ITO, New Delhi V. M/s Empire Buildtech Pvt. Ltd., New Delhi

ITA 4656/DEL/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2686 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 09-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARCHANA S AWASTHI SENIOR
• Assessee Lawyers: MRS RANO JAIN CAS
• Keywords: Unexplained cash credit; Question of law; Accommodation entries; Onus to prove
• Section: 143(3); 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) SHRI R.P. TOLANI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4656/DEL./2009 (ASSESSMENT YEAR : 2006-07) ITO, WARD 11 (1), VS. M/S. EMPIRE BUILDTECH PVT. LTD., NEW DELHI. M 7, ARADHANA BHAWAN, AZADPUR, COMMERCIAL COMPLEX, NEW DELHI 110 033. (PAN : AABCE5263B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VED JAIN & MRS. RANO JAIN, CAS REVENUE BY : MS. ARCHANA S. AWASTHI, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT (APPEALS)- XIII, NEW DELHI DATED 16.10.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE RETURN OF INCOME WAS FILED ON 31.10.2006. T HE ASSESSEE U/S 143(3) WAS FINALIZED ON 29.12.2008 AND ADDITION OF RS.1,10 ,00,000/- WAS MADE U/S 68 OF THE INCOME-TAX ACT, 1961. THE CIT (A) DELETE D THE ADDITION BY HOLDING AS UNDER :- 6. FROM THE APPELLANT SUBMISSION IT IS QUITE CLEAR THAT IT WAS ABLE TO PROVIDE ALL THE INFORMATION AND HAD PRODUCED ALL THE MATERIALS AS A PROOF FOR INCREASE IN THE SHARE CAPITAL. DURING THE COURSE OF THE ITA NO.4656/DEL./2009 2 ASSESSMENT PROCEEDINGS THE APPELLANT HAD SUBMITTED VARIOUS DOCUMENTS IN CASE OF INVESTORS; SUCH AS:- I) NAMES OF THE INVESTOR II) THEIR COMPLETED ADDRESS AS PER COMPANY'S RECORD S III) APPLICATION OF THE INVESTORS IV) NO. OF SHARES ALLOTTED V) AMOUNT INVESTED VI) MODE OF PAYMENT (IN NONE OF THE CASES THE AMOUN T IS RECEIVED BY CASH AND IN ALL THE CASES THE AMOUNT IS RECEIVED BY PROPER BANKING CHANNEL). VII) CHEQUE/DD NUMBER & BANK ON WHICH THE SAME WAS DRAWN. VIII) CONFIRMATION OF INVESTORS IX) RETURN OF INCOMES OF THE INVESTORS X) STATEMENT OF AFFAIRS OF THE INVESTORS THE APPELLANT HAD SUBMITTED ALL THE INFORMATION AT THE TIME OF ASSESSMENT PROCEEDINGS. THE APPELLANT NOT ONLY GAVE ALL THE PARTICULARS BUT ALSO GAVE FULL INFORMATION FOR ENAB LING THE AO TO ACTUALLY TRACK THE INVESTORS. THE ENTIRE ADDITION H AS BEEN MADE BY THE AO WITHOUT APPRECIATING THE FACTS OF THE APPELLANT. FURTHER IT MAY BE MENTIONED THAT THE APPELLANT HAD DISCHARGED THE ONUS WHICH LIED ON IT BY PRODUCING ALL THE EVID ENCES FOR PROVING THE GENUINENESS OF THE INVESTORS. IT HAS GIVEN FULL PARTICULARS OF THE TRANSACTIONS AND IT HAS ALSO PROVIDED MATERIAL WHIC H WOULD ENABLE THE ASSESSING OFFICER TO TRACK THE INVESTORS. HENCE THE ADDITION HAS BEEN MADE PURELY ON THE BASIS OF SURMISES AND CONJECTURE S AS THE APPELLANT HAD PROVED THAT GENUINENESS OF THE INVESTMENTS. THE LEGISLATURE HAS LAID DOWN THAT IN THE ABSENCE OF A SATISFACTORY EXP LANATION, THE UNEXPLAINED CASH CREDIT 'MAY BE CHARGED TO INCOME T AX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR'. IN THIS CAS E THE LEGISLATIVE MANDATE IS NOT IN TERMS OF THE WORDS' SHALL BE CHAR GED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR '. THUS, UN- SATISFACTION OF THE EXPLANATION DOES NOT AND NEED N OT AUTOMATICALLY RESULT IN DEEMING THE AMOUNT CREDITED IN THE BOOKS AS THE INCOME OF THE APPELLANT. THE APPELLANT HAVING DISCHARGED THE INITIAL ONUS WHICH LAY ON IT IN TERMS OF S. 68 BY PROVING THE IDENTITY OF THE CREDITORS BY GIVING THEIR ADDRESSES, ALONG WITH THE COPY OF THE RETURN OF ALLOTMENT FILED WITH THE ROC., CASH CREDITS COULD NOT BE TREA TED AS NON-GENUINE ON THE GROUND THAT SOME CREDITORS COULD NOT BE LOCA TED. MERELY REJECTING THE EVIDENCES FILED AND THE EVIDENCES GIV EN BY THE APPELLANT DO NOT ENTITLE THE ASSESSING OFFICER TO MAKE THE AD DITION U/S 68 OF THE INCOME TAX ACT, 1961. SUCH OUTRIGHT REJECTION OF TH E EVIDENCES BY THE ITA NO.4656/DEL./2009 3 ASSESSING OFFICER IS TOTALLY CONTRARY TO THE LAW AS LAID DOWN BY VARIOUS COURTS OF LAW AS STATED UNDER:- I) ROHINI BUILDERS VS. DCIT - 192 CTR 373 (GUJ.) II) ORISSA CORPORATION PVT. LTD. - 159 ITR 88 (SC ) III) HANUMAN AGARWAL - 151 ITR 150 (PAT.) IV) GANI SILK PALACE - 171 ITR 373 (MAD.) V) SAROGI CREDIT CORPORATION - 103 ITR 344 (PAT.) VI) ACIT VS. GOVING RAM AGARWAL - 76 ITD 120 (CAL .) IN ALL THE ABOVE MENTIONED CASE IT HAS BEEN STATED BY THE COURTS OF LAW THAT ONCE THE ASSESSEE HAS DISCHARGED HIS PR IMARY ONUS OF GIVING THE EVIDENCES IN RESPECT OF THE IDENTITY, CR EDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS, IT IS THE RESPONSI BILITY OF THE ASSESSING OFFICER TO MAKE FURTHER INVESTIGATION IF HE SUSPECT THE GENUINENESS OF THE SAID TRANSACTION. ONCE THE BURDEN SHIFTS TO THE REVENUE, IT SHOULD BR ING ON RECORD MATERIAL FROM WHICH IT COULD BE CONCLUDED THAT THE INVESTMENTS WERE, IN FACT, MADE BY THE ASSESSEE AND NOT BY THE DEPOSI TORS. THE FOLLOWING DECISIONS ARE RELEVANT ON THIS POINT:- CIT VS. REAL TIME MARKETING PVT. LTD. 221 CTR 716; CIT VS. VALUE CAPITAL SERVICES PVT. LTD.-221 CTR 51 1 (DEL.) CIT VS. DAYA CHAND JAIN VAIDYA-98 ITR 280 (ALLH.). THE ADDITION MADE BY THE ASSESSING OFFICER ARE CLEA RLY BASED ON ASSUMPTIONS, PRESUMPTIONS, CONJECTURES AND SURMI SES INASMUCH AS HE CAME TO THE CONCLUSION IN COMPLETE DISREGARD AND IGNORANCE OF THE SUPPORTING DOCUMENTS AND EVIDENCES FILED DURING THE PROCEEDINGS. UNDER THESE CIRCUMSTANCES, NO ADDITION CAN BE MADE UNDER SECTION 68 OF THE INCOME TAX ACT, 1961. FOLLOWING COURTS' CITA TIONS ARE RELEVANT ON THIS POINT:- I) DHIRAJ LAL GIRDHARI LAL VS. CIT - 26 ITR 736. II) OMAR SALAY HOMAMMED SAIT VS. CIT - 37 ITR 151 III) DHAKESHWARI COTTON MILLS LTD. VS. CIT - 26 IT R 775. IV) LALEHAND BHAGAT AMBIKA RAM VS. CIT - 37 ITR 28 8 AGAINST THIS DELETION OF ADDITION U/S 68 OF THE ACT , THE REVENUE IS IN APPEAL BY TAKING THE FOLLOWING GROUNDS :- ITA NO.4656/DEL./2009 4 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER OF THE CIT(A) IS WRONG, PERVERSE, ILLEGAL AND AGAIN ST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE SET ASIDE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(APPEAL) HAS ERRED IN DELETING ADDITION MADE OF RS.1,10,00,000/- U/S 68 - A. THAT BEFORE THE ISSUANCE OF CHEQUES FROM THE BAN K ACCOUNTS OF THE SHARE APPLICANTS THERE WERE MANY EN TRIES OF CASH DEPOSITS & IT IS SEEN THAT MONEY WAS WITHDR AWN ON THE SAME DATE OR THE VERY NEXT DATE WHICH SHOWS THAT THE ALLEGED SHARE APPLICANT IS AN ENTRY OPERATOR. B. THAT THE ASSESSEE FAILED TO PRODUCE THE ALLEGED SHARE APPLICANT FOR VERIFICATION. MERE SUBMISSION OF DOCUMENTS AND MATERIAL IS HELD TO BE INSUFFICIENT I N THE CASE OF HINDUSTAN TEA TRADING CO VS CIT 263 ITR 289 . C. THE DICTUM GIVEN BY THE HON'BLE SUPREME COURT IN CIT VS DURGA PRASAD MORE 82 ITR 540 & SUMATI DAYAL VS CIT 214 ITR 801 IN WHICH APEX COURT HAS LAID DOWN THE PROPOSITION THAT THE COURTS & TRIBUNALS SHOULD SEE THE PREPONDERANCE OF PROBABILITIES WHILE CONSIDERIN G THE EVIDENCE FURNISHED BY THE ASSESSEE. D. FINDING OF FACTS RECORDED BY THE A.O. THAT THE A SSESSEE INDULGED IN A NOTORIOUS PRACTICE OF RESORTING TO ACCOMMODATION ENTRIES IN ORDER OF EVADE PAYMENT OF LEGITIMATE TAX. E. THAT THE A.O. IS DUTY BOUND U/S 68 TO ENQUIRE IN TO THE CREDITWORTHINESS, IDENTITY OF THE CREDITORS & GENUINENESS OF THE TRANSACTIONS. THE CIT (A) HAS E RRED IN IGNORING SUCH FINDINGS RECORDED BY THE A.O. IN T HE ASSESSMENT ORDER. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 3. LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER AND PLEADED THAT THE CIT (A) WAS NOT JUSTIFIED IN DELETING THE ADDITION AS THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENES S OF TRANSACTION OF THE ITA NO.4656/DEL./2009 5 PERSONS FROM WHOM THE SHARE CAPITAL WAS RECEIVED. LD. DR RELIED ON THE ORDER OF ASSESSING OFFICER. HE PLEADED TO SET ASID E THE ORDER OF CIT (A) AND RESTORE THE ORDER OF ASSESSING OFFICER 4. ON THE OTHER HAND, LD. AR SUBMITTED THAT THE ASS ESSEE HAS RECEIVED SHARE CAPITAL OF RS.1,10,00,000/- FROM 39 PERSONS. THE ASSESSING OFFICER ISSUED NOTICES U/S 133(6) OF THE INCOME-TAX ACT, 19 61 TO ALL THESE INVESTORS. ONLY TWO NOTICES SENT TO SHRI MAHENDER SINGH AND SH RI VIJAY KUMAR PODDAR WERE RECEIVED BACK AS THE SAME COULD NOT BE DELIVER ED TO THEM. THE INVESTORS IN 9 CASES DID NOT SENT THE CONFIRMATION IN RESPONS E TO THIS NOTICE U/S 133(6) OF THE ACT. HOWEVER, CONFIRMATIONS OF ALL THESE PERSO NS (9 + 2) WERE SUBMITTED BY ASSESSEE DIRECTLY TO ASSESSING OFFICER. THE ASS ESSING OFFICER DREW ADVERSE INFERENCE WITH REGARD TO THESE 11 PERSONS A ND MADE AN ADDITION OF RS.31,94,000/- FOR HOLDING THAT ASSESSEE HAS FAILED TO FURNISH SATISFACTORY EXPLANATION FOR THIS AMOUNT. IN ALL OTHER CASES, T HE ASSESSING OFFICER RECEIVED CONFIRMATIONS AND THE ACKNOWLEDGEMENT OF THE ITRS. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FURNISHED THE FOLLOWI NG DOCUMENTS BEFORE THE ASSESSING OFFICER :- I) NAMES OF THE INVESTOR II) THEIR COMPLETE ADDRESS AS PER COMPANY'S RECORDS III) APPLICATION FORMS IV) NO. OF SHARES ALLOTTED V) AMOUNT INVESTED BY THE SAID PERSON ITA NO.4656/DEL./2009 6 VI) MODE OF PAYMENT (IN NONE OF THE CASES THE AMOUN T IS RECEIVED BY CASH AND IN ALL THE CASES THE AMOUNT IS RECEIVED B PROPE R BANKING CHANNEL). VII) CHEQUE/DD NUMBER & BANK ON WHICH THE SAME WAS DRAWN. VIII) PARTICULARS OF SHARE ALLOTMENT. IX) CONFIRMATION OF SHARE APPLICANT X) COPIES OF ITR AND OTHER INCOME TAX PARTICULARS O F SHARE HOLDERS. THE ASSESSING OFFICER WAS PROVIDED WITH NAMES AND F ULL ADDRESSES OF THESE 39 INVESTORS. THE ASSESSING OFFICER WAS ALSO PROVI DED DETAILS OF MODE OF PAYMENT. IN ALL THE CASES, THE AMOUNT WAS RECEIVED BY ACCOUNT PAYEE CHEQUES ONLY. THE DETAILS REGARDING NUMBER OF SHARES ALLOT TED WITH PARTICULARS OF SHARE ALLOTMENT AND CONFIRMATION OF SHARE APPLICANTS WERE ALSO FILED IN ALL CASES. THE COPIES OF INCOME-TAX RETURNS AND OTHER INCOME-T AX PARTICULARS OF ALL THESE 39 PERSONS WERE FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ENQUIRED BY ISSUING THE NOTICES U/S 133(6) AT THE A DDRESSES GIVEN BY THE ASSESSEE WHERE THESE INVESTORS WERE STAYING. THE E NQUIRY LETTER U/S 133(6) WAS REPLIED BY 28 INVESTORS AND CONFIRMED THAT THEY HAVE MADE THE INVESTMENT IN THE ASSESSEE COMPANY. THESE 28 PERSO NS DIRECTLY CONFIRMED THE FACT OF INVESTMENT IN ASSESSEE COMPANY IN RESPONSE TO NOTICE U/S 133(6) TO THE ASSESSING OFFICER ITSELF. THE CONFIRMATIONS REGARD ING OTHER PERSONS WERE ALSO FIELD BEFORE THE ASSESSING OFFICER. THUS, THE ASSE SSEE WAS ABLE TO ESTABLISH THE IDENTITY OF ALL THE INVESTORS AND GENUINENESS O F TRANSACTIONS. THE AMOUNT WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. THERE WAS NO MATERIAL ON WHICH THE ASSESSING OFFICER HAS DRAWN PRESUMPTION T HAT THE INVESTORS HAVE ITA NO.4656/DEL./2009 7 MADE THE INVESTMENT FROM THE ASSESSEES OWN MONEY. LD. AR SUBMITTED THAT ASSESSEE HAD FULLY DISCHARGED THE ONUS AS LAID OUT IN SECTION 68 OF THE ACT. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAS SUBMITTED THE INCOME-TAX PARTICULARS OF ALL THESE INVESTORS TO THE ASSESSING OFFICER. IF THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE CREDITWORTHINESS OF THESES PERSONS THEN HE COULD HAVE ASKED THE RESPECTIVE ASSESSING OFFICERS TO REOPEN THEIR CASE AND MAKE THE ADDITION IN THEIR HANDS. THE LD. AR ALSO RELIED UPON VARIOUS DECISIONS OF HON'BLE DELHI HIGH COURT AND HON'BLE S UPREME COURT MENTIONED IN THE ORDER OF CIT (A) WHICH INCLUDE THE FOLLOWING :- I) STELLAR INVESTMENTS LTD. - 192 ITR 287 (DEL) II) CIT VS. LOVELY EXPORTS PVT. LTD. [2008] 216 C TR 195 (SC) III) CIT VS. ELECTRO POLYCHEM LTD.-294 ITR 661 (M AD.) IV) CIT VS. VALUE CAPITAL SERVICES PVT. LTD.-307 ITR 34 4 (DEL) V) SKY HIGH PROPERTIES PVT. LTD. VS. I.T.O.-258 ITR (AT) 98 (DEL.) VI) ALLEN BRADLEY INDIA LTD. VS. CIT-80 ITD 43 (D EL.) VII) CIT VS. DIVINE LEASING & FINANCE LTD. (2007) 1 58 TAX MAN 440(DL) LD. AR PLEADED TO SUSTAIN THE ORDER OF THE CIT (A). 5. WE HAVE HEARD BOTH THE SIDE ON THIS ISSUE. WE F IND THAT THE ASSESSEE HAS FURNISHED THE NAMES AND COMPLETE ADDRESSES OF T HE PERSONS FROM WHOM SHARE APPLICATION MONEY WAS RECEIVED. THE COPY OF THE SHARE APPLICATION AND AMOUNT INVESTED AND DETAILS OF NUMBER OF SHARES APP LIED WERE ALSO FURNISHED TO THE ASSESSING OFFICER. THE ASSESSEE HAS ALSO GI VEN THE DETAILS OF MODE OF PAYMENT AND CHEQUE/DEMAND DRAFT NUMBERS AND THE BAN KS FROM WHICH THE ITA NO.4656/DEL./2009 8 AMOUNTS WERE RECEIVED. THE CONFIRMATIONS FROM THE INVESTORS WERE ALSO FILED BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAS FIL ED THE COPY OF RETURN OF INCOME OF THESE INVESTORS. THUS, THE ASSESSEE HAS FURNISHED THE RELEVANT INFORMATION DURING THE ASSESSMENT PROCEEDINGS ITSEL F. IN OUR CONSIDERED VIEW, ASSESSEE HAD DISCHARGED OBLIGATION/ONUS AS LAID OUT IN SECTION 68 OF THE ACT. THE ASSESSEE HAS PROVIDED TO ASSESSING OFFICER THE INFORMATION BY WHICH HE COULD HAVE TRACKED THE INVESTORS BY WAY OF FURTHER INVESTIGATION IF REQUIRED. IN THIS SITUATION, WE HOLD THAT THE ASSESSEE HAS DI SCHARGED THE ONUS CASTING UPON IT U/S 68 OF THE INCOME-TAX ACT, 1961. IN OUR CONSIDERED VIEW, THE ASSESSEE SUBMITTED A SATISFACTORY EXPLANATION FOR T HE CREDITS RECEIVED IN ITS ACCOUNTS IN THE FORM OF SHARE APPLICATION. ONCE TH E ASSESSEE HAS DISCHARGED THE INITIAL ONUS LAY ON IT IN TERMS OF SECTION 68 O F THE INCOME-TAX ACT, 1961 FOR PROVING THE IDENTITY OF THE PERSON AND CREDITWORTHI NESS ALONG WITH THE GENUINENESS OF THE TRANSACTION. THEN IT IS ON REV ENUE TO DISPROVE THE SAME AND SHIFT THE ONUS ON ASSESSEE. THE ASSESSING OFFI CER HAS OUT RIGHTLY REJECTED SUCH EVIDENCES WITHOUT ESTABLISHING FALSITY OF THES E DOCUMENTS. ONCE THE BURDEN HAS SHIFTED ON THE REVENUE THEN IT IS ON THE ASSESSING OFFICER TO BE ESTABLISH THAT EXPLANATION SUBMITTED OR DOCUMENT FU RNISHED BY THE ASSESSEE WERE FALSE OR NON-GENUINE. INCOME TAX RECORDS WERE ALSO FURNISHED. THE PERSONAL IDENTITIES OF THESE INVESTORS WERE PROVED BEYOND ANY DOUBT. ASSESSING OFFICER HAD NOT TAKEN ANY STEP TO FURTHER VERIFY THE CREDITWORTHINESS ITA NO.4656/DEL./2009 9 OF THESE INVESTORS. NO EFFORTS WERE MADE TO PURSUE THESE INVESTORS. NO ADDITION CAN BE MADE ON THE BASIS OF ASSUMPTIONS AN D PRESUMPTIONS. NO DOCUMENT CAN BE DISREGARDED OR IGNORED WITHOUT PROV ING OTHERWISE. HON'BLE PATNA HIGH COURT IN THE CASE OF ADDL. CIT VS. HANUM AN AGARWAL REPORTED IN 151 ITR 150 HELD AS UNDER :- HELD, THAT THE CONFESSION MADE BY THE CREDITOR WA S NOT MADE AVAILABLE TO THE ASSESSEE OR THE TRIBUNAL. TH E ASSESSEE HAVING FURNISHED THE CORRECT NAME AND ADDRESS OF TH E CREDITOR, HAVING GIVEN THE G.I.R. NUMBER AND HAVING FILED THE CONFIRMATORY LETTER FROM THE CREDITOR, DID ALL THAT IT COULD DO AND THESE THREE MATERIALS SHOWED PRIMA FACIE NOT ONLY T HE IDENTITY OF THE CREDITOR BUT ALSO THE GENUINENESS OF THE TRANSA CTION AND ALSO THE CAPACITY OF THE CREDITOR AND, AS SUCH, THE ASSE SSEE COMPLETELY DISCHARGED ITS INITIAL ONUS UNDER S. 68 OF THE I.T. ACT, 1961. THE REVENUE, ON ITS PART, DID NOT SUMMON THE CREDITOR U NDER S. 131 OF THE ACT. IT TOOK NO STEPS TO VERIFY THE STATEMEN T OF THE ASSESSEE. THUS, AFTER THE ASSESSEE FILED THE CONFIR MATORY LETTER WITH THE CORRECT NAME AND ADDRESS OF THE CREDITOR A ND THE G.I.R. NUMBER AS WELL, THE ONUS IMMEDIATELY SHIFTED ON THE DEPARTMENT WHICH WAS NOT DISCHARGED BY THE DEPARTMENT IN THIS CASE. THE DECISION OF THE ADDITION OF RS.41,500/- AND ALLOWAN CE OF INTEREST ON IT BY THE TRIBUNAL WAS, THEREFORE, PROPER. PER SUSHIL KUMAR JHA : WHERE AN ASSESSEE GIVES THE CORRECT NAME, ADDRESS AND GIR NUMBER OF THE CREDITO R, HE HAS DISCHARGED HIS ONUS TO PROVE THE GENUINENESS OF CRE DITS IN HIS ITA NO.4656/DEL./2009 10 ACCOUNTS AND UNLESS A NOTICE IN DUE FORM UNDER S. 1 31 OF THE ACT IS ISSUED BY THE REVENUE AUTHORITY TO TEST THE GENU INENESS OF THE TRANSACTION OR THE CAPACITY OF THE CREDITOR TO PAY, THE AMOUNTS CANNOT BE ASSESSED IN THE HANDS OF THE ASSESSEE. SIMILARLY HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ORISSA CORPORATION P. LTD. 159 ITR 78 HAS HELD AS UNDER :- HELD, THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN T HE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME- TAX ASSESSEES. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE . THE REVENUE, APART FROM ISSUING NOTICES UNDER SECTION 1 31 AT THE INSTANCE OF THE RESPONDENT, DID NOT PURSUE THE MATT ER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CRE DITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO CALLED AL LEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE RESPONDENT C OULD NOT DO ANY THING FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE B URDEN THAT LAY ON IT, THEN IT COULD NOT BE SAID THAT SUCH A CO NCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. I F THE CONCLUSION IS BASED ON SOME EVIDENCE ON WHICH A CON CLUSION COULD BE ARRIVED AT, NO QUESTION OF LAW AS SUCH ARO SE. THE HIGH COURT WAS RIGHT IN REFUSING TO STATE A CASE. THE ASSESSEE HAS RECEIVED SHARE APPLICATION AND FUR NISHED FULL PARTICULARS OF THE SAME BEFORE THE ASSESSING OFFICER. THE IDENTIT Y OF THE SUBSCRIBER IS ITA NO.4656/DEL./2009 11 PROVED BEYOND DOUBT. THE DETAILS OF INCOME-TAX RET URNS WERE ALSO FIELD BEFORE THE ASSESSING OFFICER. CONFIRMATIONS WERE A LSO FILED BEFORE ASSESSING OFFICER EITHER DIRECTLY BY INVESTOR OR BY ASSESSEE. THE COPY OF THE SHARE APPLICATION FORM WAS ALSO FURNISHED. THE PAYMENTS HAVE BEEN MADE BY THE ACCOUNT PAYEE CHEQUES THROUGH BANKING CHANNELS. IN SUCH A SITUATION, THE GENUINENESS OF THE TRANSACTION IS ALSO ESTABLISHED. ONCE THE ASSESSEE HAS FURNISHED THE INCOME-TAX PARTICULARS OF THE CONCERN ED SUBSCRIBERS THEN THE ASSESSING OFFICER IS DUTY BOUND TO INVESTIGATE THE CREDITWORTHINESS OF THE SUBSCRIBERS. ALL THESE FACTS SHOW THAT THE ASSESSE E WAS ABLE TO DISCHARGE THE ONUS LAY ON IT IN TERMS OF SECTION 68 OF THE INCOME -TAX ACT, 1961. KEEPING ALL THESE FACTS IN VIEW, WE FIND NO FAULT IN THE ORDER OF CIT (A) AND WE DISMISS ALL THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF APRIL, 2013. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH DAY OF APRIL, 2013 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.