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Facts
The appeal was filed by the assessee against the order of the Ld. CIT(A) which confirmed an addition of Rs. 16,00,000/- made by the Assessing Officer u/s 68 of the Income Tax Act, 1961. The assessee had received share capital and share premium. The Assessing Officer based his addition on information from the DDIT (Inv)-II, Jodhpur, which indicated that the assessee was a beneficiary of accommodation entries provided by Jagdish Prasad Purohit and his associates.
Held
The Tribunal noted that the right of cross-examination is not an absolute right and depends on the facts and circumstances of the case. Citing various High Court and ITAT decisions, it was held that the AO can gather information in any manner and utilize it if there is material to base the assessment. However, the Tribunal found that the Ld. CIT(A) had not perused the required evidence and had considered evidence selectively. The issue of non-disposal of Ground No. 2 by the Ld. AO was also noted.
Key Issues
Whether the addition of Rs. 16,00,000/- made under Section 68 of the Income Tax Act for share capital and premium was justified, and whether the CIT(A) properly considered the evidence and disposed of all grounds of appeal.
Sections Cited
Section 68 of the Income Tax Act, 1961, Section 147 of the Income Tax Act, 1961, Section 143(3) of the Income Tax Act, 1961, Section 148 of the Income Tax Act, 1961, Section 250 of the Income Tax Act, 1961
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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: SHRI SONJOY SARMA & SHRI RAKESH MISHRA
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as “the Ld. CIT(A)”] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2011-12 dated 20.03.2023, which has been passed against the order u/s 147/143(3) of the Act, dated 08.12.2016. I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd.
The Registry has informed that the appeal filed by the assessee is barred by limitation of time by 216 days. An application seeking condonation of delay has been filed by the assessee for condoning the delay stating as follows: “We like to draw your kind attention to the fact that the above mentioned appeal order was uploaded by the Ld. CIT(A), NFAC, Delhi on the Income Tax Portal well on time. But due to negligence, our stenographer/dealing assistant had not visited the requisite portal for a pretty long time. All on a sudden, he visited the portal on 11th instant and found this appeal order is lying there. Thereafter, he had taken the print out of the order and handed over the same to me after seeking apology. Under the circumstances stated above, we beg to be pardoned before your good self for such type of lapses on our part and request your good self to condone the delay beyond sixty days of statutory period and allow us to file the appeal before your honour for which we shall remain ever grateful to you and we are assuring you that such lapses will never occur from this end.”
Considering the condonation application and the reasons stated therein, we are satisfied that the assessee had reasonable and sufficient cause and was prevented from filing the instant appeal within the statutory time limit. We, therefore, condone the delay and admit the appeal for adjudication on merits.
The assessee is in appeal before the Bench raising the following grounds of appeal:
“1. For that the Ld. CIT(A), NFAC, Delhi has erred in law as well as on facts of the case by passing order u/s 250 dated 20/03/2023 dismissing the appeal filed by the appellant and thereby confirming addition of ₹16,00,000/- made by the Assessing Officer u/s 68 of the I.T. Act, 1961 ignoring all logics, documentary evidences alongwith other submissions filed by the appellant. Although your appellant had submitted each and every document/evidences of transactions during the course of hearing. Also the Ld. CIT(A), NFAC, Delhi, has ignored all the judicial pronouncements of the Higher Authorities submitted by the appellant without showing any reason which were squarely applicable to your appellant's case. Ld. CIT(A) I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. has done this just to punish your appellant. This is an instance of whimsical judgement given by the Ld. CIT(A). Your valuable verdict only can give justice to your appellant.
For that Ld. CIT(A), NFAC has erred in law as well as on facts of the case by not giving attention to the Ground No.2 taken before his honour which is not correct as well as bad in law that objection filed against issuance of notice u/s 148 has not been disposed of by the Assessing Officer before passing order u/s 147/143(3) of the I.T. Act, 1961 dated 08/12/2016. 3. For that the observations and contentions of the Ld. CIT(A) in dismissing the appeal filed by your appellant on the grounds which are not correct.
For that the appellant craves leave to adduce, modify and/or alter the grounds at or before hearing.”
