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Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: Shri Sanjay Garg & Shri Girish Agrawal
order : November 10, 2023 आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The present appeal has been preferred by the assessee against the order dated 30.03.2023 of the National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). 2. The assessee in this appeal has taken the following grounds of appeal: “1. That on the facts and in the circumstances of the case, Ld. CIT(A) erred in confirming the addition of Rs. 2,06,00,000/- towards Share Capital including premium as unexplained cash credit U/s. 68 of Income Tax Act, 1961.
2. That on the facts and in the circumstances of the case, Ld. CIT(A) erred in confirming the action of AO who relied upon various judicial decisions which are misplaced and contrary to law since the facts are distinguishable.
Assessment Year: 2012-13 Rainbow Vincom Pvt. Ltd. 3. That the appellant craves leave to add, alter, adduce or amend any ground or grounds on or before the date of hearing.” 3. A perusal of the above grounds of appeal would reveal that the assessee has agitated the addition of Rs.2,06,00,000/- made by the Assessing Officer treating share capital and share premium received by the assessee as unexplained income of the assessee u/s 68 of the Act.
4. At the outset, the ld. counsel for the assessee has invited our attention to the impugned assessment order to submit that the only observation made by the Assessing Officer in the impugned order is that the assessee during the year had received share capital/share premium of Rs.2,06,00,000/- and he treated the said amount as unexplained income of the assessee by way of a non-speaking order and in a mechanical manner. The ld. counsel, in this respect, has submitted that the said amount of Rs.2,06,00,000/- in fact was opening balance of the year. This amount did not pertain to the year under consideration. The ld. counsel has further brought our attention to the relevant pages of the paper-book to show that in fact the assessee during the year had received share capital and share premium of Rs.4,00,00,000/-. The assessee had duly furnished all the details relating to the identity and creditworthiness of the creditors and genuineness of the transaction. It was explained that the entire amount was received from one shareholder only i.e. M/s Primerose Traders Pvt. Ltd. and the assessee had duly furnished the relevant documents such as copy of audited financial statement for the A.Y 2012-13, copies of bank statement, copy of Form 5 along with receipt filed with ROC, details of source of funds of M/s Primerose Traders Pvt. Ltd. along with copy of bank statement, copy of assessment order dated 19.03.2015 for A.Y 2009-10 of M/s Primerose Traders Pvt. Ltd., copy of Form 5 issued by PCIT-2, Kolkata in respect of Vivad Se Vishwas scheme opted by M/s Assessment Year: 2012-13 Rainbow Vincom Pvt. Ltd. Primerose Traders Pvt. Ltd. Apart from that, it was submitted that the identity of the share subscriber was duly proved, transactions were carried out through banking channel, the source of funds of the share subscriber was duly furnished. It was submitted that in the case of said share subscriber namely M/s Primerose Traders Pvt. Ltd., an assessment u/s 143(3) was carried out for A.Y 2009-10 and an income of Rs.12,45,21,590/- was assessed, whereupon, a tax demand of Rs.6,00,32,523/- was raised. The said share-subscriber i.e. M/s Primerose Traders Pvt. Ltd. availed Vivad Se Vishwas Scheme, 2020 and paid the tax demand amounting to Rs.42278495/- and settled the disputed tax demand. The ld. counsel, in this respect, has relied upon Form 5 issued by the Income Tax Department dated 18.04.2022. Under the circumstances, since the share subscriber was duly assessed and paid the due taxes, therefore, the source of income in the hands of the share subscriber was duly proved. Even the said share subscriber had paid due taxes on the assessed income. Further, the Assessing Officer, however, without examination any of the documents, did not point out any defect, discrepancy or infirmity in the evidences furnished by the assessee and made the impugned addition in a mechanical manner. Even the Assessing Officer has not properly considered the accounts/balance sheet of the assessee and picked up the opening balance for the purpose of addition which shows non-application of mind on the part of the Assessing Officer. The ld. counsel has further invited our attention to the impugned order of the CIT(A) to submit that the assessee had made detailed submissions before the CIT(A), which have also been reproduced in the impugned order. However, the ld. CIT(A), without considering any of the submissions and evidences furnished by the assessee, confirmed the addition in a mechanical manner.
Assessment Year: 2012-13 Rainbow Vincom Pvt. Ltd. We find that the only contention raised by the lower authorities is that the director of the subscriber company did not appear in response to the summons issued u/s 131 of the Act. The ld. counsel, in this respect, has submitted that the director of the share subscriber company though has shown inability to appear personally on the date fixed, however, he had duly responded to the summons issued and sent the required details and evidences to the Assessing Officer. The AO has not pointed out in the Assessment Order as to what further enquiries he wanted to make from the directors of the subscribers to insist for their personal presence. The Assessee in this case, as noted above, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company. The AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies. Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO. The Ld. Counsel for the assessee has rightly placed reliance upon the decision of the Hon’ble Bombay High Court in the case of PCIT, Panji vs. Paradise Inland Shipping Pvt. Ltd. reported in (2017) 84 taxman.com 58 (Bom) wherein the Hon’ble High Court has held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case. Further the jurisdictional Calcutta Assessment Year: 2012-13 Rainbow Vincom Pvt. Ltd. High Court in the case of “Crystal networks (P) Ltd. vs CIT” (supra) has held as under:
We find considerable force of the submissions of the learned counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the CIT(Appeals) has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the produce of the assessee or not. When it was found by the CIT(Appeal) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact finding.
So far as the reliance of the Ld. DR on the decision of the hon’ble Supreme Court in the case of “PCIT v/s NRA Iron & Steel (P) Ltd.” (supra) has taken note of the observations made by the Supreme Court in the “the land mark case of Kale Khan Mohammed Hanif v. CIT [1963] 50 ITR 1 (SC) and Roshan Di Hatti v. CIT [1977] 107 ITR 938 (SC) laid down that the onus of proving the source of a sum of money found to have been received by an assessee, is on the assessee. Once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness, then the AO must conduct an inquiry, and call for more details before invoking Section 68. If the Assessee is not able to provide a satisfactory explanation of the nature and source, of the investments made, it is open to the Revenue to hold that it is the income of the assessee, and there would be no further burden on the revenue to show that the income is from any particular source.”
Thereafter the hon’ble Supreme court summed up the principles which emerged after deliberating upon various case laws as under:
Assessment Year: 2012-13 Rainbow Vincom Pvt. Ltd. “11. The principles which emerge where sums of money are credited as Share Capital/Premium are: i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit- worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit- worthiness of the creditor/subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act.”