ACIT, New Delhi V. Ms. Habitat Royale Projects Pvt. Ltd., New Delhi

ITA 620/DEL/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6551 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 27-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2012

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO. 971/DEL/2012 A.Y. : 2009-10 ACIT, CENTRAL CIRCLE-22, NEW DELHI VS. M/S HABITAT ROYALE PROJECTS PVT. LTD., 2, GOLDEN GATE, WESTEND GREEN, RAJOKARI, NEW DELHI 110 038 (PAN: AABCH4891A) (APPELLANT) (RESPONDENT) DEPARTMENT BY : SH. I.P.S. BINDRA, CIT(DR) ASSESSEE BY : SH. ANIL KUMAR GUPTA, CA ORDER PER H.S. SIDHU : JM THE DEPARTMENT HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 8.12.2011 OF LD. CIT(A)-III, NEW DELHI PERTAINING T O ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED IN REVENUES APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 1,00,00,000/- MADE BY THE ASSESSING OFFICER U/S. 68 OF THE I.T. A CT, 1961 ON ACCOUNT OF 2 BOGUS SHARE APPLICATION MONEY / SHARE PREMIUM RECEI VED BY THE ASSESSEE COMPANY. 2. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF TH E HEARING OF THE APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGIN AL RETURN OF INCOME WAS FILED U/S 139 ON 27.3.2010 AT A TOTAL INCOME OF RS. NIL. SEAR CH AND SEIZURE U/S. 132 OF THE I.T. ACT, WAS CARRIED OUT ON 6.11.2008 IN NIMITAYA GROUP OF CASES/COMPANIES IN WHICH THERE IS SUB GROUP THAT IS KHINDA GROUP. NOTICE U /S. 142(1) WAS ISSUED ON 10.3.2010 AND SERVED UPON THE ASSESSEE COMPANY. NOTICE U/S. 1 43(2) AND 142(1) ALONGWITH DETAILED QUESTIONNAIRE WAS ISSUED ON 12.8.2010 AND SERVED UPON THE ASSESSEE COMPANY. IN RESPONSE TO THE NOTICES ASSESSEES AR A TTENDED THE PROCEEDINGS AND FILED THE SUBMISSIONS FROM TIME TO TIME AS CALLED FOR. T HE ASSESSEE COMPANY WAS FORMED TO CARRY ON THE BUSINESS OF MANUFACTURING AND DEVELOPM ENT OF PLOTS IN THE YEAR UNDER CONSIDERATION THE ASSESSEE COMPANY HAD NOT CARRIED ON ANY BUSINESS ACTIVITY. AO OBSERVED THAT THIS GROUP OF COMPANIES IS IN THE BUS INESS OF LAND AND FAR HOUSE DEALING AND HAS GENERATED HUGE BLACK MONEY AND TO BRING THE SAID BLACK MONEY IN THE BOOKS OF ACCOUNT THE ASSESSEE COMPANY HAS FLOATED THE SHA RES AT THE PREMIUM OF RS. 90/- EACH SHARE AND THE INVESTMENT WERE ARRANGED THROUGH KOLKATA BASED NON EXISTING PAPER COMPANIES. ACCORDINGLY, AO MADE THE ADDITION OF RS. 1,00,00,000/- IN THE HANDS OF THE ASSESSEE COMPANY BEING THE SHARE APPLI CATION MONEY RECEIVED FROM KOLKATA BASED NON-EXISTING COMPANIES/ ENTRY OPERATI NG COMPANIES TREATING IT AS 3 UNEXPLAINED AND UNACCOUNTED INCOME FOR THE YEAR UND ER CONSIDERATION WITHIN THE MEANING OF SECTION 68 OF THE I.T. ACT, 1961 AND ASS ESSED THE INCOME OF THE ASSESSEE AT RS. 1,82,00,000/- U/S. 143(3) OF THE I.T. ACT, 1961 VIDE HIS ORDER DATED 31.12.2010. 4. AGGRIEVED BY THE AFORESAID ORDER OF THE ASSESSI NG OFFICER DATED 31.12.2010, ASSESSEE FILED AN APPEAL BEFORE THE LD. FIRST APPEL LATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 08.12.2011 HAS PARTLY ALLOWED THE APPE AL OF THE ASSESSEE AND DELETED THE ADDITION OF RS. 1,00,00,000/-. 5. AGGRIEVED WITH THE AFORESAID FINDING OF THE LD. CIT(A), REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 6. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL FILED BY THE REVENUE. 7. ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE R ELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT LD. CIT(A) HAS PASSED A WE LL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE AND THE SAME MAY BE UPHELD. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE ORDER OF THE REVENUE AUTHORITIES. WE FIND THAT LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUES IN DISPUTE AND ADJUDICATED THE SAME VIDE PARA NO . 7 AT PAGE NOS. 20 TO 24 OF THE IMPUGNED ORDER. THE RELEVANT PARAGRAPHS OF THE FIND ING OF THE LD. CIT(A) ARE REPRODUCED AS UNDER:- ON A CAREFUL CONSIDERATION OF THE ASSESSMENT ORDER AND THE APPELLANT'S SUBMISSION THE UNDISPUTED FACT ON RECORDS THAT DURI NG THE COURSE OF SEARCH NO INCRIMINATING DOCUMENT WAS FOUND WITH REF ERENCE TO THE FACT 4 THAT THE AMOUNT INVESTED BY THE 9 SHAREHOLDER INVES TOR COMPANIES IN THE APPELLANT COMPANY DOES NOT BELONG TO THE RESPECTIVE SHAREHOLDERS BUT IS THE UNACCOUNTED INCOME OF THE APPELLANT COMPANY WHI CH HAS BEEN PLOUGHED BACK IN THE APPELLANT COMPANY IN THE FORM OF THE SHARE CAPITAL. THE ARGUMENT OF THE ASSESSEE IS THAT THE ENTIRE PAY MENT OF RS. 1 CRORE AS SHARE APPLICATION MONEY INCLUDING PREMIUM HAS BE EN RECEIVED THROUGH ACCOUNT PAYEE CHEQUES. THAT IN ORDER TO PRO VE THE GENUINENESS OF THE AMOUNT RECEIVED THE ASSESSEE HAS PRODUCED SE VERAL DOCUMENTS, AS IS REFERRED BELOW AND THAT THE AO HAS DISREGARDED A LL THESE EVIDENCES FILED BY THE ASSESSEE. REFERRING TO THE OBSERVATION OF THE AO THAT BY NOT PRODUCING THE SO CALLED SHARE APPLICANTS THE ASSESS EE HAS FAILED TO DISCHARGE IT'S PRIMARY ONUS CAST ON IT U/S 68 OF TH E ACT, THE APPELLANT SUBMITS THAT IT HAS DISCHARGED ITS INITIAL BURDEN O F PROVING THE IDENTITY OF THE SHARE APPLICANTS BY FURNISHING THEIR PAN