ABHIRUCHI MARKETING P. LTD., ,KOLKATA vs. ITO, WARD 7(1), , KOLKATA

Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 17.02.2025 for the AY 2008-09. 2. The only issue raised by the assessee in the ground of appeal is against the confirmation of addition of ₹4,28,70,000/- by the ld. CIT
(A) as made by the ld. AO in respect of share capital/ share premium raised by the assessee during the year by treating the same as unexplained cash credit u/s 68 of the Act.
2.1. The facts in brief are that the assessee filed the return of income on 16.05.2008, showing total income at ₹157/-. The return was Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

processed u/s 143(1) of the Act. Thereafter, the case of the assessee was reopened u/s 147 of the Act and assessment was accordingly framed u/s 147/143(3) of the Act vide order dated 15.05.2010, assessing the total income at ₹18,524/-. Thereafter, the ld. PCIT, exercise juri iction u/s 263 of the Act and revised the assessment dated 05.05.2010, on the ground that the ld. AO has not made any proper enquiries as regards to share capital/ share premium and directed the ld. AO to frame the assessment afresh after affording a reasonable opportunity of hearing to the assessee. The ld. AO accordingly issued notice u/s 142(1) of the Act and along with questionnaire and called upon the assessee to furnish all the details qua the share subscribers. Complying with the said questionnaire the assessee submitted before the ld. AO all the information qua the share subscribers comprising names, addresses, PAN Numbers, copies audited balance sheets, profit and loss accounts, audited reports, bank accounts and confirmations etc. The ld. AO also issued summons u/s 131 of the Act to the directors of the shareholding companies. However, none replied. Thereafter the added the same to the income of the assessee. The matter went in before the ld. CIT
(A) and the ld. CIT (A) confirmed the addition. Finally the Tribunal set aside the issue to the file of the ld. AO for fresh examination.
Accordingly, opportunity was granted to the assessee on 29.01.2021,
31.01.2021 to file the details qua the share application money of ₹4,28,70,000/- and proved the identity and creditworthiness of the investors and genuineness of the share transactions. The assessee duly filed the same details comprising names, addresses of the subscribing companies, ITRs, Bank accounts of the investor companies, audited balance sheets etc. The ld. AO noted that the assessee has received share capital from 14 private entities.
Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

Therefore, the ld. AO, in order to independently verify the transactions, notices u/s 132(6) of the Act were issued to all 14
companies which were duly delivered and also complied with by five companies. But in respect of remaining 9 companies no responses were received. Thereafter, the ld. AO discussed each and every subscriber. The ld. AO noted that though the companies have funds available with them but the source of funds were only remittances other entities and these subscribing company has no recurring income. Thus, the ld. AO noted that the investor company has filed every negligible taxable income and therefore, there is no justification for investments made in the assessee company. Besides, there was no justification for issuing shares in the assessee company for such a high premium. Finally, the ld. AO added the entire amount in the assessee company as unexplained cash credit in the appellate proceedings.
2.2. The ld. CIT (A) affirmed the order of ld. AO by holding that the assessee failed to discharge the legal obligation to prove the genuineness of the transactions and creditworthiness of the investors which have been shown to be by round tripping of funds.
2.3. After hearing the rival contentions and perusing the materials available on record, we find that this is a second round of litigation before the Tribunal. In the first round, the Tribunal restored the issue to the file of the ld. AO for re-examination and re-verificatuin. We note that the assessee filed all the details before the ld. AO comprising the names, addresses, copies of audited balance sheets, profit and loss accounts, audited reports, ITRs, Bank statements of the subscribers, etc. The ld. AO also issued notice u/s 133(6) of the Act, which were also complied with by five subscribers and in case of Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

nine subscribers’ , the notices were not responded. The ld. AO treated the subscription as unexplained cash credit on the ground that these companies have very low taxable income and funds were invested out of further receipt of funds from the other companies.
The ld. AO also noted that there was no justification for the assessee company to issue share at a high premium. Consequently, the amount was treated as unexplained cash credit and added to the income of the assessee.
2.4. We have examined the evidences filed before us as regards these investors, which are available in the paper book from page no.
44 to 188, which were also before the authorities below. The ld. AO has treated the subscription amount as unexplained cash credit on the ground that the subscribers were having such low taxable income and shares were not issued at a very high premium. We also note that 11 out of 14 investor companies have replied to the notices issued u/s 133(6) of the Act. In our opinion, the mere low income cannot be a criteria for treating the investments as unexplained cash credit. The case of the assessee is squarely covered by the decision of Hon'ble Delhi High Courtin case of CIT vs. Ms. Mayawati 338 ITR
563 dated 03.08.2011. 2.5. Moreover, the second allegation was that the shares were issued at a very high premium. However, we note that the year involved is assessment year 2008-09 and the proviso to section 68 of the Act introduced by Finance Act, 2012, is prospective and is applicable from 01.04.2013 effective from A.Y. 2013-14. Moreover, the assessee has received share capital/ share application money from shareholders who are regularly being assessed to tax. It was for the AO to proceed by reopening the assessment of such shareholders
Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

and assessing them to tax in accordance with law and revenue is not entitled to add the same in the hands of the assessee as unexplained cash credit. We observe that the amendment to Section 68 by inserting proviso is not retrospective and is applicable prospectively as has been held by the Hon’ble Bombay High Court in the case of CIT Vs. Gagandeep Infrastructure (P) Ltd. delivered in Income Tax Appeal No.1613 of 2014, dated 20.03.2017, wherein the Hon’ble High Court has held as under :-
“We find that the proviso to section 68 of the Act has been introduced by the Finance
Act 2012 with effect from 1st April, 2013. Thus it would be effective only from the Assessment Year 2013-14 onwards and not for the subject Assessment Year. In fact, before the Tribunal, it was not even the case of the Revenue that Section 68 of the Act as in force during the subject years has to be read/understood as though the proviso added subsequently effective only from 1st April, 2013 was its normal meaning. The Parliament did not introduce to proviso to Section 68 of the Act with retrospective effect nor does the proviso so introduced states that it was introduced "for removal of doubts" or that it is "declaratory". Therefore it is not open to give it retrospective effect, by proceeding on the basis that the addition of the proviso to Section 68 of the Act is immaterial and does not change the interpretation of Section 68 of the Act both before and after the adding of the proviso. In any view of the matter the three essential tests while confirming the pre-proviso Section 68 of the Act laid down by the Courts namely the genuineness of the transaction, identity and the capacity of the investor have all been examined by the impugned order of the Tribunal and on facts it was found satisfied. Further it was a submission on behalf of the Revenue that such large amount of share premium gives rise to suspicion on the genuineness (identity) of the shareholders i.e. they are bogus. The Apex Court in Lovely Exports (P.) Ltd.
(supra) in the context to the pre-amended Section 68 of the Act has held that where the Revenue urges that the amount of share application money has been received from bogus shareholders then it is for the Income Tax Officer to proceed by reopening the assessment of such shareholders and assessing them to tax in accordance with law. It does not entitle the Revenue to add the same to the assessee's income as unexplained cash credit.”
2.6. The assessee also filed before us the statement showing in assessment status of all 14 subscribers, where the assessments were framed by the department u/s 143(3)/147 of the Act and it is not the case that these investors are not traceable. For the sake of ready reference the same is extracted below:-
Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

conclusion could be arrived at, no question of law as such arose. The High Court was right in refusing to state a case.”
2.8. The case of the assessee is also squarely covered by the decisions of Hon’ble Calcutta High Court in the case of Crystal
Networks Pvt. Ltd. vs. CIT 353 ITR 171 (Kol) wherein it 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:
“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 materials to show the cash credit was received from various persons and supply as against cash credit also made.
Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

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.”
2.9. The case of is also covered by the decision of the coordinate bench by ITO Vs M/s Cygnus Developers India Pvt. Ltd. ITA No.
282/Kol/2012 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 ITA No. 179/2008
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. 9. 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 above we uphold the order of Ld. CIT(A) and dismiss the appeal of the revenue.”
2.10. Similar ratio has been laid down by the Hon’ble Mumbai
2.11. 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 Abhiruchi Marketing P. Ltd.; A.Y. 2008-09

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 directing the AO to delete the addition.
3. In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 31.12.2025. (PRADIP KUMAR CHOUBEY)
(RAJESH KUMAR)
(JUDICIAL MEMBER)
(ACCOUNTANT MEMBER)

Kolkata, Dated: 31.12.2025
Sudip Sarkar, Sr.PS
Copy of the Order forwarded to:

BY ORDER,//

Sr. Private Secretary/ Asst.