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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: SRI RAJESH KUMAR & SONJOY SARMA
order
: November 6th, 2023 ORDER
Per Rajesh Kumar, Accountant Member:
This appeal preferred by the assessee is against the order of Learned Commissioner of Income-tax (Appeals)- NFAC, Delhi [hereinafter referred to Ld. ‘CIT(A)’] dated 19.05.2023 for the Assessment Year (in short ‘AY’) 2011-12.
I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd.
Ld. Counsel for the assessee did not press ground no. 1 relating to reopening of assessment proceedings u/s 147 of the Act and therefore, the same is dismissed as not pressed.
The issue raised in ground no. 2 is against the confirmation of addition of Rs. 19 Lakh by Ld. CIT(A) as made by the Assessing Officer (in short ld. 'AO') as unexplained cash credit u/s 68 of the Act.
The facts in brief are that the assessee issued 9,500 equity shares to M/s. Blackberry Textile Merchants Pvt. Ltd. at a face value of Rs. 10/- with premium of Rs. 190/- thereby raising Rs. 19 Lakh from the said subscriber. Accordingly, the AO called upon the assessee to prove the identity and creditworthiness of the shareholders and genuineness of the transactions. The assessee filed before the AO the necessary documents comprising bank statement, ROC documents, ITR and bank account details of the subscriber. On perusal of the balance sheet, the AO found that there was no business activity except meagre commission and other income of Rs. 20,894/- and therefore, the subscriber had no creditworthiness to make the investment in equity shares of the assessee company. The AO also issued summons u/s 131 of the Act to the director of the subscriber company but the same was not complied with. Thereafter the AO referred to the information received from DDIT (Inv), Unit-1(2), Kolkata and thus, made the addition to the income of the assessee of Rs. 19,00,000/- as unexplained cash credit.
I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd.
In the appellate proceedings Ld. CIT(A) confirmed the order of the AO by observing that the assessee had meagre commission income and therefore, was not having any creditworthiness. Moreover, the summons issued u/s 131 of the Act to the director of the subscriber company were not complied with and thus justified the addition.
After hearing the rival contentions and perusing the material on record, we find that the assessee has furnished all the information before the AO as well as before Ld. CIT(A) and both the authorities below have failed to correctly appreciate the income of the assessee. We note that both the authorities below have stated that the subscriber company had no business activity except meagre commission income with total income of Rs. 20,894/- whereas on the other hand the assessee’s income from commission and other income was Rs. 2,94,061/-. Therefore, the figures appreciated by the authorities below were factually incorrect. In fact, the authorities below have misconstrued the net profit shown by the assessee during the year at Rs. 20,894/- as total income. We also note that the assessee has sufficient creditworthiness as it has share capital and surpluses to the tune of Rs. 1,41,45,064.33/-. We also observe that the assessee has furnished all the evidences qua the subscribers namely PAN, bank statements, audited balance sheet, and income tax return etc. However, the authorities below have failed to conduct any enquiry and merely made the addition on the ground that summons u/s 131 of the Act were not complied with. In our opinion, the mere non-compliance of summons is not sufficient ground for making I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd. the addition when the assessee has filed all the evidences and the case of the assessee finds support from following decisions CIT vs. Orissa Corporation Ltd. in [1986] 159 ITR 78 (SC), Crystal Networks (P) Ltd. vs. CIT reported in 353 ITR 171 (Cal), ITO vs. M/s Cygnus Developers India Pvt. Ltd. (ITA No. 282/Kol/2012) and CIT Vs Orchid Industries (P) Ltd. 397 ITR 136 (Bom). The decision of Hon’ble Supreme Court in the case of Orissa Corporation Ltd. (supra) has held as under:
That in this case the respondent had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notices under Section 131 at the instance of the respondent, 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 creditworthy. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the respondent could not do anything further. In the premises, if the Tribunal came to the conclusion that the respondent had discharged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. I f the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case.
6.1. Similarly, the Hon’ble Calcutta High Court in the case of Crystal Networks Pvt. Ltd. vs. CIT (supra) has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions, the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. The relevant portion of the decision is extracted below:
I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd. “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 Ld. CIT(A) 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 product of the assessee or note. When it was found by the Ld. CIT(A) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact findings. Indeed the Tribunal did not really touch the aforesaid fact finding of the Ld. CIT(A) as rightly pointed out by the learned counsel. The Supreme Court has already stated as to what should be the duty of the learned Tribunal to decide in this situation. In the said judgment noted by us at page 463, the Supreme Court has observed as follows: “The Income-Tax Appellate Tribunals performs a judicial function under the Indian Income-tax Act. It is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and records its findings on all the contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law.” The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law. It is also ruled in the said judgment at page 465 that if the Tribunal does not discharge the duty in the manner as above then it shall be assumed the judgment of the Tribunal suffers from manifest infirmity. Taking inspiration from the Supreme Court observation we are constrained to hold in this matter that the Tribunal has not adjudicated upon the case of the assessee in the light of the evidence as found by the Ld. CIT(A). We also found no single word has been spared to up set the fact finding of the Ld. CIT(A) that there are I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd. materials to show the cash credit was received from various persons and supply as against cash credit also made. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Ld. CIT(A). The appeal is allowed.” 6.2. The case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers India Pvt. Ltd. (supra) the operative part whereof is extracted below:
“8. We have heard the submissions of the learned D.R, who relied on the order of AO. The learned counsel for the assessee relied on the order of Ld. CIT(A) and further drew our attention to the decision of Hon’ble Allahabad High Court in the case of CIT vs. Raj Kumar Agarwal vide dated 17.11.2009 wherein the Hon’ble Allahabad High Court took a view that non-production of the director of a Public Limited Company which is regularly assessed to Income tax having PAN, on the ground that the identity of the investor is not proved cannot be sustained. Attention was also to the similar ruling of the ITAT Kolkata bench in the case of ITO vs. Devinder Singh Shant in ITA No. 208/Kol/2009 vide order dated 17.04.2009.
We have considered the rival submissions. We are of the view that order of Ld. CIT(A) does not call for any interference. It may be seen from the grounds of appeal
raised by the revenue that the revenue disputed only the proof of identity of share holder. In this regard it is seen that for AY 2004
05. Shree Shyam Trexim Pvt. Ltd. was assessed by ITO, Ward-9(4), Kolkata and the order of assessment u/s 143(3) dated 25.01.2006 is placed in the paper book. Similarly Navalco Commodities Pvt. Ltd. was assessed to tax u/s 143(3) for AY 2005- 06 by ITO, Ward-9(4), Kolkata by order dated 20.03.2007. Similarly Jewellock Trexim Pvt. Ltd. was assessed to tax for AY 2005-06 by the very same ITO, Ward-9(3), Kolkata assessing the assessee. In the light of the above factual position which is not disputed by the revenue, it cannot be said that the identity of the share applicants remained not proved by the assessee. The decision of the Hon’ble Allahabad High Court as well as ITAT, Kolkata Bench on which reliance was placed by the learned counsel for the assessee also supports the view that for non-production of directors of the investor company for examination by the AO it cannot be held that the identity of a limited company has not been established. For the reasons given Page 6 of 8 I.T.A. No.: 656/KOL/2023 Assessment Year: 2011-12 SNG Dealers Pvt. Ltd. above we uphold the order of Ld. CIT(A) and dismiss the appeal of the revenue.” 6.3. Similar ratio has been laid down by the Hon’ble Mumbai High Court in the case of CIT Vs Orchid Industries (P) Ltd (supra) by holding that provisions of Section 68 of the Act cannot be invoked for the reasons that the person has not appeared before the AO where the assessee had produced on records documents to establish genuineness of the party such as PAN, financial and bank statements showing share application money.
7. In the instant case before us also, the assessee has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. Besides, the investors have also furnished complete details/evidences before the AO which proved the identity, creditworthiness of investors and genuineness of the transactions. Under these facts and circumstances and considering underlying facts in the light of ratio laid down in the decisions as discussed above, we are inclined to set aside the order of Ld. CIT(A) by allowing the appeal of the assessee.
In the result, the appeal of the assessee is allowed.