M/s. A G Holdings Pvt. Ltd., Noida V. ITO, New Delhi

ITA 5700/DEL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6666 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-12-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 23-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ CHOPRA SENIOR
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Question of law; Accommodation entries
• Section: 234B; 147; 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A : NEW DELHI) BEFORE SHRI J.S. REDDY, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.5700/DEL./2013 (ASSESSMENT YEAR : 2004-05) M/S. A.G. HOLDINGS PVT. LTD., VS. ITO, WARD 1 (2) , 5 A/12, ANSARI ROAD, NEW DELHI. DARYAGANJ, NEW DELHI. (PAN : AADCA6959N) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SALIL AGGARWAL, ADVOCATE AND SHRI SHAILESH GUPTA, CA REVENUE BY : SHRI MANOJ CHOPRA, SENIOR DR O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (APPEALS)-IV, NEW DELHI DATED 26.8.2013. 2 THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF ASSESSING OFFICER IN INITIATING THE PROCEEDINGS UNDER SECTION 147 OF THE ACT AND COMPLETION OF ASSESSMENT UNDER SECTION 143(3)/147 OF THE ACT WITH OUT SATISFYING THE STATUTORY PRE-CONDITIONS AS ENVISAGED UNDER THE ACT . 2 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN SUSTAININ G AN ADDITION OF A SUM OF 2 ITA NO.5700/DEL/2013 RS. 4,50,000/- BEING AMOUNT RECEIVED FROM M/S QUALI TY SECURITY SERVICES (P) LTD. AS SHARE CAPITAL ALLEGED TO BE UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ARBITRARILY BRUSHED ASIDE THE DETAILED INFORMATION EVIDENCES AND MATERIAL FURNISHED BY THE ASSESSEE COMPANY IN ORDER TO SUPPO RT THE GENUINENESS OF SHARE CAPITAL AND THUS, THE ADDITION SO SUSTAINED I S WHOLLY UNTENABLE AND UNSUSTAINABLE IN LAW. 3 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER GROSSLY ERRED IN RELYING ON THE JUDGMENTS W HICH ARE TOTALLY INAPPLICABLE TO THE FACTS OF THE CASE OF THE APPELL ANT COMPANY AND HAS PROCEEDED TO UPHOLD THE ORDER OF ASSESSING OFFICER ON WHOLLY IRRELEVANT AND EXTRANEOUS CONSIDERATIONS WHICH ARE UNTENABLE IN LA W. 4 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER ERRED IN LAW AND ON FACTS IN SUSTAINING ADD ITIONS IN THE HANDS OF ASSESSEE COMPANY WITHOUT GIVING ANY FAIR AND PROPER OPPORTUNITY OF BEING HEARD TO THE APPELLANT COMPANY, THEREBY, VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 5 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) FURTHER GROSSLY ERRED IN LAW AND ON FACTS IN SUSTAINING AN ADDITION OF RS. 9,000/- ON ACCOUNT OF ALLEGED COMMISSION PAID AS ALLEGED UNEXP LAINED EXPENDITURE, WHICH ADDITION IS BASED ON MERE CONJECTURES, SURMIS ES AND SUSPICION, UNSUPPORTED BY ANY VALID MATERIAL 6 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) HAS FURTHER ERRED SUSTAINING THE LEVY OF INTEREST U/S 2 34A AND 234B OF THE ACT WHICH IS NOT LEVIABLE ON THE FACTS OF THE APPELLANT COMPANY 3. BRIEF FACTS ARE THAT THE ASSESSEE FILED RETURN D ECLARING LOSS OF RS.6,097/- - ON 23.03.2005. THE RETURN WAS PROCESS ED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). SUBS EQUENTLY INFORMATION WAS RECEIVED FROM THE DIT (INVESTIGATION), JHANDEWA LAN NEW DELHI; AND AO AFTER RECORDING REASONS, ISSUED NOTICE U/S 148 OF T HE ACT ON 15.03.2011. IN RESPONSE, THE ASSESSEE COMPANY FILED RETURN DECLARE D LOSS OF RS.6,100/- ON 3 ITA NO.5700/DEL/2013 11.04.2011 IN COMPLIANCE TO THE NOTICE U/S 148 OF T HE ACT. THE ASSESSEE FILED OBJECTION DATED 08.11.2011 WHICH WERE DULY DI SPOSED OFF BY A SPEAKING ORDER DATED 08.11.2011. THEREINAFTER, THE ASSESSEE COMPANY FILED A WRIT PETITION BEFORE THE HONBLE DELHI HIGH COURT CHALLE NGING THE VALIDITY OF THE RE-OPENING PROCEEDINGS. THE HONBLE HIGH COURT VID E ITS ORDER DATED 25.04.2012 DISMISSED THE WRIT PETITION OF THE ASSES SEE COMPANY AND ALSO VACATED ITS INTERIM ORDER. ACCORDINGLY NOTICE U/S 1 43(2) ALONG WITH LETTER DATED 01.05.2012 WAS ISSUED TO THE ASSESSEE REQUEST ING THE ASSESSEE TO PARTICIPATE IN THE ASSESSMENT/RE-ASSESSMENT PROCEED INGS AFTER THE DISMISSAL OF ITS WRIT PETITION BY THE HONBLE DELHI HIGH COUR T. THE AO ASKED THE ASSESSEE TO PRODUCE THE SHARE APPLICANT IN PERSON W HICH THE ASSESSEE FAILED TO DO. THEREFORE, AFTER GIVING DUE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE, THE AO CAME TO THE CONCLUSION THAT THE APPELLANT HA S RECEIVED ACCOMMODATION ENTRIES OF RS.4,50,000/- FROM ONE M/S QUALITY SECURITY SERVICES (P) LTD. IN THE FORM OF SHARE APPLICATION MONEY. THE AO ALSO CONCLUDED THAT M/S QUALITY SECURITY SERVICES (P) LT D. IS A MERE PAPER COMPANY ENGAGED IN THE BUSINESS OF PROVIDING ACCOMM ODATION ENTRIES AND IS NOT DOING ANY BUSINESS. THE AO HAS GIVEN ELABORATE REASONS FOR THIS CONCLUSION IN THE ASSESSMENT ORDER. HE HAS STATED THAT SUMMONS U/S 131 WERE ISSUED TO THE QUALITY SECURITY SERVICES (P) LT D. WHICH REMAINED 4 ITA NO.5700/DEL/2013 UNCOMPLIED. THE AO PROVIDED A NUMBER OF OPPORTUNIT IES TO THE ASSESSEE TO PRODUCE QUALITY SECURITY SERVICES PVT. LTD. BUT THE SAME WAS NOT DONE. FROM THE PAPERS FILED BY THE ASSESSEE THE AO CAME T O THE CONCLUSION THAT M/S QUALITY SECURITY SERVICES PVT. LTD. IS NOT DOIN G ANY GENUINE BUSINESS. THEREFORE, THE AO ADDED THE AMOUNT OF RS.4,50,000/- CLAIMED TO HAVE BEEN RECEIVED FROM QUALITY SECURITY SERVICES LTD. AS SHA RE APPLICATION MONEY U/S 68 OF THE ACT. 4. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL VIDE ORDER DATED 26 .8.2013 BY HOLDING AS UNDER :- IN THE CASE UNDER CONSIDERATION, THE APPELLANT COM PANY COULD NOT PRODUCE SHARE APPLICANTS EITHER BEFORE THE AO OR BEFORE THE UNDER SIGNED. BUT THE APPELLANT WAS ABLE TO PRODUCE AFFIDAVIT FROM SHARE APPLICANT AS RECENT AS 8.11.2011 WHEN ASSESSMENT PROCEEDINGS WERE IN PROGR ESS BEFORE THE AO. THUS, THE FACTS OF THE CASE ARE SIMILAR TO THE CASE OF NOVA PROMOTERS (SUPRA). THE SHARE APPLICATION MONEY WHICH WAS CLA IMED TO HAVE BEEN RECEIVED @ RS. 20/- PER SHARE AND SHARES WERE CLAIM ED TO HAVE BEEN ALLOTTED HAVE ULTIMATELY COME TO THE DIRECTOR OF TH E APPELLANT COMPANY MR. NIKHIL MITTAL @ RS. 1/- PER SHARE. THUS, THE APPEL LANT COMPANY HAS FAILED TO PROVE THE GENUINENESS OF SHARE APPLICATION MONEY . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND JUDICIAL PR ONOUNCEMENTS ON THE ISSUE, I HOLD THAT THE AO WAS JUSTIFIED IN MAKING T HE ADDITION OF RS. 4,50,000/- ON ACCOUNT OF SHARE APPLICATION MONEY CL AIMED TO HAVE BEEN RECEIVED FROM QUALITY SECURITY SERVICES (P) LTD. AS DISCUSSED IN THE ORDER. THE ADDITION ON ACCOUNT OF COMMISSION AMOUNT OF RS. 9,000/- ON THE SHARE APPLICATION MONEY IS ALSO JUSTIFIED AS THE CLAIMED SHARE APPLICANT M/S QUALITY SECURITY SERVICES (P) LTD. COULD NOT BE EST ABLISHED BY THE APPLICANT TO BE A GENUINE INVESTOR. THEREFORE, THE ADDITION MADE BY THE AO IS UPHELD AND THE GROUNDS OF APPEAL ARE REJECTED. 5. BEFORE US, THE AR OF THE APPELLANT HAS CONTENDED THAT NEITHER AO WAS JUSTIFIED IN MAKING THE ADDITION NOR LD. CIT(A) IN SUSTAINING THE ADDITION OF 5 ITA NO.5700/DEL/2013 RS.4,59,000/-. IT WAS CONTENDED THAT APPELLANT REC EIVED RS.4,50,000/- FROM QUALITY SECURITY SERVICES (P) LTD. THROUGH BANKING CHANNEL AND ASSESSEE HAS FILED COPY OF INCORPORATION, CERTIFICATE OF THE INV ESTOR, INVESTORS PAN, COPY OF ITR, COPY OF THE BALANCE SHEET, COPY OF THE SHAR E APPLICATION RECEIVED BY THE ASSESSEE, DETAILS OF THE CHEQUE, CONFIRMATION O F THE INVESTMENT MADE BY THE INVESTOR COMPANY AND DETAILS OF THE SHARE CERTI FICATES ALLOTTED. IT WAS ALSO SUBMITTED THAT THE AOS RELIANCE ON THE JUDGME NT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NOVA PROMOTERS & FINLEASE (P) LTD. WAS NOT JUSTIFIED AS THE FACTS OF THE ASSESSEE CASE WER E DIFFERENT FROM THE FACTS OF THE NOVA PROMOTERS. HE FURTHER SUBMITTED THAT THE SUMMONS U/S 131 WAS FULLY COMPLIED WITH VIDE REPLY DATED 08.05.2012 AND TOOK OUR ATTENTION TO PAGE 10A OF PAPER BOOK WHEREIN QUALITY SECURITY SER VICES (P) LTD. HAD REPLIED TO THE SUMMONS AS UNDER: 1 THAT OUR COMPANY M/S QUALITY SECURITY SERVICES ( P) LTD. IS INCORPORATED UNDER COMPANIES ACT WITH REGISTRAR OF COMPANIES, NCT OF DELHI & HARYANA ON INCORPORATION NUMBER: 5564902 OF 1994-95 2 THAT OUR COMPANY IS A REGULAR INCOME TAX ASSESSEE ON PAN AAACQ0001C AND PRESENTLY IS BEING ASSESSED BY INCOM E TAX OFFICER, WARD-14(4), NEW DELHI. 3 THAT OUR COMPANYS ONLY RELATION WITH THE CONCERN M/S AG HOLDINGS (P) LTD. DURING THE PERIOD RELEVANT TO A.Y . 2004-05 [01..04.2003- 31.3.2004] WAS THAT OUR COMPANY, M/S QUALITY SECURI TY SERVICES (P) LTD. HAD MADE AN INVESTMENT OF RS. 4,50,000/- IN 22500/- EQUITY SHARES OF AG HOLDINGS (P) LTD. THIS INVESTMENT IS DULLY RECORDED IN OUR BOOKS OF ACCOUNT. 6 ITA NO.5700/DEL/2013 4 THAT THESE SHARES WERE ACQUIRED ON PREMIUM OF RS. 10/- PER SHARE I.E., EQUITY SHARE OF FACE VALUE OF RS. 10/- WAS AC QUIRED FOR RS. 20/- EACH. 5 THAT AGAINST THIS INVESTMENT OF RS. 4,50,000/- WE WERE ALLOTTED 22500 EQUITY SHARES OF AG HOLDINGS (P) LTD. BEARING DISTINCTIVE NUMBERS 370101 TO 392600 6. THE LD. DR SUBMITTED THAT THE ASSESSEE HAD NOT D ISCHARGED THE BURDEN U/S 68 OF THE ACT AND HE RELIED UPON THE ORDER OF L D. CIT(A). ACCORDING TO THE LD. DR ON THE FACE OF THE INVESTIGATION CARRIED OUT BY THE INVESTIGATION WING, THERE WAS SUFFICIENT EVIDENCE TO SHOW THAT TH E ASSESSEE HAD FAILED TO EXPLAIN THE CREDIT. 7. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED T HE RECORDS. WE FIND THAT THE ASSESSEE HAD PLACED ON RECORD AFFIDAVIT OF SACHIN GARG, DIRECTOR OF M/S QUALITY SECURITIES (P) LTD., CERTIFICATE OF INC ORPORATION, BANK STATEMENT, BALANCE SHEET, PAN NOS, SHARE APPLICATION FORM. SU MMON ISSUED TO THEM HAS ALSO BEEN RESPONDED TO CONFIRMING THE INVESTMEN T. HOWEVER, WE FIND THAT AO MADE NO FURTHER ENQUIRY TO DISCREDIT THE CL AIM OF THE ASSESSEE IN THIS RESPECT. ADMITTEDLY, THE PRIOR-ENQUIRY MADE BY THE INVESTIGATION WING WHICH TRIGGERED THE RE-ASSESSMENT, HAS BEEN MADE BE HIND THE BACK OF THE ASSESSEE, WHICH IN THE LIGHT OF THE AFORESAID FACTS AND MATERIALS ON RECORD DOES NOT JUSTIFY THE INFERENCE OF THE AO TO MAKE TH E ADDITION IN THE LIGHT OF RATIO LAID BY THE HON'BLE HIGH COURTS IN THE FOLLOW ING CASES. 7 ITA NO.5700/DEL/2013 8. IN THE CASE OF CIT V FAIR FINVEST LTD ITA NO. 23 2/2012 DATED 22.11.2012, THE JURISDICTIONAL DELHI HIGH COURT HAS HELD AS UNDER: '6. THIS COURT HAS CONSIDERED THE SUBMISSIONS OF TH E PARTIES. IN THIS CASE THE DISCUSSION BY THE CIT(APPEALS) WOULD REVEA L THAT THE ASSESSEE HAS FILED DOCUMENTS INCLUDING CERTIFIED COPIES ISSUED B Y THE REGISTRAR OF COMPANIES IN RELATION TO THE SHARE APPLICATION, AFF IDAVITS OF THE DIRECTORS, FORM 2 FILED WITH THE ROC BY SUCH APPLICANTS CONFIR MATIONS BY THE APPLICANT FOR COMPANY'S SHARES, CERTIFICATES BY AUD ITORS ETC. UNFORTUNATELY, THE ASSESSING OFFICER CHOSE TO BASE HIMSELF MERELY ON THE GENERAL INFERENCE TO BE DRAWN FROM THE READING OF THE INVESTIGATION R EPORT AND THE STATEMENT OF MR. MAHESH GARG. TO ELEVATE THE INFERENCE WHICH CAN BE DRAWN ON THE BASIS OF READING OF SUCH MATERIAL INTO JUDICIAL CON CLUSIONS WOULD BE IMPROPER, MORE SO WHEN THE ASSESSEE PRODUCED MATERI AL. THE LEAST THAT THE ASSESSING OFFICER OUGHT TO HAVE DONE WAS TO ENQUIRE INTO THE MATTER BY, IF NECESSARY, INVOKING HIS POWERS UNDER SECTION 131 SUMMONING THE SHARE APPLICANTS OR DIRECTORS. NO EFFORT WAS MADE IN THAT REGARD. IN THE ABSENCE OF ANY SUCH FINDING THAT THE MATERIAL DISCLOSED VAS UNTRUSTWORTHY OR LACKED CREDIBILITY THE ASSESSING OFFICER MERELY CONCLUDED ON THE BASIS OF ENQUIRY REPORT, WHICH COLLECTED CERTAIN FACTS AND THE STATE MENTS OF MR. MAHESH GARG THAT THE INCOME SOUGHT TO BE ADDED FELL WITHIN THE DESCRIPTION OF SECTION 68 . 7. HAVING REGARD TO THE ENTIRETY OF FACTS AND CIRCU MSTANCES, THE COURT IS SATISFIED THAT THE FINDING OF THE TRIBUNAL IN TH IS CASE ACCORDS WITH THE RATIO OF THE DECISION OF THE SUPREME COURT IN LOVEL Y EXPORTS (SUPRA). 8. THE DECISION IN THIS CASE IS BASED ON THE PECULI AR FACTS WHICH ATTRACT THE RATIO OF LOVELY EXPORTS (SUPRA). WHERE THE ASSESSEE ADDUCES EVIDENCE IN SUPPORT OF THE SHARE APPLICATION MONIES, IT IS OPEN TO THE ASSESSING OFFICER TO EXAMINE IT AND REJECT IT ON TENABLE GROUNDS. IN CASE HE WISHES TO RELY ON THE REPORT OF THE INVESTIGATION AUTHORITIES, SOME M EANINGFUL ENQUIRY OUGHT TO BE CONDUCTED BY HIM TO ESTABLISH A LINK BETWEEN THE ASSESSEE AND THE ALLEGED HAWALA OPERATORS; SUCH A LINK WAS SHOWN TO BE PRESENT IN THE CASE OF NOVA PROMOTERS & FINLEASE (P) LTD. (SUPRA) RELIE D UPON BY THE REVENUE. WE ARE THEREFORE NOT TO BE UNDERSTOOD TO CONVEY THA T IN ALL CASES OF SHARE CAPITAL ADDED UNDER SECTION 68 , THE RATIO OF LOVELY EXPORTS (SUPRA) IS ATTRACTED, IRRESPECTIVE OF THE FACTS, EVIDENCE AND MATERIAL. NO SUBSTANTIAL QUESTION OF LAW ARISES. THE APPEAL IS ACCORDINGLY D ISMISSED.' 8 ITA NO.5700/DEL/2013 9. IN THE CASE OF CIT V RAM NARAIN GOEL 224 ITR 1 80, HONBLE PUNJAB AND HARYANA HIGH COURT OBSERVED THAT SUSPICION HOWS OEVER STRONG CANNOT TAKE THE PLACE OF EVIDENCE OR PROOF. 10. IN THE CASE OF CIT V GANGESHWARI METAL (P) LTD. IN ITA NO. 597/ 2012 JUDGEMENT DATED 21.01.2013, THE HON'BLE HIGH C OURT AFTER CONSIDERING THE DECISIONS IN THE CASE OF NOVA PROMOTERS AND FIN LEASE PVT. LTD. 342 ITR 169 AND JUDGEMENT IN THE CASE OF CIT V LOVELY E XPORTS 319 ITR (SAT.) 5 (SC) HELD AS FOLLOWS:- 'AS CAN BE SEEN FROM THE ABOVE EXTRACT, TWO TYPES O F CASES HAVE BEEN INDICATED. ONE IN WHICH THE ASSESSING OFFICER CARRI ES OUT THE EXERCISE WHICH IS REQUIRED IN LAW AND THE OTHER IN WHICH THE ASSESSING OFFICER 'SITS BACK WITH FOLDED HANDS' TILL THE ASSESSEE EXHAUSTS ALL THE EVIDENCE OR MATERIAL IN HIS POSSESSION AND THEN COMES FORWARD T O MERELY REJECT THE SAME ON THE PRESUMPTIONS. THE PRESENT CASE FALLS IN THE LATTER CATEGORY. HERE THE ASSESSING OFFICER AFTER NOTING THE FACTS, MERELY REJECTED THE SAME. THIS WOULD BE APPARENT FROM THE OBSERVATIONS OF THE ASSESSING OFFICER IN THE ASSESSMENT ORDER TO THE FOLLOWING EFFECT:- ''INVESTIGATION MADE BY THE INVESTIGATION WING OF T HE DEPARTMENT CLEARLY SHOWED THAT THIS WAS NOTHING BUT A SHAM TRANSACTION OF ACCOMMODATION ENTRY. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAID AMOUNT OF RS.1,11,50,000/- MAY NOT BE ADDED TO ITS INCOME. IN RESPONSE, THE ASSESSEE HAS SUBMITTED THAT THERE IS NO SUCH CREDIT IN THE B OOKS OF THE ASSESSEE. RATHER, THE ASSESSEE COMPANY HAS RECEIVED THE SHARE APPLICATION MONEY FOR ALLOTMENT OF ITS SHARE. IT WAS STATED THAT THE ACTU AL AMOUNT RECEIVED WAS RS.55,50,000/- AND NOT RS.1,11,50,000/- AS MENTIONE D IN THE NOTICE. THE ASSESSEE HAS FURNISHED DETAILS OF SUCH RECEIPTS AND THE CONTENTION OF THE ASSESSEE IN RESPECT OF THE AMOUNT IS FOUND CORRECT. AS SUCH THE UNEXPLAINED AMOUNT IS TO BE TAKEN AT RS.55,50,000/-. THE ASSESS EE HAS FURTHER TRIES TO EXPLAIN THE SOURCE OF THIS AMOUNT OF RS.55,50,000/- BY FURNISHING COPIES OF SHARE APPLICATION MONEY, BALANCE4 SHEET ETC. OF THE PARTIES MENTIONED ABOVE AND ASSERTED THAT THE QUESTION OF ADDITION IN THE INCOME OF THE ASSESSEE DOES NOT ARISE. THIS EXPLANATION OF THE AS SESSEE HAS BEEN DULY CONSIDERED AND FOUND NOT ACCEPTABLE. THIS ENTRY REM AINS UNEXPLAINED IN THE HANDS OF THE ASSESSEE AS HAS BEEN ARRIVED BY TH E INVESTIGATION WING OF THE DEPARTMENT. AS SUCH ENTRIES OF RS.5,50,000/- RE CEIVED BY THE ASSESSEE 9 ITA NO.5700/DEL/2013 ARE TREATED AS AN UNEXPLAINED CASH CREDIT IN THE HA NDS OF THE ASSESSEE AND ADDED TO ITS INCOME. SINCE I AM SATISFIED THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF ITS INCOME/ PENALTY PROCE EDINGS UNDER SECTION 271(1)(C) ARE BEING INITIATED SEPARATELY. THE FACTS OF NOVA PROMOTERS AND FINLEASE (P) LTD. ( SUPRA) FALL IN THE FORMER CATEGORY AND THAT IS WHY THIS COURT DECIDED IN FAVOUR OF THE REVENUE IN THAT CASE. HOWEVER, THE FACTS OF THE PRE SENT CASE ARE CLEARLY DISTINGUISHABLE AND FALL IN THE SECOND CATEGORY AND ARE MORE IN LINE WITH FACTS OF LOVELY EXPORTS (P) LTD. (SUPRA). THERE WAS A CLEAR LACK OF INQUIRY ON THE PART OF THE ASSESSING OFFICER ONCE THE ASSES SEE HAD FURNISHED ALL THE MATERIAL WHICH WE HAVE ALREADY REFERRED TO ABOVE. I N SUCH AN EVENTUALITY NO ADDITION CAN BE MADE UNDER SECTION 68 OF THE INCOME TAX ACT 1961. CONSEQUENTLY, THE QUESTION IS ANSWERED IN THE NEGAT IVE. THE DECISION OF THE TRIBUNAL IS CORRECT IN LAW' THE CASE ON HAND CLEARLY FALLS IN THE CATEGORY WHER E THERE IS LACK OF ENQUIRY ON THE PART OF THE A. O. AS IN THE CASE OF GANGESHW ARI METALS (SUPRA) AND FAIR FINVEST LTD. (SUPRA). APPLYING THE RATIO LAID BY THE AFORESAID CASE-LAWS ON THE CASE IN HAND, ADDITION OF RS. 4,50,000/- ON ACCOUNT OF SHARE CAPITAL U/S 68 OF THE ACT AND ADDITION OF RS. 9,000/- ON AC COUNT OF COMMISSION PAID ARE DELETED AND THUS RESPECTIVE GROUNDS RAISED BY T HE ASSESSEE ARE ALLOWED. 11. GROUND NO.6 REGARDING LEVY OF INTEREST IS CONSE QUENTIAL IN NATURE 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED ORDER PRONOUNCED IN OPEN COURT ON THIS DAY OF 2 9 TH FEBRUARY, 2016. SD/- SD/- (J.S. REDDY) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF FEBRUARY, 2016 TS 10 ITA NO.5700/DEL/2013 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-IV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.