ITO, New Delhi V. M/s Expert Capital Services Pvt. Ltd., Ghaziabad

ITA 1928/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58457 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROHIT GARG
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Unexplained cash credit; Gift; Corroborative evidences; Accommodation entries; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 1928/DEL/2011 ASSESSMENT YEARS: 2006-07 ITO, VS. M/S EXPERT CAPITAL SERVICES P. LTD., WARD 11(2), C 22, 3 RD FLOOR, RDC, RAJ NAGAR, NEW DELHI. GHAZIABAD. AAACE1426F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ROHIT GARG, SR. DR RESPONDENT BY : SH. ASHWANI TANEJA, CA ORDER PER SMT. DIVA SING, J.M. : THIS IS AN APPEAL FIELD BY THE REVENUE AGAINST THE ORDER DATED 22.2.2011 OF CIT(A)-XIII, NEW DELHI PERTAINING TO A .Y. 2006-07 WHEREIN THE FOLLOWING GROUNDS HAVE BEEN RAISED: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 21,00,000 /- ON ACCOUNT OF SHARE CAPITAL U/S 68 OF THE I.T. ACT, 19 61. 2. THE CIT(A) HAS ERRED IN IGNORING THE FINDINGS U/ S 68 RECORDED BY THE AO IN THE ASSESSMENT ORDER WITH RESPECT TO T HE CREDIT WORTHINESS AND IDENTITY OF CREDITORS AND GENUINENES S OF THE TRANSACTIONS. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. THE RELEVANT FACTS ARE THAT THE ASSESSEE COMPANY WHO WAS DERIVING INCOME FROM GRATING LOANS AND ADVANCES, MANAGEMENT CONSULTANCY ETC. AND HAD DECLARED AN INCOME FROM INTEREST AND OTHER ACCOUNTING FOR EXPENSES DECLARED NET PROFIT OF RS. 2,61,208/-. IN VIEW OF THE FACT THAT THE ITA NO. 1928/D/2011 2 ASSESSEE HAD RAISED CAPITAL TO THE TUNE OF RS. 1.40 CRORES, THE AO REQUIRED THE ASSESSEE TO FILE THE DETAILS IN RESPECT OF THE CAPITAL FUNDS INTRODUCED IN THE YEAR UNDER CONSIDERATION. CONSIDERING THE DETA ILS OF THE FOLLOWING TRANSACTION: TASHI CONTRACTORS P. LTD. RS. 20,00,000 MADAN ELECTRONICS P. LTD. RS. 1,00,000 THE AO HELD THAT FROM THE DETAILS AND CONFIRMATIONS AND OTHER SUPPORTING EVIDENCES FURNISHED BY THE ASSESSEE. THE ASSESSEE HAD RAISED FUNDS FROM ENTITIES WHO WERE IN FACT ACCOMMODATION ENTRY OPER ATORS. THE AO WAS OF THE VIEW THAT THE ENTRY PROVIDERS IN THEIR STATEMEN T RECORDED ON OATH HAD ADMITTED THAT THEIR CONCERN CARRIED ON NO OTHER ACT IVITY BESIDES THAT OF PROVIDING ACCOMMODATION ENTRIES AND THEY ALSO HAD G IVEN THE DETAILS OF THE MODUS OPERANDI INVOLVED AND THE LIST OF ALL SUCH CO MPANIES AS WELL AS TRANSACTIONS. THE AO FURTHER HELD THAT THE ENTRY G IVING COMPANY TASHI CONTRACTORS P. LTD. HAS BEEN ESTABLISHED TO BELONG TO THE MUKESH GUPTA GROUP OF ENTRY PROVIDERS AND AS PER ADMISSION OF SH . MUKESH GUPTA IN THE STATEMENTS RECORDED BY THE INVESTIGATION WING OF TH E DEPARTMENT ON 16.1.2004 THESE COMPANIES DID NOT CARRY OUT ANY BUS INESS ACTIVITY BUT WAS ENGAGED SOLELY IN PROVIDING ACCOMMODATION ENTRIES. THE AO WAS FURTHER OF THE VIEW THAT THE ASSESSMENT IN CASE OF THE ENTRY O PERATORS WAS ALSO DONE AT A FIXED PERCENTAGE OF COMMISSION. ACCORDING TO THE AO THE MODUS OPERANDI OF THE ENTRY OPERATORS IS AS UNDER: THE PARTIES WHO HAVE UNACCOUNTED MONEY AND WANT TO INTRODUCE THE SAME IN THE BOOKS OF ACCOUNTS WITHOUT PAYING TAX, APPROACH ANOTHER PERSON AND HANDOVER TH E CASH (PLUS COMMISSION) AND TAKE CHEQUES/DDS/POS. T HE CASH IS DEPOSITED BY THE ENTRY OPERATOR IN A BANK A CCOUNT EITHER IN HIS OWN NAME OR IN THE NAME OF RELATIVE/F RIENDS OR OTHER PERSON HIRED BY HIM, FOR THE PURPOSE OF OP ENING BANK ACCOUNT. IN MOST OF THESE BANK ACCOUNTS THE INTRODUCER IS THE MAIN ENTRY OPERATOR AND THE CASH DEPOSIT SLOPS AND OTHER INSTRUMENTS ARE FILED BY HIM. THE OTHER ITA NO. 1928/D/2011 3 PERSON (IN WHOSE NAME THE ACCOUNT IS OPENED) ONLY S IGNS THE BLANK CHEQUE BOOKS AND HANDS OVER THE SAME TO T HE MAIN ENTRY OPERATOR. THE ENTRY OPERATOR THEN ISSUE S CHEQUES/DDS/POS IN THE NAME OF THE BENEFICIARY FROM THE SAME ACCOUNT (IN WHICH THE CASH IS DEPOSITED) OR AN OTHER ACCOUNT IN WHICH FUNDS ARE TRANSFERRED THROUGH CLEA RING IN TWO OR MORE STAGES. THE BENEFICIARY IN TURN DEPOSI TS THESE INSTRUMENTS IN HIS BANK ACCOUNTS AND THE MONE Y COMES TO HIS REGULAR BOOKS OF ACCOUNT IN THE FORM O F GIFT, SHARE APPLICATION MONEY, LOAN ETC. THROUGH BANKING CHANNELS. SINCE THE FUNDS HAVE COME THROUGH BANKIN G CHANNEL IN THE BOOKS OF BENEFICIARY THESE APPARENTL Y LOOK GENUINE. IN THIS BACKDROP OF THESE EVENTS, THE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE SHARE CAPITAL AND PREMIUM RAISED BY IT FROM THE ESTABLISHED ENTRY OPE RATORS NOT BE TREATED AS NOT SATISFACTORILY EXPLAINED AND THE FUNDS SO RAISED NOT BE DEEMED AS UNEXPLAINED CASH CREDIT TO BE TREATED AS THE INCOME OF THE ASSESSEE U/S 68 OF THE I.T. ACT. THE ASSESSEE FILED ITS REPLY DT. 29.12.2008 VIDE WHICH IT WAS SUBMITTED THAT OTHER DETAILS HAD BEEN FILED BY THE ASSESSEE WHICH PROVED THE GENUINENESS OF THE TRANSACTIONS. HAVING CONSIDERED THE REPLY FURN ISHED BY THE ASSESSEE, I AM OF THE VIEW THAT IN A CASE WH ERE THE OPERATORS RUNNING THE SAID COMPANIES HAVE ADMITTED ON SWORN STATEMENT THAT THEY CARRY ON NO BUSINESS OTHE R THAN ARRANGE ACCOMMODATION ENTRIES BY ISSUE OF CHEQ UES IN LIEU OF CASH PAYMENTS MADE BY THE BENEFICIARIES, MERE FURNISHING OF CONFIRMATORY STATEMENTS ETC. WOULD NO T LEGITIMATIZE THE TRANSACTION. IN THE INSTANT CASE, IN THE BANK ACCOUNT OF M/S MADAN ELECTRONICS, THERE IS ALS O CORROBORATIVE EVIDENCE IN THE FORM OF CASH DEPOSITS IMMEDIATELY BEFORE ISSUE OF CHEQUES. IN VIEW OF TH IS, IT IS HELD THAT THE AMOUNTS RECEIVED FROM THESE COMPANIES ARE IN THE FORM OF ACCOMMODATION ENTRIES AND SHALL BE T REATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T. ACT. 3. IN APPEAL BEFORE THE CIT(A) THE ASSESSEE MADE VA RIOUS SUBMISSIONS WHICH ARE FOUND RECORDED AT PAGES 5 & 6 OF THE IMPU GNED ORDER. A PERUSAL OF THE SAME SHOWS THAT IT WAS CONTENDED THAT THE AO HAS CONCLUDED THAT THESE WERE ACCOMMODATION ENTRIES BASED ON STATEMENT ON OATH OF MR. MUKESH GUPTA & MR. MAHESH GARG WHICH WERE NOT CONFR ONTED TO THE ITA NO. 1928/D/2011 4 ASSESSEE NOR INFORMED TO THE ASSESSEE. THE ASSESSE E HAD FILED CONFIRMATION LETTERS ALONG WITH THE BANK ACCOUNTS O F THESE COMPANIES WHICH HAD NOT BEEN ASSAILED AND THE OPPORTUNITY TO CROSS EXAMINE THE SO CALLED ENTRY OPERATORS WAS NOT MADE AVAILABLE. IT WAS ALS O CONTENDED THAT IN CASE THE AO DISBELIEVED THAT M/S TASHI CONTRACTORS P. LT D. AND M/S MADAN ELECTRONICS P. LTD. DID NOT DO ANY BUSINESS EXCEPT PROVIDING ACCOMMODATION ENTRIES THEN THEIR CASES SHOULD HAVE BEEN REOPENED. AS FAR AS THE ASSESSEES CONCERNED PROPER DOCUMENTS HA VE BEEN FILED IN RESPECT OF SHARES ISSUED AND THIS FACT HAS BEEN INF ORMED TO THE ROC IN THE PROPER COMMUNICATION. RELIANCE WAS PLACED UPON THE LIST OF SHARES ISSUED DURING THE F.Y. 2005-06 ROC FORM 5 & FORM 2 FILED D URING THE F.Y. 2005-06; BALANCE SHEET AS ON 31.03.2006 AND CONFIRMATION OF M/S TASHI CONTRACTORS P. LTD. AS WELL AS M/S MADAN ELECTRONICS P. LTD. IN WHICH THE PAN NUMBERS OF THESE PARTIES HAD ALSO BEEN QUOTED. THESE SUBMI SSIONS WERE MADE VIDE LETTER DATED 22.01.2010 WHICH AS PER THE IMPUG NED ORDER WAS REITERATED VIDE LETTER DATED 08.02.2011, WHEREIN RE LIANCE WAS PLACED UPON THE JUDGMENTS IN THE CASE OF CIT VS. LOVELY EXPORTS P. LTD., 216 CTR195 AND SH. BARKHA SYNTHETICS LTD., 155 TAXMAN 289. 4. CONSIDERING THE SUBMISSIONS, THE CIT(A) TAKING T HE FACTUAL POSITION AND THE LEGAL POSITION ON THE ISSUE VIDE PARA 4.2 A T PAGES 6 TO 10 OF THE IMPUGNED ORDER DELETED THE ADDITION. 5. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. 6. THE LD. DR PLACED RELIANCE UPON THE ASSESSMENT O RDER. INVITING ATTENTION TO THE ASSESSMENT ORDER CONTENDED THAT TH E CIT(A) HAS NOT DISCUSSED THE FACT THAT BEFORE THE ISSUANCE OF CHEQ UES CASH HAS BEEN DEPOSITED. IT WAS ALSO HIS ARGUMENT THAT THE CREDI T WORTHINESS OF THE PARTIES REQUIRES MORE INVESTIGATION AND THE ONUS PLACED UPO N THE ASSESSEE HAS NOT BEEN DISCHARGED. ACCORDINGLY, IT WAS HIS PRAYE R THAT THE IMPUGNED ORDER BE SET ASIDE AND THE ISSUE BE ESTORED TO THE FILE OF THE AO. ITA NO. 1928/D/2011 5 7. THE LD. AR ON THE OTHER HAND APART FROM RELYING HEAVILY FROM THE IMPUGNED ORDER ON FACTS AND LAW REITERATED THAT AS PER THE ASSESSMENT ORDER THE STATEMENT OF SH. MUKESH GUPTA & SH. MAHES H GARG PRESUMABLY AVAILABLE WITH THE AO BY VIRTUE OF THE STATEMENT RE CORDED BY THE INVESTIGATION WING OF THE DEPARTMENT ON 16.01.2004 WAS NEVER CONFRONTED TO THE ASSESSEE. IT WAS HIS SUBMISSION THAT THE AS SESSMENT ORDER WHICH WAS PASSED ON 29.12.08 THE AO DID NOT CARE TO CONFR ONT THE STATEMENTS TO THE ASSESSEE. IT WAS HIS ARGUMENT THAT IT IS SETTLE D LAW THAT ANY STATEMENT WHICH HAS BEEN RELIED UPON BY THE DEPARTMENT ADVERS ELY THEN THE SAME HAS NECESSARILY TO BE FIRST CONFRONTED TO THE ASSES SEE. SINCE EVIDENTLY IT HAS NOT BEEN CONFRONTED IT NECESARILY IT HAS TO BE EXCLUDED FROM CONSIDERATION. 7.1 IT WAS ALSO HIS ARGUMENT THAT AS FAR AS THE IDE NTITY IS CONCERNED THE ASSESSEE HAS FILED CONFIRMATION OF ACCOUNT FROM THE SAID CONCERNS COPIES OF WHICH ARE PLACED AT PAGES 17 & 19; COPIES OF THE BANK STATEMENT WHICH ARE PLACED AT PAGE 18 & 22. THUS, IN TERMS OF THE REQUIREMENTS OF LAW IS CONCERNED THE BURDEN OF PROOF CAST UPON THE ASSESSE E IS FULLY DISCHARGED. INVITING ATTENTION TO PAGES 25 & 28 WHICH CONTAINS COPIES OF FORM NO. 2 WHICH IS A RETURN OF ALLOTMENT REQUIRED TO BE FILED UNDER THE COMPANIES ACT, 1956 BY THE ASSESSEE AND FORM NO. 5 WHICH IS NOTICE OF INCREASE IN SHARE CAPITAL/INCREASE IN NUMBER OF MEMBERS WHICH IS ALSO TO BE DULY FILED BY THE ASSESEE UNDER THE COMPANIES ACT, 1956 HAVE ALL BEEN FILED ADDRESSING THESE ASPECT. IT WAS HIS SUBMISSION THAT THE ASSESS EE HAS DULY INFORMED ABOUT THE FACTUM OF ALLOTMENT OF SHARES TO M/S MADA N ELECTRONICS P. LTD. EQUITY SHARES 10,000 IN NUMBERS AND M/S TASHI CONTR ACTORS P. LTD. EQUITY SHARES 2 LAKH IN NUMBERS, WHEREIN THE NAMES AND ADD RESSES OF THE SAID CONCERNS ARE FULLY SET OUT. THE BOARDS RESOLUTION IN THE CASE OF THE ASSESSEE, WHEREBY THE SHARES WERE ALLOTTED TO THESE TWO CONCERNS, IT WAS SUBMITTED IS PLACED AT PAGE 28 AS SUCH THE BURDEN S TOOD FULLY DISCHARGED. ITA NO. 1928/D/2011 6 APART FROM RELYING UPON THE JUDGMENT RELIED UPON BY THE CIT(A) RELIANCE WAS PLACED UPON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. OASIS HOSPITALITIES LTD., 51 DTR 74 (DEL.), CIT VS. DWARKADHISH INVESTMENT LTD., 330 ITR 298, CIT VS. ELECTRO POLYC HEM LTD., 294 ITR 661 (MAD.), CIT VS. LOVELY EXPORTS P. LTD., 216 CTR 195 (SC). SUPPORT WAS ALSO DERIVED FROM THE JUDGMENT OF THE JURISDICTIONA L HIGH COURT IN THE CASE OF CIT VS. VALUE CAPITAL SERVICES P. LTD., 307 ITR 334 (DEL.). RELIANCE WAS ALSO PLACED UPON ITO VS. M/S MAF ACADEMY P. LTD. & ITO VS. M/S NAVODAYA CASTLES P. LTD. 8. IN REPLY THE LD. SR. DR REITERATED THAT THE ISSU E MAY BE RESTORED FOR VERIFICATION. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE CIT AT P AGE 6 CONSIDERING THE PLEADINGS OF THE ASSESSEE IN REGARD TO THE SHARE AP PLICANT COMPANIES TOOK INTO THE CONSIDERATION THE FOLLOWING DOCUMENTS: - A. CONFIRMATION OF SHARE CAPITAL CONTRIBUTION FROM THE ABOVE SHAREHOLDERS, GIVING DETAILS OF THE CHEQUES AND BAN K ACCOUNTS THROUGH WHICH THE SHARE APPLICATION HAS BEEN MADE. B. PAN DETAILS OF THE SHAREHOLDERS. C. COPY OF BANK STATEMENTS OF THE SHARE APPLICANT C OMPANIES EVIDENCING THE SHARE APPLICATION MONEY TRANSFER THR OUGH BANKING CHANNELS. D. FORM OF ANNUAL RETURN IN FORM 2 FILED WITH ROC E VIDENCING ALLOTMENT OF 10,000 SHARES TO MADAN ELECTRONICS P. LTD. ON 25.01.06 AND 2,00,000/- SHARES TO TASHI CONTRACTORS P. LTD. ON 25.01.06. 9.1 CONSIDERING THE SAME HE CAME TO THE FOLLOWING C ONCLUSION: THUS, FROM THE ABOVE DETAILS AND PLACING RELIANCE ON THE LATEST DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF DWARKADHISH INVESTMENT P. LTD. 2010 INDLAW DEL. 196 9 , IN WHICH VARIOUS EARLIER DECISIONS OF HIGH COURT AND T HAT OF THE SUPREME COURT HAS BEEN CONSIDERED, IT IS OBSERVED T HAT THE APPELLANT HAS DISCHARGED THE INITIAL BURDEN PLACED ON IT TO PROVE THE IDENTITY AND EXISTENCE OF THE SHARE APPLI CANTS, WHOSE CONFIRMATION AND PAN DETAILS AS ALSO COPY OF BANK ITA NO. 1928/D/2011 7 ACCOUNTS EVIDENCING THE SHARE APPLICATION MONEY TRA NSACTION, HAVE BEEN FILED ON RECORD. THE FACT THAT THE SHARE APPLICATION MONEY FROM THE APPLICANTS HAVE BEEN RECEIVED THROUG H BANKING CHANNEL AND THE FACT THAT THE SHARES HAVE B EEN ALLOTTED TO THESE COMPANIES ON 25.01.06 AS EVIDENCE D FROM THE RETURN OF ALLOTMENTS IN FORM NO. 2 FILED WITH T HE DEPARTMENT OF COMPANY AFFAIRS FURTHER GOES TO SUBST ANTIATE THE IDENTITY OF THE SHARE APPLICANTS AND GENUINENES S OF THE TRANSACTION IN CASE OF THE INVESTOR. SO FAR AS THE ISSUE OF CREDITWORTHINESS OF THE SHARE SUBSCRIBER COMPANY IS CONCERNED, THE HONBLE SUPREME COURT IN CASE OF LOV ELY EXPORT P. LTD. 216 CTR 195 HAS HELD THAT IF THE SHA RE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPA NY FROM ALLEGED BOGUS SHARE HOLDERS WHOSE NAMES ARE GIVEN T O THE AO ;THEN THE DEPARTMENT IS FREE TO PROCEED IN THEIR INDIVIDUAL ASSESSMENT, BUT IT CANNOT BE REGARDED AS UNDISCLOSE D INCOME OF THE ASSESSEE COMPANY. ON THIS ISSUE ANOTHER DEC ISION OF DELHI HIGH COURT IN CASE OF CIT VS. VALUE CAPITAL S ERVICES (307 ITR 334) IS ALSO QUITE RELEVANT WHEREIN THE CO URT HAS INTER ALIA OBSERVED THAT THERE IS ADDITIONAL BURDEN ON TH E REVENUE IN AS MUCH AS EVEN IF THE APPLICANT DOES NOT HAVE THE MEANS FOR THE INVESTMENT, IT MUST SHOW THAT THE INVESTMENT MA DE BY THE APPLICANT ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE SO AS TO ENABLE IT TO BE TREATED AS UNDISCLOSED INC OME OF THE ASSESSEE. 9.2 IT IS SEEN THAT THE CIT(A) FURTHER TOOK INTO TH E CONSIDERATION THE OBSERVATIONS OF THE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS. DIVINE LEASING & FINANCE LTD. (SUPRA) WHICH HAD BEEN QUOTE D WITH THE APPROVAL IN THE CASE OF DWARKADHISH INVESTMENT AND CONSIDERING THE PRINCIPLE LAID DOWN THEREIN TAKING NOTE OF THE FACT THAT THE ASSES SEE HAD FILED THE COPY OF PAN, AND CONFIRMATION LETTERS FROM THESE SHARE APPL ICANT COMPANIES FROM WHICH THE TRANSACTIONS HAVE BEEN EFFECTED AND OTHER DETAILS FILED WITH THE REGISTRAR OF COMPANIES REGARDING ALLOTMENT OF SHARE S TO THE INVESTORS IT CANNOT BE SAID THAT THE IDENTITY OF THE SUBSCRIBER IS NOT ESTABLISHED. IT IS SEEN THAT THE APPELLANT HAS ALSO PROVIDED COPY OF B ANK A/CS OF THE 2 SHARE APPLICANTS FROM WHICH THE SHARE APPLICATION MONEY H AS BEEN APPLIED FOR IN THE ASSESSEE COMPANY, WHICH PRIMA FACIE SUBSTANTIAT ES THE CASE OF THE ITA NO. 1928/D/2011 8 APPLICANT CONSIDERING THESE FACTS THE CIT(A) PROCEE DED TO DELETE THE ADDITION RELYING HEAVILY UPON THE JUDGMENT OF THE J URISDICTIONAL HIGH COURT IN THE CASE OF DWARKADHISH INVESTMENT LTD. RELIANCE W AS ALSO PLACED UPON CIT VS. ELECTRO POLYCHEM LTD., 329 ITR 271. 9.3 IN THE LIGHT OF THE ABOVE FACTUAL AND LEGAL FIN DINGS WHICH HAVE NOT BEEN ASSAILED WE HAVE TAKEN INTO CONSIDERATION THE COPIES OF THE RELEVANT DOCUMENTS WHICH HAVE BEEN ALLUDED TO BY THE CIT(A) AND HAVE SPECIFICALLY BEEN ADDRESSED BY THE LD. AR IN THE COURSE OF THE A RGUMENTS BEFORE US. THE JUDGMENTS RELIED UPON BY THE CIT(A) AND REFERRE D TO FOR OUR CONSIDERATION IN THE COURSE OF THE HEARING HAVE ALS O BEEN TAKEN INTO CONSIDERATION. ON A CAREFUL CONSIDERATION OF THE S AME, WE FIND OURSELVES IN AGREEMENT WITH THE FINDINGS ARRIVED AT WITH THE CIT (A). WE DO NOT FIND ANY MERIT IN THE ARGUMENTS OF THE LD. DR THAT THE ONUS CAST UPON THE ASSESSEE HAS NOT BEEN DISCHARGED. AFTER THE ASSESSEE FILED THE REQUISITE DETAILS OF THE SHARE APPLICANT COMPANIES AS FAR AS THE ONUS UP ON THE ASSESSEE IS CONCERNED IT STOOD DISCHARGED. THE ISSUE HAS BEEN SETTLED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF DWARKADHIS H INVESTMENT LTD. WHICH HAS HELD THAT IN ANY MATTER THE ONUS OF PROOF IS NO T A STATIC ONE. THOUGH INITIALLY IN PROCEEDINGS CONSIDERING THE ISSUE U/S 68 THE INITIAL BURDEN OF PROOF LIES UPON THE ASSESSEE YET ONCE HE PROVES THE IDENTITY OF THE CREDITORS/SHARE APPLICANTS BY EITHER FURNISHING THE IR PAN NUMBERS OR INCOME TAX ASSESSMENT NUMBER AND SHOWS THE GENUINEN ESS OF THE TRANSACTION BY SHOWING MONEY IN HIS BOOKS EITHER BY ACCOUNT PAYEE CHEQUE OR BY DRAFT OR BY ANY OTHER MODE THEN THE ON US OF PROOF WOULD SHIFT TO THE REVENUE. WE ALSO DO NOT FIND ANY MERIT IN T HE ARGUMENTS ON BEHALF OF THE DEPARTMENT TO RESTORE THE ISSUE BACK FOR REC ONSIDERATION AS NO GROUNDS FOR RESTORATION HAVE BEEN MADE OUT. THE AR GUMENT ON BEHALF OF THE DEPARTMENT THAT PRIOR TO THE ISSUANCE OF CHEQUE S THERE WERE CASH DEPOSITS IN THE CASE OF THE SHARE APPLICANTS HAS RE LEVANCE IN THE CASE ITA NO. 1928/D/2011 9 THOSE COMPANIES. THE ARGUMENT IN THIS CONTEXT ADVA NCED BY THE LD. AR HAS RELEVANCE AND IS SUPPORTED BY THE JUDGMENT OF T HE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. DATAWARE P. LTD. IN ITS ORDE R DATED 21.09.2011 IN G.A. NO. 2856/2011, COPY OF WHICH IS AT PAGES 155 T O 159 IN ASSESSEES PAPER BOOK, AS IT IS A SITUATION WHERE THOSE CONCER NS SHOULD BE CALLED UPON TO EXPLAIN AND IT IS NOT FOR THE AO IN THE PRESENT PROCEEDINGS TO CALL THE ASSESSEE TO EXPLAIN. THEIR LORDSHIPS OF THE CALCUT TA HIGH COURT HAVE HELD AS UNDER IN THE ABOVE MENTIONED CASE : - IN OUR OPINION, IN SUCH CIRCUMSTANCES, THE AO OF THE ASSESSEE CANNOT TAKE THE BURDEN OF ASSESSING THE PR OFIT AND LOSS ACCOUNT OF THE CREDITOR WHEN ADMITTEDLY THE CR EDITOR HIMSELF IS AN INCOME TAX ASSESSEE. AFTER GETTING THE PAN N UMBER AND GETTING THE INFORMATION THAT THE CREDITOR IS ASSESS ED UNDER THE ACT, THE AO SHOULD ENQUIRE FROM THE AO OF THE CREDI TOR AS TO THE GENUINENESS OF THE TRANSACTION AND WHETHER SUCH TRA NSACTION HAS BEEN ACCEPTED BY THE AO OF THE CREDITOR BUT INS TEAD OF ADOPTING SUCH COURSE, THE AO HIMSELF COULD NOT ENTE R INTO THE RETURN OF THE CREDITOR AND BRAND THE SAME AS UNWORT HY OF CREDENCE. 10. ACCORDINGLY, BEING SATISFIED WITH THE REASONING AND FINDING ARRIVED AT BY THE CIT(A), WE ARE OF THE CONSIDERED VIEW THAT T HE DEPARTMENTS GROUND DISCOVERS TO BE DISMISSED. ORDERED ACCORDINGLY. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.01.2012 SD/- SD/- (B.C. MEENA) (DIV A SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24.1.12 *KAVITA ITA NO. 1928/D/2011 10 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR