- (1.) THIS is the Departments appeal under section 260A of the IT Act, 1961 challenging the order of the Tribunal dt. 5 -4 -2005 in ITA No. 2966/Del/2002 for the assessment year 1995 -96.
(2.) ON 8 -5 -2009, the appeal was admitted on the following questions of law as framed in the memo of appeal: "1. Whether on the facts and in the circumstances of the case, the Tribunal is justified in law in deleting the addition of Rs. 70,02,178 made under section 69A of the Act ignoring the fact that the assessee failed to discharge the burden which lay on assessee when she claimed that she purchased shares on credit from different 207 persons for Rs. 91,37,900? 2. Whether on the facts and in the circumstances of the case, if the assessing officer had failed to discharge the onus which had shifted on him, the addition could not be deleted by the Commissioner (Appeals) without the exercise of powers under section 250(4) of the Act and in that event, the Tribunal was under a legal obligation to restore the issue to the file of the AO/CIT (A) for the inquiry afresh -
(3.) BRIEFLY stated, the facts are that the respondent -assessee is stated to have purchased certain shares of M/s. Electra Exports Ltd. worth Rs. 91,37,900 from 207 persons during the financial year 1994 -95 relevant to the assessment year 1995 -96. In the return for the year 1994 -95, the assessing officer however, sought to make an addition of this amount of Rs. 91,37,900. On the request of the assessee when notices were handed over to the assessees representative and no response was received from the persons who were stated to have sold the shares of M/s. Electra Exports Ltd. the burden of proof which stood on the assessee was held to have remained undischarged. Aggrieved by the order of the assessing officer, the assessee preferred an appeal before the Commissioner (Appeals) who having examined the matter recorded a clear finding that the list of persons from whom the shares had been purchased had already been disclosed by the assessee in her books of accounts and, therefore, the amount of transaction, its date and the address of the persons could have been verified from these details and, therefore, the assessee had discharged its burden of disclosing the names from whom she had purchased the shares. It was further held that the assessing officer had proceeded to make the addition of Rs. 91,37,900 under section 69A of the IT Act though burden of proof of the assessee stood discharged. It was in the context of the specific provisions of section 69A that the Commissioner (Appeals) held that since the entire transaction had already been entered in the books of account which could have easily been verified by the assessing officer, therefore, the initial burden which lay on the assessee stood discharged. The Commissioner (Appeals), therefore, allowed the appeal of the assessee. Aggrieved the Department approached the Tribunal. The Tribunal has also in para 6 of its order recorded a clear finding of fact that the assessing officer had handed over the summons to the assessees representative and when there was no response from the persons who were stated to have sold the shares to the assessee, the assessing officer proceeded to make the addition under section 69A of the IT Act. The Tribunal held that the details of the shares with distinctive numbers which were transferred by the company in the name of the assessee, the details of payments, such as, cheque numbers and date were given which could have been verified from the banks and the complete address of the sellers obtained. The assessing officer instead ignored the details and other evidence available on record and made the additions. The Tribunal, therefore, on the overwhelming evidence on record dismissed the appeal of the Department.;