Vijay Kumar Vyas, J. - (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the department.
(2.) This court while admitting the appeal on 14.12.2016 framed the following question of law:- "1. Whether in the Tribunal is justified in law and on facts in deleting the addition of Rs. 2.16 crore made u/s 68, ignoring that the assessee company had failed to discharge the onus cast upon of proving identity and creditworthiness of the creditors and genuineness of transaction u/s 68 of the IT Act, 1961?"
(3.) However the Tribunal while considering the matter observed as under:- "6. We have heard the rival contentions of both the parties and perused the materials available on record. The ld Assessing Officer during the course of assessment proceedings, noticed that the assessee has shown deposits, fresh capital of Rs. 6,11,50,000/- in different form i.e. unsecured loan, reserve and surplus and share capital money. The ld Assessing Officer verified the information submitted by the assessee through ADIT, Kolkata, who had sent interim report, which was received on 14/12/2010 whereas assessment was completed on 30/12/2010. In interim report, as per Assessing Officer in 9 cases, notices were returned back but it was not informed to the assessee about the conclusion of the enquiry by the ADIT, Kolkata or Assessing Officer of the assessee. The ld 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 ld 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 ld 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 returnedthough 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'sargument 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. The ld DR has also not controverted the finding given by the ld CIT(A). Accordingly, we uphold the order of the ld CIT(A).";