAVE BEEN SALES IN THE SUBSEQUENT MONTHS. IT IS NOT POSS IBLE FOR ME TO ASCERTAIN PLANT AND MACHINERY WHICH WERE BEING USED IN THE MONTH OF SEPTEMBER, 96 FOR PRODUCTION. AN ES TIMATE IS REQUIRED TO BE MADE. IN THE DETAILS OF MACHINERY IT IS CLEAR THAT THE ASSESSEE COMPANY HAS PURCHASED TWO CONVEYAN CE BALT. THERE ARE TWO WATER PLANTS. CONSIDERING THE NATU RE OF MACHINERIES, DEPRECIATION CLAIMED FOR FULL YEAR IS RESTRICTED TO THREE FOURTH. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD CIT(A), WHO H AD RESTRICTED THE CLAIM OF DEPRECIATION FROM 3/4 TH TO 1/2 . THE FINDINGS OF THE LD CIT(A) IS AS UNDER:- ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 5 4.2 THE AR CONTENDED THAT FURTHER WE HAVE TO SUBMIT THAT THE ASSESSEE COMPANY HAS STARTED PRODUCTION ON 28/09/1996 SINCE THERE IS NO DISPUTE ON THIS ORDER. FOR THIS PURPOSE, HE HAS VERIFIED THE EXCISE RECORD S. ONCE IT HAS BEEN VERIFIED THAT PLANT AND MACHINERIE S FORMING PART OF BLOCK HAS BEEN USED DURING THE YEAR FOR MORE THAN 182 DAYS THERE IS NO CHOICE AVAILABLE WITH HIM TO ALLOW DEPRECIATION ON PROPORTIONATE OR ESTIMATE BASIS. HE HAS TO ALLOW DEPRECIATION FOR FUL L YEAR. IT IS THEREFORE SUBMITTED THAT NECESSARY DIRECTIONS MAY BE PASSED TO THE A.O. ALLOWING FULL DEPRECIATION INSTEAD OF 3/4 TH . 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS SUBMISSION OF THE ASSESSEE AND ALSO ENHANCED NOTICE THERE IS NO FORCE IN THE SUBMISSION OF THE AR AS PRODUCTION STARTED AFTER 31 ST SEPTEMBER, 1996 AS NO EVIDENCE HAS BEEN FILED BEFORE ME THAT PRODUCTION HAD BEEN STARTED ON 28/09/1996. THE DEPRECIATION IS ALLOWABLE 1/2. THEREFORE, A.O. IS DIRECTED TO RECALCULATE 1/2 DEPRECIATION AND ALLOW THE SAME. ON THIS GROUND OF APPEAL THE ADDITION IS ENHANCED. 4. SIMILARLY, THE LD CIT(A) AFTER DETAILED DISCUSSI ONS HAVE SUSTAINED THE ADDITION OF RS. 34,23,715/- U/S 68 OF THE ACT F OR CASH CREDIT OF SHARES AND LOANS. THE FINDING OF THE LD CIT(A) IS REP RODUCED AS UNDER:- ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 6 5.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WE LL AS SUBMISSION OF THE ASSESSEE AND CASE RELIED UPON, TH E LD. AO HAD GIVEN DETAILED FINDINGS IN EACH CASE AS UNDER: (I) PREM LATA MADHOK: THE AO HAD NOT SATISFIED WITH THE SOURCE OF INCOME (ON PAGE-3) OF THE ASSESSMENT ORDER. (II) SALISH KUMAR BHAYANA: THE ID. AO HAD NOT BEEN PROVIDED ANY CONFIRMATION. (ON PAGE-3). (III) BHAGYAWATI: SHE HAD NOT ADMITTED ANY INVESTMENT IN SHARES AND NO EVIDENCE HAS BEEN PROVIDED, (ON PAGE-3). (IV) SARDAR SINGH: NO REPLY AND CONFIRMATION WAS FILED. (ON PAGE-4). (V) SAROJ MADAN: THERE WAS NO SAROJ MADAN ON ADDRESS GIVEN AND ALSO NO FURTHER REPLY WAS GIVEN BY THE ASSESSEE. (ON PAGE-4) (VI) PANKAJ MADAN: THERE WAS NO PANKAJ MADAN ON ADDRESS GIVEN AND ALSO NO FURTHER REPLY WAS GIVEN BY THE ASSESSEE. (ON PAGE-4) (VII) M/S SARNA INT. P. LTD.: NO ADDRESS HAS BEEN GIVEN, (ON PAGE-4) (VIII) V.J.S.CHAWLA: NO CONFIRMATION, (ON PAGE-4). (IX) CHINKI CHAWALA: NO CONFIRMATION, (ON PAGE-4) (X) MR. AZAD: NO ADDRESS OF SHAREHOLDER GIVEN. (ON PAGE-5) ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 7 (XI) MRS. AZAD: NO ADDRESS OF SHAREHOLDER GIVEN, (ON PAGE-5) (XII) MR. AZAD: NO ADDRESS OF SHAREHOLDER GIVEN. (O N PAGE-5) (XIII) MISS PURNA: NO ADDRESS OF SHAREHOLDER GIVEN. (ON PAGE-5) (XIV) K.K.NAGIA: NO CONFIRMATION SUBMITTED. (ON PAGE-5) (XV) RAKESH MALHOTRA: NO CONFIRMATION SUBMITTED. (ON PAGE-5) (XVI) ASHOK SOLANKI: THE AO HAD CONSIDERED 4 LACS EXPLAINED OUT OF TOTAL LOAN 11,44,162/- AS THE CREDITWORTHINESS WAS NOT TO PAY RS. 1 1,44,162/- (ON PAGE-8) (XVII) ESS AAR INVESTMENT: NO CONFIRMATION AND NOT ADDRESS HAD BEEN PROVIDED. (ON PAGE-8) (XVIII) SHEKHAR: NO CONFIRMATION, ON ENQUIRY HE REFUSED TO GIVE ANY LOAN TO THE COMPANY AND HAD SALARY INCOME. (ON PAGE-9) (XIV) H.R.TYAGI: THE BALANCE SHEET OF THE COMPANY SHOWS LOAN RS. 6,49,550/- WHEREAS BALANCE SHEET OF THE H.R.TYAGI RS. 20,09,269/-(ON PAGE-9) (XX) R.P.TYAGI: NOT FILING THE INCOME TAX RETURN AND SUMMONS WERE NOT SERVED, (ON PAGE-10) (XXI) SUNIL TYAGI: THE BALANCES SHOWN BY THE CREDITOR AND COMPANY WERE NOT MATCHING. THE AO MADE AN ADDITION OF RS. 2,50,000/-. (ON PAGE-12). ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 8 (XXII) UMESH: NO CONFIRMATION FILED, (ON PAGE-12). THE ASSESSEE HAS NOT FILED ANY EVIDENCE BEFORE ME EXCEPT WRITTEN REPLY. THE POSITION IS SAME. HE ONLY RELIED UPON CASE LAWS AS REFERRED ABOVE WHICH ARE NO T SQUARELY APPLICABLE IN THIS CASE. THE HONBLE CALCUT TA HIGH COURT IN CASE OF CIT VS. RUBBI TRADERS AND EXPORTERS LTD. (2004) 263 ITR 300 AND RAJASTHAN HIGH COURT IN CASE OF CIT VS. FIRST POINT FINANCE LT D. (2006) 286 ITR 477 AND HONBLE DELHI HC IN CASE OF CIT VS. DIVINE LEASING AND FINANCE LTD. (2008) 299 ITR 268 HAS HELD THAT IDENTITY OF THE PERSON, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION HAS TO BE ESTABLISHED BY THE ASSESSEE IN CASE OF SHARES AND LOANS U/S. 68 OF THE IT ACT. THEREFORE, ADDITION OF RS. 34,23,712/- IS CONFIRMED. THE APPEAL ON THIS GROUND IS DISMISSED. ISSUE NO. 1 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE PLANT AND MACHINERY WERE PURCHASED DURING THE ASSESSMENT YEAR AND WAS PUT TO USE PRIOR TO 30 TH SEPTEMBER, 1996 AS THE ASSETS BECAME PART OF THE BLOCK OF ASSE TS. THEREFORE, THE ASSESSEE IS ENTITLED TO DEPRECIATION ON THE WRITTEN DOWN VALUE AS PER SECTION 32 OF THE ACT FOR THE ENTIRE PERIOD. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 9 6. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSETS WERE NOT PUT TO USE PRIOR TO 30/09/1996 AND IT WAS A SHAM E TRANSACTION. IT WAS FURTHER POINTED OUT THAT DURING THE SUBSEQUENT M ONTHS, THERE WAS NO PRODUCTION AS IS CLEAR FROM THE CHART GIVEN IN T HE ASSESSMENT ORDER, THEREFORE, IT WAS SUBMITTED THAT THE ASSESSEE IS NOT ENTITLED TO THE DEPRECIATION MORE THAN WHAT HAS ALREADY BEEN GRANTED BY THE LD CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD AS WELL AS ALSO PERUSED THE ORDERS OF THE LOWER AUTHORITIES. ADMITTEDLY THE ASSE SSEE HAS SHOWN THE PRODUCTION FOR AN AMOUNT OF RS. 9900/- IN THE MONTH OF SEPTEMBER 1996. (THE RECORDS OF CENTRAL EXCISE SALES RANGE-1 O N 28/09/1996, 29/09/1996 AND 30/09/1996.) THIS REGISTER OF EXCISE WAS MAINTAINED BY THE ASSESSEE AS MENTIONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. MOREOVER, ONCE IT IS SUBMITTED BY THE ASSESS EE THAT THE BLOCK OF ASSETS HAVE BEEN PUT TO USE FOR A PERIOD OF MORE TH AN 180 DAYS THEN THE ASSESSEE IS ENTITLED TO DEPRECIATION AT THE RATE ME NTIONED IN SECTION 32 OF THE ACT DURING THE RELEVANT ASSESSMENT YEAR. IN OUR VIEW, THE FAILURE OF THE ASSESSING OFFICER TO ASCERTAIN THE USAGE OF PLANT AND MACHINERY IN THE MONTH OF SEPTEMBER, 1996, CANNOT BE A GROUND TO DISALLOW THE DEPRECIATION FOR THE PERIOD OF MORE THAN 180 DAYS. AS PER SECTION 32 OF ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 10 THE ACT, IF THE ASSET IS PUT TO USE FOR A PERIOD OF MORE THAN 180 DAYS, THEN THE ASSESSEE IS ENTITLED TO DEPRECIATION ON TH E WRITTEN DOWN VALUE AS PRESCRIBED BY THE ACT. SINCE THE ASSETS WERE PUT TO USE FOR THE PERIOD OF MORE THAN180 DAYS, THEREFORE, THE ASSESSEE IS EN TITLED TO DEPRECIATION FOR FULL YEAR. ACCORDINGLY, WE ALLOW GROUND NO. 1 OF THE ASSESSEES APPEAL. ISSUE NO. 2 8. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS ALLOTTED 635100 SHARES OF RS. 10 EACH AND HAS ALSO SHOWN UNSECURED LOAN OF RS. 69,92,981/- FROM VARIOUS PERSONS. THE L D ASSESSING OFFICER, ON VERIFICATION, HAS RESTRICTED THE ADDITION WITH RE GARD TO 22 TRANSACTIONS ONLY. THE LD CIT(A) HAS GIVEN DETAILS OF THE 22 PERSO NS/TRANSACTIONS AT PAGE 6 AND 7 OF HIS ORDER. THE LD AR HAS FURTHER SUB MITTED THAT THE ADDITIONS IN RESPECT OF SHARE APPLICABLE WAS MADE FO R AN AMOUNT OF RS. 15,24,162/- FOR 16 CASES AND THE ADDITION OF RS. 18 ,99,550/- WAS MADE FOR UNSECURED LOANS FOR SIX CASES, THUS A TOTAL ADD ITION OF RS. 34,23,712/- WAS MADE. 9. THE LD AR OF THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE HAS GIVEN COMPLETE DETAILS OF IDENTITY OF THE PERSONS, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS AND THEREFORE HE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 11 SUBMITTED THAT THE ADDITION MADE BY THE LD ASSESSIN G OFFICER AND SUSTAINED LD CIT(A) ARE REQUIRED TO BE SET ASIDE. F OR THE PURPOSES OF SHARE APPLICATION, THE LD AR HAS RELIED UPON THE FO LLOWING DECISIONS: (I) BARKHA SYNTHETICS LTD. V/S ACIT 197 CTR 432 (RAJ ) VIDE ORDER DATED 02.08.2005 (II) CIT V/S WINSTRAL PETROCHEMICALS (P) LTD. (2010) 41 DTR 139 (DEL). (III) BHAV SHAKTI STEEL MINES (P) LTD V/S CIT 18 DTR 194(DEL) (2009) HELD SOURCE NEED NOT BE PROVED. (IV) CIT V/S SAMIR BIO- TECH (P) LTD 17 DTR 224(DEL) ( 2009) HELD ALL NECESSARY DETAILS FILED NO ADDITION CALL FOR. (V) M/S ANU INDUSTRIES V/S ACIT 19 DTR 465 (DEL). (VI) AUATECH INTERNATIONAL LTD. V/S ITO 13 DTR 382(DE L). (VII) SMART CAPITAL SERVICES LTD V/S JCIT 10 DTR 593 (DEL). (VIII) MEERA ENGINEERING & COMMERCIAL INDUSTRIES CO . P. LTD. V/S ACIT 58 TTJ 527(JAB). (IX) ALLEN BRADLEY INDIA LTD. V/S DCIT (2002) 80 ITD 43 (DEL). (X) UMA POLYMERS PVT. LTD. V/S DCIT (2006) 101 TTJ 12 4 (JD) (TM) (XI) PROGRESSIVE LTD. V/S ITO (1991) 40 TTJ 595 (CAL) (XII) CIT V/S GANGOUR INVESTMENT LTD. (2009) 18 DTR 2 42 (DEL) HELD SUBSCRIPTION FORMS OF INVESTORS, PAN & ADDRESSES FI LED. TT LTD HAD SHARE CAPITAL OF `3.4 CRORE. (XIII) M/S BHARTI SYNTEX LTD. V/S DCIT (2011) 137 TTJ 82 (JP) (XIV) ITO V/S SUPERLINE CONSTRUCTION PVT. LTD. ITA NO. 364 5/MUM/2014 (BCAJ) ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 12 FOR THE PURPOSES OF UNSECURED CASH CREDITORS, HE RE LIED UPON THE FOLLOWING DECISIONS: (I) DHAKESHWARI COTTON MILLS LTD. V/S CIT (1954) 26 ITR 775 (SC). (II) CIT V/S FIRST POINT FINANCE LTD (2006) 286 ITR 477 (RAJ.) (III) SOM PRAKASH KAYAL V/S AO IN ITA NO364/JU/200 5. (IV) VIJETA CEMENT PVT. LTD. V/S JCIT 24 TW 223 (JP ). (V) LABHCHAND BOHRA V/S ITO (2008) 8 DTR 44 (RAJ.). (VI) KANHAIALAL JANGID VS. ACIT (2008) 217 CTR 354 (RAJ). (VII) ARAVALI TRADING CO. V/S ITO (2008) 8 DTR 199 (VIII) CIT V/S LOVELY EXPORTS (P) LTD (2008) 216 CTR 195(SC). (IX) VIMAL CHANDRA GOLECHA V/S ITO & ANR. (1982) 1 34 ITR 119 (RAJ.). (X) KISHINCHAND CHELLARAM VS. CIT (1980) 125 ITR 713 (SC). 10. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ORDER PASSED BY THE LD ASSESSING OFFICER AND THE LD CIT(A) ARE IN ACCORDANCE WITH LAW AND THEREFORE, THE ADDITIONS MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD CIT(A) IS REQUIRED TO BE UPHELD BY THIS TRIBUNAL AND THE APPEAL OF THE ASSESSEE ON THIS GROUND IS REQUIR ED TO BE DISMISSED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE LD AR OF THE ASSESSEE HAS SUBMITTED A DETAILED CHART IN RESPECT OF 22 TRA NSACTIONS, WE SHALL BE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 13 DEALING WITH EACH AND EVERY TRANSACTION SEPARATELY A ND WILL BE DECIDING THE ISSUE ON MERIT. SMT. PREMLATA MADHOK 11.1 FIRST OF ALL THE ADDITION WAS MADE BY THE LD AS SESSING OFFICER AND SUSTAINED BY THE LD CIT(A) IN RESPECT OF SMT. PREMLA TA MADHOK. IN THIS REGARD, AR SUBMITTED THAT THE SHARES WERE ALLOTTED BY THE ASSESSEE TO SMT. PREMLATA MADHOK AND EVEN FROM THE REPORT OF IN SPECTOR, THE IDENTITY OF SMT. PREMLATA MADHOK WAS PROVED AND FUR THER SHE HAS ADMITTED PURCHASE OF SHARES. HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE SOURCE OF INCOME, THEREFORE, THE ADDITION MADE WAS. IN OUR VIEW, ONCE THE IDENTITY OF THE CREDITOR HAS BEEN ESTABLISHED AND THERE IS NO DOUBT ABOUT THE GENUINENESS OF THE TRAN SACTION, THEREFORE, THE SOURCE OF THE SOURCE CANNOT BE ENQUIRED BY THE ASSESSING OFFICER PRIOR TO 2003 AMENDMENT UNDER SECTION 68. ACCORDING LY, THE ADDITION MADE WITH RESPECT TO SMT. PREMLATA MADHOK FOR A SUM OF RS. 25,000/- IS HEREBY DIRECTED TO BE DELETED. 11.2 SHRI SATISH KUMAR BHAYANA :- IN THIS REGARD, SHRI SATISH KUMAR BHAYANA WAS ALLOTTED 4000 SHARES BY THE ASSESS EE COMPANY AND THE ASSESSEE HAS PROVIDED ADDRESS OF THE ALLOTTEE T O THE ASSESSING OFFICER AS HAS BEEN MENTIONED BY THE ASSESSING OFFI CER IN THE ORDER. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 14 HOWEVER, NO INVESTIGATION WAS MADE BY THE ASSESSING O FFICER AND THEREFORE, THE ASSESSING OFFICER HAS ADDED A SUM OF RS. 40,000/- ON THE PRETEXT THAT THE ASSESSEE HAS FAILED TO GIVE CONFIR MATION FROM THE SAID SHRI SATISH KUMAR BHAYANA, IN OUR VIEW, ONCE THE SH ARES HAVE BEEN ALLOTTED TO SHRI SATISH KUMAR BHAYANA AND THE ADDRE SS HAS BEEN GIVEN THEN THE ASSESSING OFFICER IS DUTY BOUND TO CONDUCT THE NECESSARY INQUIRY U/S 131 OF THE ACT TO ESTABLISH OR DISPROVE THE IDENTITY OF THE PERSON. SINCE THE ASSESSEE HAS DISCHARGED THE INITI AL ONUS OF DISCLOSING THE IDENTITY AND ADDRESS OF THE PERSON, THEREFORE, IN OUR VIEW THE INGREDIENTS OF SECTION 68 ARE MET AND THE ADDITION IS REQUIRED TO BE DELETED. ACCORDINGLY, WE DELETE THE ADDITION IN RESP ECT OF SHRI SATISH KUMAR BHAYANA. 11.3 SMT. BHAGYAWATI AND MR. RAKESH MALHOTRA:- IN BOTH THE CASES, THE SHARES WERE ALLOTTED BY THE ASSESSEE COMP ANY AND THE ASSESSEE HAS PROVIDED ADDRESS OF THE ALLOTTEE OF TH E SHARES NAMELY C-88, VIKASH PURI, NEW DELHI. HOWEVER, THE INSPECTOR DOUBT ED THE TRANSCATION AND HAS GIVEN REPORT , STATING THEREIN THAT AS PER SMT BHAGWATI THE DETAILS OF THE SHARE APPLICATION MAY BE AVAILABLE WI TH HER SON MR. RAKESH MALHOTRA. ON MEETING OF MR. RAKESH MALHOTRA HE SUBM ITTED, , HE TOLD HIM THAT HE WILL FURNISH DESIRED DETAILS ABOUT THE I NVESTMENT MADE IN THE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 15 SHARE APPLICATIONS OF M/S G.B. LIMITED IN 2-3 DAYS TO THE OFFICE. SIMILAR IS THE REPLY IN RESPECT OF SHARE APPLICATION OF MR. RAKESH MALHOTRA WHERE IT IS MENTIONED BY THE ASSESSING OFFICER THAT THE M R. RAKESH MALHOTRA DID NOT GIVE PROPER REPLY AFTER REPORT DATED 28/12/1999 OF THE INSPECTOR. IN OUR VIEW, THE IDENTITY OF THE PERSON HAS BEEN ROV ED BY THE ASSESSEE, ADDRESS HAS BEEN PROVIDED AND THE AMOUNTS INVESTED BY SMT. BHAGYAWATI AND MR. RAKESH MALHOTRA WERE RS. 50,000/- AND RS. 40,000/-, IN OUR VIEW, THIS WERE SMALL AMOUNT AND THE RE IS NO POSITIVE EVIDENCE BROUGHT ON RECORD BY THE AO SUGGESTING THA T THESE PERSONS ARE NOT HAVING MEANS TO FILE SHARE APPLICATION. IN FACT , THE REPORT SUGGESTS THAT SHRI RAKESH MALHOTRA IS A TEACHER IN SCHOOL, T HEREFORE, MEANS OF SHRI RAKESH MALHOTRA CANNOT BE DOUBTED. THEREFORE, I N OUR VIEW THE ADDITION IS REQUIRED TO BE DELETED. ACCORDINGLY, WE DELETE THE ADDITION IN RESPECT OF SMT. BHAGYAWATI AND MR. RAKESH MALHOTRA. 11.4 SARDAR SINGH, SAROJ MADAN, PANKAJ MADAN, M/S SARNA INTL . (P) LTD.MR. AZAD, MRS. AZAD, MR. AZAD AND MISS PRERNA: - IN THESE SHARE APPLICATIONS, THE LD AR HAS SUBMITTED THAT TH E SHARES HAVE BEEN ALLOTTED AFTER RECEIPT OF THE MONEY, THEREFORE, THE ADDITION MADE BY THE LD ASSESSING OFFICER IS REQUIRED TO DELETED. ON THE OTHER HAND, THE LD DR HAS ADMITTED THAT NEITHER THE ADDRESS HAS BEEN GIVE N NOR THE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 16 CONFIRMATION HAVE BEEN SUBMITTED BY THE ASSESSEE IN THESE SHARE APPLICATIONS, THEREFORE, THE ADDITION IS REQUIRED T O BE SUSTAINED. WE HAVE GONE THROUGH THE ARGUMENTS MADE BY BOTH THE PARTIES AS WELL AS RECORDS PLACED BEFORE US, IN OUR VIEW NEITHER THE ADDRESS HA VE BEEN GIVEN IN RESPECT OF THESE SHARE APPLICANTS NOR THESE APPLICA NTS WERE FOUND ON ENQUIRY BY THE INSPECTOR NOR THE CONFIRMATIONS WERE GIVEN BY THESE SHARE ALLOTTEES. IN OUR VIEW, THE ASSESSEE HAS FAILE D TO DISCHARGE ITS INITIAL ONUS TO PROVE THE IDENTITY OF THE PERSON, G ENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS, THEREFORE, THE ADD ITIONS IN RESPECT OF SHRI SARDAR SINGH, SAROJ MADAN, PANKAJ MADAN, M/S S ARNA INTL. (P) LTD.MR. AZAD, MRS. AZAD, MR. AZAD AND MISS PRERNA T OTALING TO RS. 5,25,000/- FOR ALL THESE PERSONS ARE HEREBY CONFIRM ED. V.J.S. CHAWLA AND CHINKI CHAWLA 11.5 THE LD AR HAS SUBMITTED IN RESPECT OF V.J.S. CH AWLA AND CHINKI CHAWLA THAT THE SHARES HAVE BEEN ALLOTTED TO THEM. TH E PANS WERE GIVEN BY THE ASSESSEE IN RESPECT OF THESE TWO PERSON S. THE LD DR HAS SUBMITTED THAT THE CONFIRMATION IN RESPECT OF THESE TWO PERSONS WERE NOT MADE BY THE ASSESSEE. WE HAVE GONE THROUGH THE SUBMISSIONS OF BOTH THE PARTIES AND RECORDS PLACED ON RECORD. THE L D ASSESSING OFFICER IN THE ORDER HAS MENTIONED THAT THE VJS CHAWLA IS AN ARMY OFFICER AND ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 17 POSTED AT MUMBAI. HOWEVER, THE CONTACT COULD NOT HAV E BEEN ESTABLISHED AS THE PHONE WAS BEING PICKED UP BY THE P.A.. IN OUR VIEW, THE MORE ENQUIRY WAS REQUIRED TO BE MADE BY THE ASSE SSING OFFICER. IN ABSENCE OF THOROUGH AND PROPER ENQUIRY, THE ADDITIO N CANNOT BE MADE BY THE LD ASSESSING OFFICER. THE ASSESSEE, IN OUR VI EW, WAS ABLE TO DISCHARGE HIS PRIMARY ONUS OF PROVING THE IDENTITY OF THE PERSONS AND GENUINENESS OF THE TRANSACTIONS. SINCE VJS CHAWLA WAS WORKING IN THE ARMY, THEREFORE, THE CREDITWORTHINESS OF THE GOVERNM ENT OFFICIAL CANNOT BE DOUBTED. ACCORDINGLY, IN OUR VIEW, THE ADDITION O F RS. 50,000/- IN RESPECT OF V.J.S. CHAWLA AND CHINKI CHAWLA IS REQUIRE D TO BE DELETED AND WE DELETE THE ADDITION OF RS. 25,000/- EACH FOR V.J. S. CHAWLA AND CHINKI CHAWLA. 11.6 SHRI K.K. NANGIA:- REGARDING SHRI K.K. NANGIA, THE LD AR HAS SUBMITTED THAT THE SHARES HAVE BEEN ALLOTTED TO HIM . HIS IDENTITY IS DULY ESTABLISHED AS THE INSPECTOR VISITED THE HOUSE BUT THE SAID PERSON WAS NOT AVAILABLE AT THAT TIME. HIS DAUGHTER WAS PRESENT AND SHE WAS NOT ABLE TO GIVE DESIRED DETAILS. THE A.O. SHOULD HAVE B EEN MADE FURTHER ENQUIRY IN ABSENCE OF THE SAID PERSON WHICH HE DID N OT. THUS, THE IDENTITY, GENUINENESS OF THE PERSON IS ESTABLISHED. ON THE OTHER HAND, THE LD DR HAS ADMITTED THAT NEITHER THE ADDRESS HAS BEEN GIVEN NOR THE ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 18 CONFIRMATION HAVE BEEN SUBMITTED BY THE ASSESSEE IN THIS SHARE APPLICATION, THEREFORE, THE ADDITION IS REQUIRED TO BE SUSTAINED. WE HAVE GONE THROUGH THE ARGUMENTS MADE BY BOTH THE PARTIES AS WELL AS RECORDS PLACED BEFORE US, IN OUR VIEW NEITHER THE ADDRESS HA VE BEEN GIVEN IN RESPECT OF THIS SHARE APPLICANT NOR APPLICANT WAS FO UND AS MENTIONED IN THE REPORT OF THE INSPECTOR NOR THE CONFIRMATION HA S BEEN GIVEN BY THIS SHARE ALLOTTEE. IN OUR VIEW, THE ASSESSEE HAS FAILED TO DISCHARGE HIS INITIAL ONUS TO PROVE THE IDENTITY OF THE PERSON, GENUINENE SS OF THE TRANSACTION AND CREDITWORTHINESS, THEREFORE, THE ADDITION OF RS. 50,000/- IN RESPECT OF SHRI K.K. NANGIA IS HEREBY CONFIRMED. 