ACCIL Corporation P.Ltd, New Delhi V. ACIT, Central Circle-29, New Delhi

ITA 6319/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3110 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 03-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY GOYAL
• Assessee Lawyers: SSH VED JAI N; SANTOSH GUPTA
• Keywords: Unexplained cash credit; Income from undisclosed sources; Search and seizure; Share purchase agreement; Principle of natural justice; Question of law; Corroborative evidences; Accommodation entries; Onus to prove
• Section: 153A; 143(1); 250; 131; 68; 132

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, DELHI BENCH A, NEW DELHI BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NOS. 6319 TO 6321 & 6206/DEL/2018 ASSESSMENT YEARS: 2012-13 TO 2015-16 M/S. ACCIL CORPORATION P. LTD., PLOT NO. 1, SAHKAR CIRCLE, SARDAR PATEL MARG, BAIS GODAM, JAIPUR. PAN AABCB 1885C (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6207 TO 6208 AND 6317 TO 6318/DEL/2018 ASSESSMENT YEARS: 2013-14 TO 2016-17 M/S. ACCIL AUTO STEELS PVT. LTD., 405, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AALCA 0192M (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6209, 6210 & 6211/DEL/2018 ASSESSMENT YEARS: 2012-13, 2014-15 & 2015-16 M/S. ACCIL HOSPITALITY PVT. LTD., 405, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AACCT 5683R (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NO. 6310/DEL/2018 ASSESSMENT YEAR: 2014-15 M/S. ACCIL INTERNATIONAL TOURISM PVT. LTD., 204, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AAJCA 7843D (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NO. 6319/DEL/2018 & ORS. 2 ITA NOS. 6311, 6312 & 6445/DEL/2018 ASSESSMENT YEARS: 2010-11, 2014-15 & 2015-16 M/S. ACCIL STEEL PROCESSORS P. LTD., PLOT NO. 441, BADHKAL PALI ROAD, FARIDABAD. PAN AAACU 5133D (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6313 TO 6316/DEL/2018 ASSESSMENT YEARS: 2013-14 TO 2016-17 M/S. ACCIL STEELS PVT. LTD., 204, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AACFP 9429A (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6322, 6323, 6204, 6324 & 6325/DEL/2018 ASSESSMENT YEARS: 2012-13 TO 2016-17 M/S. ACCIL HOTELS & RESORTS PVT. LTD., 204, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AAJCA 6357Q (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6326 TO 6328/DEL/2018 ASSESSMENT YEARS: 2014-15 TO 2016-17 M/S. ACCIL STEEL & TUBES PVT. LTD., 204, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AALCA 0385A (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NO. 6319/DEL/2018 & ORS. 3 ITA NOS. 6329, 6205 & 6330/DEL/2018 ASSESSMENT YEARS: 2014-15, 2015-16 & 2016-17 M/S. ACCIL ISPAT & POWER PVT. LTD., 204, NIRMAL TOWER, 26, BARAKHAMBHA ROAD, CONNAUGHT PLACE, NEW DELHI PAN AAICA 6128N (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) ITA NOS. 6664 & 6704/DEL/2018 ASSESSMENT YEARS: 2014-15 & 2015-16 M/S. ULTIMATE INVESTOFIN LTD., D - 26, DSIIDC COMPLEX, KIRTI NAGAR, NEW DELHI. PAN AABCS 1872N (APPELLANT) VS. ACIT, CENTRAL CIRCLE - 29 NEW DELHI. (RESPONDENT) APPELLANT BY S/SH. VED JAIN & MISS UMANG LUTHRA, ADV. S/SH. ASHISH GOEL, & SANTOSH GUPTA, CA RESPONDENT BY SH. SANJAY GOYAL, CIT/DR ORDER PER BENCH: THE ABOVE BUNCHES OF 32 APPEALS ARE FILED BY DIFFER ENT ASSESSEES OF THE GROUP AGAINST VARIOUS ORDERS OF THE LD. CIT(A) FOR THE CAPTIONED ASSESSMENT YEARS. 2. AT THE OUTSET OF HEARING, BOTH THE PARTIES FAIRL Y AGREED THAT THE GROUNDS RAISED AND THE FACTS & ISSUES INVOLVED IN ALL THESE APPEALS ARE IDENTICAL TO THOSE INVOLVED IN ITA NO. 6319/DEL/2018 BARRING THE DIFFE RENCE IN THE AMOUNTS OF THE SHARE CAPITAL AND/ UNSECURED LOANS AND THEREFORE, T HE DECISION IN ITA DATE OF HEARING 12.02.2019 DATE OF PRONOUNCEMENT 28.02.2019 ITA NO. 6319/DEL/2018 & ORS. 4 NO.6319/DEL/2018 WOULD EQUALLY BE APPLICABLE IN ALL THE ABOVE GROUP CASES. ACCORDINGLY, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER IN ORDER TO AVOID REPETITIO N OF FACTS AND FOR THE SAKE OF CONVENIENCE AND BREVITY. WE, THEREFORE, TAKE UP TH E APPEAL NO.: ITA6319/DEL/2018 FIRST IN THE CASE OF ACCIL CORPORA TION PVT. LTD. FOR A.Y. 2012-13. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)[CIT(A)] IS BAD B OTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ORDER PASSED BY THE LEARNED AO U/S 153A IS BAD AND LIABLE TO BE QUASHED AS THE SAME HAS BEEN FRAMED CONSEQUENT TO A SEARCH WHI CH ITSELF WAS UNLAWFUL AND INVALID IN THE EYES OF LAW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ASSESSMENT FRAMED UNDER SECTION 153A ARE IN VIOLATI ON OF THE STATUTORY CONDITIONS OF THE ACT AND THE PROCEDURE PRESCRIBED UNDER THE LAW AND AS SUCH THE SAME IS BAD IN THE EYE OF LAW AND LIABLE T O BE QUASHED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ASSESSMENT ORDER PASSED BY THE AO IS BARRED BY LIMI TATION HAVING BEEN PASSED BEYOND THE STATUTORY PERIOD PRESCRIBED IN TH E ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE AO HAS ERRED IN MAKING THE ASSESSMENT WITHOUT PROPE R SERVICE OF STATUTORY NOTICES. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ITA NO. 6319/DEL/2018 & ORS. 5 PROCEEDINGS INITIATED UNDER SECTION 153A ARE BAD IN LAW IN THE ABSENCE OF ANY INCRIMINATING MATERIAL BELONGING TO THE ASSESSE E BEING FOUND DURING THE SEARCH. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN REJECTING THE CONTENTIO N OF THE ASSESSEE THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED AO IS BAD IN LAW AS THE SAME HAS BEEN PASSED WITHOUT APPLICATION OF HIS OWN MIND. 8. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING AN A DDITION OF RS. 3,11,73,000/- MADE BY THE AO ON ACCOUNT OF SHARE CA PITAL AND RS. 43,64,22,000/- ON ACCOUNT OF SHARE PREMIUM RECEIVED BY THE ASSESSEE U/S 68 OF THE ACT. (II) THAT THE ABOVE ADDITION HAS BEEN CONFIRMED DESP ITE THE SAME BEING MADE ARBITRARILY REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE. 9. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE BY THE LD. AO REJECTING THE EXPLANATION AND EVIDENCES BROUGHT IN RECORD BY THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE INVE STORS AS WELL AS THE GENUINENESS OF THE TRANSACTIONS. (II) THAT THE ADDITION HAS BEEN CONFIRMED WITHOUT PO INTING OUT ANY DEFECT IN THE EVIDENCES FILED BY THE ASSESSEE. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION DESPITE THE FACT THAT THE ADDITION MADE BY THE AO ARE ON THE BASIS OF EXTRANE OUS CONSIDERATIONS GROSSLY INDULGING INTO CONJECTURES AND SURMISES. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION MADE BY THE AO DESPITE THE FACT THAT THE ABOVE ADDITION WAS MADE ON THE BA SIS OF THE MATERIAL COLLECTED AT THE BACK OF THE ASSESSEE WITHOUT GIVIN G IT AN OPPORTUNITY TO REBUT THE SAME. ITA NO. 6319/DEL/2018 & ORS. 6 12. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION DESPITE THE FACT THAT THE ORDER WAS PASSED RELYING ON THE INSPECTORS REPORT WHICH WAS NEVER CONFRONTED TO THE ASSESSEE. 13. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION DESPITE THE FACT THAT THE AO HAS PASSED THE ORDER RELYING ON THE STATEMENT RE CORDED WITHOUT GIVING ASSESSEE PROPER OPPORTUNITY TO CROSS EXAMINE THE SA ME. 3. THE BRIEF FACTS ATTENDING TO THIS APPEAL ARE TH AT THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME ON 29.09.2012, WHICH WAS PROCESSED U/S. 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) ON 04.07.2013. THEREAFTER A SEARCH AND SEIZURE OPERATION WAS CARRI ED OUT ON 10.12.2015 IN ASIAN COLOUR COATED ISPAT LTD. GROUP OF CASES WHICH INCLUDED ASSESSEE COMPANY TOO. BASED ON THIS SEARCH OPERATION, THE AS SESSING OFFICER ISSUED NOTICE UNDER SECTION 153A ON 20.07.2017, ASKING THE ASSESSEE-COMPANY TO FILE ITS RETURN OF INCOME. IN RESPONSE, THE ASSESSEE CO MPANY FILED ITS RETURN ON 04.08.2017 DECLARING THE SAME INCOME AS WAS DECLARE D IN ORIGINAL RETURN. THEREAFTER, THE ASSESSING OFFICER ISSUED STATUTORY NOTICES AND IN RESPONSE THERETO THE ASSESSEE COMPANY FILED THE DETAILS AS A SKED FOR. THE ASSESSING OFFICER, HOWEVER, NOT BEING SATISFIED WITH THE REPL IES AND THE EVIDENCES SUBMITTED BY THE ASSESSEE COMPANY MADE ADDITION OF RS.46,75,95,000/- ON ACCOUNT OF THE SHARE CAPITAL RECEIVED BY THE ASSESS EE COMPANY. THE ASSESSING OFFICER SUPPORTED ITS CONCLUSION ON THE BASIS OF IN VESTIGATIONS MADE BY INVESTIGATION WING; SPOT ENQUIRIES GOT MADE THROUGH INSPECTOR REGARDING EXISTENCE OF SHARE APPLICANTS; STATEMENTS RECORDED OF VARIOUS DIRECTORS OF SHARE SUBSCRIBING COMPANIES AND VARIOUS DECISIONS RELIED BY THE ASSESSING OFFICER IN ITA NO. 6319/DEL/2018 & ORS. 7 THE ASSESSMENT ORDER. AGGRIEVED BY THE ORDER OF TH E ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD . CIT(A) AND CHALLENGED THE ASSESSMENT ORDER BOTH ON LEGAL GROUND AS WELL AS ON MERITS OF ADDITIONS. THE CIT(A), HOWEVER, AFTER CONSIDERING DETAILED REPLIES OF THE ASSESSEE, DISMISSED THE APPEAL VIDE IMPUGNED ORDER DATED 20.08.2018. AG GRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. 4. DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE AO AS WELL AS CIT(A) IS UNSUSTA INABLE BOTH ON FACTS AND LAW. THE LD. AR SUBMITTED THAT IT IS A CASE WHERE THE AO AND CIT(A) HAS NOT APPLIED THEIR MINDS TO THE FACTS OF THE CASE AND HAS GONE B Y THE IMPRESSION THAT THE SHARE CAPITAL RAISED BY THE ASSESSEE IS BOGUS AND A RE ACCOMMODATION ENTRIES WITHOUT APPRECIATING THE FACTS THAT THE SHARE CAPIT AL RAISED BY THE ASSESSEE IS FROM ITS GROUP/ ASSOCIATE COMPANIES AND MONEY HAS NOT COME FROM ANY OUTSIDE COMPANIES. IN THIS REGARD THE LD. AR TOOK US THROUGH THE ASSESSMENT ORDER WHERE THE ASSESSING OFFICER HAS QUOTED THE ST ATEMENTS OF THE VARIOUS EMPLOYEES RECORDED DURING THE SEARCH, ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS DRAWN ADVERSE INFERENCE AGAINST THE ASS ESSEE COMPANY. IT WAS FURTHER CONTENDED THAT AS PER THESE STATEMENTS, THE EMPLOYEES, WHO HAPPEN TO BE DIRECTORS OF VARIOUS GROUP COMPANIES, HAVE STATE D THAT THEY DO NOT KNOW ANYTHING ABOUT THOSE COMPANIES BUT THE FACT REMAINS THAT THESE ARE GROUP/ ASSOCIATE COMPANIES AND THE MONEY IN THESE GROUP/ A SSOCIATE COMPANIES IS NOT THAT OF THE EMPLOYEES. IT IS NOT THE CASE WHERE TH E ASSESSEE COMPANY IS CONTENDING THAT THESE COMPANIES ARE NOT GROUP/ASSOC IATE COMPANIES AND AS SUCH IT IS NOT IN A POSITION TO EXPLAIN THE TRANSAC TIONS ENTERED INTO BY THESE ITA NO. 6319/DEL/2018 & ORS. 8 COMPANIES. THE ASSESSEE COMPANY ALL ALONG HAS CONT ENDED THAT THESE ARE GROUP/ASSOCIATE COMPANIES AND THE ENTIRE SHAREHOLDI NG IN THESE GROUP COMPANIES BELONGS TO THE GROUP/ASSOCIATE AND NO MON EY HAS BEEN SUBSCRIBED BY ANY OF THE EMPLOYEES OR THE DIRECTORS WHOSE STAT EMENT HAS BEEN USED AGAINST THE ASSESSEE. IT WAS A STRUCTURE OF THE GR OUP AND THE ENTIRE MONEY AND THE SHARE CAPITAL HAS BEEN ROUTED WITHIN THE GROUP/ ASSOCIATE FROM ONE COMPANY TO ANOTHER COMPANY AND AS SUCH IT CANNOT BE SAID THAT THE SHARE CAPITAL RAISED BY IT REPRESENTS UNACCOUNTED MONEY. IT WAS CONTENDED BY THE LD. AR THAT THERE IS NO QUARREL WITH THE PROPOSITION TH AT UNDER SECTION 68, THE ONUS IS UPON THE ASSESSEE TO EXPLAIN THE IDENTITY AND TH E SOURCE OF THE MONEY RECEIVED BY IT. IN THE PRESENT CASE THE ASSESSEE HA S LED SUFFICIENT AND CREDIBLE EVIDENCES NOT ONLY TO PROVE THE IDENTITY AND THE SO URCE BUT ALSO SOURCE OF SOURCE AND HOW THE SAME MONEY HAS RE-ROUTED FROM ON E COMPANY TO ANOTHER COMPANY AND MONEY IS NOT SHOWN TO HAVE COME FROM O UTSIDERS. THERE IS NO CASH DEPOSIT. THE MONEY HAS MOVED FROM ONE ACCOUNT OF A COMPANY TO OTHER ACCOUNT OF ANOTHER COMPANY AND FROM THERE IT HAS MO VED TO ACCOUNT OF ANOTHER COMPANY AND FROM THERE IT HAS COME BACK TO THE ORIG INAL COMPANY. ALL THESE TRANSACTIONS ARE DULY DOCUMENTED AND BACKED BY BANK STATEMENTS AND ACCOUNTS OF EACH OF THE COMPANY. THERE IS A COMPLETE TRAIL A ND FULL VERIFICATION. HENCE, THE CONDITIONS OF SECTION 68 STAND FULLY SATISFIED. THE LD. AUTHORITIES BELOW HAVE IGNORED AND HAVE FAILED TO APPRECIATE THE FACTS OF THE CASE AND THAT IS WHY THEY HAVE CONFIRMED THE ADDITIONS BY APPLYING CASE LAWS WHICH ARE ENTIRELY ON DIFFERENT FACTS. ITA NO. 6319/DEL/2018 & ORS. 9 4.1. IT WAS NEXT CONTENDED AS TO THE INSPECTOR REPO RT DATED 12.12.2017 RELIED UPON BY THE AO, THAT THESE COMPANIES STOOD MERGED B EFORE 12.12.2017, THE DAY WHEN THE INSPECTOR MADE A VISIT. FURTHER, THE INSP ECTOR REPORT SIMPLY STATES THAT ON LOCAL ENQUIRIES, IT WAS GATHERED THAT THE C ARETAKER/SECURITY GUARD WHO IS NORMALLY AVAILABLE ON THIS ADDRESS IS NOT COMING FO R PAST FEW DAYS AND HENCE, AO WAS NOT JUSTIFIED IN DRAWING ADVERSE INFERENCE A GAINST THE ASSESSEE ON THE BASIS OF THIS REPORT. THIS REPORT IN FACT CONFIRMS THAT THERE IS A CARETAKER WHICH IS NORMALLY AVAILABLE BUT WAS NOT AVAILABLE ON THE DAY WHEN INSPECTOR VISITED THE SPOT. 4.2. IT WAS FURTHER CONTENDED THAT IT IS NOT A CASE OF ACCOMMODATION ENTRIES AS IS COMMONLY ALLEGED WHERE AN ENTRY OPERATOR PROVIDE S CHEQUE IN LIEU OF THE CASH AND HENCE THE ULTIMATE SOURCE OF MONEY IN SUCH CASE IS THE CASH DEPOSITED IN THE BANK BY THE PERSONS WHO DO NOT HAVE ANY CRED IT WORTHINESS AND ANY EXPLANATION ABOUT THE MONEY DEPOSITED IN THE BANK. IN THE PRESENT CASE, THE ASSESSEE HAS LED CREDIBLE EVIDENCES TO THE ULTIMATE SOURCE OF MONEY TO DEMONSTRATE THAT IT IS THE MONEY WITHIN THE GROUP A ND NO UNACCOUNTED MONEY OR CASH HAS COME IN THE FORM OF SHARE CAPITAL. THE LD. AR DURING THE COURSE OF THE HEARING TRIED TO JUSTIFY COMPLETE TRAIL OF THE MONEY WHICH HAS COME TO IT AS SHARE CAPITAL FROM THE GROUP COMPANIES AND TRIED TO SUBSTANTIATE THE SAME WITH THE BANK STATEMENTS OF EACH OF THE GROUP COMPANIES. IT WAS FURTHER CONTENDED THAT THERE IS NO ADVERSE STATEMENT BY ANYONE OR SO CALLED ENTRY OPERATORS THAT THERE IS ANY EXCHANGE OF CASH IN LIEU OF CHEQUE. ITA NO. 6319/DEL/2018 & ORS. 10 4.3. IT WAS NEXT CONTENDED THAT THE FACTS OF THE PR ESENT CASE ARE ENTIRELY DIFFERENT AND HENCE THE VARIOUS CASE LAWS REFERRED AND RELIED UPON BY THE AO AND THE CIT(A) ARE NOT APPLICABLE AS IN THOSE CASES THE SHARE CAPITAL HAD COME FROM OUTSIDE SOURCES. THESE PERSONS WERE EITHER NO T AVAILABLE AND HAVE EVEN CONFESSED OF PROVIDING ACCOMMODATION ENTRIES IN LIE U OF CASH WHICH IS NOT THE CASE HERE. 4.4. THE LD. AR FURTHER SUBMITTED THAT IN THIS CASE SEARCH HAS TAKEN PLACE ON 10.12.2015. ON THIS DATE, THE ASSESSMENT FOR THE Y EAR UNDER CONSIDERATION STOOD COMPLETED AND HENCE, HAS NOT ABATED. SINCE, T HE ASSESSMENT HAS NOT ABATED NO ADDITION CAN BE MADE IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL BEING FOUND DURING THE SEARCH. AS PER THE ASSESSME NT ORDER, IT IS EVIDENT THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEAR CH. THE STATEMENT RECORDED CANNOT BE CONSIDERED AS INCRIMINATING MATE RIAL IN THE FACTS OF THE CASE. ACCORDINGLY, THE ADDITIONS MADE BY THE ASSESSING OF FICER AND SUSTAINED BY LD. CIT(A) ARE NOT LEGALLY TENABLE ON THIS SCORE TOO. 5. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW AND SUBMITTED THAT DURING THE COU RSE OF THE SEARCH STATEMENT OF VARIOUS EMPLOYEES/DIRECTORS OF THE COMPANIES WER E RECORDED. IN THESE STATEMENTS THERE IS A CATEGORICAL CONFESSION THAT N ONE OF THE DIRECTORS KNEW ANYTHING ABOUT THE COMPANIES IN WHICH THEY WERE DIR ECTORS. THE LD. DR TOOK US THROUGH THE STATEMENT OF VARIOUS SUCH EMPLOYEES AS WELL AS THE STATEMENT OF MR. VIKAS AGGARWAL, THE MAIN PERSON OF THE GROUP CO MPANY TO SUPPORT THE ITA NO. 6319/DEL/2018 & ORS. 11 ORDERS PASSED BY THE AUTHORITIES BELOW. IT WAS FUR THER SUBMITTED THAT THIS GROUP HAS MADE A WEB OF COMPANIES AND IT IS DIFFICU LT TO DECIPHER THE SOURCE OF THE MONEY. THE LD. DR ALSO FILED A WRITTEN SYNOPSIS SUMMARIZING THE SPECIFIC FACTS INVOLVED IN THESE APPEALS AS UNDER : IT IS HUMBLY SUBMITTED THAT THE FOLLOWING SUBMISSION S, SUMMARIZING THE SPECIFIC FACTS INVOLVED IN ALL THE ABOVE STATED CASES MAY KINDLY BE CONSIDERED. A SEARCH & SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 WAS CARRIED OUT IN ASIAN COLOUR COATED ISPAT LIMITED GROUP OF CASES AN D OTHER GROUP CONCERNS/INDIVIDUALS ON 10-12-2015. THE ASIAN COLOUR COATED ISPAT LTD. ( ACCIL) GROUP IS OWNED AND CONTROLLED BY SH. PRADEEP AGGARWAL, CHAIRMAN AND SH . VIKAS AGGARWAL, VICE CHAIRMAN. THE STATED BUSINESS OF THE GROUP IS MANUFACTURING AN D SALE OF COLOUR STEEL SHEETS, GALVANIZED STEEL COIL, COLD ROLLED STEEL ETC. AND H OSPITALITY. 2) DURING THE COURSE OF SEARCH & SEIZURE ACTION, IT WAS FOUND THAT THERE ARE LARGE NUMBER OF COMPANIES, CONTROLLED AND MANAGED BY THE S AME MANAGEMENT BUT HAVE NO APPARENT BUSINESS AND NEITHER DO THEY EXIST AT THEY GIVEN REGISTERED ADDRESSES. MANY OF SUCH COMPANIES HAVE DIRECTORS FROM THE FAMILY OF AC CIL PROMOTERS AND EMPLOYEE OF ACCIL GROUP. IT WAS A SO FOUND THAT SUCH COMPANIES WERE REGISTERED AT THE ADDRESSES OF THE CHARTERED ACCOUNTANTS OF ACCIL GROUP COMPANIES, THE ADDRESSES OF THE EMPLOYEES OF SUCH COMPANIES, BOGUS ADDRESSES WHICH DO NOT REALLY EXIST, AS WELL AS AT THE REGISTERED ADDRESSES OF ACCIL GROUP COMPANIES. 3) THE FOLLOWING CHARACTERISTICS, AMONG OTHERS, OF COMPANIES PROMOTED BY THE DIRECTORS OF ACCIL GROUP WERE FOUND DURING THE COURSE OF SEAR CH OPERATION. (I). IT WAS FOUND THAT THERE ARE LARGE NUMBER OF COMPANIE S, CONTROLLED AND MANAGED BY THE SAME MANAGEMENT BUT HAVE NO APPARENT BUSINESS AND NEITHER DO THEY EXIST AT THEIR GIVEN REGISTERED ADDRESSES. MANY OF SUCH COMPANIES HAVE DIRECTORS FROM THE FAMILY OF ACCIL PROMOTERS AND EMPLOYEES OF ACCIL GROUP. (II). IT WAS ALSO FOUND THAT SUCH COMPANIES WERE REGISTER ED AT THE ADDRESSES OF THE CHARTERED ACCOUNTANTS OF ACCIL GROUP COMPANIES, THE ADDRESSES OF THE EMPLOYEES OF SUCH COMPANIES, BOGUS ADDRESSES WHICH D O NOT REALLY EXIST, AS WELL AS AT THE REGISTERED ADDRESSES OF ACCIL GROUP COMPA NIES. (III). MOST OF THESE ADDRESSES HAVE BEEN FOUND NONEXISTENT. A FEW ADDRESSES WHICH COULD WERE LOCATED ARE ONE OR TWO ROOM RENTED ACCOM MODATION AND A SECURITY GUARD IS DEPUTED THERE TO RECEIVE THE DAK. NO FIXED ASSETS, BOOKS OF ACCOUNTS, WORKING EMPLOYEES OF THESE SHELL COMPANIES WERE FOU ND. (IV). SHARE CERTIFICATES OF THESE COMPANIES WERE POT FOUN D AT THE REGISTERED OFFICE ADDRESS GIVEN BY THEM. (V). LARGE CAPITAL/SHARE APPLICATION MONEY/PREMIUM/UNSEC URED LOANS RECEIVED IN THESE COMPANIES . ITA NO. 6319/DEL/2018 & ORS. 12 (VI). IN MANY CASES, THE COMPANIES WERE FOUND TO BE NON-EX ISTENT AT THEIR REGISTERED ADDRESSES. THERE WERE NO BOOKS OF ACCOUNTS MAINTAINE D AT THESE ADDRESSES. THERE WERE NO EMPLOYEES WORKING THERE. THERE WERE NO BUSIN ESS ACTIVITIES OF THE COMPANIES AT THEIR ADDRESSES. 4)THE ABOVE FACTS FOUND DURING THE SEARCH OPERATION HAS ALSO BEEN FOUND CONSISTENT WITH THE STATEMENTS OF VARIOUS PERSONS ( COPIES OF STATEMENTS ARE MADE PART OF THE PAPERBOOK) WHO HAVE BEEN MADE DIRECTORS TO MANY OF THESE NON- FUNCTIONAL COMPANIES. MR. VIKAS AGGARWAL, KEY PERSO N OF THE ACCIL GROUP, HAS BEEN GIVEN MULTIPLE OPPORTUNITIES, INITIALLY BY THE INVESTIGATION WING AND LATER BY THE UNDERSIGNED DURING THE ASSESSMENT PROCEEDINGS, TO CONFRONT THESE PERSONS. HE HAS NOT EXERCISED THIS OPPORTUNITY. THIS FACT HA S BEEN BROUGHT BY LD. CIT(A) ALSO IN HIS ORDERS WHICH IS AS FOLLOWS:- THE APPELLANT CHALLENGES SUFFICIENT OPPORTUNITY WAS NOT GRANTED. I NOTE THAT SH. VIKAS AGGARWAL WAS SHOWN/GIVEN TO READ STATEMENTS O F VARIOUS PERSONS. FURTHER, SH. VIKAS AGGARWAL SPECIFICALLY CHOSE NOT TO CONFRO NT THESE PERSONS (INSPITE OF BEING GIVEN SPECIFIC OPPORTUNITY). REPLY OF THE ASSE SSEE TO QUESTION 17 IN THE STATEMENTS DATED 27.01.2016 IS Q.17 I HAVE CONFRONTED THE STATEMENTS OF VARIOUS PERSONS RECORDED IN THE COURSE OF SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 IN ACCIL GROUP YOU ARE GIVEN OPPORTUNITY TO CO NFRONT THESE PERSONS PERSONALLY. DO YOU WANT TO AVAIL THIS OPPOR TUNITY AND CONFRONT THESE PERSONS. ANSWER 17 I DECLINE OPPORTUNITY TO CONFRONT THESE PERSONS. I DONT WANT TO CONFRONT THEM IN PERSON. 5) THE BASIS OF ASSESSMENT UNDER SECTION 153A HAS BEE N THE FINDINGS DURING THE SEARCH OPERATION WHICH INCLUDES THE STATEMENTS RECO RDED UNDER OATH OF VARIOUS PERSONS WHO HAVE BEEN MADE DIRECTORS IN THESE COMPAN IES, AND, THE FACT THAT THE MOST OF THESE COMPANIES (WHICH HAS BEEN LATER CLAIME D AS INVESTMENT COMPANIES BY THE ASSESSEE) HAVE BEEN FOUND ABSOLUTE LY NON FUNCTIONAL DURING SEARCH OPERATION AT THEIR RESPECTIVE ADDRESSES, AND THE FACT THAT THE DIRECTORS IN THESE INVESTMENT COMPANIES HAVE THEMSELVES STATED UNDER OATH ABOUT THEIR ROLE AS DUMMY DIRECTORS IN THESE COMPANIES. THIS FINDING , COLLECTIVELY CONSIDERED, ARE IN ITSELF SUFFICIENT INCRIMINATING MATERIAL FOUND D URING THE SEARCH OPERATION. THIS INCRIMINATING MATERIAL HAS BEEN CONFRONTED WITH MR. VIKAS AGGARWAL DURING ASSESSMENT PROCEEDINGS TO WHICH HE COULD NOT GIVE A NY SATISFACTORY REPLY. THESE POINTS, INTER ALIA, HAS BEEN DISCUSSED IN DETAIL IN THE POINT NUMBER 8 OF ASSESSMENT ORDERS PASSED BY THE UNDERSIGNED. WITH REGARD TO TH E POINT OF INCRIMINATING ITA NO. 6319/DEL/2018 & ORS. 13 EVIDENCE, THE LD. CIT(A) HAS ALSO CONCURRED WITH TH E POINTS MADE BY THE AO BY CLEARLY BRINGING THE FOLLOWING IN HIS ORDERS WHICH IS AS BELOW: IN FACT, THE STATEMENTS THEMSELVES CONSTITUTE EVIDE NCE, THIS EVIDENCE IN THE FORM OF STATEMENTS (DETAILING THE WRONG DOING OF THE APP ELLANT), HAS COME FORTH OUT OF SEARCH ACTION U/S 132 OF THE ACT. THE EVIDENCE AS D ETAILED BY THE AO IS SUFFICIENT INCRIMINATING MATERIAL. EVIDENCE CAN BE BOTH DOCUMENTARY AS WELL AS ORAL. SEC TION 3 OF THE INDIAN EVIDENCE ACT, 187 LAYS DOWN THAT EVIDENCE MEANS AND INCLUDES ALL STATEMENTS WHICH THE COURT PERMITS OR REQUIRES TO BE MADE BEFORE IT BY WITNESSES, IN RELATION TO MATERS OF THE FAT UNDER ENQUIRY, AND SUCH STATEM ENTS ARE ORAL EVIDENCE. DOCUMENTS, INCLUDING ELECTRONIC RECORDS, PRODUCED F OR THE INSPECTION OF THE COURTS, ARE CALLED DOCUMENTARY EVIDENCE. I NOTE THA T THE INDIVIDUALS IN QUESTIONS (WHOSE STATEMENTS HAVE BEEN RELIED UPON AND REPRODUC ED BY THE AO IN THE ASSESSMENT ORDER), ARE DIRECTORS OF THE COMPANIES/E NTITIES CONTROLLED BY THE CONTROLLING PERSONS OF THE ACCIL GROUP. THE COMPAN IES THAT HAVE CONTRIBUTED TO THE SHARE CAPITAL/SHARE APPLICATION/LOANS ETC. ARE CONTROLLED BY THE MAIN PERSONS IN THIS GROUP. THE CONTRIBUTING COMPANIES ARE ARTIFI CIAL JUDICIAL PERSON. THESE COMPANIES ARE CONTROLLED BY THE PROMOTERS OF ACCIL GROUP. THE COMPANIES BEING ARTIFICIAL JURIDICAL PERSONS CANNOT BY THEMSELVES G IVE STATEMENTS. THE STATEMENTS HAVE BEEN GIVEN BY INDIVIDUALS WHO ARE AGAIN UNDER T HE CONTROL OF PROMOTER OF ACCIL GROUP. AS SUCH, THE STATEMENTS EMANATING IN S EARCH (OR AS A RESULT OF SEARCH), ARE SUFFICIENT INCRIMINATING MATERIAL(S) F OR PURPOSES OF PASSING THE AFORESAID ASSESSMENT ORDER. 6) THEREFORE, IN VIEW OF THE ABOVE POINTS, THE ADDI TIONS MADE ARE ON THE BASIS OF THE EVIDENCE FOUND DURING THE SEARCH WHICH HAS FURT HER BEEN EXAMINED BY THE AO WHILE GIVING PROPER OPPORTUNITIES TO THE ASSESSEE T O MAKE SUBMISSIONS AS WELL AS TO CROSS-EXAMINE THE WITNESSES. SINCE, THE ASSESSEE COMPANIES HAS FAILED TO EXPLAIN THE CREDITS IN THEIR BOOKS IN CONSEQUENCE O F THE SEARCH FINDINGS, THE ADDITIONS MADE UNDER SECTION 68 ARE LOGICAL AND LEG AL IMPLICATIONS OF THE EVIDENCES AND MATERIAL FOUND DURING THE SEARCH OPER ATION. IT IS THEREFORE, HUMBLY SUBMITTED THAT THE ADDITIONS MADE BY THE ASSESSING OFFICER DESERVES TO BE UPHELD. DETAILED ARGUMENTS/SUBMISSIONS WILL BE MADE AT THE TIME OF HEARING OF THE APPEAL. 5.1. AS TO THE SUSTENANCE OF ADDITIONS EVEN IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, IT WAS SUBMITTED BY THE LD. DR THAT FROM THE ASSESSMENT ORDER OF VARIOUS COMPANIES WHICH ARE IN APPEALS, IT IS NOT E VIDENT WHETHER THESE ITA NO. 6319/DEL/2018 & ORS. 14 COMPANIES HAVE ORIGINALLY FILED THE RETURN SO AS TO FALL IN THE CATEGORY OF BEING ASSESSED EARLIER. IN THE ABSENCE OF SUCH EVIDENCE THE RATIO OF THE JUDGMENTS IN THE CASE OF CIT VS. KABUL CHAWLA 380 ITR 573(DEL) W ILL NOT BE APPLICABLE. 5.2. THE LD. DR HAS RELIED UPON THE FOLLOWING DECIS IONS IN SUPPORT OF HIS AFORESAID CONTENTIONS: 1. PCIT VS. NDR PROMOTERS PVT LTD (2019-TIOL-172-HC-DE L-IT) WHERE HONBLE DELHI HIGH COURT HELD THAT A CASE INV OLVING MAKE-BELIEVE PAPER WORK TO CAMOUFLAGE THE BOGUS NATURE OF THE TRANSACT IONS IS TO BE TREATED AS UNEXPLAINED CREDIT U/S 68. 2. PREM CASTINGS (P.) LTD. VS. CIT [2007] 88 TAXMANN.C OM 189 (ALLAHABAD) (COPY ENCLOSED) WHERE HONBLE ALLAHABAD HIGH COURT HELD THAT ADDITI ONS U/S 68 WARRANT BEING SUSTAINED WHERE THE IDENTITIES & CREDITWORTHI NESS OF INVESTORS IN THE ASSESSEE COMPANY ARE NOT ESTABLISHED BY THE ASSESSE E & ARE ALSO PROVED INCORRECT BY THE DEPARTMENTS ASSESSEE INFORMATION SYSTEM. IN SUCH CIRCUMSTANCES, ASSESSEE CANNOT RESIST THE ADDITIONS ON GROUNDS TH AT IT DID NOT HAVE OPPORTUNITY TO CROSS-EXAMINE RELEVANT WITNESSES. AN ASSESSEE CO MPANY CANNOT HIDE BEHIND THE SHELL OF A CORPORATE ENTITY TO FEIGN IGNORANCE REGA RDING THE IDENTITY OF ANY PERSON WHO INVESTS IN ITS SHARE CAPITAL. PREM CASTING (P.) LTD. VS. CIT 2018-TIOL-274-SC-IT (COPY ENCLOSED) WHERE HONBLE SUPREME COURT HELD AS FOLLOWS: WE DO NOT FIND ANY MERIT IN THIS PETITION. THE SPE CIAL LEAVE PETITION IS ACCORDINGLY DISMISSED. 3. CIT VS. MAF ACADEMY (P.) LTD. (361 ITR 258) (COP Y ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE ASSE SSEE, A PRIVATE LIMITED COMPANY, SOLD ITS SHARES TO UNRELATED PARTIES AT A HUGE PREMIUM AND THEREUPON WITHIN SHORT SPAN OF TIME THOSE SHARES WERE PURCHAS ED BACK EVEN AT A LOSS, SHARE TRANSACTIONS IN QUESTION WERE TO BE REGARDED AS BOG US AND, THUS, AMOUNT RECEIVED FROM SAID TRANSACTIONS WAS TO BE ADDED TO ASSESSEE S TAXABLE INCOME UNDER SECTION 68 IT WAS HELD AS FOLLOWS: 53.IN CONTRAST TO THE ABOVE JUDGMENTS, IN THE PRESE NT CASE, THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND IN THE FACTUAL MATRIX, WE HAVE HELD THAT THE ASSESSE HAS NOT BEEN ABLE TO DISCHARGE THE INITIAL ONUS AND HAS NOT BE EN ABLE TO ESTABLISH THE IDENTITY, CREDITWORTHINESS OF THE SHARE APPLICANTS AND THE GE NUINENESS OF THE TRANSACTIONS. THOUGH, IN OUR CONSIDERED OPINION, NONE OF THE ABOVE JUDGMENTS, REFERRED TO BY THE ITA NO. 6319/DEL/2018 & ORS. 15 ASSESSEE RESPONDENT, ARE APPLICABLE IN THE FACTS OF THE PRESENT CASE AND IN VIEW OF THE FINDINGS RECORDED BY US HEREINABOVE. 54. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT T HE ASSESSEE HAS NOT DISCHARGED THE ONUS SATISFACTORILY AND THE ADDITIONS MADE BY THE A SSESSING OFFICER WERE JUSTIFIED AND SUSTAINABLE. 4. CIT VS. NAVODAYA CASTLE PVT. LTD.[2014] 367 ITR 306 (DEL) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT ACCEPTED THAT SINCE THE ASSESSEE WAS UNABLE TO PRODUCE THE DIRECTORS AND THE PRINCIPAL OFFICERS OF THE SIX SHAREHOLDER COMPANIES AND ALSO THAT AS PER THE INFORMATION AND DETAILS CO LLECTED BY THE ASSESSING OFFICER FROM THE CONCERNED BANK, THE ASSESSING OFFICER HAD OBSERVED THAT THERE WERE GENUINE CONCERNS ABOUT IDENTITY, CREDITWORTHINESS O F SHAREHOLDERS AS WELL AS GENUINENESS OF THE TRANSACTIONS. 20.NOW, WHEN WE GO TO THE ORDER OF THE TRIBUNAL IN THE PRESENT CASE, WE NOTICE THAT THE TRIBUNAL HAS MERELY REPRODUCED THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND UPHELD THE DELETION OF THE ADDITION. IN FACT THEY SUBSTANTIALLY RELIED UPON AND QUOTED THE DECISION OF ITS CO-ORDINATE BEN CH IN THE CASE OF MAF ACADEMY PVT. LTD., A DECISION WHICH HAS BEEN OVERTURNED BY T HE DELHI HIGH COURT, VIDE ITS JUDGMENT IN CIT VS. MAF ACADEMY P. LTD. [2014] 206 DLT 277; [2014] 361 ITR 258 (DELHI). IN THE IMPUGNED ORDER IT IS ACCEPTED THAT THE ASSESSEE WAS UNABLE TO PRODUCE DIRECTORS AND PRINCIPAL OFFICERS OF THE SIX SHAREHO LDER COMPANIES AND ALSO THE FACT THAT AS PER THE INFORMATION AND DETAILS COLLECTED B Y THE ASSESSING OFFICER FROM THE CONCERNED BANK, THE ASSESSING OFFICER HAS OBSERVED T HAT THERE WERE GENUINE CONCERNS ABOUT IDENTITY, CREDITWORTHINESS OF SHAREHOLDERS AS WELL AS GENUINENESS OF THE TRANSACTIONS. 21.IN VIEW OF THE AFORESAID DISCUSSION, WE FELL THA T THE MATTER REQUIRES AN ORDER OF REMIT TO THE TRIBUNAL FOR FRESH ADJUDICATION KEEPING IN VIEW THE AFORESAID CASE LAW. NAVODAYA CASTLE PVT. LTD. VS. CIT (2015-TIOL-314-SC -IT)(COPY ENCLOSED) SLP OF ASSESSEE DISMISSED BY HONBLE SUPREME COURT. 5. KONARK STRUCTURAL ENGINEERING (P.) LTD. VS. DCIT [2018] 96 TAXMANN.COM 255 (SC) (COPY ENCLOSED) WHERE ASSESSEE-COMPANY RECEIVED CERTAIN AMOUNT AS S HARE CAPITAL FROM VARIOUS SHAREHOLDERS, IN VIEW OF FACT THAT SUMMONS TO SHARE HOLDERS UNDER SECTION 131 COULD NOT BE SERVED AS ADDRESSES WERE NOT AVAILABLE , AND, MOREOVER, THOSE SHAREHOLDERS WERE FIRST TIME ASSESSEE AND WERE NOT EARNING ENOUGH INCOME TO MAKE DEPOSITS IN QUESTION, ADDITION MADE BY ASSESSI NG OFFICER UNDER SECTION 68 WAS TO BE CONFIRMED; SLP DISMISSED. ITA NO. 6319/DEL/2018 & ORS. 16 KONARK STRUCTURAL ENGINEERING (P.) LTD. VS. DCIT[20 18] 90 TAXMANN.COM 56 (BOMBAY) (COPY ENCLOSED) WHERE HONBLE BOMBAY HIGH COURT HELD THAT WHERE ASS ESSEE-COMPANY RECEIVED CERTAIN AMOUNT AS SHARE CAPITAL FROM VARIOUS SHAREH OLDERS, IN VIEW OF FACT THAT SUMMONS SERVED TO SHAREHOLDERS UNDER SECTION 131 WE RE UNSERVED WITH REMARK THAT ADDRESSES WERE NOT AVAILABLE, AND, MOREOVER, T HOSE SHAREHOLDERS WERE FIRST TIME ASSESSEES AND WERE NOT EARNING ENOUGH INCOME T O MAKE DEPOSITS IN QUESTION, IMPUGNED ADDITION MADE BY AO UNDER SECTIO N 68 WAS TO BE CONFIRMED. 6. PRATHAM TELECOM INDIA PVT LTD. VS. DCIT (2018-TI OL-1983-HC-MUM-IT)(COPY ENCLOSED) WHERE HONBLE BOMBAY HIGH COURT HELD THAT MERE PRO DUCTION OF PAN NUMBERS & BANK STATEMENTS IS SUFFICIENT ENOUGH TO DISCHARGE T HE BURDEN ON TAXPAYER TO ESCAPE THE REALMS OF SECTION 68. 7. JJ DEVELOPMENT PVT LTD. VS CIT (2018-TIOL-39 5-SC-IT)(COPY ENCLOSED) WHERE HONBLE SUPREME COURT HELD THAT WHEN THE ASSE SSEE FAILS TO PROVIDE A CONVINCING EXPLANATION WITH REGARD TO THE CASH CRED IT BEFORE THE AO AND THE SAME WAS ACCEPTED BY THE ITAT BEING A FACT FINDING BODY, THE SAME CANNOT BE DISPUTED FURTHER. APEX COURT DISMISSED THE SPECIAL LEAVE TO PETITION FILED BY THE ASSESSEE. 8. DRB EXPORTS (P.) LTD. VS. CIT [2018] 93 TAXMANN .COM 490 (CALCUTTA) (COPY ENCLOSED) WHERE HONBLE CALCUTTA HIGH COURT HELD THAT WHERE A O MADE ADDITION UNDER SECTION 68 IN RESPECT OF INCREASE IN SHARE CAPITAL OF ASSESSEE-COMPANY, IN VIEW OF FACT THAT ADDRESSES OF MOST OF PURPORTED SHAREHOLDE RS WERE IDENTICAL AND THEY COULD NOT BE TRACED OUT DESPITE NOTICE ISSUED UNDER SECTION 131, TRIBUNAL WAS JUSTIFIED IN CONFIRMING IMPUGNED ADDITION. 9. CIT VS. NIPUN BUILDERS & DEVELOPERS (P.) LTD. (30 TAXMANN.COM 292, 214 TAXMAN 429, 350 ITR 407,256 CTR 34) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE ASS ESSEE FAILED TO PROVE IDENTITY AND CAPACITY OF SUBSCRIBER COMPANIES TO PAY SHARE A PPLICATION MONEY, AMOUNT SO RECEIVED WAS LIABLE TO BE TAXED UNDER SECTION 68. I T WAS HELD AS FOLLOWS: 12.A PERUSAL OF THE ORDER OF THE TRIBUNAL SHOWS TH AT IT HAS GONE ON THE BASIS OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE BEFORE THE AO AND HAS HELD THAT IN THE LIGHT OF THOSE DOCUMENTS, IT CAN BE SAID THAT THE REPORT OF T HE INVESTIGATION WING CANNOT CONCLUSIVELY PROVE THAT THE ASSESSEES OWN MONIES W ERE BROUGHT BANK IN THE FORM OF SHARE APPLICATION MONEY. AS NOTED IN THE EARLIER PA RAGRAPH, IT IS NOT THE BURDEN OF THE AO TO PROVE THAT CONNECTION. THERE HAS BEEN NO E XAMINATION BY THE TRIBUNAL OF THE ASSESSMENT PROCEEDINGS IN ANY DETAIL IN ORDER T O DEMONSTRATE THAT THE ASSESSEE HAS DISCHARGED ITS ONUS TO PROVE NOT ONLY THE IDENT ITY OF THE SHARE APPLICANTS, BUT ITA NO. 6319/DEL/2018 & ORS. 17 ALSO THEIR CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSACTIONS. NO ATTEMPT WAS MADE BY THE TRIBUNAL TO SCRATCH THE SURFACE AND PROBE THE DOCUMENTARY EVIDENCE IN SOME DEPTH, IN THE LIGHT OF THE CONDUCT OF THE ASSESSEE AND OTHER SURROUNDING CIRCUMSTANCES IN ORDER TO SEE WHETHER T HE ASSESSEE HAS DISCHARGED ITS ONUS UNDER SECTION 68. WITH RESPECT, IT APPEARS TO US THAT THERE HAS ONLY BEEN A MECHANICAL REFERENCE TO THE CASE LAW ON THE SUBJECT WITHOUT ANY SERIOUS APPRAISAL OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 13. WE, THEREFORE, ANSWER THE SUBSTANTIAL QUESTION OF LAW FRAMED BY US IN THE NEGATIVE, IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. THE APPEAL OF THE REVENUE IS ALLOWED WITH NO ORDER AS TO COSTS. 10. CIT VS. NOVA PROMOTERS &FINLEASE (P) LTD. (18 TAXMA NN.COM 217, 206 TAXMAN 207, 342 ITR 169, 252 CTR 187) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT AMOUNT RECE IVED BY ASSESSEE FROM ACCOMMODATION ENTRY PROVIDES IN GARB OF SHARE APPLI CATION MONEY, WAS TO BE ADDED TO ITS TAXABLE INCOME UNDER SECTION68.IT WAS H ELD AS FOLLOWS:- 41. IN THE CASE BEFORE US, NOT ONLY DID NOT MATERIA L BEFORE THE ASSESSING OFFICER SHOW THE LINK BETWEEN THE ENTRY PROVIDERS AND THE AS SESSEE-COMPANY, BUT THE ASSESSING OFFICER HAD ALSO PROVIDED THE STATEMENTS OF MUKESH GUPTA AND RAJANJASSAL TO THE ASSESSEE IN COMPLIANCE WITH THE RULES OF NATURAL JUSTICE. OUT OF THE 22 COMPANIES WHOSE NAMES FIGURED IN THE INFORMA TION GIVEN BY THEM TO THE INVESTIGATION WING, 15 COMPANIES HAD PROVIDED THE S O-CALLED SHARE SUBSCRIPTION MONIES TO THE ASSESSEE. THERE WAS THUS SPECIFIC IN VOLVEMENT OF THE ASSESSEE- COMPANY IN THE MODUS OPERANDI FOLLOWED BY MUKESH GU PTA AND RAJANJASSAL. THUS, ON CRUCIAL FACTUAL ASPECTS THE PRESENT CASE STANDS ON A COMPLETELY DIFFERENT FOOTING FROM THE CASE OF OASIS HOSPITALITIES (P.) LTD. (SUP RA). 42. IN THE LIGHT OF THE ABOVE DISCUSSION, WE ARE UNA BLE TO UPHOLD THE ORDER OF THE TRIBUNAL CONFIRMING THE DELETION OF THE ADDITION OF RS.1,18,50,000/- MADE UNDER SECTION 68 OF THE ACT AS WELL AS THE CONSEQUENTIAL ADDITION OF RS.2,96,250/-.WE ACCORDINGLY ANSWER THE SUBSTANTIAL QUESTION OF LAW IN THE NEGATIVE AND IN FAVOUR OF THE DEPARTMENT. THE ASSESSEE SHALL PAY COSTS WHICH WE ASSESS AT RS.30,000/-. 11. CIT VS. ULTRA MODERN EXPORTS (P.) LTD. (40 TAXM ANN.COM 458, 220 TAXMAN 165)(COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT THAT WHERE IN ORDER TO ASCERTAIN GENUINENESS OF ASSESSEES CLAIM RELATING TO RECEIPT OF SHARE APPLI CATION MONEY, ASSESSING OFFICER SENT NOTICES TO SHARE APPLICANTS WHICH RETURNED UNS ERVED, HOWEVER, ASSESSEE STILL MANAGED TO SECURE DOCUMENTS SUCH AS THEIR INC OME TAX RETURNS AS WELL AS BANK ACCOUNT PARTICULARS, IN SUCH CIRCUMSTANCES, AS SESSING OFFICER WAS JUSTIFIED IN DRAWING ADVERSE INFERENCE AND ADDING AMOUNT IN Q UESTION TO ASSESSEES TAXABLE INCOME UNDER SECTION 68. IT WAS HELD AS FOL LOWS: ITA NO. 6319/DEL/2018 & ORS. 18 9.AS NOTICED PREVIOUSLY, THE CIT(A) WAS OF THE OPI NION THAT THE ASSESSEE HAD DISCHARGED THE BASIC ONUS WHICH WAS CAST UPON IT AFT ER CONSIDERING THE RULING IN LOVELY EXPORTS (P.) LTD.S CASE (SUPRA). THE MATERI AL AND THE RECORDS IN THIS CASE SHOW THAT NOTICE ISSUED TO THE 5 OF THE SHARE APPLI CANTS WERE RETURNED UNSERVED. THE PARTICULARS OF RETURNS MADE AVAILABLE BY THE ASS ESSEE AND TAKEN INTO CONSIDERATION IN PARAGRAPH 3.4 BY THE AO IN THIS CA SE WOULD SHOW THAT THE SAID PARTIES/APPLICANTS HAD DISCLOSED VERY MEAGER INCOME . THE AO ALSO NOTICED THAT BEFORE ISSUING CHEQUES TO THE ASSESSEE, HUGE AMOUNTS WERE TRANSFERRED IN THE ACCOUNTS OF SAID SHARE APPLICANTS. THIS DISCUSSION ITSELF WOULD REVEAL THAT EVEN THOUGH THE SHARE APPLICANTS COULD NOT BE ACCESSED TH ROUGH NOTICES, THE ASSESSEE WAS IN A POSITION TO OBTAIN DOCUMENTS FROM THEM. WH ILE THERE CAN BE NO DOUBT THAT IN LOVELY EXPORTS (P) LTD. (SUPRA), THE COURT INDIC ATED THE RULE OF SHIFTING ONUS I.E. THE RESPONSIBILITY OF THE REVENUE TO PROVE THAT SECT ION 68 COULD BE INVOKED ONCE THE BASIC BURDEN STOOD DISCHARGED BY FURNISHING RELEVANT AND MATERIAL PARTICULARS, AT THE SAME TIME, THAT JUDGMENT CANNOT BE SAID TO LIMIT THE INFERENCE THAT CAN BE LOGICALLY AND LEGITIMATELY DRAWN BY THE REVENUE IN THE NATURAL COURSE OF ASSESSMENT PROCEEDINGS. THE INFORMATION THAT ASSESS EE FURNISHES WOULD HAVE TO BE CREDIBLE AND AT THE SAME TIME VERIFIABLE. IN THIS CA SE, 5 SHARE APPLICANTS COULD NOT BE SERVED AS THE NOTICES WERE RETURNED UNSERVED. IN THE BACKDROP OF THIS CIRCUMSTANCES, THE ASSESSEES ABILITY TO SECURE DOCU MENTS SUCH AS INCOME TAX RETURNS OF THE SHARE APPLICANTS AS WELL AS BANK ACCO UNT PARTICULARS WOULD ITSELF GIVE RISE TO A CIRCUMSTANCES WHICH THE AO IN THIS C ASE PROCEEDED TO DRAW INFERENCES FROM. HAVING REGARD TO THE TOTALITY OF THE FACTS, I .E., THAT THE ASSESSEE COMMENCED ITS BUSINESS AND IMMEDIATELY SOUGHT TO INFUSE SHARE CAPI TAL AT A PREMIUM RANGING BETWEEN RS.90-190 PER SHARE AND WAS ABLE TO GARNER A COLOSSAL AMOUNT OF RS.4.34 CRORES, THIS COURT IS OF THE OPINION THAT THE CIT(A PPEALS) AND THE ITAT FELL INTO ERROR IN HOLDING THAT AO COULD NOT HAVE ADDED BACK T HE SAID AMOUNT UNDER SECTION 68. THE QUESTION OF LAW CONSEQUENTLY IS ANSWERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. 12. CIT VS. FROSTAIR (P.) LTD. (26 TAXMANN.COM 11, 210 TAXMAN 221) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE DET AILS FURNISHED BY ASSESSEE ABOUT SHARE APPLICANTS WERE INCORRECT, ADDITION UND ER SECTION 68 WAS PROPER. IT WAS HELD AS FOLLOWS: 12. THE APPLICATION OF THE RATIO OF EVERY DECISION BY A QUASI-JUDICIAL BODY LIKE THE ITAT HAS TO BE NUANCED, AND CONTEXTUAL. THUS, WHILE THE FINDINGS IN DIVINE LEASING, OASIS INTERNATIONAL OR EVEN LOVELY EXPORTS MIGHT BE PRECEDED BY A GENERAL DISCUSSION OF THE CORRECT APPROACH TO BE ADOPTED BY THE AO, IN A GIVEN CASE WHERE ADDITIONS ARE SOUGHT TO BE MADE ON ACCOUNT OF SHARE APPLICATION MONEYS NOT FOUND TO BE GENUINE, THE BASIC FACTS OF THE CASE CANNOT BE LOST SIGHT OF. ON A PROPER APPLICATION OF THE RATIO IN OASIS- AND SUBSEQUENTLY , THE DIVISION BENCH RULING IN CIT V. NOVA PROMOTERS &FINLEASE (P) LTD. [2012] 206 TAX MAN 207/18 TAXMANN.COM ITA NO. 6319/DEL/2018 & ORS. 19 217 (DELHI) IT IS EVIDENT THAT THE AO TOOK INTO ACC OUNT- IF WE MAY SAY SO, THE EXHAUSTIVE DETAIL AFTER A PAINSTAKING EXAMINATION O F THE RECORDS AFTER TWO OR THREE LAYERS OF SCRUTINY- ALL THE MATERIAL AND HELD THAT THE CLAIM THAT THE AMOUNTS CLAIMED TO BE RECEIVED ON ACCOUNT OF SHARE APPLICATI ONS WERE NOT BASED ON GENUINE TRANSACTIONS. THE CIT(A) UPHELD THAT ORDER, AFTER C ALLING FOR A REMAND REPORT.IN THESE CIRCUMSTANCES, THE CONCLUSION OF THE TRIBUNAL, THAT THE ASSESSEE HAD DISCHARGED ITS ONUS, APPEARS TO BE BASED ON A SUPERFI CIAL UNDERSTANDING OF THE LAW, AND AN UNINFORMED ONE ABOUT THE OVERALL FACTS AND CI RCUMSTANCES OF THE CASE. 13. IN VIEW OF THE ABOVE REASONS, THE QUESTIONS OF LAW IN THESE APPEALS ARE ANSWERED IN FAVOUR OF THE REVENUE. THE ORDERS OF TH E ASSESSING OFFICER ARE RESTORED. THE APPEALS ARE TO SUCCEED AND ARE THEREFORE ALLOWE D. 13. CIT VS. NR PORTFOLIO PVT.LTD. [2014] 42 TAXMANN .COM 339 (DELHI)/[2014] 222 TAXMAN 157 (DELHI)(MAG)/[2014] 264 CTR 258 (DELHI) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT IF AO DOU BTS THE DOCUMENTS PRODUCED BY ASSESSEE, THE ONUS SHIFTS ON ASSESSEE TO FURTHER SUBSTANTIATE THE FACTS OR PRODUCE THE SHARE APPLICANT IN PROCEEDING. IT WAS H ELD AS FOLLOWS:- 30. WHAT WE PERCEIVE AND REGARD AS CORRECT POSITIO N OF LAW IS THAT THE COURT OR TRIBUNAL SHOULD BE CONVINCED ABOUT THE IDENTITY, CRED ITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE ONUS TO PROVE THE THREE FAC TUM IS ON THE ASSESSEE AS THE FACTS ARE WITHIN THE ASSESSEES KNOWLEDGE. MERE PRO DUCTION OF INCORPORATION DETAILS, PAN NOS. OR THE FACT THAT THIRD PERSONS OR COMPANY HAD FILED INCOME TAX DETAILS IN CASE OF A PRIVATE LIMITED COMPANY MAY NO T BE SUFFICIENT WHEN SURROUNDING THE ATTENDING FACTS PREDICATE A COVER U P. THESE FACTS INDICATE AND REFLECT PROPER PAPER WORK OR DOCUMENTATION BUT GENUI NENESS, CREDITWORTHINESS, IDENTITY ARE DEEPER AND OBTRUSIVE. COMPANIES NO DOUBT ARE ARTIFICIAL OR JURISTIC PERSONS BUT THEY ARE SOULLESS AND ARE DEPENDENT UPO N THE INDIVIDUALS BEHIND THEM WHO RUN AND MANAGE THE SAID COMPANIES. IT IS THE PE RSONS BEHIND THE COMPANY WHO TAKE THE DECISIONS, CONTROLS AND MANAGED THEM. 14. CIT VS.EMPIREBUILDTECH(P.) LTD. (366 ITR 110) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT UNDER SECT ION 68 IT IS NOT SUFFICIENT FOR ASSESSEE TO MERELY DISCLOSE ADDRESS AND IDENTITIES OF SHAREHOLDERS; IT HAS TO SHOW GENUINENESS OF SUCH INDIVIDUALS OR ENTITIES. 15. CIT VS. FOCUS EXPORTS (P.) LTD. (51 TAXMANN.COM 46 (DELHI)/[2015] 228 TAXMAN 88) (COPY ENCLOSED) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE IN R ESPECT OF SHARE APPLICATION MONEY, ASSESSEE FAILED TO PROVIDE COMPLETE ADDRESS AND PAN OF CERTAIN SHARE APPLICANTS WHEREAS IN CASE OF SOME OF SHARE APPLICA NTS, THERE WERE TRANSACTIONS ITA NO. 6319/DEL/2018 & ORS. 20 OF DEPOSITS AND IMMEDIATE WITHDRAWALS OF MONEY FROM BANK, IMPUGNED ADDITION MADE UNDER SECTION 68 WAS TO BE CONFIRMED. 10.PCIT VS. BIKRAM SINGH [2017] 85 TAXMANN.COM 104 (DELHI)/[2017] 250 TAXMAN 273 (DELHI)/[2017] 399 ITR 407 (DELHI) (COPY ENCLOS ED) WHERE HONBLE DELHI HIGH COURT HELD THAT EVEN IF A TRANSACTION OF LOAN IS MADE THROUGH CHEQUE, IT CANNOT BE PRESUMED TO BE GENUINE IN THE ABSENCE OF ANY AGREEMENT, SECURITY AND INTEREST PAYMENT. MERE SUBM ISSION OF PAN CARD OF CREDITOR DOES NOT ESTABLISH THE AUTHENTICITY OF A H UGE LOAN TRANSACTION PARTICULARLY WHEN THE ITR DOES NOT INSPIRE SUCH CON FIDENCE. MERE SUBMISSION OF ID PROOF AND THE FACT THAT THE LOAN TRANSACTION WE RE THROUGH THE BANKING CHANNEL, DOES NOT ESTABLISH THE GENUINENESS OF TRAN SACTION. LOAN ENTRIES ARE GENERALLY MASKED TO PUMP IN BLACK MONEY INTO BANKIN G CHANNELS AND SUCH PRACTICES CONTINUE TO PLAGUE INDIA ECONOMY. 11 RICK LUNSFORD TRADE & INVESTMENT LTD. VS. CIT [2 016] 385 ITR 399 (CAL) (COPY ENCLOSED) THE ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUNT OR B ANK ACCOUNTS OR SHAREHOLDERS REGISTER. EIGHT OUT OF FIFTY SIX PERSONS FROM SHARE HOLDERS LIST PROVIDED BY ASSESSEE DENIED SUBSCRIPTION. REMAINING NOTICES RET URNED WITH ENDORSEMENT NOT KNOWN. HONBLE CALCUTTA HIGH COURT HELD THAT UNEXPLAINED SHARE APPLICATION MONEY WAS RIGHTLY TREATED AS ASSESSEES INCOME. 12. RICK LUNSFORD TRADE & INVESTMENT LTD. VS. CIT [ 2016- TIOL-207-SC-IT] (SUPREME COURT) (COPY ENCLOSED) WHERE HONBLE SUPREME COURT DISMISSED SLP UPHOLDIN G THAT IT IS OPEN TO THE REVENUE DEPARTMENT TO MAKE ADDITION ON ACCOUNT OF A LLEGED SHARE CAPITAL U/S 68, WHERE THE ASSESSEE COMPANY HAS FAILED TO SHOW G ENUINENESS OF ITS SHAREHOLDERS. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GON E THROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD INCLUDING THE ORDERS O F THE AUTHORITIES BELOW AND CASE LAWS CITED BY BOTH THE PARTIES BEFORE US. NOW, WE PROCEED TO DECIDE THE APPEAL GROUND-WISE. 7. GROUNDS NOS.1 & 14 ARE GENERAL IN NATURE AND NEE D NO SPECIFIC ADJUDICATION. GROUNDS NOS. 2 TO 5 & 7 ARE NOT PRE SSED AND ARE DISMISSED AS SUCH. ITA NO. 6319/DEL/2018 & ORS. 21 8. GROUNDS NOS. 8 TO 13 ARE ON THE ISSUE OF ADDITI ON OF RS. 46,75,95,000/- ON ACCOUNT OF THE SHARE CAPITAL. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS HELD THAT THE SHARE CAPITAL RECEIVED BY THE ASSESSE E COMPANY IS UNACCOUNTED INCOME AND THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS UNDER SECTION 68 OF THE ACT. THE CIT(A) HAS CONFIRMED THE FINDING OF THE A O. AS AGAINST THIS THE CONTENTION OF THE ASSESSEE IS THAT THE SHARE CAPITA L RECEIVED BY IT IS NOT THE UNACCOUNTED INCOME BUT IS FULLY ACCOUNTED MONEY AND ROUTED THROUGH THE GROUP COMPANIES. IT IS THE CONTENTION OF THE ASSES SEE COMPANY THAT IT HAS LED ALL THE EVIDENCES TO DISCHARGE ITS ONUS UNDER SECTION 6 8 OF THE ACT. THUS, IT IS IMPORTANT TO GO THROUGH THE DETAILS AND EXAMINE THE SOURCE OF THE MONEY WITH THE SUPPORTING EVIDENCE, WHICH ARE PLACED BY THE AS SESSEE BEFORE US IN THE TABULATED FORM, WHICH IS AS UNDER : ACCIL CORPORATION LTD. A.Y. 2012 - 13 RECONCILI ATION OF SHARES CAPITAL/SHARE PREMIUM RECEIVED DURI NG THE YEAR AS ON 31.03.2012 S. N O PARTICULAR S/NAME OF ENTITY NO OF SHARES ALLOTTED DATE OF ALLOTMENT TOTAL AMOUNT DATE OF RECEIPT AMOUNT SOURCE SOURCE PARTY NAME DATE OF RECEI PT AMOUNT PARTY NAME DATE OF RECEIPT AMOUNT DETAILS OF ADDITION DURING THE YEAR 2011- 12 AS UNDER:- 1 ANKIT INFOWEB PRIVATE LIMITED (NOW MERGED WITH TTJ IMPEX PRIVATE LIMITED) 110,000 31/12/20 11 16,500,000 02/08/2011 7,500,000 NIRVANA LIFESTYLE PVT LTD 02/08 /2011 7,600,000 ACCIL CORPO RATION LIMITE D 01/08/20 11 45,000,000 17/11/2011 4,000,000 STUDIO 90 ASSOCIATES 14/11 /2011 7,500,000 17/11/2011 5,000,000 DIVA INTERIOR DESIGNS 15/11 /2011 5,500,000 ITA NO. 6319/DEL/2018 & ORS. 22 2 HERMES EDUCATION SOLUTIONS PRIVATE LIMITED 46,500 31/12/20 11 6,975,000 02/08/2011 7,000,000 NIRVANA LIFESTYLE PVT LTD 02/08 /2011 7,100,000 ACCIL CORPO RATION LIMITE D 01/08/20 11 45,000,000 3 HOME COZINESS RESORTS & HOLIDAYS PRIVATE LIMITED (NOW MERGED WITH TTJ IMPEX PRIVATE LIMITED) 96,000 31/12/20 11 14,400,000 17/11/2011 4,000,000 ARTYS INFRASTRUCTURE PVT LTD 17/11 /2011 5,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 15/11/20 11 7,000,000 17/11/2011 7,000,000 6,000,000 16,000,000 18/02/20 12 05/01/2012 3,500,000 ACCIL HOSPITALITY LTD 04/01 /2012 3,500,000 4 HOME COZINESS TOURS & TRAVELS PRIVATE LIMITED (NOW MERGED WITH LOCUS INFRASTRUCT URE PRIVATE LIMITED) 23,000 31/12/20 11 3,450,000 01/09/2010 3,500,000 ARTYS INFRASTRUCTURE PVT LTD 01/09 /2010 3,500,000 ASIAN COLOUR COATED ISPAT LIMITE D 31/08/20 10 17,073,000 5 INVENTIVE BIO ENERGY SOLUTIONS PRIVATE LIMITED (NOW MERGED WITH TTJ IMPEX PRIVATE LIMITED) 80,000 31/12/20 11 12,000,000 17/11/2011 6,000,000 ARTYS INFRASTRUCTURE PVT LTD 17/11 /2011 6,500,000 ASIAN COLOUR COATED ISPAT LIMITE D 16/11/20 11 18/11/2011 6,000,000 5,500,000 6 LOCUS INFRASTRUCT URE PRIVATE LIMITED 294,500 31/12/20 11 44,175,000 10/08/2010 39,000,00 0 LOGASIMPEXPVT LTD 06/08 /2010 20,000,000 KARAN OVERS EAS 05/08/20 10 4,000,000 AJANTA TRADER S 05/08/20 10 3,200,000 SHREE KRISHN A TRADER S 06/08/20 10 4,650,000 SHREE KRISHN A TRADER S 3,350,000 BALAJI INVEST MENTS 4,400,000 CORAL IMPEXPVT LTD 09/08 /2010 9,900,000 SHREE BALAJI ENTERP 06/08/20 10 7,000,000 ITA NO. 6319/DEL/2018 & ORS. 23 RISES SHREE KRISHN A TRADER S 06/08/20 10 2,860,000 JINGLE CONSULTANCY PVT LTD 8,400,000 TTJ IMPEX PRIVAT E LTD 18/05/20 10 5,000,000 KARAN OVERS EAS 05/08/20 10 3,400,000 MORGAN TRADEXPVT LTD 700,000 KARAN OVERS EAS 09/08/20 10 7,900,000 20/06/2011 5,200,000 SHREE GOPAL ENTERPRISES 20/06 /2011 1,900,000 3,300,000 7 MAHARAJA INFRATECH PRIVATE LIMITED (NOW MERGED WITH LOCUS INFRASTRUCT URE PRIVATE LIMITED) 392,000 31/12/20 11 58,800,000 10/08/2010 44,000,00 0 MORGAN TRADEXPVT LTD 06/ 08 /2010 20,000,000 ATJ IMPEX PRIVAT E LIMITE D 11/05/20 10 10,000,000 KARAN OVERS EAS 05/08/20 10 3,500,000 BALAJI INVEST MENTS 06/08/20 10 3,300,000 OM TRADIN G COMPA NY 06/08/20 10 3,660,000 09/08 /2010 23,850,000 OM TRADIN G COMPA NY 09/08/20 10 7,496,000 SHREE KRISHN A TRADER S 7,154,000 KARAN OVERS EAS 7,900,000 LOGASIMPEXPVT LTD 09/08 /2010 50,000 10/08/2010 8,500,000 SHREE GOPAL ENTERPRISES 10/08 /2010 8,500,000 20/06/2011 6,300,000 SHREE GOPAL ENTERPRISES 20/06 /2011 3,100,000 20/06 /2011 3,200,000 ITA NO. 6319/DEL/2018 & ORS. 24 8 NITYAINFRAT ECH PRIVATE LIMITED (NOW MERGED WITH VATSALINFRA PROJECTS PRIVATE LIMITED) 621,800 31/12/20 11 93,270,000 01/10/2010 3,000,000 SHREE GOPAL ENTERPRISES 01/10 /2010 8,450,000 02/11/2010 1,000,000 OLIVE SALES PVT LTD 02/11 /2010 1,000,000 20/11/2010 2,000,000 OLIVE SALES PVT LTD 02/11 /2010 2,000,000 23/12/2010 200,000 OLIVE SALES PVT LTD 23/12 /2010 200,000 14/03/2011 200,000 BETA METALS & ALLOY PVT LTD 14/03 /2011 200,000 ASIAN COLOUR COATED ISPAT LIMITE D 12/03/20 11 5,000,000 13/06/2011 3,500,000 OLIVE SALES PVT LTD 13/06 /2011 3,500,000 20/06/2011 2,250,000 OLIVE SALES PVT LTD 20/06 /2011 2,250,000 21/06/2011 650,000 OLIVE SALES PVT LTD 21/06 /2011 750,000 19/09/2011 5,000,000 BETA METALS & ALLOY PVT LTD 19/09 /2011 4,500,000 ASIAN COLOUR COATED ISPAT LIMITE D 17/09/20 11 16,000,000 19/09/2011 6,000,000 6,500,000 27/09/2011 8,000,000 VARDHMAN TRADING COMPANY 24/09 /2011 2,000,000 OLIVE SALES PVT LTD 27/09 /2011 5,900,000 27/09/2011 7,000,000 AMBEY TRADERS 23/09 /2011 1,200,000 RAHUL GARG 24/09 /2011 837,500 BETA METALS & ALLOY PVT LTD 27/09 /2011 5,100,000 ASIAN COLOUR COATED ISPAT LIMITE D 26/09/20 11 15,075,000 17/11/2011 6,500,000 OLIVE SALES PVT LTD 17/11 /2011 6,500,000 17/11/2011 7,000,000 BETA METALS & ALLOY PVT LTD 7,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 16/11/20 11 15,000,000 17/11/2011 8,000,000 BETA METALS & ALLOY PVT LTD 8,000,000 17/11/2011 7,500,000 OLIVE SALES PVT LTD 7,500,000 21/11/2011 8,000,000 BDPL INVESTMENT PVT LTD 18/11 /2011 3,500,000 OLIVE SALES PVT LTD 21/11 /2011 4,500,000 ITA NO. 6319/DEL/2018 & ORS. 25 31/03/2 0 12 09/03/2012 5,500,000 VATSALINFRAPROJ ECTSPVT LTD 09/03 /2012 6,000,000 ACCIL CORPO RATION LIMITE D 09/03/20 12 10,000,000 09/03/2012 4,500,000 4,000,000 14/03/2012 7,500,000 BENUE SALES PVT LTD 14/03 /2012 7,500,000 DECO DESIGN SOLUTI ONS LLC 14/03/20 12 8,000,000 9 OSCAR AGRICULRURE PRIVATE LIMITED (NOW MERGED WITH LOCUS INFRASTRUCT URE PRIVATE LIMITED) 106,600 31/12/20 11 16,000,000 10/08/2010 15,990,00 0 LOGASIMPEXPVT LTD 09/08 /2010 9,725,000 OM TRADIN G COMPA NY 7,250,000 06/08 /2010 3,200,000 AJANTA TRADER S 3,200,000 CORAL IMPEXPVT LTD 06/08 /2010 3,000,000 OM TRADIN G COMPA NY 06/08/20 10 3,140,000 1 0 PROACTIVE TELECOMM UNICATIONS PRIVATE LIMITED (NOW MERGED WITH RHONE ASSOCIATES PRIVATE LIMITED) 76,600 31/12/20 11 11,490,000 07/02/2011 1,000,000 BHAWANI SALES CORPORATION 04/02 /2011 1,000,000 09/03/20 12 09/03/2012 5,500,000 HAVANT SALES PVT LTD 09/03 /2012 5,500,000 ASIAN COLOUR COATED ISPAT LIMITE D 07/03/20 12 10,000,000 13/03/20 12 13/03/2012 5,000,000 HAVANT SALES PVT LTD 13/03 /2012 5,000,000 PARSHA VNATH MEDIA PVT LTD 12/03/20 12 5,000,000 1 1 UJVAL NETWORKS PRIVATE LIMITED (NOW MERGED WITH RHONE ASSOCIATES PRIVATE LIMITED) 100,000 31/12/20 11 15,000,000 07/02/2011 1,500,000 BHAWANI SALES CORPORATION 03/02 /2011 1,500,000 31/03/20 12 09/03/2012 6,000,000 CHIBA ELECTROTECHPVT LTD 09/03 /2012 6,500,000 ASIAN COLOUR COATED ISPAT LIMITE D 07/03/20 12 11,500,000 13/03/2012 5,000,000 13/03 /2012 5,000,000 PARSH A VNATH MEDIA PVT LTD 12/03/20 12 5,000,000 15/03/2012 2,500,000 14/03 /2012 8,000,000 DECO DESIGN SOLUTI ONS LLC 14/03/20 12 8,500,000 1 3 VIABLE ANALYTICAL TECHNOLOGY PRIVATE LIMITED (NOW MERGED WITH LOCUS INFRASTRUCT 497,000 31/12/20 11 74,550,000 10/08/2010 47,500,00 0 JINGLE CONSULTANCY PVT LTD 06/08 /2010 3,800,000 BALAJI INVEST MENTS 05/08/20 10 3,800,000 MORGAN TRADEXPVT LTD 3,700,000 BHAGIR ATH TRADIN G COMPA NY 05/08/20 10 3,700,000 ITA NO. 6319/DEL/2018 & ORS. 26 URE PR IVATE LIMITED) CORAL IMPEXPVT LTD 20,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 31/03/20 10 10,000,000 BETA METALS & ALLOY PVT LTD 18/05/20 10 5,500,000 TTJ IMPEX PRIVAT E LTD 4,500,000 SHREE AMBE Y PORTFOL IOS 06/08/20 10 7,900,000 HD REALTO RS PVT LTD 07/05/20 10 1,648,315 JINGLE CONSULTANCY PVT LTD 20,000,000 BHAGIR ATH TRADIN G COMPA NY 05/08/20 10 2,000,000 SHREE AMBE Y PORTFOL IOS 06/08/20 10 7,000,000 AJANTA TRADER S 7,000,000 AJANTA TRADER S 4,000,000 10/08/2010 21,500,00 0 LOGASIMPEXPVT LTD 09/08 /2010 21,850,000 SHREE KRISHN A TRADER S 09/08/20 10 7,154,000 OM TRADIN G COMPA NY 7,196,000 SHREE AMBE Y PORTFOL IOS 7,700,000 20/06/2011 5,600,000 SHREE GOPAL ENTERPRISES 20/06 /2011 2,100,000 3,500,000 1 4 SANCHIINFRA TECH 90,000 18/02/20 12 13,500,000 05/01/2012 4,000,000 HAVANT SALES PVT LTD 05/01 /2012 3,300,000 ASIAN COLOUR 04/01/20 12 10,000,000 ITA NO. 6319/DEL/2018 & ORS. 27 PRIVATE LIMITED (NOW MERGED WITH RHONE ASSOCIATES PRIVATE LIMITED) 05/01/2012 6,000,000 HAVANT SALES PVT LTD 05/01 /2012 1,500,000 COATED ISPAT LIMITE D BENUE SALES PVT LTD 05/01 /2012 5,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 04/01/20 12 9,500,000 06/01/2012 3,500,000 BENUE SALES PVT LTD 06/01 /2012 4,500,000 1 5 REGAL TRADELINK PRIVATE LIMITED 400,000 31/03/20 12 60,000,000 01/03/2012 12,500,00 0 SUNRAYS PROPERTIES & INVESTMENT PVT LTD 01/ 03 /2012 14,500,000 02/03/2012 37,500,00 0 SACRED HEART INVESTMENT CO PVT LTD 29/02 /2012 25,000,000 CONSTRUCTIVE FINANCE PVT LTD 29/02 /2012 11,000,000 03/03/2012 10,000,00 0 APOLLO FINANCE LTD 02/03 /2012 20,000,000 1 6 ATJ IMPEX PRIVATE LIMITED (NOW MERGED WITH TTJ IMPEX PRIVATE LIMITED) 183,300 28/02/20 12 27,495,000 15/02/2012 9,000,000 HAVANT SALES PVT LTD 15/02 /2012 7,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 14/02/20 12 16,450,000 9,500,000 HAVANT SALES PVT LTD 7,500,000 BENUE SALES PVT LTD 7,000,000 ASIAN COLOUR COATED ISPAT LIMITE D 14/02/20 12 13,550,000 9,000,000 6,500,000 TOTAL 3,117,3 00 467,605,0 00 467,890, 000 9. AS PER THE ABOVE CHART THE SHARE ALLOTTED DURING THE YEAR OF RS.46,76,05,000/- AS AGAINST ADDITION OF RS.46,75,9 5,000/- MADE BY THE ASSESSING OFFICER. THE DIFFERENCE OF RS.10,000/- I S ON ACCOUNT OF THE TOTALING ERROR. THESE SHARES HAVE BEEN ALLOTTED TO 16 COMPA NIES AS PER THE ABOVE CHART. DURING THE COURSE OF THE HEARING WITH THE ASSISTANC E OF THE LD. AR & DR, WE HAVE TRIED TO VERIFY THE TRAIL OF THE TRANSACTIONS FOR ALL THESE 16 SHAREHOLDER COMPANIES WITH THE RELEVANT DOCUMENTS IN SUPPORT TH EREOF. AFTER VERIFICATION, THE CONTENTION OF THE LD. AR SEEMS TO BE ACCEPTABLE THAT THE MONEY HAVE BEEN ROUTED WITHIN THE GROUP/ASSOCIATE COMPANIES. EACH OF THE TRANSACTION MAY BE ITA NO. 6319/DEL/2018 & ORS. 28 VERIFIED. IT IS A CASE WHERE ONE COMPANY HAS ADVAN CED MONEY TO ANOTHER COMPANY WHICH IN TURN HAS ADVANCED MONEY TO ANOTHER COMPANY AND SUCH ANOTHER COMPANY HAS ADVANCED MONEY TO THE COMPANY W HERE THE MONEY WAS ORIGINATED. THUS, IT IS A CIRCULATION OF THE MONEY WITHIN THE VARIOUS ENTITIES WHERE COMPLETE TRAIL RIGHT FROM ORIGIN TILL THE END IS AVAILABLE WITH THE ASSESSEE. ALL THESE TRANSACTIONS ARE VERIFIABLE FROM THE BANK STATEMENTS OF THE RESPECTIVE COMPANIES. THUS, THE CONTENTION OF THE LD. AR THAT THE MONEY RECEIVED BY IT IS NOT ANY UNACCOUNTED MONEY SEEMS TO BE JUSTIFIED. T HE LD. DR ALSO COULD NOT POINT OUT ANY ERROR OR FLAW IN THE SUBMISSION ADVAN CED BY THE LD. AR EXPLAINING STEP BY STEP THE MOVEMENT OF THE MONEY FROM ONE ENT ITY TO ANOTHER ENTITY. ALL ARE TRANSFER ENTRIES THROUGH BANK ACCOUNTS AND THER E IS NO CASH DEPOSIT AS STATED BY THE LD. AR ON THE BASIS OF EVIDENCES PROD UCED BEFORE US. IT HAS BEEN THE CONTENTION OF THE ASSESSEE COMPANY THAT ALL THE SE TRANSACTIONS ARE WITHIN THE GROUP/ASSOCIATE COMPANY. THIS FACT HAS BEEN TA KEN NOTE OF BY THE ASSESSING OFFICER ALSO IN PARA 6.4.2 OF THE ASSESSMENT ORDER WHERE HE HAS QUOTED THE REPLY DATED 05.12.2017 AS UNDER: IT IS WORTH MENTION THAT MR. VIKAS AGGARWAL & MR. P RADEEP AGGARWAL AND THEIR FAMILY MEMBERS ARE THE DIRECTORS OF THE AMALGAMATED /INVESTMENT COMPANY AND THE ENTIRE AMOUNT OF THESE COMPANIES HAVE MADE INVE STMENT IN THEIR GROUP OF COMPANIES. THE SAME FACTS HAVE BEEN STATED BEFORE Y OUR GOOD SELF BY MR. VIKAS AGGARWAL WHILE RECORDING STATEMENT UNDER SECTION 13 1 OF THE INCOME TAX ACT. DESPITE, TAKING NOTE OF THE ABOVE CONTENTION OF THE ASSESSEE, THE ASSESSING OFFICER INSTEAD OF EXAMINING THE CONTENTION OF THE ASSESSEE HAS HELD IN PARA 8.1 OF HIS ORDER THAT THERE HAS BEEN A CAREFUL PLANNING OF ROUTING UNACCOUNTED MONEY TO THE MAIN COMPANIES OF THE ACCIL GROUP BY C REATING A WEB OF ITA NO. 6319/DEL/2018 & ORS. 29 COMPANIES AND EXECUTING THE REQUISITE PAPER WORK. THIS OBSERVATION OF THE ASSESSING OFFICER THAT IT IS ROUTING OF UNACCOUNTED MONEY IS FACTUALLY INCORRECT. IT IS IN FACT THE ACCOUNTED MONEY WHICH HAS BEEN ROUTE D FROM ONE COMPANY TO ANOTHER COMPANY. THE LD. DR COULD NOT SHOW ANY CRED IT WHICH REPRESENTS UNACCOUNTED MONEY AS ALLEGED BY THE ASSESSING OFFIC ER IN THE ASSESSMENT ORDER. FROM THE ABOVE EXPLANATION AND THE FACTS OF THE ASS ESSEE ON RECORD, IT IS CLEAR THAT MONEY HAS NOT COME FROM OUTSIDE THE GROUP/ASSO CIATE COMPANIES. IT IS THE MONEY WHICH IS BEING RE-ROUTED WITHIN THE GROUP/ASS OCIATE COMPANIES. 10. AS REGARDS THE INSPECTOR REPORT DATED 12.12.201 7 RELIED UPON BY THE ASSESSING OFFICER IN PARA 8.3, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LD. AR THAT THIS REPORT IS OF 12.12.2017 WHEREAS ALL TH ESE COMPANIES STOOD MERGED MUCH BEFORE THE DATE WHEN THE INSPECTOR MADE SPOT E NQUIRY. THUS, NO ADVERSE INFERENCE CAN BE DRAWN ON THE BASIS OF THIS REPORT. FURTHER, ONGOING THROUGH THIS REPORT WE ALSO NOTE THAT THIS REPORT MERELY ST ATES THAT ON LOCAL ENQUIRIES FROM THE NEARBY SHOPKEEPERS. IT WAS GATHERED THAT T HE CARETAKER/SECURITY GUARD WHO IS NORMALLY AVAILABLE ON THIS ADDRESS IS NOT CO MING FOR PAST FEW DAYS. FURTHER, DETAILS COULD NOT BE GATHERED AS NO AUTHOR IZED PERSON OF THE COMPANY WAS AVAILABLE AT THIS ADDRESS. IT IS ALSO IMPORTANT TO POINT OUT THAT IT IS NOT THE CASE OF THE ASSESSEE COMPANY THAT THESE COMPANIES A RE UNKNOWN AND THAT THEY DO NOT HAVE ANY CONTROL OVER THESE COMPANIES. ON TH E CONTRARY, IT HAS BEEN THE STAND OF THE ASSESSEE COMPANY THAT THESE ARE GROUP/ ASSOCIATE COMPANIES AND IT HAS PROVIDED ALL THE DETAILS ABOUT THESE COMPANIES ALSO. 11. AS REGARDS THE STATEMENTS OF VARIOUS EMPLOYEES WHICH HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER TO DRAW ADVERSE INFER ENCE AGAINST THE ASSESSEE, WE ARE OF THE VIEW THAT IT HAS NEVER BEEN THE STAND OF THE ASSESSEE THAT THESE ARE ITA NO. 6319/DEL/2018 & ORS. 30 NOT GROUP/ASSOCIATE COMPANIES. IN FACT ASSESSEE HA S ALL ALONG STATED THAT THESE ARE TRANSACTIONS WITHIN THE GROUP/ASSOCIATE COMPANI ES. WE HAVE ALSO GONE THROUGH THE STATEMENT OF EACH OF THESE EMPLOYEES/DI RECTORS. ONGOING THROUGH THE SAME, WE FIND THAT NO ONE HAS ALLEGED THAT THE MONEY WHICH IS DEPOSITED IN THE BANK ACCOUNT OF THE COMPANY IS UNACCOUNTED MONE Y OR THE SOURCE WHICH IS DUBIOUS. THERE IS NO ALLEGATION COMING OUT IN THES E STATEMENTS THAT ANY TRANSACTION OUTSIDE THE BOOKS OF ACCOUNTS HAVE BEEN CARRIED OUT OR ANY CASH TRANSACTIONS HAVE BEEN CARRIED OUT. IN THESE STATE MENTS, THE MAIN ALLEGATION COMING OUT IS THAT THESE DIRECTORS WERE NOT AWARE W HETHER THEY ARE DIRECTORS. THE ISSUE BEFORE THE ASSESSING OFFICER WAS THE SOUR CE OF THE SHARE CAPITAL RECEIVED BY THE ASSESSEE COMPANY. FOR FINDING OUT THE SOURCE, ONE HAS TO GO TO THE TRAIL OF THE MONEY RECEIVED BY WAY OF SHARE CAP ITAL. IN CASE THE SOURCE IS NOT TRACEABLE OR THE SOURCE IS SUCH FOR WHICH THERE IS NO SATISFACTORY EXPLANATION, THE AO WILL BE JUSTIFIED IN DRAWING ADVERSE INFEREN CE. HOWEVER, WHERE THE THERE IS SATISFACTORY EXPLANATION AS TO THE NATURE AND SOURCE OF THE CREDIT, NO ADDITION COULD BE MADE U/S. 68 OF THE ACT. 12. ADVERTING TO THE VARIOUS CASE LAWS RELIED UPON BY THE LD. DR, WE ARE OF THE VIEW THAT THESE CASE LAWS ARE ON DIFFERENT FACT S. IN ALL THESE CASES, THE SHARE CAPITAL WAS RECEIVED FROM THE OUTSIDERS. IN MANY O F THESE CASES THERE WAS ALLEGATION OF ACCOMMODATION ENTRY ON THE BASIS OF T HE STATEMENT OF THE ALLEGED ENTRY OPERATOR HAVING ISSUED CHEQUE IN LIEU OF CASH . IN MANY OF THESE CASES, THE INFORMATION PROVIDED BY THE ASSESSEE WAS FOUND TO B E INCORRECT. IN THE PRESENT CASE, THERE IS NO SUCH STATEMENT OR INVOLVEMENT OF ANY ENTRY OPERATOR. AS AGAINST THIS, IN THE PRESENT CASE THE ASSESSEE HAS PROVIDED COMPLETE TRAIL AND SOURCE OF MONEY. ALL THESE COMPANIES ARE GROUP/ASS OCIATE COMPANIES, WHERE ITA NO. 6319/DEL/2018 & ORS. 31 THE MONEY HAVE BEEN ROUTED AND HENCE THE SOURCE OF THE MONEY IS CLEARLY IDENTIFIABLE. THUS, IT CANNOT BE SAID THAT ASSESSE E HAS NOT DISCHARGED ITS ONUS UNDER SECTION 68 OF THE ACT. 13. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS , THE ASSESSEE COMPANY HAS SUBMITTED COMPLETE DETAILS ABOUT THE SHARE CAPI TAL RECEIVED BY IT. THE ASSESSEE COMPANY ALSO SUBMITTED THE CONFIRMATION AN D ITR OF EACH OF THESE CREDITORS. THE AO THEREAFTER HAS NOT CARRIED OUT AN Y INVESTIGATION OR VERIFICATION. THE AO HAS NOT POINTED OUT ANY ERROR OR MISTAKE IN THE DOCUMENTS SUBMITTED BY THE ASSESSEE. THERE IS NO ADVERSE OBSE RVATION ABOUT THE EVIDENCES SUBMITTED BY THE ASSESSEE IN SUPPORT OF ITS CONTENT ION. IN FACT IN THE ASSESSMENT ORDER THERE IS NO DISCUSSION OF THE DOCUMENT AND EV IDENCES SUBMITTED BY THE ASSESSEE. SIMPLY THE TOTAL FIGURE HAS BEEN ADDED BY THE ASSESSING OFFICER. THE LD. CIT(A) HAS ALSO CONFIRMED THE ADDITION WITHOUT EVEN CONSIDERING THE FACTS AND CONTENTION OF THE ASSESSEE. THE CIT(A) HAS TOTA LLY IGNORED THE FACTS AND IN A MECHANICAL WAY CONFIRMED THE ORDER PASSED BY THE AS SESSING OFFICER. THE ASSESSEE HAVING SUBMITTED THE DETAILS AND EXPLANATI ON WITH EVIDENCES IN SUPPORT THEREOF, IT WAS INCUMBENT UPON THE ASSESSIN G OFFICER TO VERIFY THE SAME BEFORE FORMING ANY ADVERSE VIEW AGAINST THE ASSESSE E. INSTEAD OF EXAMINING THE FACTS AND THE EXPLANATION, THE AO HAS IN AN ARBITRA RY MANNER MADE THE ADDITION. 14. THE LD. AR BEFORE US, THOUGH HAS TRIED TO EXPLA IN THE ENTIRE TRAIL AND THE SOURCE OF THE SHARE CAPITAL, AND HAS ARGUED FOR DEL ETION OF THE ADDITION, HOWEVER, TAKING INTO CONSIDERATION THE ENTIRE FACTS , WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE IT WILL BE APPROPRIATE TO R ESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR CARRYING OUT PROPER VERIFI CATION AT HIS END. ACCORDINGLY, WE REMIT THIS ISSUE TO THE ASSESSING OFFICER TO VER IFY THE TRAIL OF THE MONEY ITA NO. 6319/DEL/2018 & ORS. 32 RECEIVED BY THE ASSESSEE BY WAY OF SHARE CAPITAL WI TH THE DIRECTION TO MAKE THE ASSESSMENT ORDER AFRESH ON THIS ISSUE AFTER MAKING PROPER VERIFICATION REGARDING THE TRAIL OF THE MONEY RECEIVED BY THE AS SESSEE BY WAY OF SPEAKING ORDER IN ACCORDANCE WITH LAW. IN CASE, THE TRAIL OF MONEY, AS EXPLAINED BY ASSESSEE, IS FOUND VERIFIABLE FROM THE EVIDENCES FU RNISHED BY THE ASSESSEE, THE CONTENTIONS OF THE ASSESSEE SHALL BE CONSIDERED TO HAVE MET THE INGREDIENTS OF SECTION 68 OF THE ACT. ACCORDINGLY, GROUNDS NOS. 8 TO 13 DESERVE TO BE ALLOWED FOR STATISTICAL PURPOSES. 15. AS REGARDS GROUND NO.13, THE CONTENTION OF THE LD. AR IS THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL THE ADDITION PER SE ARE UNSUSTAINABLE. AS AGAINST THIS THE CONTENTION OF THE LD. DR IS THAT F ROM THE ASSESSMENT ORDER IT IS NOT EVIDENT WHETHER ASSESSEE HAS ORIGINALLY FILED T HE RETURN OR NOT AND WHETHER ASSESSMENT HAS ABATED OR NOT CONSEQUENT UPON THE SE ARCH. AFTER CONSIDERING THE ARGUMENTS OF BOTH SIDE AND EXAMINING THE FACTS, WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LD. DR THAT FROM THE FACTS, I T IS NOT CLEAR WHETHER THE ASSESSEE HAS ORIGINALLY FILED THE RETURN BEFORE THE DATE OF THE SEARCH OR WHETHER ASSESSMENT WAS PENDING OR NOT AS ON THE DATE OF SEA RCH. ACCORDINGLY, THESE FACTS ALSO NEED EXAMINATION AT THE STAGE OF ASSESSING OFF ICER. TAKING INTO CONSIDERATION THE FACT THAT WE HAVE REMITTED THE MA TTER BACK TO THE AO ON MERIT FOR VERIFICATION OF THE SHARE CAPITAL RECEIVED DURI NG THE YEAR, WE REMIT THIS ISSUE ALSO TO THE ASSESSING OFFICER AS WELL FOR VERIFICAT ION OF ABOVE FACTS, WHICH ARE NOT DISCERNIBLE FROM THE ORDERS OF THE AUTHORITIES BELO W. THE ASSESSING OFFICER SHALL DECIDE THE STAND OF THE ASSESSEE AFTER VERIFICATION , AS NOTED ABOVE. NEEDLESS TO SAY, THE ASSESSEE SHALL BE GIVEN REASONABLE OPPORTU NITY OF BEING HEARD. IN THE RESULT THE APPEAL OF THE ASSESSEE DESERVES TO BE AL LOWED FOR STATISTICAL PURPOSES. ITA NO. 6319/DEL/2018 & ORS. 33 16. AS ALREADY NOTED, OUR ABOVE DECISION IN ITA NO. 6319/DEL/2018 SHALL APPLY MUTATIS MUTANDIS IN REMAINING APPEALS HAVING IDENTICAL FACTS AND IS SUES. WE HAVE ALREADY DECIDED THE APPEAL OF ACCIL CORPORA TION PVT. LTD. FOR ASSESSMENT YEAR 2012-13 IN ITA NO. 6319/DEL/2018 AN D AFTER THE DETAILED DISCUSSION AND THE REASONING GIVEN IN THE SAID APPE AL, AS AFORESAID, WE HAVE REMITTED THE ISSUES BACK TO THE FILE OF ASSESSING O FFICER FOR DECIDING THEM AFRESH AFTER MAKING PROPER VERIFICATION. WE, THEREFORE, RE MIT THE ISSUE OF ADDITION ON ACCOUNT OF SHARE CAPITAL / UNSECURED LOANS IN ALL T HE REMAINING APPEALS TO THE AO TO VERIFY THE TRAIL OF THE MONEY RECEIVED BY THE ASSESSEE BY WAY OF SHARE CAPITAL/ UNSECURED LOANS AND THAT OF ADDITION WITHO UT INCRIMINATING MATERIAL FOUND ON SEARCH WITH THE SAME DIRECTIONS AS ARE GIV EN IN ITA NO. 6319/DEL/2018, AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. 17. IN THE RESULT, ALL THESE APPEALS ARE ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 FEB. 2019. SD/- SD/- (BHAVNESH SAINI) (L.P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28.02.2019 *AKS* COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI