M/S Smriti Television Media And Films Private Limited vs. Principal Commissioner

1 ITA-56-2019

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SHEEL NAGU & HON'BLE SHRI JUSTICE VIRENDER SINGH INCOME TAX APPEAL No. 56 of 2019 BETWEEN:- M/S SMRITI TELEVISION MEDIA AND FILMS PRIVATE LIMITED THROUGH ITS MANAGING DIRECTOR BIPIN GOSWAMI S/O K B GOSWAMI 72 PARAS MAGESTIC E-8 TRILANAGA (MADHYA PRADESH) .....PETITIONER (BY SHRI G.N. PUROHIT, SR. ADVOCATE WITH SHRI ESAAN TRIPATHI, ADVOCATE) AND 1. PRINCIPAL

COMMISSIONER INCOME

TAX

HOSHANGABAD ROAD, BHOPAL (MADHYA PRADESH) 2. DEPUTY

COMMISSIONER

OF INCOME TAX BHOPAL AYAKAR BHAWAN HOSHANGABAD ROAD BHOPAL MP (MADHYA PRADESH) .....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE ) 2 ITA-56-2019

----------------------------------------------------------------------- Reserved on : 1.12.2022 Pronounced on : 03.04.2023 ----------------------------------------------------------------------- This petition having been heard and reserved for orders, coming on for pronouncement this day, Hon’ble Shri Justice Sheel Nagu pronounced the following: ORDER The instant appeal preferred under Section 260 A of the Income Tax Act assails final order of Income Tax Appellate Tribunal, Indore Bench in IT(SS)A No.144/IND/2012 qua assessment order 2005-2006. 2. Shri Purohit, learned Sr. Counsel with Shri Esaan Tripathi, learned counsel for the appellant/assessee and Shri Sanjay Lal, learned counsel for the Income Tax Department are heard on the substantial questions proposed by the petitioner/assessee to the following effect : "I. Whether the Tribunal was right in law in drawing an assumption based purely on suspicion that since the shares are transferred at Rs.2/- per share after two years, is a lawful conclusion supported by evidence and is a correct inference in law? II. Whether in the facts and circumstances of the case on the face of voluminous documentary evidences and there being no evidence to support the conclusion of the Tribunal the finding arrived at by the Tribunal that share capital investment is not 3 ITA-56-2019

genuine is a perverse finding in absence of any material evidence found during the course of search? III. Whether in the facts and circumstances of the case the respondent no.2 was justified in making the assessment under Section 153C of the Act even when there was no search in the office of premises of the appellant? IV. Whether in the facts and circumstances of the case the transactions entered into by the Directors in their personal capacity; whether the addition could be made in the hands of the company for the transactions entered into by the Directors and whether it is justified in law in light of the provisions of the Act?" 3. The principal contention of learned Sr. Counsel is that while undertaking the process of assessment of Income under Section 153 (C) of the I.T. Act, can the Assessing Officer based his conclusion on presumption and surmise in the absence of cogent evidence/material? 4. The facts given rise to the present case are that search and seizure operation were conducted under Section 132 of the IT Act in the premises of the petitioner/company on 30.5.2008. The survey was conducted under Section 133A where various incriminating documents were seized. The consequential notices under Section 153A on 20.7.2010 were issued directing petitioner/assessee to file return qua assessment year 2004-2005 to 2009-2010. The petitioner assessee responded that the regular returns filed earlier be treated as returns filed in response to the notice under Section 4 ITA-56-2019

153A. The Assessing Officer based on the material on record assessed the income as Rs.72,96,595/- as against declared income of Rs.4,66,938/-. The Assessing Officer made an addition of Rs.65 lacs by invoking Section 68 of the IT Act being the investment into share capital on the strength of the documents found at the resident of the Director of petitioner/Company. The Assessing Officer treated this as unaccounted money of Directors utilized by the Directors of assessee/company to get shares capital accommodation entry from these to investors company at Mumbai. 5. Aggrieved the assessee/petitioner preferred an appeal to the CIT (A) who partly allowed the same relating the addition of Rs.65 Lacs but sustained the other addition relating to depreciation. Aggrieved, the Revenue preferred an appeal while the assessee preferred cross objection before the Tribunal. The Tribunal in a detailed reasoned order rendered the following findings; (1) The CIT (A) failed to deliberate upon the obvious that the share purchased at higher rate (Rs.25 per share) are sold to the Director at throw away price (Rs.2 per share) especially in the absence of any change in valuation of shares of the company. (2) Thus, the transactions of share transfer were off market and have not been carried out through exchange. 5 ITA-56-2019

(3) The Tribunal held that even if such transactions are held to be genuine, this act definitely is not part of honest tax planning. (4) On the objection of the assessee that this assumption on the part of the Assessing Officer cannot take place of proof, was rejected by the Tribunal on the ground that the difference of value of shares sold to the Directors of Company was so glaring that one can safely presume that such transaction was not genuine especially in the absence of any material to deny the same and in the absence of any distress or compelling circumstances brought to the notice of the Tribunal. (5) The Tribunal thus held that as regards genuineness of transaction of sale of shares was required to be proved by the assessee and since this onus was not discharged by the assessee, the burden did not shift upon the Revenue to disprove the same. 6. After recording the aforesaid findings, the Tribunal reversed the order of the CIT (A) taking view in favour of Revenue. The cross objection preferred by petitioner/assessee was found untenable and thus dismissed. 7. From the aforesaid discussion and after having gone through the order of Assessing Officer, CIT(A) and the Tribunal, this Court is of the view that the entire findings of 6 ITA-56-2019

Assessing Officer as well as the Tribunal are based on facts which do not appear to give rise to any substantial question of law, in the absence of which the appeal under Section 260A of the IT Act cannot be entertained. 8. Consequently, in the conspectus of above discussion, none of the proposed substantial questions of law are made out in the present appeal which accordingly stands dismissed in limine. (SHEEL NAGU) (VIRENDER SINGH) JUDGE JUDGE P/- Digitally signed by MRS PREETI TIWARI Date: 2023.04.03 15:50:17 +05'30' 7 ITA-56-2019