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Aswathi Industries Ltd, A-001/002, Apeksha Enclave, Mahavir Nagar, Kandivali (W), Mumbai -400 067 Vs ACIT -9(1), Churchgate Mumbai -400 020
August, 19th 2014
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               MUMBAI BENCH "A", MUMBAI
     ^               ,    ^  [,Û                        ¢
              . : 8012        8012//2011, [[ 2006-07
                  ITA No. : 8012/Mum/2011, AY 2006-07
Aswathi Industries Ltd,             Vs ACIT -9(1),
A-001/002, Apeksha Enclave,            Churchgate
Mahavir Nagar, Kandivali (W),          Mumbai -400 020
Mumbai -400 067
  .:PAN: AACCA 0541 R
(Appellant)                             ×(Respondent)
                    Appellant by    :   Ms. Arati Vissanji
                  Respondent by     :   Shri Manvendra Goyal

 /Date of Hearing                       : 06-08-2014
/Date of Pronouncement                  : 13-08-2014
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      The appeal is filed by the assessee against the order of CIT(A) 19,
Mumbai, dated 01.09.2011, wherein, the following grounds have been
                  "1. The Commissioner of Income Tax (Appeals) has erred in
                  confirming the addition under section 68 in respect of the share
                  capital received from Three persons".
                  2. The appellant Company craves leave to add or to delete the
                  ground(s) of appeal on or before the hearing of the appeal".

2.    The solitary issue pertains to addition sustained at Rs.
11,99,500/-, out of total addition of Rs. 43,75,000/- made by the AO
u/s 68 of the Income Tax Act, 1961.

3.    The facts are that the assessee, during the relevant financial
year, received Rs. 35,00,000/- as share premium and Rs. 8,75,000/-
as share capital from the following persons and shares:
                                  2                         Aswathi Industries Ltd
                                                          ITA No. 8012/Mum/2011

         Sr.        Name of the shareholders           Number of
         a     Shri Basheer Kandatata Abdul                   4000
         b     Shri Basheer Pokkakillath Fiazal               2000
         c     Mr. Abdulmajeed Abdulrahman Olakkata         18000
         d     Mrs. Kavita Narayan Hingorani                17500
         e     Aswathi Packaging Pvt Ltd                    46000

4.    The AO called for genuineness of transactions, identity and
creditworthiness of the above persons, but the assessee was unable to
provide the details. Since there was lack of evidence, the AO added
them to the income of the assessee u/s 68.

5.    Aggrieved, the assessee approached the CIT(A), before whom, the
assessee submitted that it had issued equity shares at a premium of
Rs. 40/- and provided details of Mrs. Kavita Narayan Hingorani                 &
M/s Aswathi Packaging Pvt. Ltd. which included bank statements and
ROI. With respect of the other three, the assessee submitted that the
money was received through cheques, which proved their identity. The
assessee also provided the addresses of the persons.

6.    The CIT(A), after considering the above evidences, observed that
share applications received from Mrs. Kavita Narayan Hingorani                 &
M/s Aswathi Packaging Pvt. Ltd. could be held to be explained as he
found that ROI, bank statement and statement of accounts was
provided to the AO as well, but confirmed the addition of the
remaining three share applicants for lack of complete evidence. He
therefore deleted Rs. 31,75,500/- but sustained Rs. 11,99,500/-.

7.    The assessee is before the ITAT on sustaining the addition of Rs.

8.    At the time of hearing the AR submitted that the assessee was
unable to provide complete evidence with regard to the above five
                                   3                     Aswathi Industries Ltd
                                                       ITA No. 8012/Mum/2011

persons before the AO, but was able to provide the evidence partly
before the CIT(A). The AR submitted that whatever relief was given by
the CIT(A), was based on concrete evidence and since the balance
evidence was not provided, the CIT(A) sustained that portion of
addition.    The    AR   submitted     that   proof    of   genuineness,
creditworthiness and capacity, pertaining to the three persons were
now available, & the same is being now submitted before the ITAT in
the form of additional evidence.

9.    The AR, therefore, pleaded that additional evidence be accepted
and adjudicated upon.

10.   The DR on the other hand submitted that if the additional
evidence is being admitted then, the issue must be restored to the AO
for his satisfaction.

11.   We have heard the submissions, the AR has fairly contended
that the additional evidence was being filed now, as the assessee was
unable to submit the same because of various reasons. We also accept
that that the DR has fairly submitted that in case evidence is admitted
then the issue needs to be examined by the AO.

12.   On hearing with the parties, in our opinion, the just and fair
position would be to accept the additional evidence, now being placed
before us, with regard to the issue of Rs. 11,99,500/-. Since the
additional evidence has been admitted by us, in the interest of justice,
the AO must be satisfied with the evidence. In this circumstance, the
issue is restored to the AO for fresh adjudication.

13.   As a result, the order of CIT(A) is set aside to the extent of Rs.
11,99,500/-, with the direction to the AO, as above.
                                    4                    Aswathi Industries Ltd
                                                       ITA No. 8012/Mum/2011

14.    In the result, the appeal as filed by the assessee is treated as
allowed for statistical purposes.

Order pronounced in the open Court on 13th August, 2014.

           Sd/-                                          Sd/-
      (  )                                             ( [)
  (B R BASKARAN)                                 (VIVEK VARMA)
ACCOUNTANT MEMBER                              JUDICIAL MEMBER
Mumbai, Date: 13th August, 2014

/Copy to:-

1)   /The       Appellant.
2)   ×/The Respondent.
3)   The CIT (A)-19, Mumbai.
4)    ­5, Mumbai/The CIT-5, Mumbai.
5)    "",,
     The D.R. "A" Bench, Mumbai.
6) [ 
   Copy to Guard File.

                                           /By Order
      / / True Copy / /


                                        Dy./Asstt. Registrar
                                         I.T.A.T., Mumbai
*Chavan, Sr. PS
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