A.C.I.T., CIRCLE -1, GUWAHATI vs. M/S. SEEMA HOLDING PVT. LTD., KOLKATA

All the appeals filed by the revenue in the instant bunch of appeals are time barred by one day. The department has filed a petition for condonation of the said delay. After perusing the same, we are convinced that the department was prevented by sufficient cause from filing these appeals in time before this Tribunal. Accordingly, we condone the delay and admit the appeals for adjudication.

As the issues involved in all these appeals are identical and inter- related, the same were heard together and are being disposed off by way of this commons order. First of all we shall adjudicate ITA No. 83/Gau/2023 & C.O. No. 24/GTY/2023 AY 2011-12 as lead case.

The only issue raised by the revenue is against the order of the ld. CIT(A) deleting the addition of Rs. 41,06,45,250/- which was made by the Assessing Officer on account of bogus share capital/share premium received by the assessee from various companies whereas in the CO the assessee has challenged the direction of the ld CIT(A) to the AO to I.T.A. No. 80/GTY/2023 Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 6 apply 0.75% on the total money advanced and thus assailed the part confirmation of addition of Rs. 36,54750/-.

Facts in brief that the assessee filed its return of income electronically on 26/03/2012 declaring loss of Rs.2,64,174/- for Assessment Year 2011-12. Case of the assessee was processed u/s 143(1) of the Act on 24/04/2012. Subsequently the case was reopened u/s 147 of the Act by issue notice u/s 148 of the Act on 23/03/2017, after the Assessing Officer received information from DDIT (Inv.) Unit 2(2), Guwahati (hereinafter the ‘DIT (Inv.)’), To the effect that the assessee has received share capital and share premium to the tune of Rs.41,43,00,000/- from paper companies having no real business of their own and the money receipt was only accommodation entries. Thereafter, statutory notices were duly issued and served upon the assessee. Doing the course of assessment proceedings, the Assessing Officer called for names, addresses, confirmations, source of money of the subscribers etc., from the assessee which were duly furnished before the Assessing Officer. In order to further verify the transactions and the Assessing Officer issued notices u/s 133(6) of the Act to all the shares Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 7 subscribers calling for various details such as ITRs, audited annual accounts, number of shares allotted, mode of payment, bank statement etc., which were duly filed before the Assessing Officer. The Assessing Officer also issued summons u/s 131 of the Act to the directors of the shares subscribing companies but the same were not complied with. The AO on the basis of details filed by the assessee and documents received from the shares subscribers analysed financials of the assessee as well as the shares subscribing companies and finally the AO came to a conclusion that the shares subscribers were not having requisite source to invest money in the assessee company and the assessee has not declared any income till date and thus the assessee could not have returned such huge returns on their investments. Finally, the Assessing Officer after relying on the judgement of the Hon’ble Apex Court in the case of CIT vs. Durga Prasad More [1971] 82 ITR 540 and in the case of Sumati Dayal vs. CIT [1995] 80 Taxman 89/ 214 ITR 801, treated these investments as bogus for the reason that the assessee has routed his own money in the guise of share capital and share premium and thus made the addition u/s 68 of the Act in the hands of the assessee.

Now, the revenue has challenged the deletion of addition of Rs.41,06,45,250/- by the ld. CIT(A) and assessee has challenged by way of cross objection, the direction of the ld. CIT(A), to apply the profit rate of 0.75% on the total funds advanced by the assessee during the year to various entities amounting to Rs.48,73,00,000/-, before this Tribunal.

The ld. D/R, has submitted before the Bench that the order passed by the ld. CIT(A) is contrary to the facts on record as, the huge money receipts by the assessee in the form of share capital and share premium amounting to Rs.41,43,00,000/- by way of issuing equity shares has been treated as genuine. The ld. D/R submitted at all these shares subscribers are shell companies and it has been brought out by the investigation Wing during the course of search and also in the course of post search investigation that all these companies are receiving money Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 10 and investing the same in the beneficiaries in the form of share capital and share premium. The ld. D/R while referring to the observations of the ld. CIT(A) submitted that the notices issued u/s 133(6) of the Act, were nonetheless complied and all the details the shares subscribing companies were filed but merely filing of details would not prove the genuineness of the investments. The ld. D/R, in view of the evidences and the nature of business being carried out by these companies, contended that it is proved beyond doubt that these are only shell entities engaged in providing accommodation entry. The ld. D/R finally prayed that the order of the ld. CIT(A) be reversed and the addition made by the Assessing Officer be confirmed by taking into the circumstantial evidences and surrounding circumstances.

The ld. A/R on the other hand, vehemently submitted before us that the assessee has received share application / share premium by issuing shares to face value of Rs.100/- at a premium of Rs.9,900/-. The ld. A/R, submitted that the assessee has filed all the evidences such as names, addresses, audited annual accounts, forms, bank statements of the subscribers including the copies of ITRs etc. The ld. A/R submitted I.T.A. No. 80/GTY/2023 Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 11 that even the replies in response to the notices issued u/s 133(6) of Act by the Assessing Officer, were filed along with all the necessary details which were called for by the Assessing Officer. The ld. A/R stated that the copy of these evidences are also filed in the paper book from pages 66 to 1838 proving the source and even source of source. The ld. A/R, contended that it is apparent from these documents that the assessee has proved the identity and creditworthiness of the shares applicants and genuineness of the transactions. While referring to the financial position of these companies one by one, he submitted that the subscriber companies were having sufficient reserves to invest in the assessee company and, therefore, the transactions cannot be considered as non-genuine and bogus. The ld. A/R, filed before the Bench, the details for each and every investor stating therein the information as to the incorporation of the companies, their DIN Nos., reserves and surplus of the companies, funds available, source of funds as well as the assessments framed u/s 143(3) of the Act. The ld. A/R also filed a chart containing details as to the names, addresses of the allottees, PAN Nos., total amount subscribed and submitted the copy of assessments framed I.T.A. No. 80/GTY/2023 Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 12 u/s 143(3) of the Act the subscribers are assessed to tax and assessments have been framed and the investment made by these companies in the assessee company were accepted in the scrutiny proceedings and , that the Assessing Officer is not justified in doubting these investments made by the subscribers. 12.1. The ld. A/R, while referring to the order of the ld. CIT(A) submitted that the ld. CIT(A) has discussed all these evidences and facts in threadbare and after analysing the same by relying on the various decisions from page 57 to 147 of the impugned order, has passed a very detailed and reasoned order. The ld. CIT(A) while allowing the appeal clearly observed that the assessee has satisfied all the ingredients envisaged u/s 68 of the Act. The ld AR submitted that the addition can not be made merely on the ground that summons issued u/s 131 of the Act were not replied. In defense of his arguments he relied on the following decisions:  CIT vs. Orissa Corporation Pvt. Ltd. (1986) 159 ITR 78 (SC)  CIT vs. Orchid Industries Pvt. Ltd., I.T. Appeal No. 1433 of 2014 (Bom HC)

We have heard rival submissions and perused the material available on record as well as the case-laws cited by both the sides.

The undisputed facts as culled out from the records are that the assessee has received Rs.41,43,00,000/- by issuing shares to 16 entities to be a private limited companies by issuing shares to face value of Rs.100/- at a premium of Rs.9,900/-. The notice that the assessee is NBFC engaged in the business of moneylending and duly registered with the Reserve Bank of India, to do the said business. We note that the assessee has filed all the details before the Assessing Officer comprising share capital, ITRs, audited financial statements, allotment details, bank statements etc., in order to prove the identity, creditworthiness of the investors and genuineness of the transactions. Similarly, the shares subscribers responded to the notice u/s 133(6) of the Act before the I.T.A. No. 80/GTY/2023 Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 14 Assessing Officer and filed all the details comprising ITRs, share application forms, audited accounts, certificates of incorporation, bank statements, source of funds and also the copy of assessment order/assessment intimation. We observe that all these details are available from page no. 53 to 1838 of the paper book filed before us. We note that the assessee has even filed the documents relating to source of source and thus, the assessee has proved the source of investment as well as the source of source i.e., the source of money received by the subscribing companies. From perusal of the assessment order, we observe that the Assessing Officer has only discussed the modus operandi of the assessee company and the report of the investigation Wing, however, failed to pinpoint any defect in the documents filed by the assessee or by the shares subscribing companies. We also notice that the share subscriber companies had sufficient source of investment in the assessee company. The assessee has filed a chart before us demonstrating the same. Under the circumstances, the order passed by the Assessing Officer is definitely not as per the facts on record and is merely based upon investigation report of the investigation Wing about Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 15 the shell companies. We have perused the order of the ld. CIT(A), and find that each and every aspect has been dealt with in depth and the ld. CIT(A) has analysed the balance sheet and other details filed in respect of the shall subscribe book concerns and only thereafter come to the conclusion that money received by the assessee is not covered under the provisions of Section 68 of the Act. We note that though the summons issued u/s 131 of the Act were not complied by the share subscriber companies, however, the same cannot be the ground for making addition by invoking Section 68 of the Act, unless the Assessing Officer pinpoints any defect or has adversely commented on the details filed by the assessee.

The Hon’ble Apex Court in the case of CIT vs. Orissa Corporation Pvt. Ltd. (1986) 159 ITR 78 (SC), under identical circumstances, has held as follows:- “In this case the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the revenue that the said creditors were the income-tax assessees. Their index number was in the file of the revenue. The revenue, apart from issuing notices under section 131 at the instance of the assessee, did not pursue the matter further. The revenue did not examine the source of income of the said alleged creditors to find out whether they were credit-worthy or were such who could advance the Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 16 alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do any further. In the premises, if the Tribunal came to the conclusion that the assessee had discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such could arise.” {emphasis ours}

Similar view was taken by various Courts under identical circumstances in the various other decisions namely CIT vs. Orchid Industries Pvt. Ltd.(supra) ,Crystal Networks (P.) Ltd. v. Commissioner of Income-tax (supra) and PCIT vs. Naina Distributors, Calcutta High Court.

We, therefore, respectfully following the ratio law laid down in the above referred case laws and also observing the fact that once sufficient details have been placed to explain the nature and source of the alleged sum of share application money of Rs.43.41 Crores, on multiple occasions i.e., during the assessment proceedings as well as before the ld. CIT(A) and no discrepancy has been pointed out in such details by the AO. Therefore , we fail to find any justification in the action of the Assessing Officer of making the addition u/s 68 of the Act, Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 81/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 17 merely for non-appearance of directors and partners of assessee/share applicant companies even though necessary details have been filed before the ld. Assessing Officer in compliance to notices u/s 133(6) of the Act. Therefore, since the assessee has successfully proved the identity and creditworthiness of all the alleged share applicants and genuineness of the transactions of receiving share application money, we uphold the findings of the ld. CIT(A) by dismissing the appeal of the revenue by holding that the alleged addition u/s 68 of the Act is uncalled for and is hereby deleted. So far as the issue raised in the cross objection challenging the addition sustained by the ld CIT(A) by directing the Assessing Officer to apply a net profit rate of 0.75% on the total funds advanced which were to the tune of Rs.48,73,00,000/-and thereby sustaining the addition to the extent of Rs.36,54,750/-. In our considered opinion when the ld. CIT(A) has accepted the transactions of investments as genuine ones by recording a finding that the assessee is a genuine NBFC and has been granted license by the Reserve Bank of India and all the subscribers companies have genuinely invested in the assessee company , in that case how the estimation of income @0.75 can I.T.A. No. 80/GTY/2023 Assessment Year: 2010-11 C.O. No. 22/GTY/2023 Assessment Year: 2010-11 M/s. Potential Vincom Private Limited Assessment Year: 2010-11 M/s. Potential Vincom Private Limited I.T.A. No. 82/GTY/2023 Assessment Year: 2010-11 C.O. No. 23/GTY/2023 Assessment Year: 2010-11 M/s. Manohar Merchants Private Limited Assessment Year: 2011-12 C.O. No. 24/GTY/2023 Assessment Year: 2010-11 M/s. Seema Holdings Private Limited 18 be made. The ld. CIT(A) has given a finding that assessments u/s 143(3) has been made in the most of the subscribers companies cases and the transactions of investments have been accepted in the scrutiny proceedings, then to estimate the income on the basis of total money advanced by the assessee is incorrect and cannot be sustained as it is based upon presumption and surmises. Accordingly, we set aside the order of ld. CIT(A) to that extent and direct the AO to delete the addition. The appeal of the revenue is dismissed and cross objection filed by the assessee is allowed.

The facts of the case as well as the grounds raised