Brief facts of the case are that the assessment was reopened by issuance of notice u/s 148 of the Act in response to which the assessee filed the return of income on 18.01.2016 for u/s 11 of the Act showing total income of Rs. (-) 6,150/-. Statutory notices were issued in response to which the Ld. AR of the assessee appeared and furnished hard copy of return filed in response to the notice issued u/s 148 of the Act dated 22.09.2015, profit and loss account, balance sheet, copy of Form No. 26AS and details of three allottees from whom the share premium and share capital amounting to Rs. 16,00,000/- was received but failed to furnish bank statements. The written submission was produced before the Assessing Officer (hereinafter referred to as Ld. 'AO') regarding the bank statement and it was submitted that bank statements could not be produced as there was no bank account in F.Y. 2010-11. The share capital was indirectly received from Natraj Vinimay Pvt. Ltd. of Rs. 15,00,000/- by cheque no 0001141 dated 29.04.2010 paid to Gulistan Vanijya Pvt. Ltd. on behalf of the assessee against purchase of 18,54,000 shares of Microchip Infotel Pvt. Ltd. for Rs. 15,00,000/-. The bank statement & ledger account of Gulistan Vanijya Pvt. Ltd. and Natraj Vinimay Pvt. Ltd. was enclosed. The Ld. AO has mentioned that I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. the reason for selection for scrutiny of the case was information had been received from DDIT(Inv)-II, Jodhpur that M/s. Laxmidhan Tradelink Pvt. Ltd., PAN-AABCL7682F, had received securities premium amount to the tune of Rs.14,00,000/-, during the FY 2010-11 relevant to the AY 2011-12 and the assessee had failed to explain the source of this amount and also failed to prove the genuineness and creditworthiness of the persons from whom such sum was received. The information received from the DDIT(Inv)-II, Jodhpur has been reproduced at page 2 of the assessment order in which it is mentioned that a search and seizure action u/s 132 of Act was carried out in the case of Varaha Infra Group of Jodhpur on 21.01.2015. Main allegation against the company was that it had rotated its unaccounted money in form of share premium through various paper companies based at Kolkata, Mumbai, Indore and Jodhpur. Main bogus entry provider was Jagdish Prasad Purohit and his associates based at Kolkata and Mumbai. His residence along with residences of his associates namely, Eknath Mandavkar, Raj Kumar Kanodia and family members Sushil Kumar Purohit, Anil Kumar Purohit and Kailash Prasad Purohit were covered u/s 132 of the Act. His associates were working as dummy directors in the companies managed by Jagdish Prasad Purohit. They accepted during the search operation that they were directors for namesake only and all the affairs were being managed by Jagdish Prasad Purohit. He himself accepted that he was an entry provider engaged in providing accommodation entries to willing companies in form of share capital, share premium, bogus bills, unsecured loans etc. in lieu of commission. Jagdish Prasad Purohit provided a list of 246 companies which were controlled and managed by him for this purpose and these companies had shown receipt of security premium amount I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. in their return of income and the assessee was alleged to be one of the beneficiaries. A letter dated 05.03.2015 was sent to the company to explain the source of security premium of Rs. 14,00,000/- received but no reply was received. The Ld. AO has also noted that at page 3 of the assessment order DDIT(Inv)-II, Jodhpur has furnished detailed statements of recording of Shri Jagadish Prasad Purohit recorded u/s 132(4) of the Act dated 21.01.2015 along with its enclosures to the letter dated 08.05.2015 and the available documents gathered by the Ld. AO from the assessee during the course of hearing, and based on above documents a show cause notice dated 02.12.2016 was issued to the assessee which was duly served upon the assessee on 03.12.2016. The number of companies under the directorship of Anil Kumar Purohit are stated to be 49. The statement of Jagdish Prasad Purohit was also reproduced in the assessment order. Since there was no compliance on the part of the assessee in respect of the show cause notice issued a sum of Rs. 16,00,000/- was added u/s 68 of the Act to the income of the assessee and the total income assessed at Rs. 15,93,850/-. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who dismissed the appeal of the assessee holding as under: “5.2 The addition made by the appellant and the submissions made in statement of facts have been perused. It is seen from the assessment order that the appellant has received share capital and share premium amounting to Rs.16,00,000/-. The AO received information from the DDIT(Inv.)-II, Jodhpur that Mr. Jagdish Prasad Purohit is an entry provider engaged in providing accommodation entries to willing companies in form of share capital, share premium, bogus bills, unsecured loans etc. in lieu of commission and the appellant is one of the beneficiary. The AO forwarded the statements recorded u/s.132(4) of the Act during the course of search proceedings to the appellant for his explanation on the findings of share capital and share premium of Rs. 16,00,000/- received by the appellant. However, the appellant has not filed his submissions against the proposed I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. addition u/s.68 of the Act. It is also seen from the assessment order that the appellant's AR Mr. Surojit Kumar Roy furnished P&L account and Balance sheet during the course of assessment proceedings. The AO stated in the assessment order that the company was incorporated on 22.04.2010 and without any business activities and had no creditworthiness to get investment of share premium and share capital.
3 In the submissions made during the appeal proceedings, the appellant submitted that "Since the evidence relating to the identity, creditworthiness and genuineness of the transactions were borne on record, there was no requirement of the directors of the appellant to be personally present before the Assessing Officer". This claim of the appellant cannot be accepted considering the adverse evidence gathered by the AO and put it before the appellant during the assessment proceedings. Under the circumstances, the onus lies on the appellant to produce the share holders for examination to prove the credits in its books of account as genuine. The appellant failed to prove the credits in its books of account in the guise of Share Capital and Share Premium. Reliance is placed the decision of the Hon'ble Supreme Court in the case of Pr.CIT Central-1 Vs. NRA Iron & Steel (P) Ltd. [2019] 103 taxmann.com 48 (SC) wherein it has held as follows:- "The Court/Authorities below did not even advert to the field enquiry conducted by the AO which revealed that in several cases the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not discharged by the assessee.
The practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee.
On the facts of the present case, clearly the Assessee Company Respondent failed to discharge the onus required under Section 68 of the Act, the Assessing Officer was justified in adding back the amounts to the Assessee's income.
The Appeal filed by the Appellant - Revenue is allowed. In the aforesaid facts and circumstances, and the law laid down above, the judgment of the High Court, the ITAT, and the CIT are hereby set-aside. The Order passed by the AO is restored. I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd.
4 The appellant has also contended that the AO has not given reasonable opportunity to cross examine the party based on whose statement the additions were made. It is to note that cross examination is not mandatory in all cases and in this connection decision of Hon'ble High Court of Calcutta in the case of PCIT vs. Swati Bajaj, 139 taxmann.com 352 (Calcutta) is very relevant which observed as - "merely by stating that the report has not furnished to them nor the Director of the company was not been made available for cross examination would not suffice. The appellant in the first place should produce all evidences in his support before seeking to cross examine the party from whom the alleged investment have come. Secondly being a private limited company, the share investment is made only by friends, relatives & acquaintances and the appellant should have produced them before AO to establish the credentials. Considering the facts and circumstances of the case and respectfully following the decisions of Hon'ble Supreme Court and High Court of Calcutta cited supra, the action of the AO is upheld and the ground No.1 is dismissed.
Ground No.2 is general and routine.
In the result, the appeal is dismissed.”
Aggrieved with the order of the Ld. CIT(A) the assessee has filed the appeal before this Tribunal.
None appeared on behalf of the assessee during the course of hearing before us but a paper book running into 120 pages was filed in which a written submission has been filed and the appeal is decided on the basis of the paper book and the written submission filed. In the written submission the assessee has alleged that no sum of money was received from Natraj Vinimay Pvt. Ltd. against allotment of shares to the party. The party had given shares of Microchip Infotel Pvt. Ltd. in lieu of getting the allotment of shares of the assessee company at a premium of Rs. 140/-. The payment was made by the party directly to Gulistan Vanijya Pvt. Ltd. for purchase of shares of Microchip Infotel Pvt. Ltd. on 29.04.2010 as is evident from the copy of the bank statement of the party enclosed. Hence when no sum of money is received or where there I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. is barter transaction, there cannot be any addition u/s 68 of the Act. The issue is squarely covered by the following judgements: i) Juri ictional Calcutta High court in the case of Manchest Finpro in GA No. 1 of 2021 dated 30.06.2022. ii) Juri ictional Calcutta High court in the case of Jatia Investment Co reported in 206 ITR 718. iii) Madras High Court in the case of VR Global Energy v ITO in appeal No. 246 of 2017 dated 06.08.2018. iv) ITAT Kolkata in the case of Worldwealth Dealers Pvt Ltd in ITA No. 476/Kol/2019 pronounced on 16.03.2023 v) ITAT Kolkata in the case of Shri Ganesh Cement Pvt Ltd in ITA No. 2466/Kol/2018 pronounced on 25.02.2021. 6. The assessee has also submitted that the assessee specifically requested the Ld. AO to provide the copy of reasons recorded for reopening the case of the assessee but no such reasons were provided to the assessee. The Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. vs. Income-tax Officer reported in [2003] 259 ITR 19 (SC) held that the assessment completed without providing the assessee, the copy of reasons recorded, is bad in law. Reliance is also placed upon several other judicial pronouncements. It is further submitted that the case of the assessee was reopened only on the basis of statements made by unknown third parties during search and seizure action u/s 132 of the Act. The Ld. AO did not make any efforts on his own to go through the facts of the case of the assessee. In fact, the copy of the reasons recorded was never provided to the assessee in spite of specific request made by the assessee during the reassessment proceedings. Further, it was submitted that the Ld. AO had simply relied on the third parties enquiry and statement and the information received from DDIT(Inv)-II, Jodhpur to form a belief that the assessee I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. raised bogus share capital and that the income of the assessee had escaped assessment. In fact, the assessee was not even provided with the opportunity to cross examine the statements of the parties on the basis of which the Ld. AO alleged that the assessee was involved with the entry operators. It is, therefore, clear that there has been no independent application of mind at all prior to reopening of assessment. The Ld. AO should have applied his own independent mind to go through the facts of the case before reopening the assessment in the case of the assessee. Reliance in this regard is placed upon the judgements below: i) Principal Commissioner of Income-tax-4 vs. G & G Pharma India Ltd. [2017] 81 taxmann.com 109 (Delhi)/[2016] 384 ITR 147 (Delhi)[08-10-2015] ii) Principal Commissioner of Income-tax-6 vs. Meenakshi Overseas (P.) Ltd. [2017] 82 taxmann.com 300 (Delhi)/[2017] 395 ITR 677 (Delhi)[26-05-2017] iii) Principal Commissioner of Income-tax vs. RMG Polyvinyl (I) Ltd. [2017] 83 taxmann.com 348 (Delhi)/[2017] 249 Taxman 610 (Delhi)/[2017] 396 ITR 5 (Delhi)[07-07-2017] iv) Commissioner of Income-tax, Faridabad vs. Anupam Kapoor [2008] 166 Taxman 178 (Punjab & Haryana)/[2008] 299 ITR 179 (Punjab & Haryana)/[2007] 212 CTR 491 (Punjab & Haryana)[01-02-2007] v) Commissioner of Income-tax, Jalandhar vs. Smt. Paramjit Kaur [2008] 168 Taxman 39 (Punjab & Haryana)/[2009] 311 ITR 38 (Punjab & Haryana)[06- 08-2007] vi) Commissioner of Income-tax vs. Shiv Shakti Flour Mills P. Ltd. [2010] 327 ITR 430 (Gauhati)[15-09-2009] vii) Anil Kumar Bhandari vs. Joint Commissioner of Income-tax [2008] 171 Taxman 428 (Calcutta)/[2007] 294 ITR 222 (Calcutta)/[2007] 212 CTR 439 (Calcutta)[13-11-2006] viii) Commissioner of Income-tax vs. Shiv Rattan Soni [2008] 217 CTR 222 (Rajasthan)[28-03-2007] I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. ix) Commissioner of Income-tax, IV vs. Insecticides (India) Ltd. [2013] 38 taxmann.com 403 (Delhi)/[2013] 219 Taxman 111 (Delhi) (Mag.)/[2013] 357 ITR 330 (Delhi)[20-05-2013] x) Signature Hotels (P.) Ltd. vs. Income-tax Officer [2012] 20 taxmann.com 797 (Delhi)/[2011] 338 ITR 51 (Delhi)[21-07-2011] xi) Commissioner of Income-tax vs. Atul Jain [2008] 299 ITR 383 (Delhi)[23-05- 2007] xii) Commissioner of Income-tax vs. SFIL Stock Broking Ltd. [2010] 325 ITR 285 (Delhi)/[2010] 233 CTR 69 (Delhi)[27-04-2010] xiii) Assistant Commissioner of Income-tax vs. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 161 Taxman 316 (SC)/[2007] 291 ITR 500 (SC)/[2007] 210 CTR 30 (SC)[23-05-2007]
It is alleged that if the Ld. AO simply proceeds on the basis of information from investigation wing without himself making any enquiry the same is nothing but a borrowed satisfaction. It is further submitted that the assessee has provided the required evidence but the same was ignored by the Ld. AO and the Ld. CIT(A) also did not consider the same.
We have considered the submissions made and the paper book filed. Before us the assessee has filed the documents relating to the assessee company and the documents relating to Natraj Vinimay Pvt. Ltd. the subscriber and the copy of ledger account of Gulistan Vanijya Pvt. Ltd. It is submitted that the above paper book filed contains papers filed before the lower authorities. The primary contention of the assessee is that since no money was received and cheque received was issued to Gulistan Vanijya Pvt. Ltd., therefore, no addition u/s 68 of the Act could have been made. However, this contention is not correct as section 68 of the Act refers to any sum found credited in the books of account and as against the sum of Rs. 14 Lakh, the assessee had I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. received shares in lieu thereof and, therefore, cannot be said that no sum was credited in the books of account of the assessee and section 68 of the Act was not applicable. The Ld. DR on the other hand has filed written submissions as well which are as under: “The right of cross examination is not an absolute right. (Nath International Sales vs. UOI, AIR 1992 (Del) 295). The Hon'ble Supreme Court has also held that the right of hearing does not necessarily include right of Cross examination. The right of cross examination must depend upon the circumstances of each case and also on the statute concerned (State of J&K vs. Bakshi Gulam The Hon'ble Rajasthan High Court in the case of Rameshwarlal Mali vs. CIT 256 ITR 536(Raj.) has held that "there is no provision for permitting the cross examination of the persons whose statements were recorded during survey." In CIT v. Metal Products of India (1984) 150 ITR 714 (P&H), it was held that the AO may gather information in any manner he likes, behind the back of the assessee and utilize the same against the assessee, even if it does not, in all respects satisfy the requirements of the Indian Evidence Act. What is necessary is that he should have material upon which to base the assessment; "material" as distinguished from "evidence" which Includes direct and circumstantial evidence.”
1 However, considering the totality of facts since it is alleged that the required evidence has not been perused by the Ld. CIT(A), the order of the Ld. CIT(A) is hereby set aside and the appeal is restored to the Ld. CIT(A) to decide afresh in accordance with law after considering the documentary evidences filed by the assessee as it is alleged that the Ld. CIT(A) has considered the evidences selectively. It is also alleged that the Ld. CIT(A) has not disposed of the Ground No. 2 relating to objection filed against issuance of notice u/s 148 of the Act which has not be I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. disposed of by the Ld. AO. The assessee shall be at liberty to raise all the legal issues before the Ld. CIT(A) who shall decide the same after granting an opportunity of being heard to the Ld. AO as per Rule 46A of the Income Tax Rules, 1962. 9. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 23rd May, 2025. [Sonjoy Sarma] [Rakesh Mishra] Judicial Member Accountant Member Dated: 23.05.2025 Bidhan (P.S.) I.T.A. No.: 1428/KOL/2023 Assessment Year: 2011 -12 Laxmidhan Tradelink Pvt. Ltd. Copy of the order forwarded to:
Laxmidhan Tradelink Pvt. Ltd., 27A, Metcalfe Street, Bowbazar, Kolkata, West Bengal, 700013. 2. ITO, Ward-2(2), Kolkata.
CIT(A)-NFAC, Delhi.
CIT-
CIT(DR), Kolkata Benches, Kolkata.
Guard File. //// By order