M/s K.M Sugar Mills Limited, Kanpur V. Astt. Commissioner of Income Tax, Kanpur

ITA 183/LKW/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4013 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-07-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 142(1); 133A; 68

Judgement Text

I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T. VARKEY, JUDICIAL MEMBER ITA NO.183/LKW/2016 ASSESSMENT YEAR:2007-08 M/S K. M. SUGAR MILLS LIMITED, 11- MOTI BHAWAN, COLLECTORGANJ, KANPUR. PAN:AAACK5545P VS. A.C.I.T., CENTRAL CIRCLE-III, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER P. K. BANSAL, A.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-IV, KANPUR DATED 08/02/2016 RELATING TO ASSE SSMENT YEAR 2007-08. 2. THE FIRST ISSUE RELATES TO THE SUSTENANCE OF ADD ITION OF RS.25,40,000/-. THE BRIEF FACTS RELATED TO THIS IS SUE ARE THAT A SEARCH & SEIZURE OPERATION U/S 132(1) WAS CONDUCTED ON 26/04 /2006 IN THE LUGGAGE OF SEAT NO. 23A OF SAHARA AIR LINES FLIGHT NO. S2-1 33 OCCUPIED BY SHRI PRADEEP KUMAR GUPTA AT PUNE. IT WAS FOUND THAT HE HAD CASH OF RS.25.37 LAC OUT OF WHICH RS.25 LAC WAS SEIZED. IN HIS STAT EMENT RECORDED AT THE TIME OF SEARCH, HE STATED THAT HE WAS EMPLOYEE AT P UNE. IT WAS FOUND APPELLANT BY SHRI DILIP S. DAMLE, FCA RESPONDENT BY SHRI J. S. MINHAS, CIT, D. R. DATE OF HEARING 27/07/2016 DATE OF PRONOUNCEMENT 31 / 08 /2016 I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 2 THAT HE HAD CASH OF RS.25.37 LAC OUT OF WHICH RS.25 LAC WAS SEIZED. IN HIS STATEMENT RECORDED AT THE TIME OF SEARCH, HE STATED THAT HE WAS EMPLOYEE OF M/S K. M. SUGAR MILLS LTD., FAIZABAD HAVING ITS REGISTERED OFFICE AT 11, MOTI BHAWAN, 52/1, COLLECTORGANJ, KANPUR, AS THE CA SH BELONGS TO M/S K. M. SUGAR MILLS LTD. WHICH HE WAS CARRYING FOR THE P URPOSE OF THE BUSINESS. M/S K. M. SUGAR MILLS LTD. HAS ALSO ACCEPTED THAT T HE MONEY BELONGS TO THEM. THE ASSESSEE SUBMITTED THE RETURN SHOWING A TOTAL INCOME AT NIL ON 15/11/2007 WHICH WAS REVISED AT A TOTAL LOSS OF RS. 11,03,37,050/-. SURVEY U/S 133A WAS CARRIED OUT ON 27/04/2006 BY INVESTIGA TION WING IN THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER QUESTIONED THE ASSESSEE WHY THE CASH FOUND WITH SHRI PRADEEP KUMAR GUPTA BE NOT TRE ATED AS INCOME OF THE ASSESSEE COMPANY FROM UNDISCLOSED SOURCES. IN RESPONSE THERETO, SHRI SANTOSH GUPTA, MANAGER (TAXATION) SUBMITTED AS UNDER: 'AS ALREADY BEEN SUBMITTED AND INFORMATION AVAILABL E ON RECORD THAT CASH AMOUNTING TO RS.2500000/- SEIZED A T PUNE AIRPORT ON 26.4.06 FROM SHRI PRADEEP GUPTA (EMPLOYE E OF THE COMPANY) BELONGS TO THE ASSESSEE AND FOUND DULY REC ORDED IN THE BOOKS DURING THE COURSE OF SURVEY U/S 133A CARR IED ON 27.4.06 BY THE INVESTIGATION WING. A COPY OF VOUCHE R, CASH BOOK AND YADASHT BAHI IS BEING ENCLOSED. THE CASH W AS CARRIED OUT BY SHRI PRADEEP GUPTA FOR MAKING PAYMEN T OF FREIGHT ETC. IN RELATION TO SUGAR EXPORT BUSINESS O F THE COMPANY CONTINUED DURING THE YEAR UNDER CONSIDERATI ON. RELEVANT DETAILS OF SUGAR PURCHASES AND SALES ARE B EING ENCLOSED. 2.1 THE ASSESSING OFFICER WAS NOT SATISFIED WITH T HE EXPLANATION OF THE ASSESSEE THAT THE CASH WAS BEING CARRIED FOR PAYMEN T OF FREIGHT ETC AS CLAIMED BY THE ASSESSEE AS THE ASSESSEE HAS NOT GIV EN OTHER DETAILS LIKE THE SUM PAYABLE AS FREIGHT AND THE NAME OF THE AGEN CY TO WHOM IT WAS TO BE PAID. THE ASSESSING OFFICER ALSO NOTED THAT ALL THE COPIES OF THE VOUCHERS OBTAINED BY THE SURVEY PARTY ON 27/04/2006 THAT THEY ARE I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 3 WRITTEN BY ONLY ONE PERSON EXCEPT THE VOUCHER DATED 25/04/2006 FOR RS.25 LAC THROUGH WHICH CASH PAYMENT OF RS.25 LAC UNDER T HE SEIZURE HAS BEEN CLAIMED TO HAVE BEEN MADE THROUGH CASHIER TO SHRI P RADEEP KUMAR GUPTA. HE WAS OF THE VIEW THAT THE STYLE OF WRITING ALPHAB ET P APPEARS DIFFERENT THAN ALL OTHER VOUCHERS. HE ALSO NOTED THAT THERE WAS NO CONTROL NUMBER OF THE VOUCHERS AND THE VOUCHERS SEEMS TO HAVE BEEN PLANTED. THE ASSESSING OFFICER ULTIMATELY TREATING THE VOUCHERS TO BE QUESTIONABLE DOCUMENTS, MADE THE ADDITION OF RS.25,40,000/- IN T HE HANDS OF THE COMPANY. THE ASSESSEE WENT IN APPEAL BEFORE THE CI T(A). THE CIT(A) ON THE BASIS OF ENTIRETY OF THE FACTS AND CIRCUMSTANCE S IN THIS CASE, CONFIRMED THE ADDITION. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, CAREFULLY C ONSIDERED THE SAME ALONG WITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE ASSESSEE COMPANY HAS DULY SUBMITTED BEFORE THE ASSE SSING OFFICER DURING THE COURSE OF HEARING COPIES OF VOUCHERS WHICH CONT AIN THE SIGNATURE OF SHRI PRADEEP KUMAR GUPTA TO WHOM THE COMPANY HAS GI VEN A SUM OF RS.25 LAC IN WHICH THE NARRATION WAS THAT THE ADVAN CE IS GIVEN FOR MAKING THE DRAFT FOR SUGAR TRADING AT LATUR. IT IS NOT TH E CASE OF THE REVENUE THAT THE ASSESSEE COMPANY WAS NOT HAVING THE CASH IN HAN D ON THAT DATE. THE CASH TO THE EXTENT OF RS.25 LAC WAS DULY AVAILABLE WITH THE ASSESSEE WHICH WAS GIVEN TO SHRI PRADEEP KUMAR GUPTA. MERELY THE ASSESSEE COMPANY HAS WRITTEN ALPHABET P DOES NOT MEAN THAT THE ASS ESSEE COMPANY WAS NOT HAVING THE CASH. THERE HAD BEEN SURVEY IN THE CASE OF THE ASSESSEE COMPANY ON 27/04/2006 WHILE THE CASH WAS SEIZED FRO M SHRI PRADEEP KUMAR GUPTA ON 26/04/2006. THE SURVEY TEAM HAS VER IFIED THE CASH BOOK, YADAST BAHI AND VOUCHER, THE COPY OF WHICH WERE SUB MITTED BEFORE THE ASSESSING OFFICER. THE YADAST BAHI MENTIONED THE NA ME OF SHRI PRADEEP I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 4 KUMAR GUPTA. THE ASSESSING OFFICER MADE THE ADDITI ON DISBELIEVING THE STATEMENT OF THE ASSESSEE THAT NO PAYMENT OF FREIGH T TO A RAILWAY STATION WAS MADE BY THE COMPANY FROM 01/04/2005 TO 15/04/2 006. WHEN THE CASH SENT BY THE ASSESSEE COMPANY WAS SEIZED FROM S HRI PRADEEP KUMAR GUPTA, HOW THE COMPANY COULD HAVE MADE THE PAYMENT OF FREIGHT AT LATUR. THE ASSESSING OFFICER OBSERVED THAT THE GOO DS SUPERVISOR, SANGALI FURNISHED THE DETAILS OF PAYMENTS MADE AGAINST FREI GHT CHARGES AGAINST SUGAR TRANSPORTED FROM LATUR. THE ASSESSING OFFICE R ON THE BASIS OF THESE DETAILS OBSERVED THAT OUT OF THE TOTAL FREIGHT AMOU NT OF RS.24,15,708/- PAID AT LATUR, THE AMOUNT OF RS.23,75,195/- HAS BEEN PAI D BY DEMAND DRAFT AND THOSE DDS HAVE BEEN DRAWN MUCH BEFORE 25/04/200 6. THIS CLEARLY SHOWS THAT THE ASSESSEE HAS TO MAKE THE PAYMENT TO THE RAILWAY DEPARTMENT THROUGH DD OUT OF THE CASH WITHDRAWN. T HIS ALSO PROVES THAT THE ASSESSEE HAS MADE THE PAYMENT FOR SUGAR TRANSPO RTED FROM LATUR BETWEEN 01/04/2005 TO 24/04/2006. THUS, THERE ARE CONTRADICTION IN THE FINDING GIVEN BY THE ASSESSING OFFICER. EVEN WE NO TED THAT THE VOUCHER ALSO HAS THE SAME NARRATION THAT THE ADVANCE IS GIV EN FOR MAKING THE DRAFT FOR SUGAR TRADING AT LATUR. IN HIS STATEMENT SHRI PRADEEP KUMAR GUPTA ALSO STATED THAT THE MONEY BELONGS TO THE COMPANY A ND IS DULY RECORDED IN THE BOOKS OF THE COMPANY. IT IS NOT A CASE WHERE T HE MONEY HAS BEEN GIVEN BY THE COMPANY OUTSIDE THE BOOKS OF ACCOUNT. EVEN NO IOTA OF EVIDENCE HAS BEEN BROUGHT ON RECORD WHICH MAY PROVE THAT THE MONEY HAS BEEN GIVEN TO SHRI PRADEEP KUMAR GUPTA BY THE C OMPANY OUTSIDE THE BOOKS OF ACCOUNT. IN VIEW OF THIS FACT, WE ARE OF THE VIEW THAT THE NATURE AND SOURCE OF THE SAID MONEY IS DULY EXPLAINED AND IT CANNOT BE REGARDED TO BE AN EXPLAINED ONE. WE, THEREFORE, DELETE THE ADDITION OF RS.25,40,000/- BY SETTING ASIDE THE ORDER OF CIT(A) . I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 5 4. THE SECOND ISSUE INVOLVED IN THIS APPEAL AS TAKE N VIDE GROUND NO. 3 TO 5 RELATES TO THE ADDITION MADE ON ACCOUNT OF CRE DIT IN SHARE APPLICATION AMOUNTING TO RS.1,15,20,000/-. THE FACTS RELATED T O THIS ISSUE, IN BRIEF, ARE THAT THE ASSESSING OFFICER NOTED THAT THE ASSES SEE HAS CREDITED IN ITS BALANCE SHEET A SUM OF RS.1,15,20,000/- UNDER THE H EAD SHARE APPLICATION MONEY. IN THE ABSENCE OF THE DETAILS, THE ASSESSI NG OFFICER ADDED THIS AMOUNT IN THE TOTAL INCOME OF THE ASSESSEE AS UNEXP LAINED CASH CREDIT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) WHO C ONFIRMED THE ORDER OF THE ASSESSING OFFICER. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER MADE THE ADDIT ION IN RESPECT OF THE SHARE APPLICATION MONEY BUT HE HAS NOT MADE ANY SPE CIFIC QUERY IN THE NOTICES ISSUED U/S 142(1) DATED 15/12/2008. THE AS SESSEE VIDE HIS LETTER DATED 14/08/2009, THE COPY OF WHICH IS AVAILABLE AT PAGES 49 & 50 OF THE PAPER BOOK REGARDING FURNISHING OF ANNUAL INFORMATI ON REPORT FOR THE FINANCIAL YEAR 2006-07, SUBMITTED THE DETAILS OF TO TAL VALUE OF TRANSACTION AMOUNTING TO RS.1,15,20,000/-. THE ASSESSEE COMPAN Y SUBMITTED THE COPY OF THE RESOLUTION PASSED IN EXTRAORDINARY GENE RAL MEETING OF THE MEMBERS HELD ON 05/05/2006 WHEREBY SHARES WERE TO B E ISSUED AT A PREMIUM OF RS.62/- PER SHARE TO THE FOLLOWING COMPA NIES: 1. M/S HERITAGE COMMODITIES PVT. LTD. 2. M/S MILLENNIUM VANIJYA PVT. LTD. FOR THIS OUR ATTENTION WAS DRAWN TO PAGE NO. 28 OF THE PAPER BOOK. IT WAS SUBMITTED THAT IN PURSUANCE OF THE SAID OFFER, THES E PARTIES SUBMITTED THEIR RESPECTIVE APPLICATIONS CONTAINING ALL THE DETAILS LIKE THEIR INCOME TAX PARTICULARS, CHEQUE / DRAFT NUMBER ETC. FROM WHICH SOURCE ALSO THE SHARE APPLICATION MONEY STOOD FULLY SUPPORTED AND PROVED. CONFIRMATORY LETTERS WERE GIVEN BY THESE PARTIES ALONG WITH THE PHOTOCOP Y OF THE DEMAND DRAFT I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 6 THROUGH WHICH THE REMITTANCE OF RS.57,60,000/- WAS MADE BY EACH OF THE COMPANY. FOR THIS OUR ATTENTION WAS DRAWN TOWARDS PAGE NO. 35 TO 40 OF THE PAPER BOOK. IT WAS ALSO SUBMITTED THAT DUE INF ORMATION WAS GIVEN TO THE BOMBAY STOCK EXCHANGE PURSUANT TO THE LISTING A GREEMENT. IN THIS REGARD, OUR ATTENTION WAS DRAWN TO PAGE NO. 41 TO 4 8 OF THE PAPER BOOK. IT WAS SUBMITTED THAT FOLLOWING DOCUMENTS WERE RECE IVED WITH REGARD TO THE SUBSCRIPTION AMOUNT RECEIVED FROM M/S MILLENNIU M VANIJYA PRIVATE LIMITED: (I) COPY OF APPLICATION FORM AND LETTER (II) COPY OF BALANCE SHEET AS AT 31/03/2007 (III) COPY OF ACKNOWLEDGEMENT FOR E-FILING OF IT RETURN F OR ASSESSMENT YEAR 2007-08 (IV) COPY OF BANK STATEMENT ISSUED BY UTI BANK (V) EXTRACT FROM MASTER DATA ON THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS, DOWNLOADED IN 2015 WHICH SHOWS ACTIVE STATUS OF THE APPLICANT COMPANY. (VI) COPY OF CONFIRMATION ISSUED BY THE APPLICANT COMPAN Y FOR RECEIPT OF REFUND OF APPLICATION MONEY SIMILARLY THE FOLLOWING DOCUMENTS WERE RECEIVED FRO M M/S HERITAGE COMMODITIES PVT. LTD. (I) COPY OF APPLICATION FORM AND LETTER (II) BALANCE SHEET AS AT 31/03/2007 (III) COPY OF THE ACKNOWLEDGEMENT FOR E-FILING OF THE IT RETURN FOR ASSESSMENT YEAR 2007-08 (IV) EXTRACT FROM MASTER DATA ON THE WEBSITE OF MINISTRY OF CORPORATE AFFAIRS, DOWNLOADED IN 2015 WHICH SHOWS ACTIVE STATUS OF THE APPLICANT COMPANY. (V) COPY OF CONFIRMATION ISSUED BY THE APPLICANT COMPAN Y FOR RECEIPT OF REFUND OF APPLICATION MONEY 4.1 THUS, IT WAS CONTENDED THAT THESE DOCUMENTS WER E FILED BEFORE THE CIT(A) WHO HAS ADMITTED THE EVIDENCE AND CALLED FOR THE REMAND REPORT I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 7 FROM THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE THE FOLLOWING COMMENTS: IN SUPPORT OF SHARE APPLICATION MONEY OF RS.1,15,20,000/-, THE ASSESSEE HAS ENCLOSED A COPY OF RESOLUTION OF EXTRAORDINARY GENERAL MEETING HELD ON 05.05.2006 WHEREBY SHARES WERE TO BE ISSUED AT A PR EMIUM OF RS. 62 PER SHARE TO M/S. HARITAGE COMMODITIES PV T. LTD. AND M/S. MILLENNIUM VANIJYA PVT. LTD. THE ASSESSEE HAS ALSO ENCLOSED COPIES OF LETTERS DATED 20.05.2006 OF THE ABOVE COMPANIES CONFIRMING TO HAVE GIVEN RS.57,60,000/- E ACH TO M/S. K.M.SUGAR MILLS LTD. TOWARDS PAYMENT OF THE 10 % OF THE ALLOTMENT PRICE OF 8 LACS WARRANTS EACH BY THE ABOV E COMPANIES THROUGH DEMAND DRAFT NUMBER 002808 DATED 19.05.2006 AND DEMAND DRAFT NUMBER 002807 DATED 19.05.2006 RESPECTIVELY. HOWEVER, FROM THE COPIES O F APPLICATION FORMS IT HAS BEEN NOTICED THAT THESE PA YMENTS HAVE BEEN MADE THROUGH CHEQUE BUT IN CONFIRMATORY L ETTER IT HAS BEEN PAID THROUGH DEMAND DRAFTS. COPIES OF BALA NCE SHEET OF BOTH THE COMPANIES WHO HAVE MADE INVESTMEN T IN SHARE APPLICATION MONEY OF RS. 57,60,000/- EACH HAV E ALSO BEEN FILED. THE COPIES OF BANK ACCOUNTS OF THE COMPANIES M/S. HERITAGE COMMODITIES PVT. LTD. AND M/S. MILLENNIUM VANIJYA PVT. LTD. FROM WHICH THE DEMAND DRAFTS WERE MADE H AVE NOT BEEN ENCLOSED BY THE APPELLANT IN ITS PETITION; THE REFORE, THE CREDITWORTHINESS COULD NOT BE VERIFIED AT THIS END. IT IS FURTHER TO SUBMIT THAT THE RETURN OF INCOME FOR A. Y. 2007- 08 WHICH WERE DUE TO FILE BY 30.09.2007, IN FACT WERE FILED BY THE BOTH COMPANIES ON 06.09.2009 AND THE ASSESSMENT IN THE C ASE OF THE APPELLANT WAS COMPLETED ON 31.12.2008. 4.2 THE CIT(A) CONFRONTED THE SAID REMAND REPORT TO THE ASSESSEE WHO SUBMITTED THE REJOINDER. IN THE REJOINDER, THE ASS ESSEE HAS CLEARLY STATED THAT FROM THE REPORT OF THE ASSESSING OFFICER, IT I S APPARENT THAT THE ASSESSING OFFICER HAS NOT RAISED ANY QUERY IN RESPE CT OF THE SHARE APPLICATION DURING THE COURSE OF ASSESSMENT PROCEED INGS AND THEREFORE, I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 8 THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE MUST BE ADMITTED. THE ASSESSING OFFICER FURTHER SUBMITTED BEFORE THE CIT( A) THAT THE INFORMATION WAS CALLED FOR FROM BOTH THE SHARE APPLICANTS AND T HE LETTER WERE SENT AT THE ADDRESS GIVEN BY THE ASSESSEE WHICH HAVE RETURN ED UNSERVED WITH THE REMARK IN THE CASE OF M/S HERITAGE COMMODITIES PVT. LTD. INSUFFICIENT ADDRESS AND IN THE CASE OF M/S MILLENNIUM VANIJYA PRIVATE LIMITED NO SUCH COMPANY NAME IN THIS ADDRESS. WE NOTED THAT THE ASSESSEE HAS INFORMED THE CIT(A) THAT THE POSTAL ADDRESS OF BOTH THE COMPANIES HAVE CHANGED AND SUBMITTED THE NEW ADDRESS. WE NOTED TH AT AGAIN THE CIT(A) CALLED FOR THE REPORT FROM THE ASSESSING OFFICER BU T THE NOTICE CALLED FOR THE INFORMATION COULD NOT BE SERVED. WE NOTED THAT IN THIS CASE THE QUESTION ARISES WHETHER THE ASSESSEE HAS DISCHARGED HIS ONUS AS LAID DOWN U/S 68 OF THE ACT. BOTH THE SHARE APPLICANTS ARE INCOME T AX ASSESSEE. THEY HAVE FILED THEIR INCOME TAX RETURN WHICH IS APPARENT FRO M THE ACKNOWLEDGEMENT OF THE E-FILING OF THE INCOME TAX RETURN FOR THE AS SESSMENT YEAR 2007-08, THE COPY OF WHICH IS AVAILABLE AT PAGE NO. 54 AND 6 1 OF THE PAPER BOOK. BOTH THE APPLICANTS HAVE THE PAN AND, THEY ARE BEIN G ASSESSED TO INCOME TAX. THIS PROVES THEIR IDENTITY. BOTH THE COMPANI ES HAVE THE SHAREHOLDERS FUNDS. THE PAYMENT HAS BEEN MADE THROUGH CHEQUE AN D BANKING CHANNELS. COPY OF THEIR BANK ACCOUNTS WERE PLACED ON RECORD. THE SHARE APPLICATION MONEY WERE ULTIMATELY RETURNED BY THE A SSESSEE TO THE RESPECTIVE SHARE APPLICANTS AS THE SHARES COULD NOT BE ALLOTTED. THE PARTY CONFIRMED RECEIPT OF THE PAYMENT. THIS FACT HAS NO T BEEN DENIED. THIS IS A CASE WHERE THE PAYMENTS RECEIVED BY THE COMPANY F ROM THESE PARTIES AMOUNTING TO RS.57,60,000/- HAS DULY BEEN PAID BACK . THIS FACT IS APPARENT NOT ONLY FROM THEIR RESPECTIVE CONFIRMATIO N BUT ALSO FROM THE BANK STATEMENT. THE FACT REMAINS THAT NO SHARE WAS ALLOTTED TO THESE COMPANIES. IN OUR OPINION, THE ASSESSEE HAS DULY D ISCHARGED THE ONUS AS I.T.A. NO.183/LKW/16 ASSESSMENT YEAR:2007-08 9 LIE BEFORE THE ASSESSEE. THIS IS NOT THE CASE WHER E THE SHARE APPLICANTS ARE THE BOGUS ONE AND THE COMPANY HAS DEPOSITED ITS OWN MONEY. HAD IT BEEN THE CASE, THE COMPANY WOULD HAVE NOT REFUNDED THE MONEY TO BOTH THE APPLICANTS. IN VIEW OF THIS FACT, WE SET ASIDE THE ORDER OF CIT(A) AND DELETE THE ADDITION MADE U/S 68 OF THE ACT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/08/2016) SD/. SD/. ( ABY T. VARKEY ) ( P. K . BANSAL ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:/../2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. R EGISTRAR