ITO, Ward-5(1), Kolkata V. M/s Fastflow Securities (P) Ltd, Kolkata

ITA 32/KOL/2021

AI Insights

The case revolves around an appeal by the Income Tax Officer, Ward-5(1), Kolkata against M/s. Fastflow Securities Pvt. Ltd., concerning the assessment year 2012-13. The primary issue was the addition of Rs.8,31,00,000 as unexplained income under section 68 of the Income Tax Act, which the Assessing Officer had treated as unexplained due to insufficient verification of the share subscribers' identity and creditworthiness. The CIT(A) reversed this decision, leading to the Revenue's appeal. The Tribunal examined the evidence and the procedural adherence of the Assessing Officer and upheld the CIT(A)'s decision, emphasizing the need for the Assessing Officer to conduct a thorough examination of the provided evidence rather than relying solely on the non-appearance of directors of the subscriber companies.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134607 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-06-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 08-02-2021
• Other Referred Cases: CIT vs. Orissa Corpn. (P) Ltd., CIT vs. Devi Prasad Vishwanath Prasad, CIT vs. Independent Media (P) Ltd., CIT vs. Sagun Commercial (P) Ltd., CIT vs. Gayatri Portfolio Fund (P) Ltd, CIT vs. Sanchati Projects (P.) Ltd., CIT vs. Dataware Private Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Bogus Share capital; Revision of order; Income from undisclosed sources; Source of fund; Question of law; Onus to prove; Condonation of delay; Set aside
• Section: 147; 131; 68; 263; 143(3); 133(6); 250; 143(2); 72; 13

Judgement Text

आयकर अपीलीय अिधकरण, कोलकाता पीठ ‘सी’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH KOLKATA ŵी संजय गगŊ, Ɋाियक सद˟ एवं ŵी िगरीश अŤवाल, लेखा सद˟ के समƗ Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 ITO, Ward-5(1), Kolkata.................................................................... Appellant vs. M/s. Fastflow Securities Pvt. Ltd..................................................... Respondent 41, N.S. Kolkata - 70001 [PAN: AABCF8361P] Appearances by: Shri G. Hukugha Sema, CIT-DR, appeared on behalf of the appellant. Shri V.K. Jain, FCA, appeared on behalf of the Respondent. Date of concluding the hearing : June 15 th , 2023 Date of pronouncing the order : July 13 th , 2023 आदेश / ORDER Per Dr. Manish Borad, Accounant Member: The present appeal has been preferred by the Revenue against the order dated 02.09.2020 of the Commissioner of Income Tax (Appeals)-7, Kolkata [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The Registry has pointed out that there is a delay of 35 (thirty five) days in filing the present appeal before the Tribunal. The impugned order by Ld. CIT(A) is dated 02/09/2020 which falls within the period of pandemic of Covid-19. Petition for condonation of delay is placed on record by revenue explaining the reasons for delay, owing to Pandemic of Covid-19 during that time. We note that the period of delay falls during the time of Pandemic of I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 2 Covid-19 which has been excluded by the Hon’ble Supreme Court in the case of suo moto Writ Petition (C) No. 3 of 2020 dated 10.01.2022 by which the period from 15.03.2020 to 28.02.2022 has been directed to be excluded for the purpose of limitation and in addition a further period of 90 days has also been granted for providing the limitation from 01.03.2022. Accordingly, we condone the delay and proceed to admit the appeal for hearing. 3. The Revenue in this appeal is aggrieved by the action of the CIT(A) in deleting the additions made by the Assessing Officer in respect of receipt of Rs.8,31,00,000/- by the assessee company treated by the Assessing Officer as unexplained income of the assessee u/s 68 of the Act on the ground that the assessee had failed to establish the identity, genuineness and creditworthiness of the share subscribers. 4. At the outset, the ld. counsel for the assessee has invited our attention to para 3 of the impugned assessment order to submit, wherein, the Assessing Officer has noted as under: “3. In compliance to the notices issued u/s 143(2) & 142(1), Vinod Kumar Jain, A.R. of the assessee appeared, filed various details as required, produced books of accounts which were test checked and the case was discussed with him.” 5. The ld. counsel has further invited our attention to the impugned assessment order to submit that despite specifically noting that the assessee has furnished all the details and evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the Assessing Officer did not bother to examine the details and evidences furnished by the assessee. That the impugned addition has been made by the Assessing Officer solely on the ground that the directors of the shareholder I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 3 companies did not appear before the Assessing Officer in response to the summons issued u/s 131 of the Act. 6. The ld. counsel has further invited our attention to the impugned order of the CIT(A) to submit that the ld. CIT(A) has categorically noted that the assessee during the year had raised share capital including share premium amounting to Rs.8,31,00,000/-. The Assessing Officer had issued notices u/s 133(6) of the Act to the share applicants and in response, they all confirmed the transactions and furnished details/documents as called for including source of fund in their hands. The ld. CIT(A) has considered the evidences and details on record and found that the assessee has been able to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction. The relevant part of the order, for the purpose of ready reference, is reproduced as under: “4.2. I have considered the submission of the AR of the appellant in the backdrop of the assessment order. I have also considered the various judicial decisions referred to by the AO as well as the AR in support of their respective stands in the matter. I have also considered the relevant materials on record in deciding the matter. The brief facts of the issue in the case are that the AO treated the entire share capital raised by the appellant to the extent of 28,31,00,000/- to be assessable u/s 68 of the Act. On the other hand the AR of the appellant contested on the action of the AO to the effect that section 68 was not applicable in the appellant's case for the year under consideration for the following reasons: (a) that identities of the share subscribers stood proven as per documentary evidences (supra) (b) that creditworthiness of the share subscribers stood proven (supra) (c) that the genuineness of the transactions stood proven (supra) and (d) that the share applicants have been regularly assessed to tax by the respective Assessing officers who have not made any adverse comments on their capital base (supra). In such view of the matter, I find the AO cannot abruptly come to the conclusion that section 68 of the Act was applicable in the appellant's case just for the allegations as launched by the AO. I find that all relevant documentary evidences were before the AO who could have decided the case on merit but however this did not happen, The copies of replies u/s 133(6) of the Act filed by the share applicants appear at Page Nos. 13 to 168 of the paper book submitted by the appellant. The Copies of replies by the Source companies of the share subscribers appear at Page Nos. 169 to 178 of the paper book submitted by the appellant. It appears, the Assessing officer deliberately sat with the I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 4 documents furnished/collected during the hearing. There was no reason for drawing any adverse inference merely for the reason of non- appearance of the directors of the share applicant companies. The appellant has submitted several judicial pronouncements to the effect that mere non-appearance of the share applicant is no basis for invoking provisions of Sec. 68 which includes the decision of the Hon'ble Supreme Court in the case of CIT vs. Orissa Corpn. (P) Ltd. [1986] 159 ITR 78 (SC) wherein the Hon'ble Supreme Court held as under:- "In this case 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 the income tax assessees. Their index number was in the file of the revenue. The revenue, apart from issuing notices under section 131 at the instance of the assessee, did not pursued the matter further. The revenue did not examine the source of income of the said alleged creditors to find out whether they were credit- worthy or were such who could advance the alleged loans. 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 had discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such could arise. The High Court was, therefore, right in refusing to refer the questions sought for. Decision of the High Court affirmed." In view of the foregoing discussion as well as the judicial precedents pertinent to the issue at hand (supra), I do not find any premise to endorse the action of the AO in making the impugned addition of 8,31,00,000/- as unexplained cash credit u/s 68 of the Act. 4.3. Further I find the share subscribers have sufficient net worth of their own to make investments as elucidated earlier: SI No. Name of Share Holders Netwoth As on 31.03.2012 (Rs. In Lac) Investment in assessee company ( Rs. In Lac) % 1. Intimate Securities Pvt. Ltd. 2793.01 65.00 2.33 2. Linton Securities Pvt. Ltd. 3009.01 262.00 8.71 3. Littlestar Securities pvt. Ltd. 2763.01 249.00 9.01 4. Paragon Conclave Pvt. Ltd. 196.01 90.00 45.91 5. Pearns Niketan Pvt. Ltd. 340.01 25.00 7.35 6. Tulip Mansions Pvt. LTd. 72.01 70.00 97.21 7. Bluerose Heights Pvt. Ltd. 72.01 70.00 97.21 Total 831.00 4.4. That, as evident from the share subscriber’s information on record, 5(Five) of total 7 (seven) of them were subjected to assessment u/s 143(3) of the Act for same I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 5 assessment year and for rest the returns were accepted by the AO. That the profiles of the assessment status of the subscriber companies are given in Clause above. 4.5. Now, on the case laws relied upon by the AO, it appears that those are distinguished facts and substance. (a) CIT vs Precision Finance Pvt. Ltd. [208 ITR 463] wherein the assessee failed to prove the identities, creditworthiness and genuineness of transaction. The appellant's facts are different, The AO himself made enquiries with creditors and received the response, thus the question on their non- existence was not there. The creditors' PAN and ITR were furnished. Thus reliance on the above case is totally misplaced. Another case referred (b) CIT Vs M/s. Nipun Builders & Developers Pvt. Ltd. 30 Taxman.com 292 (Delhi) [2013], Which spoke about the discharge of primary depending on the facts and circumstances of each case. The assessee and the assessing authority should adopt a reasonable approach. In that case even after providing several/sufficient opportunities, assessee failed to prove the genuineness of the transaction and identity and creditworthiness of shareholders. Section 68 of the I.T. Act provides for charging to Income Tax on any sum credited in the books of the assessee maintained for any previous year if the assessee offers no explanation about the nature and source thereof or the explanation offered is not, in the opinion of the Assessing Officer, satisfactory. It places no duty upon the Assessing Officer to point to the source from which the money was received by the assessee. Whereas assessee fails to prove satisfactorily the source and the nature of certain amount of credit during the accounting year, the Income Tax Officer is entitled to draw the inference that the receipts are of an assessable nature, which is not the case of the appellant provided the confirmation of transactions and documentary evidence the identity and creditworthiness of creditors and the genuineness of transactions. The AO also relied upon (c) CIT vs Devi Prasad Vishwanath Prasad [1969] 72 ITR 194 (SC), (d) CIT vs Independent Media (P) Ltd. [2012] 25 taxman.com 276 (Delhi). The former was on action of AO to add the income from undisclosed sources, even when he had rejected the books and estimated the income. On the appellant's case, ITO has not rejected the books or estimated the income. The facts are different. In Independent Media was whether tribunal was right in law in remitting the issue relating to additions made on account of unexplained share application money to the AO with direction to verify the source of money of the shareholders and make addition in the hands of persons who provided the monies. The Hon'ble HC held that section 68 does not cast such aspiration on AO and directed AO to give proper opportunity for cross examination of the statements of alleged bogus shareholders and make the addition only when the explanation of the assessee on identify and credit worthiness is found as unacceptable for valid reasons, clearly spelt out. The AO has further relied upon the decision in the case of M/s Bisakha Sales Pvt. Ltd. v CIT [2014] 52 taxmann.com 305 (Kolkata- Trib.) and Star Griha Pvt Ltd. In both cases, it was held that where assessee- company received share application money with huge and unjustified share premium from corporate entities, merely because said amount was received through banking channel, Assessing Officer was not justified in accepting said transactions as genuine without making proper enquiries. Apparently, he AO has not properly appreciated that decision of the Hon'ble ITAT. The Hon'ble ITAT has never held that share capital and I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 6 share premium can be assessed as unexplained cash credit merely for high share premium even though the identities and creditworthiness of the share applicant and genuineness of the transactions have been established. What is held by the Hon'ble ITAT is that revision proceedings u/s 263 are valid where the transactions have been accepted as genuine without making proper enquiries. 4.6. Basically the law requires documentary evidences on record in dealing with the issue of authenticity. It is not the case of the AO that necessary documentary evidences are not on record but the only major reliance placed on his action is based on non- attendance of the directors of the assessee- company before him u/s 131 of the Act. It is no longer res integra that such non-attendance should be considered as a factor which should be used by the AO in coming to an adverse conclusion against the appellant. On an overall analysis of the issue, I find that the AO has not made out his case with cogent material on record that the appellant could come under the purview of section 68 of the Act with regard to share capital as reflected in the balance sheet when there is no finding with any cogent material evidence that the same was actually bogus in nature. It is accordingly observed that creditworthiness of the share subscribers to make investment in the share capital of the appellant company cannot be a disputed matter as per material facts on record. The aforesaid facts underlined by evidences clearly prove the identity of the share applicants, their creditworthiness and source of funds, as well as the genuineness of the transactions being investments in the share capital issued by the appellant, which was subscribed to by each of them. Thus, it is proved beyond any doubt or dispute that the share applicants are actually found to have subscribed to the share capital issued by the appellant during the year under consideration as clearly evident not only from their respective books of accounts but also from their audited accounts filed with the income tax authorities in relation to their own income tax assessments. However, the AO had not brought these indisputable facts on record but acted on his whims and fancies. It is observed that the burden, which lay on the appellant, in relation to section 68 of the Act, has been duly discharged by it and nothing further remains to be proved by it on the issue. Since the conditions precedent for discharging of burden of proof under the provisions of section 68 of the Act is met with adequate evidence, the addition made under such pretext deserves to be deleted. In this respect it is imperative to refer to the decision of the jurisdictional High Court in the case of CIT vs. Sagun Commercial (P) Ltd. [ITA No. 54 of 2001 dated 17.02.2011] wherein it was held as under: "After hearing the learned advocate for the appellant and after going through the materials on record, we are at one with the Tribunal below as well as the Commissioner of Income-tax (Appeals) that the approach of the Assessing Officer cannot be supported. Merely because those applicants were not placed before the Assessing Officer, such fact could not justify disbelief of the explanation offered by the assessee when details of Permanent Account Nos. payment details of shareholding and other bank transactions relating to those payments were placed before the Assessing Officer. It appears that the Tribunal below has recorded specifically that the Assessing Officer totally failed to consider those documentary evidence produced by the assessee in arriving at such I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 7 conclusion. We, therefore, find no reason to interfere with the decision passed by the Commissioner of Income- tax (Appeals) and the Tribunal below and answer the questions formulated by the Division Bench in the affirmative and against the Revenue. The appeal is, thus dismissed." 4.7. Further, the Hon'ble jurisdictional High Court in the case of CIT vs. Gayatri Portfolio Fund (P) Ltd [ITA No. 664 of 2004 dated 26.08.2014], it was observed as under: "We find that the learned Tribunal has confirmed the order passed by the CIT who had overturned the order of the Assessing Officer by making the following observation: "...We find that the identity of the 5 parties investing in the share capital is not in doubt. They are body corporates and their complete addressees are on record. This is the very first assessment in the life of the assessee company. The amounts were deposited by these 5 corporates per account payee cheques. These parties were not shareholders of the assessee company at the time when the case was reopened under section 147 or when the summons were issued to them. We find that the assessee has filed before the A.O. copies of share application forms duly signed along with the complete addresses of the investors along with their I.T. file numbers, account payee cheque numbers and the assessee's bank statements disclosing the deposits of these amounts. In these facts we find that the assessee has discharged its initial onus to prove the identity of the investors as well as their creditworthiness. It is not the case of the Revenue that the investor parties did not exist or that the money was not invested by them through banking channels." Having found such, the Tribunal had relied on the judgement in Hindusthan Tea Trading Co. Ltd. v. CIT (Cal): 263 ITR 289 (Cal) to uphold the order of the CIT. In view of the findings above noted, no substantial question of law arises and therefore, the appeal and the application are dismissed." 4.8. Again, the Hon'ble Jurisdictional High Court in the case of CIT vs. Sanchati Projects (P.) Ltd. [ITAT 140 of 2011 dated 08.06.2011] has observed as under: "It appears from record that the assessee company during the relevant assessment year under appeal raised its share capital by way of receiving share application money against 1,64,000 equity shares aggregating to Rs.82,00,000/- from 8 different parties The Assessing Officer, however, treated the share application money of Rs.45,00,000/- received from five different persons as unexplained cash credit in hands of the assessee. According to the Assessing Officer, those parties had the same addresses as that of the assessee and they had no fixed assets and utilised their capitals in share application of the assessee company. The Assessing Officer, therefore, was of the view that the money ultimately went to the beneficiary through these companies and there was no advertisement even published by the assessee company inviting share application and no Registrar was engaged for such raising of share capital. I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 8 Being dissatisfied the assessee preferred an appeal before the Commissioner of Income- tax (Appeals). The Commissioner of Income-tax (Appeals), however, set aside the said order of assessment and came to the conclusion that all the share applicant/companies were assessed to the tax and their PAN and acknowledgement of I.T. returns along with their audited balance sheets, bank statements showing transactions etc. were made available to the Assessing Officer. It was pointed out that there was no legal bar of more than one company being registered at the same address and, thus, according to the Commissioner of Income-tax (Appeals), the doubt raised by the Assessing Officer about all those companies at the same address did not hold good. Being dissatisfied, the Revenue preferred an appeal before the Tribunal below and by the order impugned herein, the said Tribunal has affirmed the order passed by the Commissioner of Income-tax (Appeals). After hearing Mr. Nizamuddin, learned advocate appearing on behalf of the appellant and after going through the aforesaid materials, we agree with the Tribunal below that the Assessing Officer failed to establish that the share applicants did not have the means to make investment and that such investment actually emanated from the coffers of the assessee company. The receipt of share capital money had been duly recorded in the books of the assessee company and the payment of share application money was also duly recorded in the audited account of each of the share applicants. We, thus, find that both the authorities below on the basis of the aforesaid materials on record were quite justified in deleting the aforesaid addition of Rs.45,00,000/- done by the Assessing Officer. We are of the view that the order impugned does not suffer from any defect whatsoever and no question of substantial error of law arises justifying our interference. The appeal is, thus, summarily dismissed." 4.9. There is no evidence adduced on record to show by the AO that the identities of the share applicants are not proved and/or that the subscription made by them to the share capital of the appellant was not genuine and/or the source of investment was not fully explained to the satisfaction of the AO. Further, the Hon'ble Jurisdictional High Court in the case of CIT vs. Dataware Private Ltd. [ITAT No. 263 of 2011 dated 21.09.2011] wherein while examining the issue of addition of share application money received by the assessee therein u/s 68 of the Act, it was held that after getting the PAN number and getting the information that the creditor assessed under the Act, the Assessing Officer should enquire from the Assessing Officer of the creditor as to the genuineness of the transaction and whether such transaction has been accepted by the Assessing Officer of the Creditor but instead of adopting such course, the Assessing Officer himself could not enter into the return of the creditor and brand the same as unworthy of credence. The Hon'ble High Court further held that so long as it is not established that the return submitted by the creditor (subscriber shareholder) has been rejected by its Assessing Officer, the Assessing Officer of the assessee is bound to accept the same as genuine when the identity of the creditor and the genuineness of transaction through account payee cheque has been established. In the present case also, no evidence was adduced on record to show that the investments made with the appellant in the shape of I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 9 share application monies disclosed in the returns of the share applicants were rejected by their respective Assessing Authorities and accordingly, the issue is set at rest by the decision of the jurisdictional High Court on the issue which is applicable in the present context. In view of the foregoing, the AO is directed to delete the impugned amount of 8,31,00,000/- made u/s 68 of the Act. These grounds are allowed.” 7. A perusal of the above concluding part of the order of the CIT(A) reveals that the ld. CIT(A) has not only taken note of the accounts of the share subscribers but also, noted that all the share subscribers were assessed u/s 143(3) of the Act and thus was satisfied that no addition is called for u/s 68 of the Act. Reliance was placed on the decision of this Bench of the Tribunal in the case of I.T.O.,Ward-10(3), Kolkata V. M/s Digital Commosales LLP, Kolkata in ITA No. 313/Kol/2020; Assessment Year 2012-13; order dt. 23/06/2021, and Deputy Commissioner Of Income Tax 12(2)(1), Mumbai v. M/S.D.N.H.Spinners Private Limited, Mumbai. ITA 6315/MUM/2017 and Starland Vinimay Pvt. Ltd. vs. ITO in ITA No. 574/Kol/2020; Assessment Year 2012-13; order dt. 24/01/2023. We also note that all the seven share subscribers are active companies as on date and at the time of making investment, they had sufficient funds in the form of share capital and reserve and surplus to explain and justify the said investment in shares of the assessee company. 8. Further, we note that the ld. CIT(A) while confirming the additions u/s 68 of the Act has relied on the judgment PCIT(Central)-1, Kolkata vs. NRA Iron & Steel Pvt. Ltd. (supra). We note that the Hon’ble Supreme Court in the said case has taken note of the observations made by the Supreme Court in the “the land mark case of Kale Khan Mohammed Hanif v. CIT [1963] 50 ITR 1 (SC) and Roshan Di Hatti v. CIT [1977] 107 ITR 938 (SC) laying down the proposition that the onus of proving the source of a sum of money found to have been received by an assessee, is on the assessee. Once the assessee has submitted the I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 10 documents relating to identity, genuineness of the transaction, and credit-worthiness, then the AO must conduct an inquiry, and call for more details before invoking Section 68. If the Assessee is not able to provide a satisfactory explanation of the nature and source, of the investments made, it is open to the Revenue to hold that it is the income of the assessee, and there would be no further burden on the revenue to show that the income is from any particular source.” 8.1. Thereafter the Hon’ble Supreme court summed up the principles, which emerged after deliberating upon various case laws, as under : “11. The principles which emerge where sums of money are credited as Share Capital/Premium are : i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act.” 8.2. The Hon’ble Supreme Court, thus, has held that once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness of the subscribers, then the AO is duty bound to conduct an independent enquiry to verify the same. However, as noted above, the Assessing Officer in this case has not made any independent enquiry to verify I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 11 the genuineness of the transactions. The assessee having furnished all the details and documents before the Assessing Officer and the Assessing Officer has not pointed out any discrepancy or insufficiency in the said evidences and details furnished by the assessee before him. As observed above, the assessee having discharged initial burden upon him to furnish the evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the burden shifted upon the Assessing Officer to examine the evidences furnished and even made independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidences furnished by the assessee and confronting with the same to the assessee. In view of this, even applying the ratio laid down by the e Hon’ble Supreme Court in the case of PCIT vs. NRA Iron and Steel Pvt. Ltd., impugned additions are not warranted in this case. 9. So far as the reliance placed by the ld. D/R on the decision of the Tribunal in the case of Tribhuvan Deal Trade Pvt. Ltd. in ITA No. 783/kol/2019 order dt. 16/02/2023, the same is distinguishable as the facts therein were relating to the exorbitant share premium charged on issue of equity shares. 10. Further, a perusal of the Assessment order would reveal that the AO has duly acknowledged the receipt of the relevant documents/evidences not only from the assessee, but also from the subscriber companies. However, he insisted for personal appearance of the directors of the subscriber companies without even going through and discussing about the discrepancies, if any, in the documents furnished by the assessee as well as by the share subscriber companies to prove the identity and creditworthiness of the subscribers and the genuineness of the transaction. The AO has not pointed out in the Assessment Order as to what further enquiries he wanted to make from the directors of the I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 12 subscribers to insist for their personal presence. The Assessee in this case, as noted above, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company individually. However, we note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds. The AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies. Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO. The Ld. Counsel for the assessee has rightly placed reliance upon the decision of the Hon’ble Bombay High Court in the case of PCIT, Panji vs. Paradise Inland Shipping Pvt. Ltd. reported in (2017) 84 taxman.com 58 (Bom) wherein the Hon’ble High Court has held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case. Further the jurisdictional Calcutta High Court in the case of Crystal networks (P) Ltd. vs CIT in ITA No. 158 of 2022, order dt. 29/07/2010 has held as under: “We find considerable force of the submissions of the learned counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the CIT(Appeals) I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 13 has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the produce of the assessee or not. When it was found by the CIT(Appeal) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact finding.” 11. As the ld. CIT(A), in this case, has not only duly examined the facts and explanation as furnished by the assessee but also has given a categorical finding that the identity and creditworthiness of the share subscribers and genuineness of the transaction stood established and the ld. DR could not point out any distinct facts warranting our interference in the order of the CIT(A), we accordingly upheld the order of the CIT(A). The grounds raised by the revenue are, therefore, dismissed. 12. In the result, the appeal of the Revenue stands dismissed. Kolkata, the 13 th July, 2023. Sd/- Sd/- [Sanjay Garg] [Manish Borad] Judicial Member Accountant Member Dated: 13.07.2023. SC, Sr. P.S. I.T.A. No. 32/Kol/2021 Assessment Year: 2012-13 M/s. Fastflow Securities Pvt. Ltd 14 Copy of the order forwarded to: 1. 2. 3. CIT (A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar Kolkata Benches