11.7 SHRI ASHOK SOLANKI:- REGARDING SHRI ASHOK SOLANKI THE LD AR HAS SUBMITTED THAT HIS STATEMENTS WERE RECORDED U/S 131. IDENTITY IS DULY ESTABLISHED. HE ADMITTED IN HIS STATEMENTS OF INVES TMENTS MADE IN THE FORM OF SHARES AND LOANS. HE STATED THE VARIOUS SOU RCES FROM WHICH INVESTMENTS WERE MADE SUCH AS NSC/FDRS PURCHASED FRO M AGRICULTURAL ACTIVITIES. HE WAS HAVING 20 ACRES OF VAST AGRICULTU RAL LAND. PAYMENTS RECEIVED BY WAY OF BANKING METHODS ONLY, FILING INCO ME TAX RETURNS REGULARLY. HE HAS NOT DENIED ANY PART OF INVESTMENT S AS SHOWN BY THE COMPANY TO HIS CREDIT. ONUS IS TO EXPLAIN THE SOURC ES OF CREDIT AND NOT SOURCES OF THE SOURCE. ACTION IS REQUIRED TO BE TAK EN IN THE HANDS OF ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 19 LENDER NOT IN THE HANDS OF ASSESSEE COMPANY. ON THE OTHER HAND, THE LD DR HAS ADMITTED THAT NEITHER THE ADDRESS HAS BEEN G IVEN NOR THE CONFIRMATION HAVE BEEN SUBMITTED BY THE ASSESSEE IN THIS SHARE APPLICATION, THEREFORE, THE ADDITION IS REQUIRED TO BE SUSTAINED. IN OUR VIEW, ONCE THE IDENTITY OF THE CREDITOR HAS BEEN EST ABLISHED AND THERE IS NO DOUBT ABOUT THE GENUINENESS OF THE TRANSACTION, THEREFORE, THE SOURCE OF SOURCE CANNOT BE ENQUIRED BY THE ASSESSING OFFIC ER. ACCORDINGLY, THE ADDITION MADE WITH RESPECT TO SHRI ASHOK SOLANKI FOR A SUM OF RS. 7,44,162/- IS HEREBY DIRECTED TO BE DELETED. UNSECURED LOAN 12. NOW WE SHALL BE DEALING WITH THE CASH CREDITORS/ U NSECURED LOAN . THE NAMES, ADDRESSES AND AMOUNT OF THE CASH CREDITOR S IS REPRODUCED AS UNDER:- S.N. NAME ADDRESS AMOUNT 1 ESSAAR INVESTMENT NO ADDRESS PROVIDED(AO PG. 8) 200000/- 2 SHEKHAR WZ-505, BASIDARAPUR, N.D. 300000/- 3 H.R. TYAGI WZ-105, BASIDARAPUR, N.D. 649550/- 4 R.P. TYAGI WZ-505, BASIDARAPUR, N.D. 350000/- 5 SUNIL TYAGI WZ-505, BASIDARAPUR, N.D. 250000/- 6 UMESH TYAGI WZ- 13, VIKAS PURI NEW DELHI 150000/- ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 20 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASS ESSEE HAS RECEIVED AMOUNT THROUGH CHEQUES AND REPAID THE AMOUNT THROUG H CHEQUES, THEREFORE, THE LD ASSESSING OFFICER AND LD CIT(A) HA S WRONGLY CONFIRMED THE ADDITION OF RS. 18,99,000/-. IT WAS ALSO SUBMITT ED THAT THE AMOUNT APPEARS IN THE LEDGER OF THE ASSESSEE AND ALSO IN T HE LEDGER OF THE CREDITORS. IT IS ALSO THE CASE THAT THE LOAN AMOUNT OF SHRI UMESH TYAGI AT SL. NO. 22 HAD BEEN REPAID IN THE SUBSEQUENT YEAR. IT WAS SUBMITTED THAT DURING THE INQUIRY DONE BY THE ASSESSING OFFICER, N O TRANSACTION WAS FOUND TO BE FICTITIOUS. IT IS THE CONTENTION OF THE ASSESSEE THAT THE LOANS RECEIVED BY THE ASSESSEE ARE GENUINE , REAL AND CAM E FROM THE BANKING CHANNEL. IT WAS NOT THE MONEY OF THE ASSESSEE. THE LD ASSESSING OFFICER HAS FAILED TO PROVE THAT THE MONEY RECEIVED BY THE ASSESSEE AS LOAN WAS THE MONEY OF THE ASSESSEE AND NO NEXUS HAS BEEN PRO VED BY THE LD ASSESSING OFFICER. IT IS THE CASE THAT THE SUBSTANT IAL AMOUNT WAS RECEIVED BY THE OLD MANAGEMENT AND NEW MANAGEMENT HAS REPAID THE AMOUNT. THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER TO ISSUE THE SUMMONS U/S 131 TO FIND OUT THE CORRECT NATURE OF TRANSACTI ON AND THEREFORE, IT WAS CONTENDED THAT OUT OF THE ADDITION OF RS. 18.99 LACS, THE ADDITION OF RS. 17.49 LACS IS REQUIRED TO BE DELETED BEING GENU INE AND REAL. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 21 13. ON THE OTHER HAND, THE LD DR HAS DRAWN OUR ATTEN TION TO LD ASSESSING OFFICERS ORDER FROM PAGE 8 TO 12 WHEREIN THE LD ASSESSING OFFICER HAD DISCUSSED IN DETAIL THE FINANCIAL STATU S OF THE EACH OF THE PERSONS AND THEREAFTER HAS COME TO THE CONCLUSION T HAT THE LOAN TRANSACTION WAS NOT A GENUINE TRANSACTION AND WAS A S HAME TRANSACTION REQUIRED TO BE ADDED BACK TO THE INCOME OF THE ASSE SSEE. 14. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. WE SH ALL BE DEALING WITH EACH CREDITOR SEPARATELY. (I) ESSAAR INVESTMENT:- THE ASSESSEE HAS NOT PROVIDED THE ADDRESS AND CONFIRMATION OF THE ESSAAR INVESTMENT, THEREFORE, THE CASE OF THE ASSESSEE THAT THE LOAN WAS TAKEN, IN OUR VIEW, WAS NOT CORRECT. IN OUR VIEW, THE LD ASSESSING OFFICER AND LD CIT(A) WAS R IGHT IN CONFIRMING THE ADDITION, THEREFORE, WE UPHOLD THE ORDER OF THE LD CIT(A) IN THE CASE OF ESSAAR INVESTMENT. (II) SHEKHAR:- THOUGH THE PAYMENT WAS RECEIVED BY CHEQUE BY THE ASSESSEE, HOWEVER, WHEN THE LETTER WAS WRITTEN BY T HE ASSESSEE AS WELL AS BY THE LD ASSESSING OFFICER,THE LETTER RETURN ED BACK WITH REMARKS UNCLAIMED. THEREAFTER THE ENQUIRIES WERE MADE BY SEND ING THE INSPECTOR ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 22 AT THE RESIDENCE OF SHRI SHEKHAR. ON PERUSAL OF THE BALANCE SHEET, WE NOTICE THAT SHRI SHEKHAR WAS MERELY A SALARIED EMPLO YEE AND THERE NO LOAN WAS GIVEN BY HIM TO THE ASSESSEE COMPANY, AS PE R BALANCE SHEET . IN VIEW THEREOF, WE HAVE NO HESITATION TO CONFIRM TH E ORDER PASSED BY THE LD CIT(A). AT BAR ALSO, DURING THE COURSE OF ARG UMENT, THE LD AR HAS FAILED TO REBUT THE CONCLUSION DRAWN BY THE LD ASSES SING OFFICER, THEREFORE, THE ORDER OF THE LD CIT(A) IS REQUIRED T O BE UPHELD AND WE UPHOLD THE ORDER OF THE LD CIT(A) IN THE CASE OF SHR I SHEKHAR. (III) H.R. TYAGI, R.P. TYAGI AND SUNIL TYAGI:- THE ASSESSING OFFICER HAVE EXAMINED THE BALANCE SHEET OF SHRI H.R . TYAGI AS WELL AS THE COMPANY, IT WAS NOTICED BY THE LD ASSESSING OFFI CER THAT THERE WAS A MAJOR DIFFERENCE IN THEIR ACCOUNTS OF BOTH I.E. ASS ESSEE AS WELL AS SHRI H.R. TYAGI. WE HAVE GONE THROUGH THE RECORD IN OUR V IEW THERE IS MAJOR DIFFERENCE IN THE ACCOUNTS/ BALANCE SHEET OF H R TYA GI AND ASSESSEE WHICH THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE DURING THE COURSE OF ARGUMENT HENCE THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION, THEREFORE, THE ADDITION OF RS. 6,49,550 HAS RIGHTLY BE CONFIRMED B Y THE LD CIT(A), /- THEREFORE, WE ALSO CONFIRM THE ORDER OF THE LD CIT(A) IN THE CASE OF SHRI H.R. TYAGI. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 23 SHRI R.P. TYAGI, IN RESPECT OF SHRI R.P. TYAGI, THOUGH THE CONFIRMATI ON WAS RECEIVED ON 17/12/1999 BUT HOWEVER, WHEN THE INSPECTOR WAS DIRECTE D TO VERIFY FROM SHRI R.P. TYAGI FROM ITS RETURN OF INCOME, THE INSPECTOR HAS SUBMITTED A DETAILED REPORT, WHICH IS AS UNDER:- R.P. TYAGI:- THE ASSESSEE COMPANY HAS RECEIVED RS. 3 50000/- ON ACCOUNT OF UNSECURED LOANS IN THE YEAR UNDER CON SIDERATION IN THE NAME OF SHRI R.P. TYAGI AND RS. 10,1,000/- WAS SH OWN BALANCE AS ON 31/3/196. THE ASSESSEE COMPANY HAS ALS O SHOWN INVESTMENT IN THE NAME OF SHRI R.P. TYAGI ON ACCOUNT OF INVESTMENT IN SHARES OF ASSESSEE COMPANY OF RS. 724 500/-. ON VERIFICATION OF ASSESSMENT RECORDS AT INCOME TAX OF FICE, NEW DELHI IT WAS NOTICED SHRI R.P. TYAGI IS NOT FILING HI S RETURN OF INCOME. THE AMOUNT RECEIVED BY ASSESSEE COMPANY ON A CCOUNT OF UNSECURED LOAN OF RS. 350000/- IN THE NAME OF R. P. TYAGI MAY BE ADDED IN THE TOTAL INCOME OF ASSESSEE COMPANY U/ S 68 OF I.T. ACT. ACTION SHOULD BE TAKEN IN THE CASE OF SHRI R.P . TYAGI. ACTION MAY BE TAKEN REGARDING THE INVESTMENT OF RS. 724500 /- IN THE CASE OF ASSESSEE COMPANY. THEREAFTER THE LD AR, AFTER RECEIPT OF THE REPORT, H AS SUBMITTED A DETAILED REPLY ON 21/2/2000. AFTER RECEIPT OF REPLY, THE SUM MONS WERE ISSUED TO THE CREDITORS THROUGH THE ASSESSEE FOR SERVICE. HOWE VER, NONE OF THE PERSONS HAS ATTENDED THE PROCEEDINGS IN RESPONSE TO THE SUMMONS ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 24 ISSUED AND FURTHER THE ASSESSEE WAS NOT ABLE TO GET THE SUMMONS SERVED UPON THEM . IN VIEW THEREOF, THE LOWER AUTHORITIES H AVE CONFIRMED THE ADDITION. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES, IN OUR VIEW, THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION, THEREFORE, THE ADDITION OF RS. 3.50 LACS HAS RIGHTLY BE CONFIRMED BY THE LD CIT(A), THEREFORE, WE ALSO CONFIRM THE ORDER OF THE LD CIT(A) IN THE CASE OF SHRI R.P. TYAGI. SHRI SUNIL TYAGI: - THE ASSESSEE HAS SUBMITTED THAT THE PAYMENT WAS RECEIVED BY ACCOUNT PAYEE CHEQUE WAS REPAID BY BANKI NG CHANNEL. THE CONFIRMATION WAS ALSO ISSUED BY SH SUNIL TYAGI ON 17 /12/1999. THE LD ASSESSING OFFICER HAS ADDED THE INCOME OF SHRI SUNI L TYAGI TO THE EXTENT OF RS. 1.50 LACS. WE HAVE GONE THROUGH THE RECORDS, IN OUR VIEW, THE ORDER OF THE LD ASSESSING OFFICER WAS PASSED ON ASSU MPTION AND SURMISES. ONCE THE IDENTITY HAS BEEN ESTABLISHED, T HE CONFIRMATION HAS BEEN GIVEN AND THE MONEY WAS RECEIVED THROUGH THE BA NKING CHANNEL. THERE WAS NO REASON FOR THE ASSESSING OFFICER TO MAKE ADDITION OF RS. 2.50 LACS, ACCORDINGLY, IN OUR VIEW, THE ADDITION SU STAINED BY THE LD CIT(A) TO THE EXTENT OF RS. 2.50 LACS IS REQUIRED TO BE DELETED. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 25 ACCORDINGLY, WE DELETE THE ADDITION OF RS. 2.50 LACS IN THE CASE OF SHRI SUNIL TYAGI. (IV) SHRI UMESH TYAGI:- THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT A PAYMENT WAS RECEIVED THROUGH ACCOUN T PAYEE CHEQUE AND REPAID BY ACCOUNT PAYEE CHEQUE. THE CONFIRMATIO N WAS ALSO GIVEN BY THE ASSESSEE ON 17/12/1999. IT IS THE CASE OF TH E ASSESSEE THAT DESPITE THE CONFIRMATION RECEIVED IN THE OFFICE OF THE ASSESSING OFFICER BY WAY OF RECORD OF ROC, THE ADDITIONS WERE MADE. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDER OF THE LD CIT(A). WE H AVE GONE THROUGH THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL AV AILABLE ON THE RECORD. THE ASSESSEE HAS CATEGORICALLY MENTIONED THAT SHRI U MESH TYAGI ON THE VISIT OF INSPECTOR TO HIS PREMISES HAS SOUGHT TIME OF 3-4 DAYS TO FILE REPLY. HOWEVER, NO REPLY WAS FILED AND THUS THE AMOUN T OF RS. 1.50 LACS WAS ADDED U/S 68 OF THE ACT IN THE INCOME OF THE ASS ESSEE. DURING THE COURSE OF ARGUMENT, THE LD AR FAILED TO CONTRADICT THE CATEGORICAL FINDINGS RECORDED BY THE LD ASSESSING OFFICER BY WAY OF COGENT EVIDENCE. ACCORDINGLY, WE HAVE NO HESITATION TO CONFIRM THE AD DITION OF RS. 1.50 LACS. ITA 183/JP/2013_ GOLDEN BOTTLING LIMITED VS ADDL.CIT 26 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, THE A SSESSEE GETS PARTLY RELIEF. 15. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/07/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH JULY, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M GOLDEN BOTTLING LIMITED, BHIWADI. 2. IZR;FKHZ @ THE RESPONDENT- THE ADDL.CIT, SPL. RANGE, ALWAR. 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. 183/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR