M/S BARBARIK PROJECTS LIMITED, SURAJPUR (CG) V. JCIT, KORBA RANGE, KORBA(CG)

ITA 207/BIL/2014

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5485 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P V MISHRA
• Assessee Lawyers: S R RAO
• Keywords: Unexplained cash credit; Share purchase agreement; Deemed to accrue or arise in india; Question of law; TDS; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI PARTHA SARATHI CHAUDHURY , JUDICIAL M EMBER AND DR. MI THA LAL MEENA, A CCOUNTANT M EMBER . / ITA NO. 207 /RPR/20 14 / ASSESSMENT YEAR : 2009 - 10 BARBARIK PROJECTS LIMITED, NEHRU PARK, KETKA ROAD, P.O. SURAJPUR, DIST. SURAJPUR (C.G.) PAN : AADCB4662P ....... / APPELLANT / V/S. THE JOINT COMMISSIONER OF INCOME TAX, RANGE, INCOME TAX OFFICE, MANANADI COMPLEX, NIHARIKA P.O. KORBA (C.G.) / RESPONDENT A SSESSEE BY : SHRI S.R. RAO REVENUE BY : SHRI P.V. MISHRA / DATE OF HEARING : 14 .05 .2019 / DATE OF PRONOUNCEMENT : 15 .05 .2019 2 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS), BILASPUR (C.G.) DATED 31.03.2014 FOR THE ASSESSMENT YEAR 2009 - 10 AS PER THE FOLLOWING GROUNDS OF APPEAL ON RECORD: 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS ARBITRARY, BAD IN LAW AND FACTS. PRAYED TO DELETE TH E DISALLOWANCES. 2.1 THAT THE LEARNED CIT (APPEALS) ERRED IN MAINTAINING THE ADDITION OF RS.1,55,35,633/ - OBSERVING THAT EXPENSES MADE TO SUB - CONTRACTORS, NUMBERING INTO TEN, WERE NOT GENUINE, WHICH WAS ADDED BY THE LEARNED ASSESSING OFFICER U/S 68 OUT OF OUTSTANDING LIABILITY. PRAYED THAT THE EXPENSES WERE GENUINE AND INCURRED FOR THE PURPOSE OF BUSINESS. THE DISALLOWANCE BE DELETED. 2.2 THAT THE LEARNED CIT (APPEALS) FURTHER ERRED IN NOT APPRECIATING VARIOUS EVIDENCES CONCERNING SUB - CONTRACTORS SUCH AS DETAILS OF WORK DONE BY THEM, MEASUREMENT DETAILS, THEIR CONFIRMATION, PAN, 1TR, BANK ACCOUNT, TDS MADE ETC. PRAYED THAT PAYMENT TO SUB - CONTRACTORS HAVE BEEN MADE WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE APPELLANT AND DISALLOWANCE OF EXPE NSES IS ARBITRARY, UNDER PRESUMPTION & SURMISES AND BE DELETED. 2.3 THAT THE LEARNED CIT (APPEALS) FUR THER ERRED IN DISALLOWING RS.1, 55,35.633/ - U/ S 37 IGNORING THE FACT THAT IN SOME ACCOUNT ONLY OPENING BALANCE WAS BROUGHT DOWN AND THERE WAS NO TRANSACTION DURING THE YEAR, WHICH WAS ADDED BY THE LEARNED ASSESSING OFFICER U/S 68. F URTHER SUBMITTED THAT THE APPELLANT DISCHARGED THE BURDEN OF PROVING THE IDENTIFICATION OF VARIOUS SUB - CONTRACTORS, SOURCE OF CREDIT IN THEIR ACCOUNT AND GENUINENESS OF THE TRANSACTIONS. THEREFORE, THE DISALLOWANCE / ADDITION OF RS.1,55,35,633/ - BE DELETED. 2.4 THAT THE LEARNED CIT (APPEALS) FURTHER ERRED IN IGNORING VARIOUS EVIDENCES FILED AS WELL AS STATEMENTS OF CONCERNED PARTIES RECORDED BY 3 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 THE LEARNED DY. COMM ISSIONER AND FURTHER ERRED IN RELYING ON THE INSPECTORS ENQUIRY, ARBITRARILY. PRAYED TO DELETE THE DISALLOWANCE. 2.5 THAT THE LEARNED CIT (APPEALS) FURTHER ERRED IN MAKING DISALLOWANCE OF RS.1,55,35,633/ - BY MISINTERPRETING REPLIES MADE IN THE STATEME NT BY SHRI VIJAY SHARMA. PRAYED TO DELETE THE ADDITION. 3. THAT THE LEARNED CIT (APPEALS) FURTHER ERRED IN MAINTAINING THE AD - HOC DISALLOWANCES MADE BY THE LEARNED ASSESSING OFFICER UNDER FOLLOWING HEADS REJECTING THE EXPLANATION. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT GROUND NO.1 IS GENERAL IN NATURE AND HE IS NOT PRESSING THE GROUND NO.3. IN VIEW OF THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE, GROUND NO.1 REQUIRES NO ADJUDICATION AND GROUND NO.3 IS DIS MISSED BEING NOT PRESSED . THUS, THE ONLY EFFECTIVE GROUNDS BEFORE US IS FROM GROUND NO.2.1 TO 2.5 RELATING TO ADDITION MADE U/S.68 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSIN G OFFICER ISSUED NOTICE U/S.133(6) OF THE ACT TO 52 CREDITORS HAVING CREDIT AMOUNT ABOVE RS.10,00,000/ - . IN 10 OUT OF THE 52 CASES, NOTICES WERE RETURNED UN - SERVED WITH THE REMARK THAT NO SUCH PERSONS EXIST ON GIVEN ADDRESSES. THE CREDITORS WITH THEIR BALA NCE OUTSTANDING ARE LISTED IN THE ORDER OF ASSESSMENT AS PER DETAILS GIVEN BELOW: 4 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 THE ASSESSEE COMPANY WAS CONFRONTED WITH THESE FACTS AND IT WAS REQUIRED TO SUBSTANTIATE THESE CREDITS BY PRODUCING THESE PERSONS.. THE ASSESSEE COMPANY PREFERRED TO RELY ON CONFIRMATION AND PAPER SUBMISSION ONLY. IT WAS INSISTED EVEN IN WRITING THA T THESE PERSONS ARE VERY SMALL WORKING PERSONS AND USUALLY REMAIN IN SITES AND ARE NOT EASILY TRACEABLE. THE ASSESSING OFFICER FURTHER OBSERVED THAT MERE FILING OF CONFIRMATORY LETTERS DO NOT DISCHARGE THE ONUS THAT LIES WITH THE ASSESSEE COMPANY AND MEREL Y FURNISHING OF PARTICULARS IS NOT ENOUGH. THE ASSESSING OFFICER IS NOT SATISFIED WITH THE ASSESSEES EXPLANATION AND ASSESSED THE CREDIT OUTSTANDING OF THESE 10 PERSONS TOTALING TO RS.1,67,04,633/ - AS DEEMED INCOME OF THE ASSESSEE U/S.68 OF THE ACT. S. NO. NAME AMOUNT 1 SHRI MITTHU LAL SINGH RS.14,65,707/ - 2 SHRI DWARKA PRASAD SINGH RS.18,57,518/ - 3 SHRI RAJENDRA PRASAD AGRAWAL RS.15,42,390/ - 4 SHRI RAGHUBARAN PRASAD YADAV RS.15,07,322/ - 5 SHRI PUSHKAR SINGH RS.14,70,690/ - 6 SMT. ANITA SAKRE RS.10,78,178/ - 7 SHRI SAILENDRA KUMAR SINGH RS.19,62,489/ - 8 SHRI UJIT SINGH RS.14,51,672/ - 9 SHRI SUKHLAL SINGH RS.19,21,444/ - 10 SMT. GOPESHWARI SAHU RS.12,78,223/ - 5 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 4. THE ASSESSEE FILED DETAILED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(APPEALS) WHEREIN THE ASSESSEE HAS STATED THAT MERELY BECAUSE NOTICES U/S.133(6) OF THE ACT WERE RETURNED UN - SERVED DOES NOT MEAN THAT THE PERSONS WERE NOT GENUINE. THERE WERE IN TOTAL 52 CREDITORS AND IT IS ONLY WITH RESPECT TO 10 CREDITORS THAT THE NOTICE U/S.133(6) IS RETURNED UN - SERVED AND IT IS IN NO WAY BE CONCLUDED THAT THE TRANSACTIONS WERE NOT GENUINE. THE NOTICE U/S.133(6) WERE RETURNED NOT BECAUSE OF WRONG POSTAL ADDRESS BUT BEC AUSE THEY REMAINED MOSTLY OUT OF STATION FOR PERFORMING THEIR WORKS. THE ASSESSEE HAD FILED CONFIRMATION LETTERS, POSTAL ADDRESS, INCOME TAX RETURNS ETC. AND HIGHLIGHTED ALL THE FACTS REGARDING THE GENUINENESS OF CREDITS. IT WAS ALSO REQUESTED THAT IF NECESSARY INSPECTOR OF THE DEPARTMENT CAN BE DEPUTED TO VERIFY THEIR WORKS AND EXISTENCE OF THESE CREDITORS. THIS SUBMISSION OF THE LD. AR WAS FORWARDED TO THE CONCERNED ASSESSING OFFICER FOR HIS VERIFICATION AND COMMENTS AND THE SAID ASSESSING OFFICER SUB MITTED IN HIS REPORT DATED 28.02.2013 . IN THAT SAID REPORT IT IS STATED THAT AT THE OUTSET ON CAREFUL STUDY OF THE ASSESSMENT ORDER, IT IS EVIDENT THAT THE IMPUGNED ADDITION OF RS.1,67,04,633/ - HAS BEEN MADE U/S.68 OF THE ACT MERELY ON THE BASIS OF UN - SER VED NOTICES ISSUED U/S.133(6) OF THE ACT, IN SPITE OF THE FACT THAT PAPER DOCUMENTS PROVING THE EXISTENCE OF THE CREDITORS WERE ALREADY FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER REJECTED THE SAID PAPER EVIDENCES DUE TO RETURN OF NOTICES AND RELYING ON DIFFERENT CASE LAWS MADE THE AFORESAID ADDITION. THE 6 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 ASSESSING OFFICER SUBMITTED IN THIS REPORT THAT HE HAS VISITED THE DISTRICT SURAJPUR WHICH WAS FORMERLY UNDER DISTRICT SURGUJA AND EXAMINED THE SAID 10 SUB - CONTRACTORS PERSONALLY EXCEPT ONE S MT. GOPESHWARI SAHU. 5. BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED THAT FROM REMAND REPORT OF THE ASSESSING OFFICER, IT IS ABSOLUTELY CLEAR THAT EVEN THE ASSESSING OFFICER HAS PERSONALLY INQUIRED THOSE 10 SUB - CONTRACTORS EXCEPT ONE. MEANING THEREBY O UT OF TOTAL 52 CREDITORS, THE ASSESSING OFFICER HAD DOUBTED WITH REGARD TO 10 CASES AND OUT OF THOSE 10, THE ASSESSING OFFICER HIMSELF IN HIS REMAND REPORT MENTIONED THAT HE HAS PERSONALLY VERIFIED THE EXISTENCE OF 9 OF SUCH CREDITORS. IT IS ALSO NOT DISPU TED THAT RELEVANT DOCUMENTARY EVIDENCES REGARDING NAMES, POSTAL ADDRESS, PAN WERE ALREADY FILED BEFORE THE ASSESSING OFFICER IN RESPECT OF THOSE CREDITORS. EVEN ON FACTS, OUT OF 52 CREDITORS, 51 CREDITORS STAND FACTUALLY AND PERSONALLY VERIFIED BY THE DEPA RTMENT. THEREFORE, IT CANNOT BE SAID THAT IT IS THE CASE OF NON - GENUINE CREDITORS AND HENCE, THE SAME DOES NOT CALL FOR ANY ADDITION U/S.68 OF THE ACT. 5.1 THAT HOWEVER, THE LD.CIT(APPEALS) AS PER DETAILED REASONS AND OBSERVATIONS CARRIED IN HIS ORDER WH ICH IS ON RECORD, UPHELD THE FINDINGS OF THE ASSESSING OFFICER. 7 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 6. PER CONTRA, THE LD. DR HAS PLACED RELIANCE ON THE ORDERS OF THE SUB - ORDINATE AUTHORITIES AND SUBMITTED THAT SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSESSEE FOR PRODUCING THE 10 CREDITORS . IT IS NOT ONLY NOTICE U/S.133(6) OF THE ACT BUT EVEN SUMMONS U/S.131 OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER. THEREAFTER, THE LD. CIT(APPEALS) FROM HIS OFFICE ALSO HAVE ISSUED SUMMONS BUT THERE WAS NO PERSONAL APPEARANCE OF THOSE 10 CREDITORS BEFO RE THE REVENUE AUTHORITY. THEREFORE, THE LD. DR SUBMITTED THAT THE ADDITION MAY BE SUSTAINED. 7. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. WE HAVE ALSO GIVEN THOUGHTFUL CONSIDERATION TO THE FINDINGS OF THE REVENUE AUTHORITIES. THE FACTS CLEARLY DEMONSTRATE THAT 52 CREDITORS HAVING CREDIT AMOUNT IS ABOVE RS.10,00,000/ - . IN 10 OUT OF THOSE 52 CASES, NOTICE U/ S .133(6) WERE RETURNED UN - SERVED. THIS ULTIMATELY FORMED THE BASIS FOR THE REVENUE DEPARTMENT TO MAKE ADDITION IN THE HANDS OF ASSESSEE U/S.68 OF THE ACT. THE FACTS ALSO DEMONSTRATE THAT NECESSARY DOCUMENTARY EVIDENCES SUCH AS NAMES, POSTAL ADDRESSES, PAN OF ALL THE CREDITORS, INCOME TAX RETURN, TDS CERTIFICATE, BANK ACCOUNT DETAILS WERE ALREADY FURNISHED BEFORE THE ASSESSING OFFICER. FURTHER, THE ASSESSING OFFICER ASKED FOR PERSONAL APPEARANCE OF THOSE 10 CREDITORS FROM WHOM THE NOTICES WERE REMAINED UNSERVED. IN THE REMAND REPORT, IT IS CLEARLY STATED THAT THE ASSESSING OFFICER PERSONALLY VISITED THE SURAJPUR WHICH WAS FORMER LY UNDER THE DISTRICT OF SURGUJA AND PERSONALLY EXAMINED 9 OUT OF THOSE 10 CREDITORS. 8 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 THEREFORE, IT CAN SAFELY BE SAID THAT OUT OF 52 CREDITORS, 51 CREDITORS HAS BEEN PERSONALLY ESTABLISHED AND THEREFORE, THE EXISTENCE OF ALL THE 52 CREDITORS CANNOT BE DOU BTED AT ALL. FURTHERMORE, WE OBSERVE THAT EVEN THE DOCUMENTARY EVIDENCES ALONG WITH PAN HAVE BEEN SUBMITTED BEFORE THE DEPARTMENT. EVEN THE INCOME TAX RETURN, BANK STATEMENT AND TDS CERTIFICATE ARE ALSO FILED BEFORE THE DEPAR TMENT. THIS FACT HAS NOT BEEN DISPUTED BY THE LD. DR IN FRONT OF US. MERE NOTICES U/S.133(6) OF THE ACT BEING RETURNED UNSERVED CANNOT MAKE THE GENUINE TRANSACTION INTO NON GENUINE ONE WHERE O THER FACTS DEMONSTRATES THAT THESE TRANSACTIONS WERE GENUINELY DONE AND BY GENUINE PERSONS. 8 . WE TAKE GUIDANCE FROM THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. ORISSA CORPORATION (P). LTD . (1986) 159 ITR 0078 (SC) WHEREIN IT HAS BEEN HELD THAT THE ASSESSEE HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME TAX ASSESSEES. THEIR INDEX NUMBER WAS IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES U/S.131 AT THE INSTANCE OF THE ASSESSEE, DID NOT PURSUE THE MAT TER FURTHER. THERE WAS NO EFFORT MADE TO PURSUE THE SO CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE ASSESSEE COULD NOT DO ANY FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE HAS DISCHARGED THE BURDEN THAT LAY ON 9 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 HIM THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. REVERTING TO THE FACTS OF THE PRESENT CASE, WHEN ALL THE DOCUMENTARY EVIDENCES REGARDING THE CREDITORS HAVE BEEN FURNISHED BEFORE THE DEPARTMENT A LONG WITH THEIR INCOME TAX RETURN, TDS CERTIFICATE, BANK ACCOUNT STATEMENT, THEN THEIR GENUINENESS CANNOT BE DOUBTED TO MAKE ADDITION U/S.68 OF THE ACT ON THE GROUND OF DEEMED INCOME STATING THAT THE CREDITORS ARE NOT GENUINE. 9 . THE CO - ORDINATE BENCH OF THE TRIBUNAL , DELHI IN THE CASE OF M/S. KESHA APPLIANCE PVT. LTD. VS. ITO IN ITA NO.2715/DEL/2016 DATED 09.03.2018 WHEREIN THE DEMAND WAS RAISED AND AMOUNT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT DUE TO THE FACT THAT CERTAIN PARTIES DID NOT RESPOND TO THE NOTICE ISSUED U/S.133(6) OF THE ACT. THE CO - ORDINATE BENCH OF THE TRIBUNAL FURTHER OBSERVED THAT HOWEVER, ALL OTHER NECESSARY EVIDENCES WERE PROVIDE D BY THE ASSESSEE ESTABLISHING THE GENUINENESS OF THE T RANSACTION. THOUGH CERTAIN PARTIES WERE NOT RESPONDED TO THE NOTICE U/S.133(6) OF THE ACT BUT OTHER EVIDENCES IN SUPPORT OF THE ASSESSEE ESTABLISHING THE GENUINENESS OF THE TRANSACTION CANNOT BE DISREGARDED. IN THE PRESENT CASE ALSO, THE ASSESSEE IS NOT ONLY PROVIDED ALL THE RELEVANT DOCUMENTARY EVIDENCES BUT EVEN THE ASSESSING OFFICER IN THE 10 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 REMAND REPORT MENTIONED THAT HE PERSONALLY INSPECTED 9 OUT OF THOSE 10 DISPUTED CREDITORS, MEANING THEREBY EXISTENCE OF THESE CREDITORS ARE ESTABLISHED. 1 0 . IN THE CASE OF CIT V. ORCHID INDUSTRIES PVT. LTD. (ITA NO .1433 OF 2014) (BOM.) , HON'BLE BOMBAY HIGH COURT HELD AS UNDER: 'THE REVENUE HAS FILED THE APPEAL ON FOLLOWING QUESTIONS: '6.3 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, ORDERS OF THE TRIBUNAL WAS PERVERSE IN DELETING THE ADDITION OF RS.95,00,000/ - MADE U/S. 68 OF THE ACT, RELYING ONLY ON THE DOCUMENTARY EVIDENCE PRODUCED BY THE RESPONDENT COMPANY WHILE IGNORING THE KEY FACTOR THAT THESE ENTITIES WERE NOT TRACEABLE AT THEIR GIVEN ADDRESSES. 6.4 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL ERRED IN NOT APPRECIATING THE OBSERVATIONS MADE BY THE DELHI HIGH COURT IN NOVA PROMOTERS AND FINLEASE PVT. LTD. 18 TAXMAN.COM 217 WHEREIN THE COURT HAS OBSERVED THAT CASES OF THIS TYPE CANNOT BE DECIDED ONLY ON THE BASIS OF DOCUMENTARY EVIDENCES ABOVE AND THERE IS NEED TO TAKE INTO ACCOUNT THE SURROUNDING CIRCUMSTANCES. 6.5 THE TRIB UNAL OUGHT TO HAVE TAKEN NOTE OF THE FACT THAT THE ASSESSEE WAS NOT ABLE TO PRODUCE EVEN A SINGLE PARTY BEFORE THE AO DESPITE AGREEING BEFORE THE CIT(A) THAT IT WILL PRODUCE ALL PARTIES BEFORE THE AO DURING REMAND PROCEEDINGS.' 2. MR. PINTO, THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER UPON CONSIDERING ALL THE FACTS HAD ADDED RS. 95 LAKHS AS INCOME UNDER SECTION 68 OF THE INCOME TAX ACT. IT NEEDS TO BE CONSIDERED THAT THE ASSESS EE HAD NOT DISCHARGED ITS ONUS TO ESTABLISH THAT THE AMOUNT WAS RECEIVED BY THE ASSESSEE FROM THE SHARE HOLDERS AS SHARE APPLICATION MONEY. THE ASSESSEE COULD NOT PROVE THE IDENTITY OF THE CREDITORS, THEIR CREDIT WORTHINESS AND THE GENUINENESS OF THE TRANS ACTIONS. THE PARTY FROM WHOM THE ASSESSEE HAD RECEIVED THE SHARE AMOUNT NEVER RESPONDED TO THE SUMMONS ISSUED BY THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS CONSIDERED THE SAID ASPECT AND THEREAFTER HAS ADDED THE AMOUNT UNDER SECTION 68 OF THE INCOME TAX ACT. ACCORDING TO THE LEARNED COUNSEL, THE TRIBUNAL ONLY ON THE BASIS THAT DOCUMENTS ARE AVAILABLE HAS ACCEPTED THE CASE OF THE ASSESSEE. THE TRIBUNAL HAS FAILED TO CONSIDER THE CIRCUMSTANCES AND THE FACTS WHICH ARE RELEVANT. 11 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUPPORTS THE ORDER AND SUBMITS THAT THE ASSESSEE HAD DISCHARGED ITS ONUS. THE ASSESSEE HAD PRODUCED THE PAN OF ALL THE CREDITORS ALONG WITH THE CONFIRMATION, BANK STATEMENT SHOWING PAYMENT OF SHARE APPLICATION MONEY AND RELEVANT RECORD IS PRODUCED WITH REGARD TO THE ALLOTMENT OF SHARES TO THOSE PARTIES. THE SHARE APPLICATION FORM, ALLOTMENT LETTER, SHARE CERTIFICATE ARE ALSO PRODUCED. EVEN THE BALANCE - SHEET, PROFIT AND LOSS ACCOUNT, THE BOOK S OF ACCOUNT OF THESE CREDITORS WERE PRODUCED ON RECORD SHOWING THAT THEY HAD SUFFICIENT FUNDS FOR INVESTING IN THE SHARES OF THE ASSESSEE. THE LEARNED COUNSEL RELIES ON THE JUDGMENT OF THE DIVISION BENCH OF THIS COURT IN CASE OF CIT V. GAGANDEEP INFRASTRUCTURE (P .) LTD. [2017] 80 TAXMANN.COM 272/247 TAXMAN 245/394 ITR 680 (BOM.) AND THE ORDER OF THE APEX COURT IN CASE OF CIT V. LOVELY EXPORTS (P .) LTD. [2008] 216 CTR 195. 4. WE HAVE CONSIDERED THE SUBMISSIONS. 5. THE ASSESSING OFFICER ADDED RS. 95 LAKHS AS INCOME UNDER SECTION 68 OF THE INCOME TAX ACT ONLY ON THE GROUND THAT THE PARTIES TO WHOM THE SHARE CERTIFICATES WERE ISSUED AND WHO HAD PAID THE SHARE MONEY HAD NOT APPEARED BEFORE THE ASSESSING OFFICER AND THE SUMMONS COULD NOT BE SERVED ON THE ADDRESSES GIVEN AS THEY WERE NOT TRACED AND IN RESPECT OF SOME OF THE PARTIES WHO HAD APPEARED, IT WAS OBSERVED THAT JUST BEFORE ISSUANCE OF CHEQUES, THE AMOUNT WAS DEPOSITED IN THEIR ACCOUNT. 6. THE TRIBUNAL HAS CONSIDERED THAT THE ASSESSEE HAS PRODUCED ON RECORD THE DOCUMENTS TO ESTABLISH THE GENUINENESS OF THE PARTY SUCH AS PAN OF ALL THE CREDITORS ALONG WITH THE CONFIRMATION, THEIR BANK STATEMENTS SHOWING PAYMENT OF SHARE APPLICATION MONEY. IT WAS ALSO OBSERVED BY THE TRIBUNAL THAT THE ASSESSEE HAS ALSO PRODUCED THE ENTIRE RECORD REGARDING ISSUANCE OF SHARES I.E. ALLOTMENT OF SHARES TO THESE PARTIES , THEIR SHARE APPLICATION FORMS, ALLOTMENT LETTERS AND SHARE CERTIFICATES, SO ALSO THE BOOKS OF ACCOUNT. THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT OF THESE PERSONS DISCLOSES THAT THESE PERSONS HAD SUFFICIENT FUNDS IN THEIR ACCOUNTS FOR INVESTING IN THE SHARES OF THE ASSESSEE. IN VIEW OF THESE VOLUMINOUS DOCUMENTARY EVIDENCE, ONLY BECAUSE THOSE PERSONS HAD NOT APPEARED BEFORE THE ASSESSING OFFICER WOULD NOT NEGATE THE CASE OF THE ASSESSEE. THE JUDGMENT IN CASE OF GAGANDEEP INFRASTRUCTURE (P.) LTD. (SUPRA ) WOULD BE APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 7. CONSIDERING THE ABOVE, NO SUBSTANTIAL QUESTION OF LAW ARISES. THE APPEAL STANDS DISMISSED. HOWEVER, THERE IS NO ORDER AS TO COSTS.' 12 ITA NO. 207 / RPR /20 14 A.Y. 2009 - 10 RESPECTFULLY, FOLLOWING THE RULING OF THE HONBLE SUPREME COURT OF INDIA AS WELL AS THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT AS REFERRED HEREINABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEALS) AND GROUND NOS. 2.1 TO 2.5 RAISED BY THE ASSESSEE IN APPEAL ARE ALLOWED . 11 . IN THE RESUL T, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRO NOUNCED ON 15 TH DAY OF MAY , 201 9 . SD/ - SD/ - MITHA LAL MEENA PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / RAIPUR ; / DATED : 15 TH MAY, 2019. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), BILASPUR (C.G.) 4. THE CIT, BILASPUR. (C.G.) 5. , , , / DR, ITAT, RAIPUR BENCH, RAIPUR. 6. / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, RAIPUR.