Prime Comfort Products P. Ltd., New Delhi V. ACIT, Circle-20(1), New Delhi

ITA 267/DEL/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8326 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 15-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: SUMIT GOE L; S RAJ KUMAR
• Keywords: Income from undisclosed sources; Source of fund; Valuation report; Onus to prove; Bogus
• Section: 131; 133(6); 13; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.267/DEL/2019 ASSESSMENT YEAR: 2015-16 PRIME COMFORT PRODUCTS P. LTD., L-7A (LGF), SOUTH EXTENSION, PART-II, NEW DELHI. VS. ACIT, CIRCLE-20(1), NEW DELHI. TAN/PAN: AAFCP 2306Q (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI RAJ KUMAR & SUMIT GOEL, CA RESPONDENT BY: SHRI SURENDER PAL, SR.D.R. DATE OF HEARING: 11 07 2019 DATE OF PRONOUNCEMENT: 04 10 2019 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 20.11.2018, PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-VII, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEAR 2015-16. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS: 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE LD. A.O. EXCEEDED HIS JURISDICTION IN EXAMINING THE RECEIPT OF SHARE CAPITAL/PREMIUM FOR RS.3,18,00.000 W.R.T. SEC.68 OF THE ACT ALTHOUG H IT WAS A LIMITED SCRUTINY CASE FOR EXAMINING ONLY THE ISSUE OF SHARE S ONLY W.R.T. SEC.56 (2) (VIIB), WITHOUT SEEKING MANDATORY PERMIS SION FROM PCIT I.T.A. NO.267/DEL/2019 2 FOR EXTENDING THE SCOPE OF EXAMINATION FOR INCLUDIN G THE EXAMINATION U/S.68 OF THE I.T. ACT AND WITHOUT COMP LYING WITH THE MANDATORY PROCEDURE AS LAID DOWN FOR EXTENDING THE SCOPE OF LIMITED SCRUTINY CASES. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES, BOTH THE LOWER AUTHORITIES GROSSLY ERRED IN LAW AND ON MERITS IN M AKING AND SUSTAINING ADDITION OF RS.3,18,00,000/- U/S.68 OF T HE I.T. ACT FOR SHARE CAPITAL/PREMIUM RECEIVED FROM AVISHKAR MARKET ING (P) LTD., BY NOT ACCEPTING THE SOURCE IN THE HANDS OF AVISHKA R MARKETING COMPANY BEING LOANS TAKEN BY AVISHKAR MARKETING COM PANY FROM FOLLOWING PARTIES:- RS.2,68,00,000/- RAJU INVESTMENT (P) LTD. RS. 50,00,000/- M/S SUPERB DEVELOPERS (P) LTD. RS.3,18,00,000/- TOTAL 2.1 THAT WITHOUT PREJUDICE, THE ASSESSEE FULLY DISCHARGED HIS ONUS TO PROVE THE INGREDIENTS OF SEC.68 FOR RS.3,18 ,00.000 AND THE LD. A.O. EXCEEDED HIS JURISDICTION AND SCOPE OF EXA MINATION BY EXTENDING HIS INQUIRIES FOR SOURCE OF THE SOURCE OF THE SOURCE, WHICH IS NOT PERMISSIBLE U/S.68 OF THE I.T. ACT. 2.2 THAT WITHOUT PREJUDICE, UNDER THE FACTS AND CIRCUMSTANCES AND IN VIEW OF THE DOCUMENTS INFORMAT IONS AND EXPLANATION FURNISHED, EVEN THE SOURCE OF THE SOURC E STANDS FULLY PROVED. 2. THE FACTS IN BRIEF ARE THAT ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING VARIOUS KINDS OF P U FOAM. THE RETURN OF INCOME WAS FILED ON 24.09.2015 DECLAR ING INCOME OF RS.4,30,61,880/-. THE ASSESSEES CASE WAS SELECTED FOR LIMITED SCRUTINY UNDER CASS FOR THE REASONS LA RGE SHARE PREMIUM RECEIVED. DURING THE COURSE OF ASSESSMENT I.T.A. NO.267/DEL/2019 3 PROCEEDINGS AND ON PERUSAL OF THE BALANCE SHEET, TH E ASSESSING OFFICER NOTED THAT ASSESSEE HAS RECEIVED SHARE CAPITAL AMOUNTING TO RS.3,68,00,250/- FROM M/S. AVI SKAR MARKETING PVT. LTD. M/S. PRIME HOLDING IS THE HOLDI NG COMPANY OF M/S. AVISKAR MARKETING PVT. LTD. AND THE DIRECTORS OF BOTH THE COMPANIES WERE COMMON. IN ORD ER TO VERIFY THE IDENTITY, GENUINENESS AND CREDITWORTHINE SS OF M/S. AVISKAR MARKETING PVT. LTD., NOTICE U/S. 133(6) WAS ISSUED BY THE ASSESSING OFFICER ASKING VARIOUS DETAILS. AS PE R THE ASSESSING OFFICER, NO COMMUNICATION WAS RECEIVED FR OM THE SAID PARTY. HOWEVER, ON 14.11.2017 ASSESSEE HAD STA TED AS UNDER: DURING THE YEAR, THE EQUITY SHARES OF FACE VALUE O F RS.10/- PER SHARE HAS BEEN ISSUED AT RS.150/- PER SHARE I.E. AT PREMIUM OF RS.140/- PER SHARE. THE ISSUE PRICE WAS DETERMINED AS PER DCF (DISCOUNTED FREE CASH FLOW) METHOD, AS PER ACCOUNTA NTS REPORT DATED 25.03.2015 ATTACHED. AS PER ACCOUNTANTS REPO RT, THE VALUE PER EQUITY SHARES STANDS CALCULATED AT RS.150.05 PE R SHARE. 3. FROM THE CONFIRMATION, THE LD. ASSESSING OFFICER HAS OBSERVED THAT M/S. AVISKAR MARKETING PVT. LTD HAS N O REVENUE FROM OPERATIONS OR ANY OTHER INCOME DURING THE YEAR . IT HAS RECEIVED UNSECURED LOAN FROM VARIOUS PARTIES WHICH WERE THEN TRANSFERRED TO THE ASSESSEE-COMPANY TOWARDS SHARE C APITAL AND SHARE PREMIUM. HE HAS ALSO INCORPORATED THE BAL ANCE SHEET AND P&L ACCOUNT OF M/S. AVISKAR MARKETING PVT . LTD. FOR THE FINANCIAL YEAR 2014-15 WHICH REVEAL THAT IT HAD SHARE CAPITAL OF RS.20 LACS AND RESERVES AND SURPLUS OF R S.3.76 I.T.A. NO.267/DEL/2019 4 CRORES AND LONG TERM BORROWINGS OF RS.4,15,50,000/- . THE REVENUE FROM OPERATION WAS NIL. ENTIRE BALANCE-SH EET AND P&L ACCOUNT OF THIS COMPANY HAS BEEN INCORPORATED I N ASSESSMENT ORDER FROM PAGES 3 TO 5. LD. ASSESSING O FFICER FURTHER OBSERVED THAT THE SAID COMPANY HAS TAKEN UN SECURED LOAN FROM M/S. RAJU INVESTMENTS PVT. LTD. WHICH HAD A CLOSING BALANCE OF RS.1.88 CRORE; AND FROM SUPERB D EVELOPERS PVT. LTD. WITH CLOSING BALANCE OF RS.77,50,000/-. T HESE UNSECURED LOANS WERE TAKEN IMMEDIATELY BEFORE SUBSC RIBING OF SHARES ALONG WITH SHARE PREMIUM FROM THE ASSESSE E COMPANY. HE ALSO VERIFIED FROM MCA WEBSITE ABOUT TH ESE LENDER COMPANIES AND ISSUED NOTICES U/S. 133(6) TO THESE COMPANIES FOR FURTHER CLARIFICATION. IN RESPONSE, T HEY HAD FILED THEIR CONFIRMATIONS, BANK STATEMENT (FILED SUBSEQUE NTLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS), AUDIT ED FINANCIAL ACCOUNTS AND THEIR INCOME TAX RETURNS. LA TER, ON 08.12.2017, A REPLY WAS RECEIVED TO THE ASSESSING O FFICER FROM M/S. AVISKAR MARKETING PVT. LTD. ON E-MAIL, THEREIN THEY HAD STATED AS UNDER: IN THIS REGARD, IT APPEARS THAT THESE 05 NAMES AND THE AMOUNT HAVE BEEN TAKEN FROM THE AUDITED BALANCE SHEET OF A VISKAR AS ON 31.03.2015. IN FACT, THE SOURCE OF RS.6,68,00,000/- GIVEN TO PRIME IN THIS YEAR IS ONLY FROM FOLLOWING 03 COMPANIES NA MELY. RAJU INVESTMENTS (P) LTD. 2,68,00,000/- SUPERB DEVELOPERS (P) LTD. 50,00,000/- MAHESH WOOD PRODUCTS P LTD. 50,00,000/- TOTAL 3,68,00,000/- I.T.A. NO.267/DEL/2019 5 4. AO FURTHER OBSERVED THAT THESE PARTIES HAD NOT SUBMITTED ANY BANK STATEMENT, LEDGER ACCOUNT ETC., THEREFORE, IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE A BOVE PARTIES REMAIN QUESTIONABLE AND NO ONE WAS PRODUCED BY THE ASSESSEE. THE ASSESSEES DETAILED SUBMISSION WHEREI N VARIOUS DOCUMENTS WERE FILED TO DISCHARGE THE ONUS U/S.68 A ND THE SOURCE OF THE FUNDS HAVE BEEN DISCUSSED IN DETAIL A S INCORPORATED BY THE ASSESSING OFFICER FROM PAGES 7 TO 11 OF THE ASSESSMENT ORDER. 5. IN SUMS AND SUBSTANCE, THE RELEVANT CONTENTS OF THE ASSESSEES REPLY ENLISTING THE EVIDENCES /DOCUMENTS FILED WAS AS UNDER: FIRSTLY, THE DOCUMENTS FILED TO DISCHARGE THE ONUS: - (I) CONFIRMATION LETTER DATED 21.11.2017; (II) CONFIRMED COPY OF ACCOUNT IN THE BOOKS OF M/S. AVISKAR MARKETING PVT. LTD.; (III) ITR; (IV) AUDITED FINANCIAL STATEMENT FOR THE ASSESSMENT YEARS 2015-16; (V) INVESTMENT IN ASSESSEES COMPANY APPEARING IN T HE BALANCE SHEET BY WAY OF NOTE NO.6; (VI) FORM PAS-3 FILED IN ROC FOR ALLOTMENT OF SHA RE; (VII) BOARD RESOLUTION FOR ALLOTMENT OF SHARES TO AVISKAR; (VIII) RELEVANT BANK STATEMENT OF UNION BANK OF IND IA OF AVISKAR; (IX) SHARE VALUATION REPORT DTD. 25.03.2015 (AS PER DCF METHOD); I.T.A. NO.267/DEL/2019 6 (X) EMAILED REPLY SENT TO ASSESSING OFFICER DIRECTL Y BY AVISKAR ON 05.12.17. THUS, IT WAS STATED THAT THE SOURCE IN THE HANDS OF ASSESSEE STANDS PROVED. FURTHER TO PROVE THE SOURCE OF THE SOURCE, IT WAS EXPLAINED THAT M/S AVISKAR HAD RECEIVED FOLLOWING L OANS WHICH WERE UTILIZED FOR INVESTMENT OF RS. 3,68,00,0 00/- IN THE SHARES OF ASSESSEE AS UNDER: LOAN FROM RAJU INVESTMENT PVT. LTD.: RS.2 ,68,00,000/- LOAN FROM SUPERB DEVELOPERS PVT. LTD.: RS. 50,00, 000/- LOAN FROM MAHESH WOOD PRODUCTS PVT. LTD.: RS. 50, 00,000/- TOTAL RS.3,68,00,000/- IN SUPPORT OF ABOVE, FOLLOWING DOCUMENTS ARE ATTACH ED: O CONFIRMED LEDGER A/C OF RAJU INVESTMENT PVT. LTD IN BOOKS OF AVISKAR FOR A. Y. 15-16 SHOWING LOAN OF RS . 2,68,00,000/- TO AVISKAR. O ITR OF RAJU INVESTMENT PVT. LTD OF A. Y. 15-16. O CONFIRMED LEDGER A/C OF SUPERB IN BOOKS OF AVISKAR FOR A. Y. 15-16 SHOWING LOAN OF RS.50,00,000/- TO AVISKA R. O ITR OF SUPERB OF A. Y. 15-16. O CONFIRMED LEDGER A/C OF MAHESH IN BOOKS OF AVISKAR FOR A. Y. 15-16 SHOWING LOAN OF RS. 50,00,000/- TO AVISK AR. O ITR OF MAHESH OF A. Y. 15-16 IT WAS THUS CONTENDED THAT THE ABOVE DOCUMENTS GOES TO SHOW THAT THESE LOANS HAVE BEEN GIVEN BY THESE THREE PA RTIES I.T.A. NO.267/DEL/2019 7 TO AVISKAR. THE ASSESSEE HAD ALSO FILED THE CONFIRMED LEDGER A/C OF ASSESSEE IN BOOKS OF AVISKAR, BANK A/C OF AV ISKAR. FROM ALL ABOVE DOCUMENTS, IT WAS SUBMITTED THAT DIRECT NEXUS IS APPARENT, THAT IS, THESE THREE COMPANIES HAVE GIVEN LOAN TO AVISKAR WHICH IS COMING IN THE BANK A/C OF A VISKAR AND FROM THE BANK A/C OF AVISKAR SAME AMOUNTS HAS BE EN GIVEN TO ASSESSEE. IN THE BANK A/C OF AVISKAR, THE NAM E OF THE ASSESSEE IS APPEARING SHOWING THAT AVISKAR HAS GIV EN THESE AMOUNTS TO ASSESSEE. THUS EVEN THE SOURCE OF THE SOURCE STANDS EXPLAINED BY THE ASSESSEE. 6. LD. ASSESSING OFFICER WITHOUT ADVERTING TO THE DOCUMENTS FILED WENT TO OBSERVE THAT ASSESSEE DID N OT PRODUCE ANY OF THE DIRECTORS OF M/S. AVISKAR MARKET ING PVT. LTD., M/S. RAJU INVESTMENTS PVT. LTD. AND SUPERB DE VELOPERS PVT. LTD., DESPITE THAT ASSESSEE-COMPANY IS THE HOL DING COMPANY OF M/S. AVISKAR MARKETING PVT. LTD. HE HAS ALSO ANALYZED THE BANK STATEMENT OF M/S. AVISKAR MARKETI NG PVT. LTD. AND FOUND THAT THERE WERE IMMEDIATE CREDITS IN THE BANK ACCOUNT OF THE COMPANY BEFORE THE LOAN WAS GIVEN TO THE ASSESSEE AND THERE IS A REGULAR TREND IN THE ACCOUN T OF THE COMPANY OF CREDITS FOLLOWED BY EXACT AMOUNT AND THI S COMPANY HAS SHOWN VERY MEAGER INCOME. HE HAD ALSO PERUSED THE BANK STATEMENT OF M/S. RAJU INVESTMENT P VT. LTD. AND M/S. SUPERB DEVELOPERS PVT. LTD. ALLEGED TO HAV E GIVEN UNSECURED LOAN TO M/S. AVISKAR MARKETING PVT. LTD. AFTER DETAILED DISCUSSION, AND OBSERVING THAT THE DIRECTO RS OF THE ASSESSEE-COMPANY AND OTHER COMPANY M/S. AVISKAR MARKETING PVT. LTD. AND OTHER TWO LENDING COMPANIES WERE I.T.A. NO.267/DEL/2019 8 GIVEN LOAN TO M/S. AVISKAR MARKETING PVT. LTD WERE COMMON BUT ALSO THERE IS NO REVENUE FROM OPERATIONS BY SUB SCRIBING COMPANY. ON THESE REASONINGS, HE MADE THE ADDITION U/S.68 OF RS.3,18,00,000/-. 7. LD. CIT (A) TOO HAS CONFIRMED THE SAID ADDITION, REJECTING ALL THE CONTENTIONS OF THE LD. COUNSEL AND HAS ALSO QUOTED CATENA OF JUDGMENT INCLUDING THE FOLLOWING ONES;- (I) CIT VS. NIPUN BUILDERS AND DEVELOPERS P. LTD., (2013) 350 ITR 407 (DELHI). (II) CIT VS. N.R. PORTFOLIO PVT. LTD. (2014) 2 ITR- OL 68 (DELHI) (III) CIT V. GOLD LEAF CAPITAL CORPORATION LTD. (20 13) 353 ITR 163 (DELHI). (IV) RIDDHI PROMOTERS P. LTD. VS. CIT, (2015) 377 I TR 641 (DELHI) (V) PCIT VS. BIKRAM SINGH, (2017) 399 ITR 407. 8. BEFORE US, THE LD COUNSEL, SHRI RAJ KUMAR GUPTA, FIRST OF ALL, CHALLENGING THE ADDITION ON THE GROUND THAT TH E SAME IS BEYOND THE SCOPE OF LIMITED SCRUTINY, SUBMITTED THA T THE REASONS FOR SELECTION OF SCRUTINY UNDER CASS WAS TO INQUIRE THE SHARE PREMIUM VIS--VIS THE APPLICABILITY OF SE CTION 56(2)(VIIB) AND THE SCRUTINY FOR SELECTION WAS NOT COVERED TO EXAMINE THE SHARE PREMIUM U/S.68. HE POINTED OUT TH AT IN ASSESSEES CASE, DURING THE YEAR, ASSESSEE HAS RECE IVED LOAN OF RS.12.86 CRORE AND HAD IT BE THE SELECTION OF CASE U/S.68, THEN SAME WOULD HAVE BEEN ENTIRELY FOR WHOLE OF THE AMOUNT. THUS, THE ADDITIONS CANNOT BE MADE OR SUSTAINED IN BEYOND I.T.A. NO.267/DEL/2019 9 THE LIMITED SCRUTINY GUIDELINES. IN SUPPORT HE ALSO REFERRED TO CBDT INSTRUCTIONS ISSUED FROM TIME TO TIME. 9. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE SEL ECTION OF THE CASE FOR SCRUTINY WAS TO EXAMINE THE LARGE S HARE PREMIUM AND SHARE CAPITAL RECEIVED DURING THE YEAR AND THE ASSESSING OFFICER HAS RIGHT TO EXAMINE THE ISSUE OF SHARE CAPITAL FROM ALL THE ANGLES INTRINSICALLY LINKED WI TH SHARE PREMIUM, NOT ONLY SECTION 56(2)(VIIB) BUT ALSO U/S. 68. OTHERWISE ALSO, THE PURPOSE OF SELECTION LIMITED SC RUTINY WAS TO FLAG DOUBTFUL TRANSACTION TO FURTHER SCRUTINY BY THE ASSESSING OFFICER TO GET FRUITFUL AND FOCUSED RESUL T AND ASSESSING OFFICER IS DULY EMPOWERED UNDER THE ACT T O CALL FOR ANY INFORMATION WHICH IS RELEVANT TO ADJUDICATE THE GROUND FOR SCRUTINY FROM ALL ANGLES. 10. AFTER CONSIDERING THE AFORESAID SUBMISSION QUA THE VALIDITY OF ADDITIONS BEING BEYOND THE SCOPE OF LIM ITED SCRUTINY PROCEEDINGS, AS NOTED ABOVE, THE CASE WAS SELECTED FOR LIMITED SCRUTINY TO EXAMINE THE LARGE SHARE PREMIUM RECEIVED DURING THE YEAR (VERIFY APPLICABILITY OF SECTION 56(2)(VIIB)) . ONCE, THE ASSESSING OFFICER HAS THE MANDATE TO EXAMINE THE LARGE SHARE PREMIUM RECEIVED DURING THE YEAR, THEN HE HAS TO EXAMINE THE TRANSACTION AS A WHOLE A ND IT DOES NOT RESTRICT HIM ONLY TO SEE THE APPLICABILITY OF S ECTION 56(2)(VIIB), WHICH HAS BRACKETED TO VERIFY ITS APPL ICABILITY. AO HAS TO EXAMINE THE TRANSACTION OF SHARE PREMIUM REC EIVED HOLISTICALLY, WHETHER, SAME IS GENUINE OR NOT AND I TS TAXABILITY I.T.A. NO.267/DEL/2019 10 FROM ALL THE ANGLES UNDER THE ACT INCLUDING IN TERM S OF SECTION 56(2)(VIIB). IF THE SELECTION FOR SCRUTINY UNDER CASS WAS TO EXAMINE THE LARGE SHARE PREMIUM RECEIVED DURING THE YEAR, THEN ASSESSING OFFICER CANNOT CIRCUMSCRIBE HI MSELF TO A PARTICULAR SECTION AND PUT BLINKERS WHEN HE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FIND THAT IT IS TA XABLE UNDER DIFFERENT SECTION. HIS POWER TO EXAMINE THE ISSUE ENCOMPASSES UNDER DIFFERENT SECTIONS ALSO INCLUDING U/S 68. IT IS NOT A CASE HERE THAT ASSESSING OFFICER HAS GO NE TO ISSUES OTHER THAN SHARE PREMIUM RECEIVED DURING THE YEAR, ALBEIT HE HAS RESTRICTED HIMSELF TO LARGE SHARE PREMIUM RECEI VED AND GENUINENESS OF SHARE CAPITAL ONLY. HAD IT BEEN A CA SE THAT ASSESSING OFFICER HAD TRANSGRESSED HIMSELF TO EXAMI NE OTHER ISSUES OTHER THAN THE POINT OF SELECTION WITHOUT AN Y APPROVAL FROM THE HIGHER AUTHORITY OR BEYOND THE LIMITED SCR UTINY GUIDELINES, THEN PERHAPS IT COULD HAVE BEEN HELD TH AT ASSESSING OFFICER COULD NOT HAVE MADE THE ADDITION ON THE OTHER ISSUES. THUS, WE DO NOT FIND ANY MERITS IN TH E GROUNDS RAISED BY THE LD. COUNSEL THAT ASSESSING OFFICER CO ULD NOT HAVE EXAMINE THE ISSUE WHICH WAS SELECTED FOR SCRUTINY U NDER SECTION 68 AND ACCORDINGLY HIS CONTENTIONS ARE DISM ISSED. 10. IN SO FAR AS THE MERIT OF THE ADDITION IS CONCE RNED, LD. COUNSEL SUBMITTED THAT THE SHARES WERE ISSUED TO M/ S. AVISKAR MARKETING PVT. LIMITED AT RS.150/-, WHICH H AD A FACE VALUE OF RS.10/- AND PREMIUM OF RS.140/- AND HAS RE CEIVED THE SHARE APPLICATION MONEY OF RS.3,68,00,000/-. TH E SOURCE I.T.A. NO.267/DEL/2019 11 OF THE LOAN TAKEN BY M/S. AVISKAR MARKETING PVT. LT D. WAS FROM FOLLOWING THREE COMPANIES: RAJU INVESTMENT (P) LTD. RS.2,68,00,000/- SUPERB DEVELOPERS (P) LTD. RS. 50,0 0,000/- MAHESH WOOD PRODUCTS (P) LTD. RS. 50,00,000/ - TOTAL RS. 3,68,00,000/- OUT OF WHICH, ASSESSING OFFICER HAS ACCEPTED AMOUNT OF RS.50 LACS RECEIVED FROM M/S. MAHESH WOOD PRODUCTS PVT. LTD. THUS, SAME TRANSACTION FROM ONE PARTY HAS BEEN ACCEPTED TO BE GENUINE. 11. AT THE OUTSET, LD. COUNSEL SUBMITTED THAT AS SESSEE- COMPANY IS NOT A HOLDING COMPANY OF M/S. AVISKAR MA RKETING PVT. LTD. AND IT HAS WRONGLY BEEN MENTIONED BY THE ASSESSING OFFICER AT MANY PLACES. FURTHER, M/S. AVISKAR MARKE TING PVT. LTD. IS NEITHER UNDER INVESTIGATION NOR HAS BEEN ID ENTIFIED BY THE DEPARTMENT AS AN ENTRY PROVIDER NOR THERE IS AN Y MATERIAL OR ADVERSE REPORT AGAINST M/S. AVISKAR MARKETING PV T. LTD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE HAD FURNISHED FOLLOWING DOCUMENTS BEFORE THE ASSESS ING OFFICER IN SUPPORT OF RECEIPT OF SHARE APPLICATION MONEY: CONFIRMED COPY OF A/C OF ASSESSEE IN BOOKS OF AVISH KAR; ITR ACK. OF AVISHKAR - A. Y. 15-16; AUDITED FINANCIAL STATEMENT OF AVISHKAR - A.Y.15-16 (THIS AMT. / ADDITION IN INVESTMENT IS APPEARING IN BAL. SHEET ); FORM PAS-3 (FILED TO ROC FOR ALLOTMENT OF SHARES BY ASSESSEE); I.T.A. NO.267/DEL/2019 12 BOARD RESOLUTION OF ASSESSEE FOR ALLOTMENT OF SHARE S TO AVISHKAR; RELEVANT BANK STATEMENT OF AVISHKAR; NOTICE U/S. 133 (6) DTD.23.11.17 SENT BY A.O. TO AV ISHKAR ; REPLY TO NOTICE U/S. 133 (6) BY AVISHKAR (CONFIRMIN G THE INVESTMENT OF 3.68 CR IN SHARES OF ASSESSEE). 12. NO SUCH DISCREPANCIES OR SHORT COMING HAS BEEN POINTED OUT IN THE ABOVE DOCUMENTS BY THE ASSESSING OFFICER . NOT ONLY THAT, HERE THE ASSESSEE HAS EVEN PROVEN THE SOURCE OF THE SOURCE, I.E., THE SOURCE OF THE FUND IN THE HANDS O F M/S. AVISKAR MARKETING PVT. LTD. WHICH WERE OUT OF LOAN TAKEN BY THE SAID COMPANY FROM TWO OTHER PARTIES WHICH IS EV IDENT FROM THE BANK STATEMENT OF M/S. AVISKAR MARKETING P VT. LTD.. 13. IN SO FAR AS LOAN RECEIVED FROM M/S. RAJU INVEST MENTS PVT. LTD., IT WAS CLEARLY POINTED OUT THAT IT IS A NBFC WHO HAD GIVEN THE LOAN OUT OF ITS OWN FUNDS AND ENTIRE LOAN HAS BEEN REPAID BY M/S. AVISKAR MARKETING PVT. LTD. MOSTLY I N THE SAME ASSESSMENT YEAR AND THE BALANCE IN THE TWO SUBSEQUE NT YEAR. THE PROOF OF WHICH, WERE GIVEN BEFORE THE ASSESSING OFFICER AND THE LD. CIT (A). THE DOCUMENTS FURNISHED TO THE ASSESSING OFFICER OR COLLECTED BY THE ASSESSING OFF ICER IN RESPECT OF THE LOAN RECEIVED BY M/S. AVISKAR MARKET ING PVT. LTD. FROM M/S. RAJU INVESTMENT WERE AS UNDER: NOTICE U/S.133 (6) DTD.21.11.17 ISSUED TO RAJU INVESTMENT , WHICH WAS RECEIVED TO THE SAID PARTY; LETTER DTD.25.11.17 BY RAJU INVESTMENT TO A.O. IN REPLY TO SEC. 133 (6); I.T.A. NO.267/DEL/2019 13 CONFIRMATION FROM RAJU INVESTMENT TO A.O. IN REPLY TO SEC. 133 (6); ITR ACK. OF RAJU TO A.O. IN REPLY TO SEC. 133 (6); LEDGER A/C OF RAJU IN BOOKS OF AVISHKAR - A.Y.16-17 , 17-18 (SHOWING THE RETURN OF LOAN BY AVISHKAR TO RAJU); BANK STATEMENT OF AVISHKAR (SHOWING THE RETURN OF L OAN TO RAJU); AUDITED FINANCIAL STATEMENT OF RAJU - A.Y. 15-16 (S HOWING THE LOAN OUTSTANDING RECEIVABLE FROM AVISHKAR). 14. SIMILARLY WITH REGARD TO THE LOAN FROM M/S SUPE R DEVELOPERS PVT. LTD. RECEIVED BY M/S. AVISKAR MARKE TING PVT. LTD. AGAIN THE DOCUMENTS FURNISHED TO ASSESSING OFF ICER IN RELATION TO RECEIPTS GIVEN WERE AS UNDER:- NOTICE U/S. 133 (6) DTD.21.11.17 ISSUED TO SUPERB LETTER DTD.25.11.17 BY SUPERB TO A.O. IN REPLY TO S EC. 133(6) CONFIRMATION FROM SUPERB TO A.O. IN REPLY TO SEC. 1 33 (6) ITR ACK. OF SUPERB TO A.O. IN REPLY TO SEC. 133 (6) LEDGER A/C OF SUPERB IN BOOKS OF AVISHKAR - A.Y.16- 17 (SHOWING THE RETURN OF LOAN BY AVISHKAR TO SUPERB) BANK STATEMENT OF AVISHKAR (SHOWING THE RETURN OF L OAN TO SUPERB) AUDITED FINANCIAL STATEMENT OF SUPERB - A.Y.15-16 ( SHOWING THE LOAN OUTSTANDING RECEIVABLE FROM AVISHKAR) BANK STATEMENT OF SUPERB (SHOWING LOAN GIVEN TO AVI SHKAR. 15. THUS, NOT ONLY THE SOURCE BUT ALSO THE SOURCE OF THE SOURCE STOOD EXPLAINED BY THE ASSESSEE BUT ONUS CAS T UPON THE ASSESSEE STOOD FULLY DISCHARGED. HERE, IN THIS CASE, THE IDENTITY IS PROVED BY ROC RECORDS, BANK A/C, ITRS A ND REPLY I.T.A. NO.267/DEL/2019 14 U/S. 133(6). APART FROM THAT, SOURCE OF FUND TO THE EXTENT OF RS.50,00,000/-, RECEIVED FROM MAHESH WOOD PRODUCTS (P) LTD. GIVEN TO AVISKAR MARKETING PVT. LTD, WHO IN TURN HAS UTILIZE D THE SAME FOR PAYING FOR SHARE CAPITAL AND SHARE PRE MIUM STANDS ACCEPTED BY THE A.O. FURTHER, THE GENUINENES S OF THE TRANSACTION STANDS PROVED BY CONFIRMATION LETTERS F ROM THE PARTIES, THEIR BANK STATEMENTS AND THE ENTIRE TRANS ACTION IS APPEARING IN THE AUDITED BALANCE SHEET OF AVISHKAR MARKETING PVT. LTD, WHO IS ASSESSED TO INCOME TAX INCLUDING T HE REPLY U/S. 133(6) DIRECTLY GIVEN TO THE ASSESSING OFFICER BY AVISHKAR. LASTLY, THE CREDITWORTHINESS ALSO STANDS EXPLAINED BECAUSE, THE SOURCE OF FUNDS IN THE HANDS OF AVISHK AR, WAS DULY EXPLAINED AND NOT ONLY THAT, THE SOURCE OF THE SOURCE ALSO WAS EXPLAINED WITH EVIDENCE. IT IS NOT A CASE WHERE THE SHARE APPLICATION MONEY HAS BEEN GIVEN OUT OF INCOM E BUT IT HAS BEEN GIVEN OUT OF THE LOANS TAKEN FROM OTHER PA RTIES OUT OF WHICH MAJOR AMOUNT HAS COME FROM RAJU INVESTMENT S, WHICH IS A REGISTERED NBFC. IN SUPPORT OF ALL HIS C ONTENTIONS, LD. COUNSEL HAS ALSO RELIED UPON THE CATENA OF JUDGM ENTS. 16. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON THE ORDER OF THE ASSESSING OFFICER AND LD. CIT (A) AND FURTHE R RELIED UPON THE FOLLOWING JUDGMENTS:- A. PCIT VS. NRA IRON & STEEL PVT. LTD. (SC) DATED 05. 03.2019 B. PCIT VS. NDR PROMOTERS PVT LTD. (2019-TIOL-172-HC- DEL-IT) C. CIT VS. MAF ACADEMY (P) LTD. (361 ITR 258) D. CIT VS. NAVODAYA CASTLE PVT. LTD. (2014) 367 ITR 3 06 (DEL) E. KONARK STRUCTURAL ENGINEERING P. LTD. V. DCIT (201 8) 96 TAXMANN.COM 255 (SC) I.T.A. NO.267/DEL/2019 15 F. PRATHAM TELECOM INDIA PVT. LTD. VS. DCIT (2018-TIO L-1983- HC-MUM-IT) G. CIT VS. NIPUN BUILDERS & DEVELOPERS (P) LTD., 30 T AXMANN.COM 292 H. CIT VS. NOVA PROMOTERS & FINLEASE (P) LTD. (18 TAX MANN.COM 217) I. CIT VS. N R PORTFOLIO PVT. LTD., (2014) 42 TAXMANN. COM 339. J. CIT VS. EMPIRE BUILTECH P. LTD., 366 ITR 110 K. PCIT VS. BIKRAM SINGH, (2017) 85 TAXMANN.COM 104 L. ITO (EXEMPTIONS) VS. M/S. SYNERGY FINLEASE PVT. LTD ., ITA NO.4778/DEL/2013. 17. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUS ED THE RELEVANT FINDING GIVEN IN THE IMPUGNED ORDER AS WEL L AS MATERIAL REFERRED TO BEFORE US. THE ASSESSEE COMPAN Y HAD RECEIVED SHARE APPLICATION/SHARE PREMIUM MONEY OF RS.3,68,00,000/- RECEIVED FROM M/S. AVISKAR MARKETI NG PVT. LTD. THE ASSESSING OFFICER AT VARIOUS PLACES HAD ST ATED THAT IT IS A HOLDING COMPANY OF THE ASSESSEE, WHEREAS IN PA RAGRAPH 3 OF THE HIS ASSESSMENT ORDER, HE HIMSELF HAS MENTION ED THAT M/S. PRIME HOLDING IS THE HOLDING COMPANY OF M/S. A VISKAR MARKETING PVT. LTD. (WHICH IS A DIFFERENT ENTITY FR OM THE ASSESSEE COMPANY) AND DIRECTORS OF BOTH THE COMPANI ES ARE COMMON. COMMON DIRECTORS CANNOT MAKE IT A HOLDING COMPANY EXCEPT FOR THE FACT THAT THESE COMPANIES MA Y BE HELD TO BE RELATED COMPANIES. BUT NOTHING TURNS ARO UND FROM THIS FACT BECAUSE, WHAT IS TO BE EXAMINED HERE IS, WHETHER, THERE IS ANY COLOURABLE TRANSACTION AND WHETHER THE ONUS CAST UPON THE ASSESSEE COMPANY HAS BEEN DISCHARGED OR NO T AND WHAT THE MATERIAL HAS BEEN BROUGHT ON RECORD BY THE I.T.A. NO.267/DEL/2019 16 ASSESSING OFFICER TO DISLODGE THE ASSESSEES EXPLAN ATION AND THE EVIDENCES. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, AS STATED ABOVE, THE ASSESSEE HAS FILED VARIOUS DOC UMENTS TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINES S OF THE PARTIES SUBSCRIBING TO THE SHARES AND PAYING SHARE CAPITAL SHARE PREMIUM TO THE ASSESSEE COMPANY, LIKE, CONFIR MED COPY OF ACCOUNT, ITRS, AUDITED FINANCIAL STATEMENTS WHER E THE AMOUNT INVESTED HAS BEEN DULY DISCLOSED IN THE BALA NCE SHEET, DOCUMENTS FILED IN THE ROC FOR ALLOTMENT OF SHARE BY THE ASSESSEE TO THE SUBSCRIBING COMPANY, BOARD RESO LUTION FOR ALLOTMENT OF SHARES, RELEVANT BANK STATEMENT AND MO ST IMPORTANTLY, IN RESPONSE TO NOTICE U/S.133(6) SENT BY THE ASSESSING OFFICER TO M/S. AVISKAR MARKETING PVT. LT D., SAME HAS BEEN DULY RESPONDED TO WHEREIN ALL THE DETAILS HAVE BEEN FILED DIRECTLY BEFORE THE ASSESSING OFFICER. FROM T HE PERUSAL OF THE BALANCE SHEET, IT IS SEEN THAT M/S. AVISKAR MAR KETING PVT. LTD HAS LONG TERM BORROWINGS OF RS.4,15,50,000/- AN D RESERVES AND SURPLUSES TO THE TUNE OF RS. 3,76,05,8 66/-. THIS COMPANY BEFORE THE ASSESSING OFFICER HAD STATED THA T THE SOURCE OF SHARE APPLICATION MONEY WAS GIVEN OUT OF UNSECURED LOAN RECEIVED FROM THREE COMPANIES, NAMELY, M/S. RA JU INVESTMENT RS. 2,68,00,000/-, SUPER DEVELOPERS PVT. LTD. RS.50,00,000/- AND MAHESH WOOD PRODUCTS PVT. LTD. RS.50,00,000/-, OUT OF WHICH TOTAL AMOUNT OF SHARE MONEY INVESTED AT RS.3,68,00,000/-. AS STATED ABOVE, AMOU NT OF RS.50 LACS, I.E., THE SHARE APPLICATION MONEY TO TH E TUNE OF RS.50 LACS SUBSCRIBED BY M/S. AVISKAR MARKETING PVT . LTD. I.T.A. NO.267/DEL/2019 17 HAS BEEN ACCEPTED BY THE ASSESSING OFFICER, WHICH I NTER-ALIA MEANS THAT THE GENUINENESS OF PART OF THE TRANSACTI ON OF SHARE CAPITAL AND SHARE PREMIUM STANDS ACCEPTED. TH E M/S. AVISKAR MARKETING PVT. LTD. BEFORE THE ASSESSING OF FICER HAD FILED THE CONFIRMATIONS OF THE PARTIES, WHO HAD GIV EN LOAN TO IT ALONGWITH THEIR ITRS, COPY OF LEDGER ACCOUNT, AUDIT ED FINANCIAL STATEMENTS, ETC. ONE OF THE MAJOR LOAN HAD COME FROM M/S. RAJU INVESTMENT PVT. LTD. WHO IS A REGISTERED NBFC, HAS GIVEN LOAN OF RS.2,68,00,000/- AND THE LOAN TAKEN BY M/S. AVISKAR MARKETING PVT. LTD. FROM THE SAID COMPANY HAS BEEN RETURNED BACK MOSTLY IN THIS YEAR AND PARTLY IN THE SUBSEQUE NT YEAR. EVEN THE AUDITED FINANCIAL STATEMENT OF M/S. RAJU I NVESTMENT PVT. LTD. REFLECTS THE LOAN OUTSTANDING/RECEIVABLE FROM M/S. AVISKAR MARKETING PVT. LTD. SIMILARLY, LOAN GIVEN B Y SUPER DEVELOPERS TO M/S. AVISKAR MARKETING PVT. LTD. HAS ALSO BEEN SUBSTANTIATED BY PROVIDING AUDITED FINANCIAL STATEM ENT, BANK STATEMENT, CONFIRMATION, ITRS ETC. BOTH THESE COMPA NIES IN RESPONSE TO NOTICE U/S. 133(6) HAVE ALSO FURNISHED THEIR DOCUMENTS BEFORE THE ASSESSING OFFICER. 18. UNDER THE DEEMING PROVISION OF SECTION 68, THE PRIMARY ONUS LIES UPON THE ASSESSEE TO PROVE THE NATURE AND SOURCE OF CREDIT. HERE, IN THIS CASE, THE NATURE HAS BEEN STA TED TO BE SHARE APPLICATION MONEY WHICH HAS BEEN DULY ALLOTTE D BY THE ASSESSEE COMPANY TO THE SUBSCRIBING COMPANY FOR WHI CH ALL THE DOCUMENTARY EVIDENCES, INCLUDING FROM ROC HAS B EEN FILED. THE SOURCE OF CREDIT HAS BEEN EXPLAINED FROM THE BANK STATEMENT OF THE SUBSCRIBING COMPANY, AUDITED BALAN CE SHEET, I.T.A. NO.267/DEL/2019 18 ITRS, ETC. FURTHER, THE SUBSCRIBING COMPANY, M/S. A VISKAR MARKETING PVT. LTD HAS ALSO EXPLAINED THE SOURCE OF FUND RECEIVED BY IT FROM THREE OTHER COMPANIES WHO HAVE ALSO FURNISHED THE ENTIRE DETAILS OF THE LOAN GIVEN TO T HE SAID COMPANY. NO ADVERSE MATERIAL HAS BEEN BROUGHT ON RE CORD BY THE ASSESSING OFFICER AFTER ASSESSEE HAD FILED THES E EVIDENCES AGAINST THESE COMPANIES NOR ANY INQUIRY HAVE BEEN M ADE THAT THE ENTIRE TRANSACTIONS BY THESE COMPANIES ARE COLO URABLE OR SHAM. HERE, IT IS NOT A CASE OF ANY ACCOMMODATION E NTRY PROVIDER NOR THERE IS ANY INVESTIGATION OR REPORT O R INQUIRY THAT EITHER M/S. AVISKAR MARKETING PVT. LTD. OR TWO OTHER COMPANIES WHO HAD GIVEN LOAN TO M/S. AVISKAR MARKET ING PVT. LTD. WERE INVOLVED IN ANY BOGUS ACCOMMODATION ENTRY OR WERE IN COLLUSION. ONE OF THE REASON GIVEN BY THE ASSESS ING OFFICER IS THAT REVENUE FROM OPERATIONS OF M/S. AVISKAR MAR KETING PVT. LTD. WAS NIL/ MEAGER. HOWEVER, IN THE BALANCE SHEET ITSELF INCORPORATED BY HIM IN THE ASSESSMENT ORDER IT IS C LEARLY BORNE OUT THAT THERE IS HUGE AVAILABILITY OF FUND I N THE FORM OF LONG TERM BORROWINGS OF MORE THAN RS. 4.15 CRORES A ND RESERVES AND SURPLUSES OF RS. 3.76 CRORES. IF THE S AID COMPANY HAS STATED THAT IT HAS SUBSCRIBED TO THE SHARE APPL ICATION MONEY OUT OF BORROWING AND HAS ALSO PROVED THE GENU INENESS AND CREDITWORTHINESS OF THE LOAN TAKEN FROM THE 3 P ARTIES DIRECTLY BEFORE THE ASSESSING OFFICER, THEN PRIMARY ONUS CAST UPON THE ASSESSEE STANDS FULLY DISCHARGED. IT IS NO T THE CASE HERE THAT ANY ADVERSE MATERIAL HAS BEEN UNEARTHED O R HAS I.T.A. NO.267/DEL/2019 19 BEEN FOUND THAT ALL THESE TRANSACTIONS ARE MAKE BE LIEVE ARRANGEMENTS OR ALL THE EVIDENCES ARE MERE PAPER T RAIL. 19. ONE OF KEY REASONS HARPED UPON BY THE ASSES SING OFFICER IS THAT THERE WERE COMMON DIRECTORS. COMMON ALITY OF DIRECTORS WILL NOT RENDER A TRANSACTION NON- GENUIN E OR COLOURABLE, UNLESS ANY INQUIRY OR MATERIAL IS FOUND TO PROVE THE NEXUS OF THE DIRECTORS INVOLVED IN SOME KIND OF ACCOMMODATION ENTRY ROUTING ANY UNACCOUNTED INCOME OF THE ASSESSEE COMPANY. IF THESE ENTITIES ARE SEPARATE CO RPORATE ENTITIES HAVING SEPARATE LEGAL IDENTITY AND SEPARAT ELY ASSESSED TO TAX, THEN THEY HAVE TO BE TREATED INDEPENDENTLY, UNLESS THERE IS ANY DOUBT REGARDING THE SOURCE OF CREDIT O R SOURCE OF THE SOURCE IS COLOURABLE. IN THAT CASE THE SAME NEE DS TO BE EXAMINED BY THE DEPARTMENT IN THE CASE OF THE PERSO N WHO HAS GIVEN THE MONEY AND IF ANYTHING ADVERSE IS FOUN D REGARDING SOURCE; OR SOURCE OF THE SOURCE THEN, ONU S SHIFTS HEAVILY UPON THE ASSESSEE. THE ASSESSING OFFICER CA NNOT PRESUME THE TRANSACTION TO BE BOGUS SANS ANY INQUIR Y OR MATERIAL. DOUBT CANNOT BE RAISED ON THE EXPLANATION BACKED BY EVIDENCES WITHOUT ANY ADVERSE MATERIAL COMING BE FORE ASSESSING OFFICER. HERE THE GENUINENESS OF THE TRAN SACTION IS PROVEN FROM THE FACT THAT M/S. AVISKAR MARKETING PV T. LTD. HAS SUBSCRIBED THE SHARES ON PREMIUM OUT OF LOAN TA KEN FROM NBFCS AND HAS GIVEN THE IMMEDIATE SOURCE; AND NOT O NLY THAT, IT HAS ALSO GIVEN THE DOCUMENTS AND CONFIRMAT IONS FROM THE NBFC COMPANIES CONFIRMING THE LOAN GIVEN TO THE SUBSCRIBING COMPANY WHO IN TURN HAS SUBSCRIBED THE SHARE OF I.T.A. NO.267/DEL/2019 20 THE ASSESSEE COMPANY. UNDER THESE CIRCUMSTANCES AND FACTS OF THE CASE AND WITHOUT THERE ANY MATERIAL THAT ANY UNACCOUNTED MONEY HAS BEEN ROUTED THROUGH VARIOUS CHANNELS, THEN SIMPLY BASED ON PRESUMPTION AND HYPO THESIS DEEMING FICTION CANNOT BE INVOKED. IF THE ASSESSEE HAS PROVED THE SOURCE AS WELL AS THE SOURCE OF THE SOURCE OF T HE FUND THEN ONUS SHIFTS UPON THE ASSESSING OFFICER TO CARRY SOM E PRIMA FACIE INQUIRY TO REBUT THE EXPLANATION GIVEN BY THE ASSESSEE. IN ABSENCE OF ANY SUCH EXERCISE, ADDITION CANNOT BE SUSTAINED SIMPLY BASED ON CERTAIN HYPOTHESIS. 20. ANOTHER REASONING GIVEN BY THE ASSESSING OF FICER FOR REJECTING ALL THE EVIDENCES WAS THAT ASSESSEE HAS N OT PRODUCED THE DIRECTORS. NOW WHEN THE PARTY SUBSCRIB ING THE SHARES AND PAYING THE MONEY HAS CONFIRMED THE TRANS ACTION AND HAS PROVED THE SOURCE FROM WHERE IT HAS GOT THE FUNDS DIRECTLY BEFORE THE ASSESSING OFFICER BY GIVING ALL THE EVIDENCES AS DISCUSSED ABOVE, THEN MERE NON-APPEARANCE WILL N OT MAKE THE TRANSACTION DOUBTFUL OR COLOURABLE. IT IS ONLY WHEN THERE ARE INCONSISTENCIES IN THE EXPLANATION AND THE EVID ENCES FILED THEN THE ASSESSING OFFICER MAY ASK THE ASSESSEE TO PRODUCE. ONE HAS TO SEE IN SUCH CASES, FIRSTLY , WHETHER PRIMARY ONUS OF PROVING THE NATURE AND SOURCE OF CREDIT HAS BEEN DI SCHARGED, THAT IS, IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION; AND SECONDLY , POST SUCH ONUS, ASSESSING OFFICER HAS MADE ANY INQUIRY OR HAS SOME MATERIAL TO REBUT THE EXPLANATION AND THE EVIDENCES FILED BY THE ASSESSEE . IF THERE ARE ANY INCONSISTENCIES, THEN ASSESSING OFFICER MAY ASK THE I.T.A. NO.267/DEL/2019 21 ASSESSEE TO PRODUCE THE PERSON AND IF ASSESSEE IS U NABLE TO DO SO FOR CERTAIN REASONS, THEN ASSESSING OFFICER H AS THE POWER TO ISSUE SUMMONS U/S 131 TO ENSURE THE PRESEN CE. OTHERWISE ASSESSING OFFICER CANNOT SIMPLY DOUBT THE ENTIRE THE ENTIRE CREDIT WHICH IS SHARE APPLICATION MONEY AND SHARES HAVE BEEN ALLOTTED. 21. LASTLY, THE JUDGMENTS RELIED UPON BY THE LD. DR ARE NOT APPLICABLE ON THE FACTS OF THE CASE AS DISCUSSED AB OVE, AS THE ENTIRE SHARE APPLICATION MONEY AND PREMIUM RECEIVED BY THE ASSESSEE COMPANY STANDS PROVED BY THE ASSESSEE COMP ANY AND ALSO BY THE SUBSCRIBING COMPANY, WHICH HAS EVEN PROVED THE SOURCE OF MONEY GIVEN TO THE ASSESSEE COMPANY. HERE IT IS NOT CASE OF ANY ACCOMMODATION ENTRY PROVIDER NOR TH ERE IS ANY REPORT OF INVESTIGATION WING NOR HAS ANY INQUIR Y BEEN CONDUCTED BY THE ASSESSING OFFICER TO ALLAY OR REBU T THE EVIDENCES FILED BY THE ASSESSEE COMPANY OR BY THE S UBSCRIBING COMPANY. THUS, RATIO OF ALL THESE JUDGMENTS WILL NOT APPLY IN THE PRESENT CASE. 22. IN VIEW OF OUR REASONING GIVEN ABOVE, WE HOL D THAT SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE COMPANY FROM M/S. AVISKAR MARKETING PVT. LTD CANNOT BE HELD TO B E NON- GENUINE. ACCORDINGLY, THE ADDITION MADE U/S.68 IS D IRECTED TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESS EE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH OCTOBER, 2019. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] [ACCOUNTANT MEMBER] JUDICIAL MEMBER DATED: 4 TH OCTOBER, 2019