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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI RAJESH KUMAR & SHRI RAVISH SOOD
ITA No. 468/Mum/2019 A.Y. 2010-11 1 DCIT-13(2)(2) Vs. M/s Shubham Motiwala & Jewellers Pvt.Ltd.
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) AND SHRI RAVISH SOOD (JUDICIAL MEMBER) ITA No.468/MUM/2019 (Assessment Year: 2010-11) Dy. Commissioner of Income M/s Shubham Motiwala & Tax -13(2)(2), Vs. Jewellers Pvt. Ltd. Room No. 146, 1st Floor, Shop No. 5, Unity Heights, Aayakar Bhavan, M.K Road, Chincholi JN,S.V. Road, Mumbai – 400020 Malad, Mumbai – 400064
PAN No. AAHCS1597A (Revenue) (Assessee) Assessee by : Shri Mani Jain, A.R Revenue by : Shri T.S. Khalsa, D.R Date of Hearing : 14/07/2021 Date of pronouncement : 30/07/2021
ORDER PER RAVISH SOOD, J.M: The present appeal filed by the revenue is directed against the order passed by the CIT(A)-21, Mumbai, dated 04.10.2018, which in turn arises from the order passed by the A.O u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 (for short „Act‟), dated 28.12.2016 for A.Y 2010-11. The revenue has assailed the impugned order on the following grounds before us: “1. On the facts and circumstances of the case and in law, the CIT(A) has erred in deleting the addition of Rs. 3,25,00,000/- as unexplained cash credit u/s 68 of the I.T. Act on account of share capita! & share premium, without appreciating the fact that the assessee could not corroborate its claim by providing the creditworthiness of the parties and the genuineness of the transactions.
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The facts and circumstances of the case and in taw. the CIT(A) has erred In deleting the addition of Rs 3,25.00,000/- as unexplained cash credit u/s 68 of the I.T. Act on account of share capital & share premium, without appreciating the fad that the onus was on the assesses not only to furnish the details of the parties but also to prove the creditworthiness of the parties and the genuineness of the transactions. 3. The appellant prays that the order of CIT(A) on the above ground be set aside and that of Assessing Officer be restored. 4. The appellant craves leave to amend or alter any grounds or add a new ground which may be necessary.” 2. Briefly stated, the assessee company which is engaged in the business of manufacturing and trading of jewellery and incidental labour job work had e-filed its return of income for A.Y. 2010-11 on 21.09.2010, declaring a total income of Rs.44,25,593/-. The return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was reopened u/s 147 of the Act for examining the increase in its share capital during the year. Accordingly, notice u/s 148 of the Act was issued to the assessee company on 17.03.2016, which was duly served upon it.
During the course of the assessment proceedings, it was observed by the A.O that the assessee company which had an authorized share capital of Rs.1,00,00,000/- [10,00,000/- equity shares of Rs.10/- each] had raised equity share capital of Rs.14,00,000/- in the form of “issued, subscribed and paid up capital” of 1,40,000 equity shares bearing face value of Rs.10/- each. It was observed by the A.O that the assessee had claimed to have raised share capital of Rs.14,00,000/- and share premium of Rs.3,36,00,000/- [i.e @ Rs.240 per share]. On being queried the assessee vide its letter dated 24.11.2016 furnished the following details with the A.O:
i. Copy of company Master Data (From MCA website) of the parties, mentioning their name, address and directors information etc. ii. Copy of Form 2 filed with the ROC. iii. Copy of Board Resolution.
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iv. Copy of Share Application Money Ledger Account. v. Copy of Valuating Certificate of shares of the company.
As per the details furnished by the assessee, it was gathered by the A.O that the assessee had raised share capital and share premium for 1,40,000 equity shares from the following shareholders:
Sr. Name & address of the Address of the assessee No. of equity Share Capital [with No. person shares premium @ Rs.240/- each] (Rs.) 1. Maginot Trading co. Private Unit No.2, 3 & 4, Kapoor Compound, 10000 2500000 Limited Opp. Laxmi Compound, Shelar Bhiwandi, Thane 421302. 1st Floor, John Robert Compound, 2. Colourshop Trading Co. 50000 12500000 Private Limited Sewri Fort Road, Sewri (East), Mumbai 400 015 3. Induja Traders Private 203, Sidat Mansion, Building No. 40000 10000000 17/17A, 2nd Marine Street, Mumbai Limited 400 002 4. Vanquish Investment & A-104, Rajumng- II, Shiv Vallabh 40000 10000000 Leasing Private Limited Cross Road, Ashokvan, Dahisar (East), Mumbai 400 068. Total 140000 35000000
In order to verify the authenticity of the aforesaid transactions, the A.O, in the course of the assessment proceedings directed the assessee to produce the aforementioned four shareholders along with their proof of identity, confirmations and documents relating to share application till allotment and later on, along with details as regards the transfer of the said shares and documents thereof. Also, the assessee was directed to submit the copies of the bank statements of the aforementioned shareholders pertaining to the year under consideration, as well as justify the share premium of Rs.240/- in the backdrop of the face value of the share of Rs.10/-. Further, the assessee was directed to submit the copies of the share application forms received from the shareholders alongwith any other documents that were submitted by them. In compliance thereto, the assessee vide its letter dated 05.12.2016 furnished certain details, viz. (i) copies of incorporation certificate of three companies (out of the aforementioned four shareholding companies); (ii) copies of memorandum of association and articles
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of association of the aforesaid four shareholding companies; and (iii) copies of the relevant bank statements of the aforementioned four shareholding companies. As the assessee had failed to produce the shareholders, therefore, it was once again directed by the A.O to do the needful. Also, the assessee was confronted with the fact that the certificate as regards the valuation of its shares that was filed in the course of the proceedings had no explanation as regards the basis of valuation of shares; basis of projection of income till 31.03.2013; basis of depreciation; increase or decrease in net working capital; addition to fixed assets; free cash to the firm; discount factor; present value etc. As the requisite details were not forthcoming, therefore, the A.O issued summons u/s 131(1) of the Act to Shri Shiv Kumar Aggarwal, director of the assessee company, wherein he was called upon to appear before him on 24.11.2016, which we find he failed to do. Observing, that the assessee had defied his directions and not produced the shareholders for examination and recording of their statements on oath u/s 131 of the Act, the A.O was of the view that the assessee had failed to prove the identity and creditworthiness of the aforementioned four shareholders, as well as the genuineness of the transactions of receipt of equity share capital and share premium from them. It was further observed by the A.O that neither the assessee company nor any of the shareholders had produced the original share application forms before him. Insofar the explanation of the assessee that though it had taken the share application forms (confirmations) from the parties at the time of issuance of shares, however, due to shifting of its office the related files had got misplaced, the same did not find favor with the A.O. Apart from that, it was observed by the A.O that the assessee had not only failed to produce any of the documents in original, but had not even filed the copies of the returns of income of the aforesaid four shareholder companies for the year under consideration i.e A.Y. 2010-11. Backed by his aforesaid observations, the AO was of the view that the assessee had failed to justify the huge sum of share premium of Rs.240/- per share that was claimed to have been received from the aforementioned four
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shareholder companies. Being of the view that the assessee had failed to prove the identity and creditworthiness of the shareholder companies, and also the. genuineness of the transactions of receipt of share capital and share premium from them, the A.O after drawing support from certain judicial pronouncements added the amount of share capital and share premium aggregating to Rs. 3,50,00,000/- as an unexplained cash credit u/s 68 of the Act. After, inter alia, making the aforesaid additions, the A.O vide his order passed u/s 143(3) r.w.s 147, dated 28.12.2016 assessed the income of the assessee company at Rs.3,95,64,810/-.
On appeal, the assessee drawing support from the documents that were filed in the course of the assessment proceedings, viz. (i) copy of companies data from MCA website (including their names, addresses and director information); (ii) copy of form filed with ROC for allotment of shares and balance sheets of investors; (iii) copy of Board Resolution: (iv) copy of share application money ledger account ; (v) copy of the valuation certificate of the shares of te assessee company; (vi) copy of incorporation certificate, memorandum and articles of association of the shareholder companies; and (vii) copy of relevant pages of Bank statements highlighting the transactions under consideration, therein submitted that the A.O had wrongly held the amount of share capital and share premium aggregating to Rs.3.5 crore as an unexplained cash credit u/s 68 of the Act. Apart from that, the assessee in order to substantiate to the hilt the identity, creditworthiness and genuineness of the amount of share application money received from the aforementioned four shareholder companies therein furnished before the CIT(A) the following documents as „additional evidence‟ U/rule 46A of the Income Tax Rules, 1962 :
Copy of Acknowledgment of Returns for A.Y. 2010-11. 2. Copy of Audited Financials of the Investor Companies for A.Y. 2010-11.
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Confirmations from the Investor Companies regarding investments made. 4. Copy of Share Application Forms. 5. Copy of relevant pages of bank statements of the investing companies highlighting the transactions in question.
It was the claim of the assessee that the aforementioned documents were though not submitted in the course of the assessment proceedings, the same, however, merely supported the transactions under consideration. Elaborating the reasons for not furnishing the aforesaid documents in the course of the proceedings before the A.O, it was submitted by the assessee that the same had occasioned, for the reason, that the aforesaid shareholder companies had not cooperated and had told the assessee that the requisite details will be furnished by them directly with the A.O, as and when the same were called for by him. As regards the doubts that were drawn by the A.O qua the share premium of Rs.240/- per share that was raised by the assessee, it was therein submitted by the assessee that as the same was duly supported by the valuation certificate issued by an independent authority who had taken all the factors into consideration before issuing the same, therefore, its genuineness could not be challenged. Insofar the observation of the A.O that the assessee despite specific directions had failed to produce the aforementioned four shareholder companies, it was submitted by the assessee before the CIT(A) that though it had furnished all the requisite details in relation to the share capital and share premium, and had also tried its level best to convince the shareholders to appear before the A.O, however, it had failed to persuade them. It was submitted by the assessee, that in the backdrop of the aforesaid facts it was open for the A.O to have exercised his powers and therein either called for the requisite information, if any, from the aforesaid shareholder companies by issuing notice u/s 133(6) or issued summons the u/s 131 of the Act compelling personal presence of the aforementioned investors for necessary examination and recording their statements, which however he had failed to
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exercise. It was further submitted by the assessee that as per the law prevailing at the relevant point of time, it was even otherwise under no obligation to prove the source of the source in respect of share application money received by it. In support of his aforesaid claim the assessee had relied on a host of judicial pronouncements. It was the claim of the assessee that now when it had given the complete details, viz. names and addresses of the respective shareholder companies, therefore, the initial onus that was cast upon it to prove the genuineness and receipt of share application money stood duly discharged. In fact, it was the claim of the assessee that the A.O. had failed to apply his mind to the documents which were furnished with him and had not analyzed the same before drawing adverse inferences as regards the genuineness of the aforesaid transactions in question. It was submitted by the assessee that it had allotted shares to all the aforementioned four shareholder companies on 12.03.2010 and had filed the „Form 2‟ with the ROC on the same date. After receiving the aforesaid additional evidence, the CIT(A) called for a „remand report‟ from the A.O. In compliance, the A.O submitted his remand report, dated 21.09.2018, wherein he objected to the admission of the „additional evidence‟, for the reason, that the assessee was afforded sufficient time and opportunity to furnish the said documents in the course of the assessment proceedings. However, at the same time the A.O examined the documents that were furnished by the assessee as „additional evidence‟. In order to verify the genuineness and veracity of the aforesaid documents, the A.O issued notices u/s 133(6) of the Act, dated 10.08.2018 to the aforementioned four shareholder companies, wherein they were called upon to furnish certain details, viz. share allotment letters, bank statements, and justification of the high share premium etc. As is discernible from the order of the CIT(A), we find that except for one shareholder company, viz. M/s Maginot Trading company Limited, the remaining three shareholder companies, viz. M/s Colourshop Trading Pvt. Ltd.; M/s Vanquish Investment and Leasing Pvt. Ltd.; and M/s Induja Traders Pvt. Ltd. had complied with the notices
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that were issued by the A.O u/s 133(6) of the Act and had furnished the requisite documents that were called for by him, viz. (i). justification for high premium; (ii) confirmation and application for shares; (iii) bank statements showing transactions with the assessee; (iv) share allotment certificate; (v) valuation report of M/s S.K. Patodia & Associates, C.A; (vi) returns of income; and (vii) audit reports. On a perusal of the details filed by the aforementioned three shareholders, it was observed by the A.O that except for the share allotment certificate; and the valuation report of shares, all the other documents had already been submitted by the assessee with the CIT(A). It was, however, observed by the A.O in his „remand report‟ that the assessee had not furnished any concrete reason as to why the aforementioned documents could not be filed in the course of the assessment proceedings. Accordingly, the A.O once again requested that the aforementioned documents filed by the assessee as „additional evidence‟ U/rule 46A of the Income Tax Rules,1962 may not be admitted. In rebuttal, the assessee company by relying on a host of judicial pronouncements supported its claim for admission of the „additional evidence‟ U/rule 46A. Referring to the details that was gathered by the A.O from the three shareholder companies u/s 133(6) of the Act, the assessee therein submitted that the authenticity of the transactions under consideration was irrefutably proved to the hilt. Insofar the shareholder company, viz. Maginot Trading Company Pvt. Ld. that had not complied with the notice that was issued by the A.O u/s 133(6) was concerned, it was submitted by the assessee that as the aforesaid notice was delivered to the said investor company, therefore, the factum of its existence stood proved beyond doubt. After deliberating at length on the „additional evidence‟ that was filed by the assessee in the backdrop of the „remand report‟ of the A.O and the rejoinder filed by the assessee, the CIT(A) holding a conviction that the details submitted by the assessee were crucial for adjudicating the grounds raised in the appeal, therefore, admitted the same.
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Adverting to the merits of the case, the CIT(A) taking cognizance of the documents that were filed by the assessee in the course of the assessment proceedings, as well as those that were filed before him as „additional evidence‟, therein observed, that three shareholder companies (out of four shareholder companies) had in compliance to the respective notices that were issued by the A.O u/s 133(6) in the course of the remand proceedings, had furnished the requisite details and confirmed the transactions under consideration. It was further observed by the CIT(A) that the transactions under consideration were carried out through proper banking channel. It was also noticed by him that the A.O had disbelieved the transactions of the share capital introduction along with premium, inter alia, on the ground, that neither the share application forms nor any document was produced before him in original in the course of the assessment proceedings. It was observed by the CIT(A), that as stated by the assessee the submission of the copies of the documents would not change the fact that the transactions took place specifically when the same were evidenced by the bank statements and the audited financials of both the investors and the investee company, and were duly recorded in their respective books of accounts. It was further observed by the CIT(A) that the three shareholder companies had in the course of the remand proceedings duly confirmed the transactions under consideration by responding to the notices that were issued to them by the A.O u/s 133(6) of the Act, which proved the identity, genuineness and creditworthiness qua the transactions under consideration. Also, it was observed by the CIT(A), that as stated by the assessee, in case the aforementioned investors companies could not be produced, then, the A.O could have summoned them in exercise of the powers that were vested with him u/s 131 of the Act, which however, he had failed to do. Also, cognizance was taken by the CIT(A) of the fact that the valuation report was issued by an independent chartered account and the same supported the share premium of Rs.240/- per share that was received by the assessee company. Referring to the financials of
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the investors companies, it was observed by the CIT(A) that the same substantiated their creditworthiness and proved beyond doubt that they were not dummy companies but were genuine companies that were involved in regular business activities and had made investments in the assessee company in the normal course of their business. It was further noticed by him that the aforementioned shareholder companies were regularly filing their returns of income and the transactions under consideration were carried out through banking channel. The CIT(A) further drawing support from certain judicial pronouncements, viz. (i) CIT Vs. Lovely Exports (P) Ltd. (2008) 216 CTR 195 (SC); (ii) CIT Vs. Creative World Telefilms Ltd. (2011) 333 ITR 100 (Bom); (iii) CIT Vs. Gagandeep Infrastructure Pvt. Ltd. (2017) 394 ITR 680 (Bom); and (iv) CIT Vs. Steller Investments Limited. (1991) 192 ITR 287 (Del), therein observed, that the „first proviso‟ to Sec. 68 of the Act, which as a pre-condition for discharge of onus by an assessee company as regards the „nature‟ and „source‟ of a sum consisting of share application money, share capital, share premium or any such amount by whatever name called recorded in its books of accounts, therein requires the person in whose name credit of such sum is recorded to put forth an explanation about the „nature‟ and „source‟ of such sum, having been introduced vide the Finance Act, 2012 w.e.f 01.04.2013 was effective only from A.Y 2013-14 onwards, and thus, was not applicable to the year under consideration i.e A.Y. 2010-11. Accordingly, it was observed by the CIT(A) that as held by the Hon‟ble Supreme Court in the case of Lovely Exports Pvt. Ltd. (supra), in case, if the A.O was of the view that the share application money was received by an assessee from a bogus shareholder, then, the recourse available to him was to reopen the assessment of such shareholder and assess the said amount in his hands. At the same time, it was observed by the CIT(A) that as the transactions of receipt of share capital and share premium by the assessee company qua the aforementioned three shareholder companies was duly recorded in the books of the assessee as well as the said shareholder companies, and was also shown in
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the returns filed with the ROC as well as supported by documentary evidence that was filed by the said investors companies in the course of the remand proceedings, therefore, the amounts received from them towards share capital and share premium could not be held as an unexplained cash credit u/s 68 of the Act. Accordingly, the CIT(A) in the totality of the aforesaid facts, observed, that insofar the amount of share capital and share premium that was received by the assessee from the aforementioned three shareholding companies (out of four shareholding companies), viz. (i) M/s Colourshop Pvt. Ltd.; (ii) M/s Vanquish Investment and Leasing Pvt. Ltd.; and (iii) M/s Induja Traders Pvt. Ltd. was concerned, the same could not be held as an unexplained cash credit u/s 68 of the Act. At the same time, the CIT(A) taking cognizance of the fact that one of the shareholding company, viz. M/s Maginot Trading Company Pvt. Ltd. had not complied with the notice that was issued by the A.O u/s 133(6) in the course of the remand proceedings, thus, held the amount received from the said party as an unexplained cash credit u/s 68 of the Act. Accordingly, the CIT(A) vacated the addition to the extent of Rs.3.25 crore and partly allowed the appeal. 6. The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. It was submitted by the ld. Departmental Representative (for short „D.R‟) that the CIT(A) had failed to appreciate that as the assessee had not discharged the onus that was cast upon it as regards proving the creditworthiness of the aforementioned three shareholding companies, and also the genuineness of the transactions in question, therefore ,the amount received from them was rightly assessed by the A.O as an unexplained cash credit u/s 68 of the Act. 7. Per contra, the ld. Authorized Representative (for short „A.R‟) for the assessee relied on the order of the CIT(A). It was submitted by the ld. A.R that the CIT(A) after duly appreciating the facts of the case in the backdrop of the supporting documentary evidence which substantiated to the hilt the authenticity
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of the transactions under consideration, had rightly vacated the addition of Rs.3.25 crores made by the A.O u/s 68 of the Act. 8. We have heard the ld. Authorized Representatives for both the parties, perused the orders of the lower authorities and the material placed on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. As observed by the CIT(A), and rightly so, the assessee had placed on record sufficient documentary evidence to substantiate the genuineness and veracity of the aforesaid transactions i.e receipt of share capital and share premium by the assessee company from the aforementioned three shareholder companies (out of four shareholding companies). Apart from that, the assessee had further supplemented the genuineness of the aforesaid transactions by placing on record „additional evidence‟ in the course of the proceedings before the CIT(A). Be that as it may, we find that the aforementioned three shareholder companies (out of four shareholder companies) had in compliance to the notices issued to them u/s 133(6) furnished the requisite details as were called for by the A.O in the course of the remand proceedings. Adopting a holistic view, we are of a strong conviction that the assessee had duly substantiated the identity and creditworthiness of the shareholder companies, as well as the genuineness of the transactions under consideration. Although, the A.O in the course of the remand proceedings had objected to the admission of the „additional evidence‟ U/rule 46A by the CIT(A), however, we find sufficient justification on the part of the CIT(A) in admitting the same. Be that as it may, the said issue had not been assailed by the revenue before us. In our considered view, in the totality of the facts involved in the case before us, it can safely be gathered beyond any scope of doubt that the assessee had duly discharged the onus that was cast upon it as regards proving the authenticity of the transactions of receipt of share capital and share premium from the aforementioned three shareholder companies under
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consideration. Nothing is either discernible from the record nor produced before us by the ld. D.R in the course of the hearing of the present appeal which could persuade us to take a view to the contrary. Accordingly, we are of the considered view that the CIT(A) had rightly concluded that the amount of share capital and share premium aggregating to an amount of Rs.3.25 crores that was received by the assessee from the aforementioned three shareholder companies could not have been held as an unexplained cash credit u/s 68 of the Act. Alternatively, as observed by the CIT(A), and rightly so, in the backdrop of the judgment of the Hon‟ble Supreme Court in the case of CIT Vs. Lovely Exports (2008) 216 CTR 195 (SC), in case, the A.O was of the view that the assessee company had received share application money from bogus shareholders, then, now when the complete names and addresses of the aforesaid shareholding companies were provided by the assessee to him, the only recourse available with him was to proceed with and assess the said amount in the hands of the shareholding companies, and the same could not have been regarded as an unexplained cash credit within the meaning of Sec. 68 of the Act in the hands of the assessee company. We find, that the aforesaid view had thereafter once again been reiterated by the Hon‟ble High Court of Bombay in the case of CIT Vs. Creative World Telefilms Ltd. (2011) 333 ITR 100 (Bom). Apropos the „first proviso‟ to Sec. 68 of the Act which as a pre-condition for discharge of onus by an assessee company as regards the „nature‟ and „source‟ of a sum consisting of share application money, share capital, share premium or any such amount by whatever name called recorded in its books of accounts, therein requires the person in whose name credit of such sum is recorded to put forth an explanation about the „nature‟ and „source‟ of such sum, as observed by the Hon‟ble High Court of Bombay in the case of CIT Vs. Gagandeep Infrastructure Pvt. Ltd. (2017) 394 ITR 680 (Bom), having been introduced vide the Finance Act, 2012 w.e.f 01.04.2013 was effective only from A.Y 2013-14 onwards, thus, the same would not be applicable to the year under consideration in the case of the
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present assessee before us i.e A.Y. 2010-11. Accordingly, as the year in the case of the assessee before us is A.Y. 2010-11, therefore, the aforesaid „proviso‟ to Sec. 68 of the Act would not be applicable. To sum up, we concur with the view taken by the CIT(A) that not only the assessee had duly substantiated the identity and creditworthiness of the investor companies, as well as proved the genuineness of the transactions in question i.e receipt of share capital and share premium from the aforementioned three shareholder companies, however, independent of that, even otherwise as the aforementioned amounts were received by the assessee company from the abovementioned shareholder companies whose complete details were furnished by the assessee with the A.O, therefore, the same as per the pre-amended Sec. 68 of the Act could not have been assessed as an unexplained cash credit in the hands of the assessee.. Be that as it may, finding no infirmity in the view taken by the CIT(A) that the amount of Rs.3.25 crore received by the assessee company as share capital and share premium from the aforementioned three shareholder companies could not have been assessed as an unexplained cash credit u/s 68 of the Act, we uphold the same. The Grounds of appeal Nos. 1 to 4 raised by the revenue being devoid and bereft of any force are accordingly dismissed.
The appeal of the revenue is dismissed.
Order pronounced in the open court on 30.07.2021 Sd/- Sd/- (Rajesh Kumar) (Ravish Sood) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated: 30/07/2021 **PS: Rohit
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Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, //True Copy// (Sr. Private Secretary)