AND GE NUINENESS OF TRANSACTION BY SHOWING MONEY IN ITS BOOKS BY ACCOUN T PAYEE CHEQUES. THAT FURTHER THE CREDITWORTHINESS OF THE SUBSCRIBES HAS ALSO BEEN PROVED BY PRODUCING THE BANK STATEMENTS OF THE SUBSCRIBERS SHOWING THAT IT HAS SUFFICIENT BANK BALANCE IN IT'S ACCOUNT TO ENABLE I T TO SUBSCRIBE TO THE SHARE APPLICANT. THE APPELLANT HAS ALSO CITED SOME DECISIONS OF THE JURISDICTIONAL HIGH COURT IN SUPPORT OF ITS SUBMISS ION. IT IS SEEN FROM THE ASSESSMENT ORDER AND THE SUBMIS SIONS MADE BY THE APPELLANT THAT IN ORDER TO SUBSTANTIATE THE CLAIM T HAT THE SHARE APPLICANTS ARE EXISTING AND THE TRANSACTIONS ARE GE NUINE, THE APPELLANT HAD FILED THE FOLLOWING DOCUMENTS BEFORE THE AO:- A. FORM OF APPLICATION OF EQUITY SHARES B. CERTIFICATE FROM THE COMPANY CERTIFYING THE PAYM ENT OF MONEY TO THE ASSESSEE WITH DETAILS OF CHEQUE AND THE BANK WH EREFROM THE 5 PAYMENT HAS BEEN MADE TOWARDS SHARE APPLICATION MON EY DULY SIGNED BY ONE OF THE DIRECTORS OF THE COMPANY. C. BANK STATEMENT OF THE COMPANY WHERE FROM PAYMENT HAS BEEN MADE. D. COPY OF P AN CARD OF THE ASSESSEE. E. COPY OF ITR ACKNOWLEDGEMENT F. COPY OF AUDITED BALANCE SHEET & P & L NC OF THE COMPANY. G. COPY OF RESOLUTION OF THE COMPANY. H. COPY OF MEMORANDUM & ARTICLE OF ASSOCIATION ALON G WITH CERTIFICATE' OF INCORPORATION APART FROM THE ABOVE ,VIDE SUBMISSION DATED 02.12.1 1, THE APPELLANT ALSO SUBMITTED THE LATEST STATUS OF THE S HARE APPLICANT COMPANIES ON THE WEBSITE OF MINISTRY OF COMPANY AFF AIRS AS ON 30.11.11 WHICH SHOWS THAT ALL THESE COMPANIES ARE A CTIVE AND THEIR ANNUAL RETURN HAVE BEEN DULY FILED. FURTHER THE DIS TINCTIVE NUMBERS OF THE SHARES ISSUED BY THE APPELLANT TO THE 9 SHARE A PPLICANT COMPANIES HAVE ALSO BEEN FILED. THUS FROM THE ABOVE DETAILS A ND PLACING RELIANCE ON THE LATEST DECISIONS OF JURISDICTIONAL HIGH COUR T IN THE CASES OF DWARKADHISH INVESTMENT P. LTD. 330 ITR 298, CIT VS. VICTOR ELECTRODES LTD. 329 ITR 271 & CIT VS. OASIS HOSPITALITY PRIVAT E LIMITED IN ITA NO. 2093 OF2010 (SUPRA) AND WINSTROL PETROCHEMICAL PVT. LTD. (SUPRA) IN WHICH VARIOUS EARLIER DECISIONS OF HIGH COURT AN D THAT OF THE S.C. HAS BEEN CONSIDERED, IT IS OBSERVED THAT THE APPELLANT HAS DISCHARGED THE INITIAL BURDEN PLACED ON IT TO PROVE THE IDENTITY A ND EXISTENCE OF THE SHARE APPLICANT INVESTOR COMPANY. THE FACT THAT THE SHARE APPLICATION MONEY FROM THE APPLICANT HAVE BEEN RECEIVED THROUGH BANKING CHANNEL FURTHER GOES TO SUBSTANTIATE THE IDENTITY OF THE SH ARE APPLICANT AND GENUINENESS OF THE TRANSACTION IN CASE OF THE INVES TOR. SO FAR AS THE ISSUE 6 OF CREDIT WORTHINESS OF THE SHARE SUBSCRIBER COMPAN Y IS CONCERNED, THE HON'BLE S.C. IN CASE OF LOVELY EXPORTS P. LTD. 216 CTR 195 HAS HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE COMPANY FROM ALLEGED BOGUS SHARE HOLDERS WHOSE NAMES ARE GI VEN TO THE AO THEN THE DEPARTMENT IS FREE TO PROCEED IN THEIR INDIVIDU AL ASSESSMENT, BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF THE ASS ESSEE COMPANY. ON THIS ISSUE ANOTHER DECISION OF DELHI HIGH COURT IN CASE OF CIT VS. VALUE CAPITAL SERVICES (307 ITR 334) IS ALSO QUITE RELEVA NT WHEREIN THE COURT INTER ALIA OBSERVED THAT THERE IS ADDITIONAL BURDEN ON THE REVENUE IN AS MUCH AS EVEN IF THE APPLICANT DOES NOT HAVE THE MEA NS FOR THE INVESTMENT, IT MUST SHOW THAT THE INVESTMENT MADE B Y THE APPLICANT ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE, SO AS TO ENABLE IT TO BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. F URTHER THE FOLLOWING OBSERVATION OF THE JURISDICTIONAL H.C. IN CASE OF C IT VS. DIVINE LEASING AND FINANCE LTD. (207 CTR 38), WHICH HAS BEEN QUOTE D WITH APPROVAL IN THE CASE OF DWARKADHISH INVESTMENT (SUPRA) ARE A LSO QUITE RELEVANT VIZ. IN THIS ANALYSIS, A DISTILLATION OF THE PRECEDENTS YIELDS THE FOLLOWING PROPOSITIONS OF LAW IN THE CONTEXT OF S. 68 OF THE IT ACT. THE ASSESSEE HAS TO PRIMA FACIE PROVE (1) THE IDENT ITY OF THE CREDITOR/SUBSCRIBER, (2) THE GENUINENESS OF THE TRA NSACTION, NAMELY, WHETHER IT HAS BEEN TRANSMITTED THROUGH BAN KING OR OTHER INDISPUTABLE CHANNELS; (3) THE CREDITWORTHINE SS OR FINANCIAL STRENGTH OF THE CREDITOR/SUBSCRIBER; (4) IF RELEVAN T DETAILS OF THE ADDRESS OR PAN IDENTITY OF THE CREDITOR/SUBSCRIBER ARE FURNISHED TO THE DEPARTMENT ALONG WITH COPIES OF THE SHAREHOL DERS REGISTER, SHARE APPLICATION FORMS, SHARE TRANSFER REGISTER, E TC. IT WOULD CONSTITUTE ACCEPTABLE PROOF OR ACCEPTABLE EXPLANATI ON BY THE ASSESSEE; (5) THE DEPARTMENT WOULD NOT BE JUSTIFIED IN DRAWING AN ADVERSE INFERENCE ONLY BECAUSE THE CREDITOR/SUBS CRIBER (AILS OR NEGLECTS TO RESPOND TO ITS NOTICES,' (6) THE ONU S WOULD NOT 7 STAND DISCHARGED IF THE CREDITOR/SUBSCRIBER DENIES OR REPUDIATES THE TRANSACTION SET UP BY THE ASSESSEE NOR SHOULD T HE AD TAKE SUCH REPUDIATION AT FACE VALUE AND CONSTRUE IT, WIT HOUT MORE, AGAINST THE ASSESSEE; (7) THE AO IS DUTY BOUND TO I NVESTIGATE THE CREDITWORTHINESS OF THE CREDITOR/SUBSCRIBER, THE GE NUINENESS OF THE TRANSACTION AND THE VERACITY OF THE REPUDIATION . ' THUS FROM THE DETAILS FILED BY THE ASSESSEE AND REF ERRED TO ABOVE IT CANNOT BE SAID THAT THE IDENTITY OF THE SUBSCRIB ER IS NOT ESTABLISHED. THE AO HAS OBSERVED THAT THE DIRECTOR OF THE SHARE APPLICANT COMPANIES HAVE NOT BEEN PRODUCED IN PERSON INSPITE OF REPEATE D REQUESTS. THAT THUS THE ASSESSEE HAS NOT FULLY DISCHARGED IT'S ONU S TO PROVE THE CREDITWORTHINESS OF THE COMPANY WHICH DO NOT HAVE A NY SOURCE OF PROFIT AND ARE NOT IN ANY ACTUAL BUSINESS. ON THIS MATTER, THE OBSERVATION OF THE JURISDICTION AL HIGH COURT IN CASE OF DWARKADHISH INVESTMENT, (SUPRA) ARE QUITE RELEVA NT WHERE THE COURT HAS OBSERVED THAT IT IS THE REVENUE WHICH HAS ALL T HE POWER AND WHEREWITHAL TO TRACE ANY PERSON .MOREOVER, IT IS SE TTLED LAW THAT THE ASSESSEE NEED NOT PROVE THE 'SOURCE OF SOURCE'. THU S IN VIEW OF THE FACT THAT THE ASSESSEE HAD FILED ON RECORD THE SEVERAL D OCUMENTS TO SUBSTANTIATE THE FACT OF INVESTMENT THROUGH SHARE A PPLICATION MONEY BY THE INVESTOR COMPANIES, IT WAS NOW FOR THE AO TO HA VE ENFORCED THE ATTENDANCE OF THE DIRECTOR'S CONCERNED FOR MAKING F URTHER INVESTIGATION IN THE CASE. THIS COULD HAVE BEEN DONE BY ISSUANCE OF SUMMONS UNDER THE ACT. ON THE ISSUE OF THE INITIAL BURDEN OF PROO F THE OBSERVATION OF THE JURISDICTIONAL HIGH COURT IN CASE OF DWARKADHISH IN VESTMENT (SUPRA) MADE IN PARA 8 THERETO IS ALSO RELEVANT WHICH IS AS UNDER.- 'IN ANY MATTER, THE ONUS OF PROOF IS NOT A STATIC O NE. THOUGH IN SECTION 68 PROCEEDINGS, THE INITIAL BURDEN OF PROOF LIES ON THE ASSESSEE YET ONCE HE PROVES THE IDENTITY OF THE CRE DITORS/SHARE APPLICANTS BY EITHER FURNISHING THEIR PAN NUMBER OR INCOME TAX 8 ASSESSMENT NUMBER, AND SHOWS THE GENUINENESS OF TRA NSACTION BY SHOWING MONEY IN HIS BOOKS EITHER BY ACCOUNT PAYEE CHEQUE OR BY DRAFT OR BY ANY OTHER MODE, THEN THE ONUS OF PRO OF WOULD SHIFT TO THE REVENUE. JUST BECAUSE THE CREDITORS/SHARE AP PLICANTS COULD NOT BE FOUND AT THE ADDRESS GIVEN, IT WOULD NOT GIV E THE REVENUE THE RIGHT TO INVOKE SECTION 68. MOREOVER LAW THAT T HE ASSESSEE NEED NOT TO PROVE THE SOURCE OF SOURCE . IN VIEW OF THE ABOVE DISCUSSION IT IS HELD THAT THE APPELLANT'S CASE IS SQUARELY COVERED BY THE RATIO OF VARIOUS DECISIO N OF THE HIGH COURT'S & SUPREME COURT DISCUSSED ABOVE. FROM THE NECESSARY EVIDENCES / DETAILS PROVIDED TO THE AO DURING THE PROCEEDING IT IS SEEN THAT THE INITIAL ONUS HAS BEEN DULY DISCHARGED BY THE APPELL ANT COMPANY. AS 'DISCUSSED ABOVE, THE INVESTIGATION DONE BY THE AO IS NOT SUFFICIENT / ADEQUATE TO CONTROVERT THE APPELLANT'S EXPLANATION AND TO HOLD THAT THE IMPUGNED SHARE APPLICATION MONEY IS THE UNDISCLOSED INCOME OF THE APPELLANT. THE AO HAS ALSO RAISED DOUBTS ON THE GENUINENESS OF THE SHARE APPLICATION MONEY ON THE PREMISES THAT IT IS AT ABN ORMALLY HIGH PREMIUM, EVEN WHERE THE SHARES OF THE APPLICANT COM PANY WERE NOT LISTED. ON THIS ISSUE IT IS OBSERVED THAT SUCH FEAT URES ARE TRIGGERS FOR FURTHER INVESTIGATION BUT THE MATTERS ENDS AT THIS POINT & THE AO IS REQUIRED TO INVESTIGATE THE ISSUE INDEPENDENTLY AND THROUGH CORROBORATIVE EVIDENCES AND CANNOT FORM THIS FACT O F ABNORMAL PREMIUM THE VERY BASIS FOR MAKING ADDITION U/S 68. IN VIEW OF ALL THE ABOVE DISCUSSION TAKEN IN TOTALI TY AND RESPECTFULLY FOLLOWING THE RATIO OF DECISION OF JUR ISDICTION HIGH COURT AND THE HON'BLE SUPREME COURT IN CIT VS. LOVELY EXPORT P. LTD. 216 CTR 195 (SUPRA) AS ALSO THE LATEST JUDGMENT OF DWARKADH ISH INVESTMENTS (P) LTD. 330 ITR 298 CIT VS. VICTOR ELECTRODES LTD. 329 ITR 271 (DEL) & CIT VS. OASIS HOSPITALITY PRIVATE LIMITED IN ITA NO . 2093 OF2010, CIT 9 VS. WINSTRAL PETROCHEMICALS PRIVATE LIMITED {20LL} 199 TAXMAN 135 (DEL), THE ADDITION MADE FOR RS.1 ,00,00,0001- IS D IRECTED TO BE DELETED ON MERITS. 9. AFTER PERUSING THE AFORESAID FINDING OF THE LD. CIT(A), WE FIND THAT THE ASSESSEE SUBMITTED THE LATEST STATUS OF THE SHARE A PPLICANT COMPANIES ON THE WEBSITE OF THE MINISTRY OF COMPANY AFFAIRS AS ON 30.11.11 WHIC H SHOWS THAT ALL THESE COMPANIES ARE ACTIVE AND THEIR ANNUAL RETURN HAVE BEEN DULY F ILED. FURTHER THE DISTINCTIVE NUMBERS OF THE SHARES ISSUED BY THE ASSESSEE TO THE 9 SHARE APPLICANT COMPANIES HAVE ALSO BEEN FILED. WE FIND THAT THE HONBLE SUPREME COURT IN T HE CASE OF LOVELY EXPORTS P. LTD. 216 CTR 195 HAS HELD THAT IF THE SHARE APPLICATION MONEY IS RECEIVED BY THE ASSESSEE FROM ALLEGED BOGUS SHARE HOLDERS WHOSE NAMES ARE GI VEN TO THE AO THEN THE DEPARTMENT IS FREE TO PROCEED IN THEIR INDIVIDUAL A SSESSMENT, BUT IT CANNOT BE REGARDED AS UNDISCLOSED INCOME OF THE ASSESSEE COMPANY. HEN CE, IT IS A SETTLED LAW THAT THE ASSESSEE NEED NOT PROVE THE SOURCE OF SOURCE. WE FURTHER FIND THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE VARIOUS DECISIO NS I.E. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VICTOR ELECTRODES LTD. 329 ITR 271, CIT VS. OASIS HOSPITALITY PRIVATE LIMITED IN ITA NO. 2093 OF 2010 , CIT VS. WINSTRAL PETROCHEMICALS PRIVATE LTD (2011) 199 TAXMAN 135 (D ELHI) INCLUDING THE DWARKADHISH INVESTMENT 330 ITR 298 WHEREIN THE HON BLE HIGH COURT VIDE PARA NO. 8 HAS OBSERVED AS UNDER:- 'IN ANY MATTER, THE ONUS OF PROOF IS NOT A STATIC O NE. THOUGH IN SECTION 68 PROCEEDINGS, THE INITIAL BURDEN OF PROOF LIES ON THE ASSESSEE YET ONCE HE PROVES THE IDENTITY OF THE CRE DITORS/SHARE 10 APPLICANTS BY EITHER FURNISHING THEIR PAN NUMBER OR INCOME TAX ASSESSMENT NUMBER, AND SHOWS THE GENUINENESS OF TRA NSACTION BY SHOWING MONEY IN HIS BOOKS EITHER BY ACCOUNT PAYEE CHEQUE OR BY DRAFT OR BY ANY OTHER MODE, THEN THE ONUS OF PRO OF WOULD SHIFT TO THE REVENUE. JUST BECAUSE THE CREDITORS/SHARE AP PLICANTS COULD NOT BE FOUND AT THE ADDRESS GIVEN, IT WOULD NOT GIV E THE REVENUE THE RIGHT TO INVOKE SECTION 68. MOREOVER LAW THAT T HE ASSESSEE NEED NOT TO PROVE THE SOURCE OF SOURCE . 9.1 IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT(A) HAS RIGHTLY OBSERVED THAT THE ASSESSEES CASE IS SQUARELY COVERED BY THE RATIO OF VARIOUS DECISION OF THE HIGH COURT' S & SUPREME COURT BECAUSE FROM THE NECESSARY EVIDENCES / DETAILS PROVIDED TO THE A O DURING THE PROCEEDING IT IS SEEN THAT THE INITIAL ONUS HAS BEEN DULY DISCHARGED BY T HE APPELLANT COMPANY. THE AO HAS ALSO RAISED DOUBTS ON THE GENUINENESS OF THE SHARE APPLICATION MONEY ON THE PREMISES THAT IT IS AT ABNORMALLY HIGH PREMIUM, EVEN WHERE T HE SHARES OF THE APPLICANT COMPANY WERE NOT LISTED. ON THIS ISSUE IT IS OBSERVED THAT SUCH FEATURES ARE TRIGGERS FOR FURTHER INVESTIGATION BUT THE MATTERS ENDS AT THIS POINT & THE AO IS REQUIRED TO INVESTIGATE THE ISSUE INDEPENDENTLY AND THROUGH CORROBORATIVE EVIDE NCES AND CANNOT FORM THIS FACT OF ABNORMAL PREMIUM THE VERY BASIS FOR MAKING ADDITION U/S 68. IN VIEW OF ALL THE ABOVE DISCUSSIONS TAKEN IN TOTALITY AND RESPECTFULLY FOLL OWING THE RATIO OF THE HON'BLE SUPREME COURT IN CIT VS. LOVELY EXPORT P. LTD. 216 CTR 195 (SUPRA) AS ALSO THE JURISDICTIONAL HIGH COURT JUDGMENT OF DWARKADHISH I NVESTMENTS (P) LTD. 330 ITR 298 CIT VS. VICTOR ELECTRODES LTD. 329 ITR 271 (DEL ) & CIT VS. OASIS HOSPITALITY 11 PRIVATE LIMITED IN ITA NO. 2093 OF2010, CIT VS. WIN STRAL PETROCHEMICALS PRIVATE LIMITED {20LL} 199 TAXMAN 135 (DEL), LD. CIT(A) HAS RIGHTLY DIRECTED THE AO TO DELETE THE ADDITION OF RS.1,00,00,000/- WHICH DOE S NOT NEED ANY INTERFERENCE ON OUR PART, HENCE, WE UPHOLD THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND ACCORDINGLY, DISMISS THE GROUND RAISED BY THE REVE NUE. 10. IN THE RESULT, THE REVENUES APPEAL STANDS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2016. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 29/11/2016 SRBHATNAGAR DIC. THR. DNS COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES