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01-03-2019, Realty Check Properties, Section 68, 131, Tribunal Mumbai

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2 months 2 weeks ago #8734 by amit
Section - 68, 131, 56(2)(viib), 78, 133(6)
Order Date - 01-03-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - ACIT
Respondent - Realty Check Properties Pvt. Ltd.
Citation - 219Taxpundit164
Appeal No. - I.T.A. No. 5955/Mum/2016
Asstt. Year - 2009-10


PER : Sandeep Gosain

The present appeal as well as cross objection have been filed by the revenue as well as assessee are against the order of Commissioner of Income Tax (Appeals)-21, Mumbai dated 29.07.16 for AY 2009-10.

2. Since, the facts raised in the appeal fi ed by the revenue as well as C.O. filed by the assessee are identical, therefore for the sake of convenience; they are clubbed, heard and disposed of by this consolidated order.

3. First of all we take up appeal in ITA No. 5955/Mum/2016 filed by revenue for AY 2009-10 on the grounds mentioned herein below:-

1. Whether, on the facts and in the circumstances of the case, and in Jaw the Ld. CIT (A) was justified in deleting the addition of Rs. 3 crore as unexplained cash credit in respect of the said amount received as share capital and share premium from M/s BEPL when it was not found to be creditworthy to make such a huge investment."

2. Whether, on the facts and in the circumstances of the case, the CIT (A) was justified in ignoring the finding of the AO that the onus of proving creditworthiness of the investor and genuineness of transaction was not discharged by assessee, due to failure on its part to produce the Principal Officer of
the investor company as demanded by the AO during assessment proceeding for examining creditworthiness of the investor.?

3. Whether, on the facts and in the circumstances of the case the CIT (A) was right in deleting the addition on the basis of submissions made by assessee without making an inquiry as envisaged u/s 250 either himself or through the AO before deciding the issue thereby endering the appeal order as bad in law and procedure which need to be quashed/set-aside. ? The appellant craves leave to add to, amend or withdraw the aforesaid ground of appeal. Copy of the CIT (A)'s order is received on 0810812016. Last date for filing appeal is 06.10.2016.

4. As per the facts of the present case, the return of income for the year under appeal was filed on 29.09.2009 declaring total income at Rs. 1,85,71,005/- The return of income was processed u/s 143(1) of the Act. Subsequently, on receipt of certain information from DGIT(lnv), Mumbai, the assessment was reopened by issuance of notice u/s 148 of the Act on 28.03.2014. Thereafter providing sufficient opportunity of hearing and seeking reply of the assessee, assessment order u/s 143(3) r.w.s 147 of the I.T. Act was passed thereby making certain additions /disallowances.

Aggrieved by the order of AO, assessee preferred appeal before Ld. CI (A) and Ld. CIT(A) after considering the case of both the parties partly allowed the appeal of the assessee thereby deleting the additions made by AO u/s 68 of the Act. However, the order of reopening of assessment was upheld.

Now before us, the revenue as well as assessee have preferred their appeal and cross objection respectively. Firstly we are dealing with the appeal filed by the revenue.

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