Shiv Maha Laxmi Promotors Pvt. Ltd., Meerut V. ITO, New Delhi

ITA 6291/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7301 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 19-03-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 19-12-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Keywords: Principle of natural justice; Period of limitation; Accommodation entries; Time period of passing order
• Section: 142(1); 133(6); 147; 131; 68; 148; 144

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI A. T. VARKEY, JUDICIAL MEMBER ITA NO. 6291 /DEL/ 2012 (ASSESSMENT YEAR: 2003 - 04 ) SHIV MAHA LAXMI PROMOTERS PVT. LTD. C/O. VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT, PAN:AAHCS0836L VS. ITO WARD - 8(2) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : VINOD KUMAR GOEL, ADV. RESPONDENT BY : SMT. RENUKA JAIN GUPTA, CIT DR O R D E R PER A. T. VARKEY , JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - XI, NEW DELHI DATED 25.09.2012 FOR THE ASSESSMENT YEAR 2003 - 04 . 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS: - 1. THAT THE LD CIT(A) - XI, NEW DELHI IGNORED THE EVIDENCE FILED BY THE ASSESSEE, WHICH WAS FORWARDED TO THE ASSESSING OFFICER FOR HIS COMMENTS THEREFORE, REJECTION OF APPEAL IS ARBITRARY, UNJUST AND AGAINST THE FACTS AND LAW FOR THE CASE. 2. TH AT LD CIT(A) - XI, NEW DELHI IGNORED THE CASE LAWS QUOTED BY THE ASSESSEE AND RELY UPON THE CASE LAW WHICH IS NOT RELY BY THE ASSESSING OFFICER NOR CONFIRMED BY THE ASSESSEE AT ANY STATE THEREFORE, ORDER PASSED BY CIT(A) - XI, NEW DELHI IS AGAINST THE PRINCIPA L OF NATURAL JUSTICE. 3. THAT THE ADDITION OF RS. 39,01,750/ - BY ASSESSING OFFICER IS ARBITRARY, UNJUST AND AGAINST WITHOUT ANY MERITS. 3. BRIEF FACTS OF THE CASE IS AS FOLLOWS: - ASSESSEES CASE WAS TAKEN UP BY THE ASSESSING OFFICER FOR RE OPENING UNDER S ECTION 148 READ WITH SECTION 142(1) AFTER RECORDING REASONS AND NOTICE WAS ISSUED BY THE ASSESSING OFFICER ON 19.03.2010. THE SAID NOTICE WAS RECEIVED BACK UN - SERVED WITH THE POSTAL REMARKS NO SUCH FIRM. ACCORDINGLY THE NOTICE WAS SERVED BY AFFIXTURE , SI NCE THERE WAS NO COMPLIANCE FROM THE PART OF THE ASSESSEE. NOTICE U/S 142(1) WAS ALSO ISSUED ON 16.08.2010 REQUIRING THE APPELLANT TO FURNISH THE RETURN OF INCOME. THE CASE WAS FIXED FOR HEARING ON 27.09.2010 AND ON THE DATE FIXED AGAIN NO ONE ATTENDED NOR DID THE APPELLANT FILED ANY APPLICATION FOR ADJOURNMENT. PAGE NO. 2 THEREAFTER THE ASSESSING OFFICER GAVE A FINAL NOTICE AT THE ADDRESS OF THE DIRECTOR AND THE NOTICE IS REPRODUCED AS FOLLOWS: - .TILL DATE NO RETURN OF INCOME HAS BEEN FILED BY YOU IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE IT ACT. YOU ARE HEREBY AFFORDED ANOTHER OPPORTUNITY TO FILE THE RETURN OF INCOME AND ALSO EXPLAIN AS TO WHY THE ACCOMMODATION ENTRIES OF RS. 39,01,750/ - TAKEN BY YOU DURING THE YEAR UNDER CONSIDERATION BE NOT ADDED TO YOU R INCOME. FOR THE PURPOSE, YOU R CASE IS FIXED FOR HEARING ON 26.11.2010 AT 2.30 BEFORE THE UNDERSIGNED. PLEASE NOTE THAT THIS IS FINAL OPPORTUNITY AND FAILING TO COMPLY WITH THIS, ASSESSMENT WILL BE FORMED EX - PARTE ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD. 4. SINCE NO ONE ATTENDED BEFORE THE ASSESSING OFFICER NOR FILED ANY APPLICATION FOR ADJOURNMENT, THE ASSESSING OFFICER DECIDED ASSESSMENT EX - PARTE AND THE INCOME OF THE ASSESSEE W AS COMPUTED A T RS. 39,01,750/ - . 5. AGGRIEVED BY THE SAID ADDITION MA DE BY THE ASSESSING OFFICER THE ASSESSEE/ APPELLANT PREFERRED AN APPEAL BEFORE THE LD CIT(A), WHO WAS PLEASED TO DISMISS THE SAME. BEING AGGRIEVED BY THE SAID ORDER OF THE LD CIT(A), THE ASSESSEE IS BEFORE US. 6. THE LD AR SUBMITTED THAT THE ASSESSEE HAD FILED REGULAR RETURN OF INCOME ON 31.10.2003 DECLARING AN INCOME OF RS. 2,759 / - AND HAD PAID TAX AT RS. 1,014/ - AND THE RETURN WAS FILED ALONG WITH A U DITED BALANCE - SHEET FOR THE RELEVANT ASSESSMENT YEAR . ACCORDING TO THE LD AR , THE ASSESSEE COMPANY HA D JUST STA R TED ITS BUSINESS IN THE RELEVANT ASSESSMENT YEAR WHICH WAS FOR A PERIOD OF LESS THAN TWO MONTHS ; AND DURING THIS PERIOD THE ASSESSEE COMPANY HA D RECEIVED SHARE APPLICATION MONEY TO THE TUNE OF RS. 41 LAKH S. ACCORDING TO THE LD AR THE ASSESSEE HAD SUBMITTED TO THE ASSESSING OFFICER, COMPLETE NAME AND ADDRESS OF THE COMPANIES WHICH SUBSCRIBED FOR SHARES ; AND ALSO SUBMITTED THAT THE SHARE APPLICATION MONEY WAS RECEIVED BY CHEQUE THEREFORE ACCORDING TO THE LD AR IDENTITY WAS ESTABLISHED AND FURTHER ADDED THAT THE SAID TRANSACTION S WERE ALL MADE THROUGH BANKING CHANNEL. IT WAS ALSO CONTENDED BY THE LD AR THAT A LETTER WAS ALSO FILED BEFORE THE ASSESSING OFFICER ON 30.12.2010 , BUT THE ASSESSING OFFICER REFUSED TO ACCEPT THE SAID LETTER AND TOLD THE ASSESSEE THAT HE WILL PASS THE ORDER U/S 144 OF THE ACT BECAUSE THE ASSESSEE HAS FAILED TO PRODUCE THE SHARE APPLICANT S IN PERSON. THE LD AR ADDED THAT ON 03.01.2011 THE ASSESSEE RECEIVED AN ORDER DATED 06.12.2010 FROM WHICH IT TRANSPIRED THAT ASSESSMENT WAS MADE U/S 144 OF THE ACT ON A TOTAL INCOME OF RS. 39,04,510/ - . 7 . THE LD AR ASSAILED THE ASSESSMENT ORDER AND SUBMITTED THAT THERE HAS BEEN NO CHANGE IN THE ADDRESS OF THE ASSESSEE AS STATED BY THE ASSESSING OFFICER IN HIS ORDER. THE LD AR W ONDERED AS TO HOW IF THE ADDRESS OF THE ASSESSEE IS CHANGED AS A MATTER OF F ACT , PAGE NO. 3 THEN HOW COULD THE ASSESSEE HAVE RECEIVE D THE RE - ASSESSMENT ORDER DATED 06.12.2010 ON THE SAME ADDRESS; AND EVEN IT RECEIVED OTHER NOTICE S INCLUDING THE APPEAL NOTICES WERE ALSO RECEIVED ON THE SAME ADDRESS EXCEPT THE STATUTORY NOTICE MANDATORILY REQUIRED TO BE SERVED ON THE ASSESSEE BEFORE THE RE - OPENING THE ASSESSMENT. THEREFORE, ACCORDING TO THE LD AR THE NOTICE U/S 148 OF THE ACT WAS NOT ISSUED BY THE ASSESSING OFFICER AN D THE OBSERVATION OF THE ASSESSING OFFICER THAT THE ASSESSEES ADDRESS COULD HAVE BEEN CHANGED IS TOTALLY FALSE AND INCORRECT . IT WAS FURTHER SUBMITTED BY THE LD AR THAT ACCORDING TO ASSESSING OFFICER THE ASSESSEE HAS FURNISHED BALANCE SHEET IN WHICH, SHAR E APPLICATION MONEY WAS SHOWN RS. 41 LACS AND ISSUED CAPITAL IS OF RS. 1 LAC. THUS, TOTAL APPLICATION MONEY AND SHARE APPLICATION WAS AT RS. 42,00,000/ - BUT ACCORDING TO ASSESSING OFFICER HE HAS RECEIVED THE INFORMATION WHICH IS REPRODUCED BELOW AND THEN HE WENT AHEAD TO MAKE THE ADDITION BASED ON THE SAID INFORMATION OF DIT(INV.) INFORMATION WAS RECEIVED FROM THE DIT(INV) THAT THE ASSESSEE COMPANY WAS BENEFICIARY OF ACCOMMODATION ENTRIES. AS PER INFORMATION THE ASSESSEE HAS TAKEN THE FOLLOWING ACCOM MODATION ENTRIES: SL. NO. ACCOUNT/ VALUE DATE NAME OF PARTY OF GIVING ENTRY 1. 5,00,000 12.03.2003 K.R. FINCAP LTD. 2. 5,00,000 12.03.2003 KULDEEP TAXTILES PVT. LTD. 3. 4,00,000 12.03.2003 DINA NATH LUHARIWALA 4. 6,00,000 12.03.2003 SEKHAWATI FINANCE PVT. LTD. 5. 5,00,000 12.03.2003 V.R. TRADERS PVT. LTD. 6. 4,00,500 20.03.2003 CHINTPURNI CREDITS LTD. 7. 3,00,375 20.03.2003 GARG FINVEST PVT. LTD. 8. 4,00,500 20.03.2003 SHREE GUPTESHWAR MKT PVT. LTD. TOTAL 39,01,750 THE ASSESSEE WAS VIDE NOTICE U/S 142(1), REFERRED TO ABOVE, ASKED TO EXPLAIN AS TO WHY THE ABOVE SAID AMOUNT BE NOT ADDED TO ITS INCOME, BUT THE ASSESSEE HAS FAILED TO FURNISH IN THIS REGARD. SINCE THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY OF THE PARTI ES/ THEIR CREDITWORTHINESS, THE AMOUNT OF RS. 39,01,750/ - IS ADDED BACK TO THE INCOME OF THE ASSESSEE U/S 68 OF THE IT ACT, 1961. SINCE THE ASSESSEE HAS FAILED TO FURNISH THE RETURN IN RESPONSE TO NOTICE U/S 148 AND CONCEALED THE PARTICULARS OF INCOME. FIN ALLY PROCEEDING U/S 271(1))C) HAVE BEEN INITIATED SEPARATELY. 8 . ACCORDING TO THE LD AR, ALTHOUGH , THE ASSESSING OFFICER IS HAVING ALL THE INFORMATION ABOUT THE SHARE APPLICATION MONEY FROM THE INCOME - TAX RETURN FILED BY THE ASSESSEE, HE IGNORED THE BALAN CE SHEET OF THE ASSESSEE IN WHICH, SHARE APPLICATION MONEY IS SHOWN AS RS. 41 LACS AND HE HAS MADE THE IMPUGNED ADDITION OF RS. 39,01,750/ - . ACCORDING TO THE LD DR, IN THE SAID ORDER ASSESSING OFFICER HAS TAKEN NOTE OF THE NAME OF THE DIRECTOR SH RI . SURENDRA KHANDELWAL AND WONDERED AS TO WHY HE HAS NOT SERVED PAGE NO. 4 THE NOTICE ON THE DIRECTOR S ADDRESS INSTEAD OF SERVICE OF NOTICE THROUGH A FIXTURE AT THE ASSESSEES PREMISES . 9 . ACCORDING TO THE LD AR ASSESSING OFFICER DID NOT COMPLY WITH THE SERVICE OF NO TICE AS REQUIRED BY THE STATU T E AND HIS INTENTION WAS TO PASS SOMEHOW ORDER U/S 144 OF THE ACT. HOWEVER ACCORDING TO THE LD AR, ON 30.12.2010 THE ASSESSEE IN FACT HAD MADE A WRITTEN REPLY BEFORE THE AO WHICH IS REPRODUCED AS UNDER: - SHARE APPLICATION MONEY ASSESSMENT YEAR 2003 - 04 OF RS. 39,00,000/ - 1. THE NOTICE ISSUED U/S 148 IS NOT PROPERLY SERVED UPON THE ASSESSEE. HENCE, THE ENTIRE PROCEEDINGS IS BAD IN LAW. 2. WITHOUT PREJUDICE TO GROUND NO. 1 THE ASSESSEE IS FURNISHING EXPLANA TION UNDER PROTEST. 3. IT IS SUBMITTED THAT THE ABOVE SHARE APPLICATION MONEY WAS RECEIVED BY THE FOLLOWING COMPANIES. NAME BANK BRANCH AMOUNT (RS.) K.R. FINCAP LTD. STATE BANK OF BIKANER AND JAIPUR NEW ROHTAK ROAD 5,00,000 KULDEEP TEXTILES PVT. LTD. STATE BANK OF BIKANER AND JAIPUR NEW ROHTAK ROAD 5,00,000 SH. DINA NATH LUHARIWALA STATE BANK OF BIKANER AND JAIPUR NEW ROHTAK ROAD 4,00,000 SEKHAWATI FINANCE PVT. LTD. STATE BANK OF PATIALA DARYA GANJ 6,00,000 V.R. TRADERS PVT. LTD. STATE BANK OF PATIALA DARYA GANJ 5,00,000 CHINTPURNI CREDITS LTD. STATE BANK OF PATIALA DARYA GANJ 4,00,000 GANG FINVEST PVT. LTD. STATE BANK OF PATIALA DARYA GANJ 3,00,000 KUBER CO SALES PVT. LTD. STATE BANK OF PATIALA DARYA GANJ 3,00,000 SHREE GUPTESHWAR MKT PVT. LTD. STATE BANK OF PATIALA DARYA GANJ 4,00,000 10 . TAKING OUR ATTENTION TO THE AFORESAID DETAILS, THE LD AR FURTHER SUBMITTED THAT THE COMPANIES MENTIONED ABOVE ARE REGULARLY ASSESSED TO TAX AND COPY OF ITS PAN AND OTHER EVIDENCE/PROOF OF IDENTITY WERE SUBMITTED AND SINCE ALL THE TRANSACTIONS WERE MADE THROUGH BANKING CHANNEL/ THROUGH A/C PAYEE CHEQUES , THERE CANNOT BE ANY DOUBT IN RESPECT TO THE IDENTITY OF THE SHARE APPLICANTS . 11 . AS PER THE LD AR BOTH THE IDENTITY OF THE SHARE APPLICATION MONEY HOLDERS & GENUINENESS OF TRANSACTIONS HAVE BEEN PROVED, BECAUSE THE SAID SHARE APPLICANT COMPANIES ARE INCORPORATED THROUGH REGIST R AR OF COMPANIES UNDER THE COMPANY S ACT AND ALL THE COMPANIES ARE REGULARLY ASSESSED TO INCOME TAX. THEREFORE, BURDEN OF ASSESSEE TO PROVE SHARE APPLICATION MONEY STANDS SHIFTED FROM ASSESSEE TO ASSESSING OFFICER AS PER THE HONBLE DELHI HIGH COURT JUDGMENT AND SUPREME COURT JUDGMENTS GIVEN BELOW: - CIT VS. LOVELY EXPORT PVT. LTD. 299 ITR 268 (DELHI) SLP CIT LOVELY EXPORT PVT. LTD. 319 ITR (ST(5)), SC PAGE NO. 5 CIT VS. SETLER INVESTMENT PVT. LTD. 251 ITR 261 (SC) CIT VS. DWARKADISH INVESTMENT PVT. LTD. 6 TAXMAN.COM 87 (DEL) CIT VS. VICTOR ELECTROD LTD. 329 ITR 271 DEL CIT VS. H. L. INVESTMENT LTD. 2 68 ITR 211 DEL CIT VS. SOPHIA FINANCE LTD. 205 ITR 98 DEL (FULL BENCH) 12. ACCORDING TO THE LD AR THE ASSESSEE IS LIABLE TO PROVE ONLY IDENTITY OF THE SHARE APPLICANTS AND PROVE GENUINENESS OF THE TRANSACTIONS. THEREFORE, THERE WAS NO OCCASION TO ADD SHAR E APPLICATION MONEY IN TH E TOTAL INCOME OF THE ASSESSEE. HENCE, NON - CONSIDERATION OF ITS REPLY DATED 30.12.2010 AND SINCE NOTICES BEFORE RE - OPENING WAS NOT RECEIVED BY THE ASSESSEE COMPANY, ACCORDING TO THE LD AR THE ORDER PASSED BY ASSESSING OFFICER IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND THEREFORE THE IMPUGNED ORDER NEED TO BE SET - ASIDE. 13 . ON THE OTHER HAND THE LD DR CONTENDED TH A T THE ASSESSEE IN THIS CASE HAS NOT COME OUT WITH CLEAN HAND S TO SUBSTANTIATE THE CREDIBILITY AND GENUINENESS OF T HE TRANSACTION IN RESPECT TO SHARE APPLICATION MONEY WHICH IT HAS RECEIVED IN THE RELEVANT ASSESSMENT YEAR. AT THE VERY OUTSET IN ORDER TO COUNTER THE CHARGE THAT NO STATUTORY NOTICE WAS SERVED UPON THE ASSESSEE BEFORE THE RE - OPENING OF THE ASSESSMENT IT W AS POINTED OUT BY THE LD DR THAT THE ADDRESS OF THE ASSESSEE WAS TAKEN BY THE ASSESSING OFFICER FROM THE AIS AND ALSO FROM RO C WEB SITE. THE ADDRESS SHOWN IS 1128 KUCHA NATWA CHANDNI CHOWK, DELHI. ACCORDING TO THE LD DR, NO CHANGE OF ADDRESS WAS INTIMATE D TO THE OFFICE OF REVENUE. ACCORDINGLY, THE NOTICES WERE SENT AT THE ABOVE SAID ADDRESS. AND W HEN NO COMPLIANCE NOR ANY REPLY CAME FROM THE ASSESSEE COMPANY, NOTICE WAS EVEN SENT AT THE ADDRESS OF THE DIRECTOR OF THE ASSESSEE COMPANY AND SINCE THE SAID NOTICE HAS NOT COME BACK UNSERVED THE SERVICE OF THE NOTICE HAS BEEN PRESUMED BY THE AO. IN SPITE OF SERVING NOTICES ON THE DIRECTOR OF THE ASSESSEE, DURING THE ASSESSMENT PROCEEDINGS , NON APPEARED ON BEHALF OF THE ASSESSEE AND NO REPLY HAS BEEN FURNISHED, SO IT WAS PRESUMED BY THE AO THAT THE ASSESSEE IS NOT INTEREST ED IN FURNISHING THE RETURN OR ANY OTHER DOCUMENTS TO SUBSTANTIATE ITS CLAIM IF ANY. THE LD DR FURTHER SUBMITTED THAT THE AO IN HIS SECOND REMAND REPORT HAD CONDUCTED A DETAI LED ENQUIRY TO TRACE OUT THE SHARE APPLICANTS AND FOR THAT PURPOSE HE HAD SEND NOTICE U/S 133(6) DATED 2 ND JULY 2012 AND THE SAID NOTICE WAS RECEIVED BACK UNDELIVERED FROM THE POSTAL AUTHORITIES WITH THE REMARK S THAT LEFT NO SUCH PERSON . THEREAFTER, AO ISSUED SUMMONS U/S 131 OF THE ACT DATED 20 TH JULY WHICH WERE ALSO ISSUED TO THE SHARE APPLICANTS AND THE INCOME TAX INSPECTOR WAS ENTRUSTED TO SERVE THE SUMMONS PERSONALLY ON THE SHARE APPLICANTS. THOUGH THE INSPECTOR PERSONALLY VISITED THE SAID ADDRESS / PAGE NO. 6 PREMISES OF THE SHARE - APPLICANT , HE COULD NOT SERVE THE SAME. AND THE INSPECTOR HAS REPORTED VIDE REPORT DATED 20.07.2012 AND 23.07.2012 THAT NO SUCH PERSON EXISTS ON THE SAID ADDRESSES . IN THE SAID CIRCUMSTANCES, AS THE SHARE APPLICANTS COULD NOT BE TRACED , THE AO SERVED ANOTHER NOTICE TO THE ASSESSEE TH R OUGH THE INSPECTOR ON 25.07.2012 INFORMING THE ASSESSEE THAT NOTICE U/S 133(6) AND SUMMONS U/S 131 OF THE ACT REMAINED UNSERVED ON THE SHARE APPLICANTS DUE TO NON - EXISTENCE OF THE SHARE APPLICANTS ON THE ADDRESS FURNISHED BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS AND ENSUING APPELLATE PROCEEDINGS. THE AO ALSO REQUESTED THE ASSESSEE COMPANY TO FURNISH THE CORRECT/ PRESENT ADDRESS OF THE SHARE APPLICANTS ON OR BEFORE 31.07.2012 , HOW EVER , THE AO RECORDS IN HIS REMAND REPORT THAT THE ASSESSEE DID NOT FURNISH ANY ADDRESS OF THE SHARE APPLICANTS IN RESP ONSE TO THE SAID QUERY. THEREFORE THE LD DR CONTENDS THAT NO SHARE APPLICANTS COULD BE TRACE D THOUGH SEVERAL SUMMONS AND NOTICES WERE SEN T AND EVEN PERSONAL EFFORTS BY THE INSPECTOR TO TRACK THEM DOWN FAILED . ACCORDING TO THE LD DR MERE FURNISHING OF PAN, ITRS AND MEMORANDUM OF UNDERSTANDING AND ARTICLES OF ASSOCIATION AND NAMES AND ADDRESSES OF DIRECTORS OF THE SHARE APPLICANT COMPANIES DO ES NOT ESTABLISH THE EXISTENCE OF THE LEGAL ENTITIES AND IT WAS ALSO BROUGHT TO OUR KNOWLEDGE THAT THE SHARE APPLICANTS HAS SHOWN THE FOLLOWING INCOME IN ITS RETURN: - 1. KUBER CO SALES PVT. LTD. RS. 10,312/ - 2. GARG FINVEST PVT. LTD. RS. 7,523/ - 3. SH. DINA NATH LUHARIWALA RS. 35,423/ - 4. KULDEEP TEXTILES PVT. LTD. RS. 10,952/ - 5. K. R. FINCAP LTD. RS. 12,865/ - 14 . FROM THE AFORESAID INCOME RETURNED BY THE SHARE - APPLICANTS THE LD DR WONDERED HOW PERSON S WITH SUCH MEAGER INCOMES CAN INVEST SUC H LARGE SUMS OF MONEY IN SHARE OF THE ASSESSEE COMPANY; AND ALSO POINTED OUT THAT THOUGH THE SHARE APPLICANTS HAVE ISSUED CHEQUES FOR THE SHARES , HOWEVER NO BANK ACCOUNT DETAILS WERE FURNISHED BY THE ASSESSEE ; AND THEREFORE IT FAILED TO DEMONSTRATE HOW THE SHARE APPLICANTS HAD HUGE DEPOSIT IN ITS ACCOUNTS. THEREFORE ACCORDING TO THE LD DR THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE SHARE APPLICANTS AND CITED THE CASE OF NOVA PROMOTERS 347 ITR 169 (DEL). THEREFORE ACCORDING TO THE LD DR , THE LD CIT(A) WAS RIGHT IN HOLDING THAT THE SAID SHARE APPLICATION MONEY OF SUM OF RS. 39,01,750/ - WAS RIGHTLY ADDED BACK TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT AND THEREFORE NO INTERFERENCE OF THE IMPUGNED ORDER IS REQUIRED. 15 . WE HAVE HEARD B OTH THE PARTIES AND HAVE PERUSED THE CASE LAWS CITED BY THEM. WE FIND THAT THE ASSESSEE HAS REITERATED BEFORE US THAT THERE IS NO CHANGE IN THE POSTAL PAGE NO. 7 ADDRESS OF THE ASSESSEE AND TRIED TO CONVINCE US THAT MANDATORY STATUTORY NOTICE S BEFORE RE - OPENING OF AS SESSMENT WERE NOT SERVED UPON THE ASSESSEE. HOWEVER, WE FIND THAT THE ASSESSEE ITSELF HAS ADMITTED THAT IT HAS RECEIVED THE IMPUGNED RE - ASSESSMENT ORDER AND ALSO THE APPEAL NOTICE S OF THE APPELLATE PROCEEDINGS IN THE VERY SAME POST AL ADDRESS WHERE THE AO HAS SENT THE STATUTORY NOTICES ENVISAGED UNDER THE AC T BEFORE RE - OPENING THE ASSESSMENT . THE ASSESSEE HAS NOT LEVELED ANY MALAFIDE MOTIVE ON THE PART OF THE AO TO DELIBERATELY NOT TO HAVE ISSUE D THE STATUTORY NOTICES BEFORE THE RE - OPENING OF THE ASSESSMEN T ORDER AND WE FIND NO REASON WHY THE AO SHOULD MAKE UP SUCH REPORT THAT THE STATUTORY NOTICES AS PER THE ACT, WAS ISSUED AND SENT IN THE POSTAL ADDRESS O F THE ASSESSEE AND IT WAS RETURNED BACK WITH REMARK LEFT NO SUCH PERSON. WHEN THE ASSESSEE HAD ADMIT TED TO HAVE RECEIVED THE RE - ASSESSMENT ORDER AND OTHER APPELLATE NOTICE IN THE SAID ADDRESS WHERE THE AO HAS ALSO SENT THE SECTION 148/ 147 NOTICES, WE FIND NO REASON TO DISBELIEVE THE AO S REPORT THAT IN FACT STATUTORY NOTICES WERE ISSUED AND SENT IN THE SAID ADDRESS TO BE SERVED UPON THE ASSESSEE BEFORE THE LIMITATION PERIOD. THE CONDUCT OF THE ASSESSEE COMPANY TO FILE ON THE LAST DAY OF LIMITATION SOME PAPERS BEFORE THE AO, STRENGTHENS THE BELIEF OF THE AO ASSESSE DELIBERATELY AVOIDED THE SAID NOTICE AND DOES NOT GIVE ANY SCOPE TO SUSPECT THE REPORT OF THE AO, THAT NOTICES U/S 148/ 147 WAS DULY ISSUED TO THE ASSESS EE COMPANY , AND IT CANNOT CLAIM ANY LAPSE ON THE PART OF THE AO AND CANNOT TAKE ANY BENEFIT OUT OF IT. WE ALSO FIND THAT THE AO HAS MADE DE TAILED ENQUIRY IN THE REMAND REPORT REGARDING THE GENUINENESS OF THE SHARE APPLICANTS BY SENDING NOTICE U//S 133(6) AND SUMMONS U/S 131 AND ALSO HAD SEND AN INSPECTOR TO SERVE THE NOTICE . FURTHER , WE FIND THAT NONE OF THESE STEPS TAKEN BY THE AO SUCCEEDED OR MATERIALIZE D BECAUSE NO SHARE APPLICANTS WERE FOUND IN THE ADDRESS FURNISHED BY THE ASSESSEE. SIMPLY BY FURNISHING DETAILS LIKE PAN , CHEQUE NO. AND EVEN IF THE ENTIRE TRANSACTION HAS HAPPENED THROUGH THE BANKING CHANNEL , IT CANNOT ESTABLISH THE GENUINENESS OF THE TRANSACTION. THE HONBLE APEX COURT AS WELL AS JURISDICTIONAL HIGH COURT HAS HELD THAT MERELY BECAUSE TRANSACTIONS HAPPENED THROUGH BANKING CHANNEL DOES NOT IPSO FACTO ESTABLISH GENUINENESS AND CREDITWORTHINESS OF TH E TRANSACT IONS . WE FIND THAT THE AO IN THE SECOND REMAND REPORT HAS TRIED HIS LEVEL BEST TO CONTACT THE SHARE APPLICANT HOWEVER, HE FAILED TO DO SO BECAUSE THE SHARE APPLICANTS COULD NOT BE TRACED IN THE ADDRESSES FURNISHED BY THE ASSESSEE. SO WE FIND THAT PROPER ENQUIRY HAS BEEN CONDUCTED BY THE AO, BEFORE THE LD CIT(A) CONFIRMED THE IMPUGNED ADD I TION . HERE WE HAVE TO POINT OUT THAT THE CONDUCT OF THE ASSESSEE WAS NOT AT ALL ABOVE BOARD. WE FIND THAT STATUTORY N OTICE S WERE ISSUED AND DULY SEND TO THE ADDRESS OF THE ASSESSEE BY THE AO BEFORE THE LIMITATION PERIOD TO RE - OPEN THE ASSESSMENT AND WE FIND THAT ON 30.12.2010 I.E., THE LAST DAY ON WHICH THE LIMITATION GOT OVER, THE ASSESSEE HAD FILED ITS PAGE NO. 8 REPLY TO THE STATUTORY NOTICES AND ALSO HAS ADMIT TED OF RECEIVING THE RE - ASSESSMENT ORDER AND NOTICES OF THE APPELLATE PROCEEDINGS. IN THE SAID SCENARIO, IT DOES NOT LIE IN THE MOUTH OF THE ASSESSEE, TO TURN AROUND AND ALLEGE THAT BUT FOR THE STATUTORY NOTICES IT HAS RECEIVED ALL CORRESPONDENCE TO THE SA ID ADDRESS. THEREFORE THE GROUND OF NON - SERVICE OF STATUTORY NOTICES BEFORE RE - OPENING PROCEEDINGS CANNOT BE COUNTENANCED AND THEREFORE DISMISSED . 16. WE FIND IT DIFFICULT TO SUBSCRIBE TO THE CONTENTION OF THE LD AR THAT BY PRODUCING MERELY THE NAME AND P AN DETAILS OF THE SHARE APPLICANTS THE BURDEN ON THE ASSESSEE IS DISCHARGED. BY MERELY FURNISHING THE SAID DETAILS WOULD NOT PROVE THE GENUINENESS AND CREDITWORT HINESS OF THE SHARE APPLICANTS. THEREFORE WE FIND NO INFIRMITY IN THE REASO NING GIVEN BY THE LD CIT(A), AND WE FIND THAT PROPER ENQUIRY HAS BEEN MADE BY THE AO DURING THE REMAND PROCEEDINGS AND THEREFORE , THERE IS NO REASON FOR US TO INTERFERE IN THE IMPUGNED ORDER AND SO RESULTANTLY WE ARE NOT INCLINED TO DO SO , AND THEREFORE WE CONF IRM THE ORDER OF THE LD CIT(A) AND DISMISS THE APPEAL OF THE ASSESSEE. 17 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 2 6 . 09 .2014. - S D / - - S D / - ( S. V. MEHROTRA ) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 6 / 09 / 2014 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI