|CORAM:||Laliet Kumar (JM), T. R. Meena (AM)|
|CATCH WORDS:||bogus share capital, cash credit|
|DATE:||March 21, 2016 (Date of pronouncement)|
|DATE:||March 28, 2016 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 68: Law on when share application moneys and share premium from private companies can be treated as bogus and assessed as cash credits explained|
The Assessing Officer heavily relied on the Inspector’s report in confirming the addition but result of the enquiry of the Inspector has not been communicated to the assessee, which is against the principles of natural justice. As per Assessing Officer, in case of 5 companies, the source of fund was not found explained. The ld Assessing Officer again gave show cause notice on 23/12/2010. The assessee filed reply on 27/12/2010 and it was claimed before the Assessing Officer that no enquiry has been made by the Assessing Officer on changed addresses. The Assessing Officer had not considered the evidence filed by the assessee during the course of assessment proceedings i.e. affidavits confirming the transaction, PAN number, complete addresses of creditors, copy of balance sheet, ITR for A.Y. 2008-09, bank statement and form No. 18. The assessee had discharged its onus by providing the requisite evidences to prove the identity, genuineness and creditworthiness of the cash creditors. The Assessing Officer herself had accepted the remaining cash creditors to the tune of Rs. 3.95 crores explained on the basis of similar evidences produced by the assessee as genuine. The loan/share capitals were received from the private limited companies. They also are filing return under the company’s law and all information is available on MCA website. The ADIT report was not conclusive to held that the cash creditors were not genuine. It is not required under the law to prove the source of source U/s 68 of the Act. Primary burden lies on the assessee has been discharged by filing the requisite evidences before the Assessing Officer and shifted on the Assessing Officer to disprove the cash creditors’ transactions are not genuine or bogus. The share application money was received by the appellant and subsequently returned though banking channel. In case of 7 companies, the notices were served on it on given addresses. There is no evidence directly or indirectly with the Assessing Officer that the assessee had routed undisclosed money in the guise of share application money or loan. The ld DR’s argument have also not convinced us that these parties were in accommodation entries in form of loan and share application money after charging certain commission as such no survey/search has been carried out on the creditors to prove that these companies are habitual to provide loan/share application money even there is no evidence with the ld DR for making such allegation during the course of written submissions. The case laws relied by the ld AR are squarely applicable on the given facts and circumstances.
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