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Income Tax Appellate Tribunal, “C” BENCH, KOLKATA
Before: DR. MANISH BORAD, HON’BLE & SHRI SANJAY GARG, HON’BLE
O R D E R
PER DR. MANISH BORAD, ACCOUNTANT MEMBER :
The above captioned appeal is directed at the instance of the revenue against the order of the Learned Commissioner of Income Tax (Appeals) – 1, Kolkata, (hereinafter the “ld. CIT(A)”) dt. 27/08/2018, passed u/s 250 of the Income Tax Act, 1961 (“the Act”) for the Assessment Year 2012-13. 2. The assessee has raised the following grounds of appeal:- “1. That in the facts and circumstances of the case, the Ld. CIT(A) has erred in passing ex-parte order without providing any opportunity to the appellant. As such, the order of the Ld. CIT (A) is liable to be set aside.
2. That in the facts and circumstances of the case, the Ld. Assessing Officer has erred in making additions of Rs. 1,86,58,000/- as unexplained cash credit under section 68 of the Income Tax Act, 1961. The Ld. CIT (A) has erred in confirming the action of A.O. and passing ex-parte order without allowing proper opportunity of being heard to the appellant.
Assessment Year: 2012-13 SMS Machines Pvt. Ltd.
That in the facts and circumstances of the case, the Ld. Assessing Officer has erred in stating that the identity, genuineness and creditworthiness of share applicant companies have not been established since there was no compliance on the part of the appellant company to file all relevant details regarding share applicants. Infact, the assessment order was passed under section 143(3) of the Income Tax Act, 1961 and the appellant company had given full details such as name, address and PAN of all the share applicant companies at the assessment hearing stage. To the appellant company's knowledge, some of the share applicant companies had submitted documents such as their audited statement of accounts, IT Acknowledgement, bank statement etc. at the assessment stage. The Ld. CIT (A) has erred in confirming the action of A.O. and passing ex-parte order without allowing proper opportunity of being heard to the appellant 4. That in the facts and circumstances of the case, the Ld. Assessing Officer has erred in making addition of Rs. 1,86,58,000/- , without allowing any opportunity of being heard to the appellant company. The additions seem to have been made in a predetermined manner and a number of facts stated in the assessment order are incorrect. The assessment so made is liable to be quashed ab-initio. The Ld. CIT (A) has erred in confirming the action of AO and passing ex-parte order without allowing proper opportunity of being heard to the appellant.
5. That in the facts and circumstances of the case, the Learned Assessing Officer has erred in levying interest under section 234A and 234B and/or the calculation of tax and interest thereon is incorrect.
6. That the appellant humbly craves leave to add, alter, withdraw grounds of appeal
at the time of hearing.”
3. Facts in brief are that the assessee is a private limited company and is engaged in the business of trading in shares. E-return for Assessment Year 2012-13 filed on 11/09/2012 declaring income of Rs.3,58,733/-. Case selected for scrutiny through CASS followed by issuance of notice u/s 143(2) and 142(1) of the Act. The ld. Assessing Officer noticed that during the year, the assessee has received share application money amounting to Rs.1,86,58,000/-. Against the summons issued u/s 131 of the Act, none appeared. Ld. Assessing Officer thereafter referring to the provisions of Section 68 of the Act and 3 Assessment Year: 2012-13 SMS Machines Pvt. Ltd. also referring to certain judicial precedents, came to a conclusion that since the verification of the share capital introduced during the year could not be made due to complete non-compliance on part of the assessee, the alleged sum of share application money at Rs.1,86,58,000/- , deserves to be added u/s 68 of the Act. Accordingly, after making the addition of the alleged sum, income assessed at Rs.1,90,,18,093/-.
3.1. Aggrieved the assessee preferred appeal before the ld. CIT(A) challenging the additions made by the Assessing Officer and it was claimed that complete details of the alleged share applicants companies were filed before the Assessing Officer and some of the alleged share applicants have also filed the information directly to the Assessing Officer but went unnoticed in the assessment order which has been framed u/s 143(3) of the Act. However, the ld. CIT(A) also confirmed the action of the Assessing Officer stating that the assessee has not filed the details and not appeared on the given dates of hearing.
Aggrieved, the assessee is now in appeal before this Tribunal.
The ld. Counsel for the assessee submitted that complete details about the share applicants have been filed before the Assessing Officer but no cognizance of the same has been taken by the Assessing Officer and merely for non-appearance against the notice issued u/s 131 of the Act, the impugned addition has been made. He further submitted that copy of the ledger account, bank statements, application for allotment of equity shares, copy of the Ministry of Corporate Affairs’ database of Assessment Year: 2012-13 SMS Machines Pvt. Ltd. all the five share applicants stands filed. Further as per the ledger account and confirmations and the financial statements it is clearly visible that all the transactions have been carried out through banking channel, funds have been received from duly registered private limited companies and they have sufficient creditworthiness in the form of accumulated reserve and surplus and equity capital as on the date of making the alleged investments. He further referring to the following decisions stated that the same are squarely applicable in the facts of the instant case and the assessee deserves to succeed.
1) Atlantic Dealers Pvt. Ltd. vs. ITO in order dt. 08/05/2023 2) ITO vs. Forceful Estates Pvt. Ltd. in ITA No. 2558/Kol/2018; order dt. 03/04/2023 3) ITO vs. M/s. Subhavani Projects Pvt. Ltd. in ITA No. 2609/Kol/2018, order dt. 05/04/2023
On the other hand, the ld. D/R, vehemently argued supporting the orders of both the lower authorities, and stated that the alleged share applicants are paper companies and the investments made in the equity shares of the assessee company is in the nature of accommodation entry by way of which assessee has routed its unaccounted income in its books through share applicants money.
We have heard rival contentions and perused the material placed before us. The assessee has raised various grounds of appeal
challenging the action of the lower authorities confirming the addition u/s 68 of the Act at Rs.1,86,58,000/-. We observe that the assessee Assessment Year: 2012
13. SMS Machines Pvt. Ltd. issued share capital during the year and received alleged sum of Rs.1,86,58,000/- from the following five private limited companies:-
SI No. Name of company 1 Mangal Kalash Marketing Pvt. Ltd. 2. Midnight Agencies Pvt. Ltd. 3. Nandini Commotrade Pvt. Ltd. 4. Padmini Commotrade Pvt. Ltd. 5. Madsan Agencies Pvt. Ltd.
8. The assessee apart from filing the financial statements, income tax returns, computation of income, memorandum and article of association, copy of form 2 filed with the Ministry of Corporate Affairs and copy of allotment advice of the assessee company has also furnished complete details of all the five alleged share applicant companies with their, ledger accounts, bank statements, application for making investment in the equity shares etc..
8.1. We observe that all the details of the share applicant companies are claimed to be filed before the Assessing Officer and a certificate to this effect has been given in the paper book. We observe that even when these details were filed before the Assessing Officer, he has not examined the same and merely for non-compliance of notice u/s 131 of the Act, has made the impugned addition. We find that the alleged share applicants are private limited companies and the financial statements of these companies are duly audited by Chartered Accounts and further the alleged funds have been routed through banking channels and the assessee being engaged in the business of share trading has received the alleged sum for its business purposes and Assessment Year: 2012-13 SMS Machines Pvt. Ltd. which in turn is an investment made by the share applicant companies in the interest of their business objects. The ld. Assessing Officer ought to have brought on record all these details by carrying out necessary examination failing which, it has to be construed that the assessee has successfully discharged its primary onus. For the year under appeal i.e., Assessment Year 2012-13, assessee was only required to prove the source of the said funds and since the assessee has filed complete details to explain the nature and source of the alleged sum, it has proved the identity and creditworthiness of the share applicants and genuineness of the transactions. We further notice that under similar facts and circumstances, this Tribunal in the case of Atlantic Dealers Pvt. Ltd. vs. ITO in Assessment Year 2009-10, order dt. 08/05/2023, dealing with similar issue has decided in favour of the assessee observing as follows:- “7. We have considered the rival submissions of the ld. representatives of the parties and also gone through the record. In this case a perusal of the Assessment order would reveal that the AO has duly acknowledged the receipt of the relevant documents/evidences not only from the assessee, but also from the subscriber companies. However, he insisted for personal appearance of the directors of the subscriber companies without even going through and discussing about the discrepancies, if any, in the documents furnished by the assessee as well as by the share subscriber companies to prove the identity and creditworthiness of the subscribers and the genuineness of the transaction. 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 individually. However, we note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds. 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 7 I.T.A. No. 16/Kol/2021 Assessment Year: 2012-13 SMS Machines Pvt. Ltd. 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 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 : “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.
Assessment Year: 2012-13 SMS Machines Pvt. Ltd. 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.” The Hon’ble Supreme court, thus, has held that once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness of the subscribers, then the AO is duty bound conduct to conduct an independent enquiry to verify the same. However, as noted above, the Assessing Officer in this case has not made any independent enquiry to verify the genuineness of the transactions. The assessee having furnished all the details and documents before the Assessing Officer and the Assessing Officer has not pointed out any discrepancy or insufficiency in the said evidences and details furnished by the assessee before him. As observed above, the assessee having discharged initial burden upon him to furnish the evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the burden shifted upon the Assessing Officer to examine the evidences furnished and even made independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidences furnished by the assessee and confronting with the same to the assessee. In view of this, even applying the ratio laid down by the Hon’ble Supreme Court in the case of PCIT vs. NRA Iron and Steel Pvt. Ltd., impugned additions are not warranted in this case.
9. It has to be further noted that though powers of the ld. CIT(A) are co- terminus with the AO and the ld. CIT(A) had all the plenary powers as that of the AO. The Hon’ble Delhi High Court in the case of Commissioner of Income-tax vs. Manish Build Well (P.) Ltd. reported in [2011] 16 taxmann.com 27 (Delhi) has held that the CIT(A) is statutory first appellate authority and has independent power of calling for information and examination of evidences and possesses co-terminus power of assessment apart from appellate powers. However, a perusal of the impugned order of the ld. CIT(A) shows that the ld. CIT(A) has not discussed anything about the material facts of the case. He has not pointed out any defect and discrepancy in the evidences and details furnished by the assessee but simply upheld the order of the Assessing Officer in mechanical manner. The order of the ld. CIT(A) is a non-speaking order. The same is not sustainable as per law.
10. In view of the above discussion we do not find justification on the part of the lower authorities in making the impugned additions and the same are accordingly ordered to be deleted.”
Further we notice that in another decision of this Tribunal in the case of ITO vs. M/s. Subhavani Projects Pvt. Ltd. in ITA No. 2609/Kol/2018; Assessment Year: 2012-13 SMS Machines Pvt. Ltd. Assessment Year 2012-13, order dt. 05/04/2023, while dealing with similar issue, dismissed the revenue’s appeal by observing as follows:- “4. We have heard the rival contentions and gone through the records. We find that the Assessing Officer mainly made the additions on the ground that the assessee has received share application and high premium from the investor companies, whereas, the assessee company was having negligible business activity during the year. However, the ld. CIT(A) has deleted the additions observing that all the six share applicants had responded to the notices u/s 133(6) and furnished the relevant documents and confirmed the transactions and that the Assessing Officer could not point out any defect in the evidences furnished by the share subscribers proving their identity and creditworthiness and genuineness of the transaction. The ld. CIT(A) has further observed that all the share subscribers were subjected to scrutiny assessment u/s 143(3) of the Act and that out of six share subscribers, in cases of five shareholders, no additions were made by the Assessing Officer and therefore, the source of their funds was accepted by their respective Assessing Officers and hence, under the circumstances, the amounts credited from these five companies to the assessee company was fully explained. That, in respect of 6th share subscribers namely M/s Genistra Construction (P) Ltd., the additions were made u/s 68 of the Act and that once the additions were made in the hands of the said share subscribing company, the investment of the same amount in the hands of the assessee company stood fully explained and that no additions were warranted in the hands of the assessee company of the said amount as it would amount to double addition of the same amount.
5. We also find that the issue is squarely covered by the decision of the Coordinate Bench in the case of Mahacol Tie Up (P) Ltd. vs ITO in decided on 12.10.2022, wherein, the Hon’ble Tribunal, by placing reliance on the decision of the Coordinate Kolkata bench of the Tribunal in the case in the case of DCIT vs. M/s Maa Amba Towers Ltd. in ITA No.1381/Kol/2015 vide order dated 12.10.2018, has held as under: “We find no merit in the Revenue's instant grievance in the light of relevant facts on record. There is no dispute about the assessee's having declared its share subscription premium from M/s Agrani Credit & Finvest Pvt. Ltd., Crown Mansion Pvt. Ltd., Liberal Infrastructure Pvt. Ltd., Darshan Enclave Pvt. Ltd., Snow Fall Impex Pvt. Ltd. involving corresponding sums of ₹27,60,000/-, ₹55,20,000/-, ₹82,80,000/- in case of third and fourth and ₹48,30,000/- in last entity's case; respectively totalling to ₹3,01,00,000/-. Case file suggests that the assessee has placed on record their income tax acknowledgement of the impugned assessment year 2012- 13, directors' report alongwith audited financial statements, explanation regarding source of investments, bank statements, share application forms and board's resolution(s) followed by their respective regular assessment orders pertaining to very assessment year u/s. 143(3) of the Act. Their Assessing Officer(s) made u/s 68 unexplained cash credits additions of share premium amounting to ₹67,03,00,000, ₹44,85,00,000/-, ₹24,42,00,000/- & ₹21,70,00,000/- in case of 10 I.T.A. No. 16/Kol/2021 Assessment Year: 2012-13 SMS Machines Pvt. Ltd. first four entities and accepted similar credits of ₹20,45,00,000/- to be genuine satisfying all parameters of identity, genuineness and creditworthiness. It can therefore be safely assumed that all these additions sums forming subject-matter of the impugned additions to be accepted as genuine in respective investors entities' end as the source of the amount(s) in issue totalling to ₹3,01,00,000/-. Learned Departmental Representative fails to dispute that the same very amount cannot be added twice in payees and recipients' hands u/s 68 of the Act. We therefore see no reason to accept Revenue's instant former substantive ground. We affirm CIT(A)'s findings under challenge qua the instant former issue.” The aforesaid decision has been further relied upon by the coordinate Kolkata bench of the Tribunal in the case of “Steelex India (P) Ltd vs. ITO, Ward-3(2), Kolkata” I.T.A. No.2666/Kol/2019 decided vide order dated 09.09. 2022.
6. The ld. CIT(A) has given a categorical findings that it would apparent from records that not only the notices were delivered at the concerned addresses of the share subscribing companies but they have accepted the share transactions. So far as the non-compliance of the summons issued u/s 131 of the Act was concerned, the ld. CIT(A) has observed that when the identity and creditworthiness of the shareholders and genuineness of the transaction was not in doubt then merely for the failure of the directors of the assessee company and the shareholders to appear before the Assessing Officer in person, the making of the addition was not justified.
7. In this case a perusal of the Assessment order would reveal that the AO has duly acknowledged the receipt of the relevant documents/evidences not only from the assessee, but also from the subscriber companies. However, he insisted for personal appearance of the directors of the subscriber companies without even going through and discussing about the discrepancies, if any, in the documents furnished by the assessee as well as by the share subscriber companies to prove the identity and creditworthiness of the subscribers and the genuineness of the transaction. 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 individually. However, we note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds. 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 Assessing Officer. The Ld. Counsel for the assessee has rightly placed reliance upon the decision of the 11 I.T.A. No. 16/Kol/2021 Assessment Year: 2012-13 SMS Machines Pvt. Ltd. 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 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.”
8. In view of the above discussion, we do not find any infirmity in the order of the CIT(A) and the same is upheld.
From perusal of the above finding and the decision referred and relied therein, we find that the facts of the case are identical as in the instant case before us as, all the relevant documents have been filed by the alleged share applicant companies and which are duly assessed to tax and have also passed through scrutiny proceedings u/s 143(3) of the Act for the very same Assessment Year. All these share applicant companies are registered with the Ministry of Corporate Affairs and regularly filing their annual returns and the financial statements duly depict capital and reserve and surplus in the hands of the share applicants sufficient enough to cover the investment in the assessee company. Therefore, since the assessee has duly explained the nature and source of the alleged sum received during for the year under appeal by proving the identity and creditworthiness of alleged share