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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri J. Sudhakar Reddy, AM & Shri A. T. Varkey, JM]
ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13
आयकर अपील�य अधीकरण, �यायपीठ – “A” कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH: KOLKATA (सम�) �ी जे. सुधाकर रे�डी, लेखा सद�य एवं/and �ी ऐ. ट�. वक�, �यायीक सद�य) [Before Shri J. Sudhakar Reddy, AM & Shri A. T. Varkey, JM] I.T.A. No. 1960/Kol/2017 Assessment Year: 2012-13
ACIT, Circle-5(2), Kolkata Vs. M/s Nirnidhi Marketing Pvt. Ltd. (PAN:AACCN 7876 J) Appellant Respondent
Date of Hearing (Virtual) 26.11.2020 Date of Pronouncement 09.12.12.2020 For the Appellant Shri Sandeep Choube, CIT For the Respondent Shri S. M. Surana, Advocate
ORDER Per Shri A.T. Varkey, JM:
This is an appeal preferred by the Revenue against the order of Ld. CIT(A)-2, Kolkata dated 06.06.2017 for A.Y. 2012-13.
The grounds of appeal raised by the Revenue are as under: 1. Whether in the facts and circumstances of the case, Ld. CIT(A) has erred in law and in facts in holding that a premium of Rs. 1,990 on a face value of share of Rs. 10 is justified when no proper physical activity of the private limited company was noticed.
Whether in the facts and circumstances of the case, the Ld. CIT(A) has erred in law and in facts in holding that Rs. 9,50,00,000/- added u/s 68 of the Income Tax Act, 1961 is not maintainable when identity, genuineness and creditworthiness of the share applicant was not proved.
Whether in the facts and circumstances of the case, the Ld. CIT(A) has erred in law and in facts in holding that even when no response is made against summon u/s 131 is issued for personal examination to prove the identity, genuineness and creditworthiness, “the transaction is still valid”. 1 | P a g e
ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 4. Whether in the facts and circumstances of the case, the Ld. CIT(A) has erred in law and in facts in holding that without examinations of the identity, genuineness and creditworthiness of the share applicant from his end, “the transaction is still valid”.
That the appellant craves for leave to add, delete, amend or modify any ground before or at the time of appellate proceedings.
From the perusal of the aforesaid grounds of appeal, it is discerned that the Revenue is aggrieved by the action of the Ld. CIT(A) in ordering deletion of the addition of Rs. 9.50 crores made by Assessing Officer (hereinafter referred to as the AO) u/s 68 of the Income Tax Act, 1961 (hereinafter referred to as the Act) as well as against the action of Ld. CIT(A) in holding that the premium of Rs. 1,990/- on face value of share of Rs. 10 is justified when according to Revenue no proper physical activity of the private limited company (assessee company) could be noticed (see, ground number 1).
Brief facts of the case as noted by the AO is that the assessee company filed its return of income on 21.09.2012 declaring total income of Rs. 1,74,21,518/- and book profit of Rs. 1,88,83,977/- u/s 115JB of the Act. The AO notes that the assessee’s case was selected for scrutiny through CASS. Thereafter he notes that he issued notice u/s 143(2) and 142(1) of the Act and the assessee was asked to furnish certain documents. According to AO, Shri Rajesh Agarwal, FCA representing the assessee appeared before him and furnished various documents in the course of proceedings. According to AO while perusing the audited accounts of the assessee for the year ended 31.03.2012, he found that the assessee company has raised share capital inclusive of securities premium of Rs. 9.50 crores by alloting 47,500 numbers of equity shares at a face value of Rs. 10/- each at premium of Rs. 1,990/- per share to sole share applicant M/s Saibaba Finvest Pvt. Ltd. (hereinafter referred to as ‘M/s Saibaba’). According to AO, he had issued notice u/s 142(1) asking for the details of new share applicant pursuant to which the assessee had filed details of the share applicant M/s Saibaba; and thereafter he issued further notice u/s 131 of the Act to M/s Saibaba to verify the
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genuineness of the share applicant including that of the share premium. According to AO, in spite of notice u/s 131 of the Act being sent to them, the share applicant did not bother to appear before him on the date of hearing fixed on 17.03.2015. Therefore the AO observes in his assessment order “such non-co-operation before the assessing authority can only be assumed to be willful and the credits in the books of accounts as not satisfactorily explained. From the P/L account and Balance Sheet of the said M/s Saibaba produced by the assessee it is evident that no business activity has been carried on justifying the huge premium.” Thereafter he was of the opinion that unaccounted money has been laundered by creating façade of paper work and then after citing few case laws of the Apex court held that since there was no compliance on the part of the subscribing company (M/s Saibaba) and since they have not been forthcoming in its reply to the summons u/s 131 of the Act, he (AO) held that identity, creditworthiness of the share subscriber and the genuineness of the transaction has not been proved and therefore addition was made u/s 68 of the Act of the entire share capital and share premium collected by the assessee.
Aggrieved by the aforesaid action of AO, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to delete the addition by holding as under: “I have considered the submissions of the authorized representative of the appellant as well as the assessment order framed in the light of the materials available on record before the AO during the assessment proceedings. The A.R of the appellant has submitted that the ground of Appeal 3 to 9 relates to addition of Share capital and premium Rs. 9.50 crore held as unexplained cash credit. The assessee is engaged in the business of trading of Iron Ore Fines. The turnover of the appellant for the FY 2010-11 was Rs. 373.89 crores and PAT was Rs. 1.45 crore and EPS of Rs. 145.43 per shares. During the year, the appellant company issued 47500 Equity Shares of Rs. 10/- each at a premium of Rs. 1990/- each. In course of the assessment proceedings the Id. AO issued a specific 142(1} notice on 04,03.2015 along with detailed questionnaire seeking various details of. In response to the same the appellant filed each and every details, documents, evidences and explanations as called for including documents in support of the identity and creditworthiness of the share capital and genuineness of the transaction and explanation regarding the justification of share premium with reference to EPS and NAV. The appellant stated that the EPS (PAT/ No. of shares) of the company for the F Y 2010-11 was Rs. 145.43 per share. The market value of share by capitalising the EPS @ 7% would come to Rs. T,933/- per share. As such the share issue price of Rs. 2,000/- is not too high. Similarly the NAV of the shares as at 31.03.2011 was Rs. 1,988/- per shares. As such the issue 3 | P a g e
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price of Rs. 2,000/- is not too high. The appellant further s is not too high. The appellant further submitted that the share premium is ubmitted that the share premium is a capital receipt and till 31,03.2012 there was no provision to tax the same. Besides, it was. a capital receipt and till 31,03.2012 there was no provision to tax the same. Besides, it was. a capital receipt and till 31,03.2012 there was no provision to tax the same. Besides, it was. further explained that fixing share issue price and to subscribe or not are commercial further explained that fixing share issue price and to subscribe or not are commercial further explained that fixing share issue price and to subscribe or not are commercial decision and the same cannot be interfe decision and the same cannot be interfered to! It was further explained that even under the red to! It was further explained that even under the provision of Sec. 56(2)(vii)(b), only the excess of share issue price over and above FMV as provision of Sec. 56(2)(vii)(b), only the excess of share issue price over and above FMV as provision of Sec. 56(2)(vii)(b), only the excess of share issue price over and above FMV as per Rule 11UA is taxable w.e.f. Assessment Year 2013 per Rule 11UA is taxable w.e.f. Assessment Year 2013-14. Whereas in the instant case the 14. Whereas in the instant case the share issue price was Rs. 2,000/ Rs. 2,000/- and value as per Rule 11UA was Rs. 1,988/ and value as per Rule 11UA was Rs. 1,988/- per share. As such the share premium was not at variance such the share premium was not at variance with the FMV. The AR of the appellant further placed his reliance on various judgment t further placed his reliance on various judgments s as mentioned in the submissions and considered. The Ld. AO did not bring out any deficiencies in the details, submissions and considered. The Ld. AO did not bring out any deficiencies in the details, submissions and considered. The Ld. AO did not bring out any deficiencies in the details, documents and evidences filed by the appellant. In spite of the same the Ld. AO assessed the documents and evidences filed by the appellant. In spite of the same the Ld. AO assessed the documents and evidences filed by the appellant. In spite of the same the Ld. AO assessed the share capital and premium as unexplained cash credit share capital and premium as unexplained cash credit. The AO has made observation that no business activity has been carried on justifying the The AO has made observation that no business activity has been carried on justifying the The AO has made observation that no business activity has been carried on justifying the huge premium. It appears that the AO not gone through the accounts of the appellate. The huge premium. It appears that the AO not gone through the accounts of the appellate. The huge premium. It appears that the AO not gone through the accounts of the appellate. The details of the share capital, reserves and surpluses, turnover, income, pro details of the share capital, reserves and surpluses, turnover, income, pro details of the share capital, reserves and surpluses, turnover, income, profit before tax and return income of the appellate are given below which clearly indicated the return income of the appellate are given below which clearly indicated the return income of the appellate are given below which clearly indicated the justification of the huge premium of the appellate. huge premium of the appellate.
Even if, we go by the provision of Sec. 56(2)(vii)(b), applicable w.e.f. Assessment Year 2013 Even if, we go by the provision of Sec. 56(2)(vii)(b), applicable w.e.f. Assessment Year 2013 Even if, we go by the provision of Sec. 56(2)(vii)(b), applicable w.e.f. Assessment Year 2013- 14 only the excess of share issue price over and above FMV as per Rule 11UA is taxable. excess of share issue price over and above FMV as per Rule 11UA is taxable. excess of share issue price over and above FMV as per Rule 11UA is taxable. Whereas in the instant case the share issue price was Rs. 2,000/ Whereas in the instant case the share issue price was Rs. 2,000/- and value as per Rule 11UA and value as per Rule 11UA was Rs. 1,988/- per share per share. As such the share premium was not at variance with the FMV. As such the share premium was not at variance with the FMV. The same calculation of the FMV was also submitted by the appellate during the assessment f the FMV was also submitted by the appellate during the assessment f the FMV was also submitted by the appellate during the assessment proceeding before the AO vide his letter dated 11.03.2015 in compliance to the notice 142(1) proceeding before the AO vide his letter dated 11.03.2015 in compliance to the notice 142(1) proceeding before the AO vide his letter dated 11.03.2015 in compliance to the notice 142(1) dated 04.03.2015 issued to the appellate. The AO did not find out any mis dated 04.03.2015 issued to the appellate. The AO did not find out any mis dated 04.03.2015 issued to the appellate. The AO did not find out any mistake in the FMV calculation of the appellate calculation of the appellate The assessee is engaged in trading of Iron Ore Fines. It was incorporated on 16.03.2008 and The assessee is engaged in trading of Iron Ore Fines. It was incorporated on 16.03.2008 and The assessee is engaged in trading of Iron Ore Fines. It was incorporated on 16.03.2008 and started its business from F Y 2008 started its business from F Y 2008-09. It's Profit after Tax for F Y 2009- -10 and 2010-11 was Rs. 131.22 and Rs. 145.43 Rs. 131.22 and Rs. 145.43 per shares. Considering the share issue price of Rs. per shares. Considering the share issue price of Rs.-2,000/-, the PE Ratio comes to just 13.75 which gives a tax free return @ 7.27%. Even as per Rule 11UA PE Ratio comes to just 13.75 which gives a tax free return @ 7.27%. Even as per Rule 11UA PE Ratio comes to just 13.75 which gives a tax free return @ 7.27%. Even as per Rule 11UA as applicable from Asst. Year 2013 as applicable from Asst. Year 2013-14, the FMV comes to Rs. 1,988/- per shares. per shares. 1 find that the appellate company received a loan of Rs. 3,00,000/ pellate company received a loan of Rs. 3,00,000/- during the year and also during the year and also received loan aggregating Rs. 15,13,50,000/ received loan aggregating Rs. 15,13,50,000/- for the next assessment year 2013 for the next assessment year 2013-14 from the same party and assessment was also completed by the same assessing officer (by name as same party and assessment was also completed by the same assessing officer (by name as same party and assessment was also completed by the same assessing officer (by name as well as designation)-and both these transactions were accepted as genuine by the same AO. and both these transactions were accepted as genuine by the same AO. and both these transactions were accepted as genuine by the same AO. In view of above, there In view of above, there is no doubt about the identity and creditworthiness of the share doubt about the identity and creditworthiness of the share applicant and genuineness of the transaction. The share amount of share capital applicant and genuineness of the transaction. The share amount of share capital applicant and genuineness of the transaction. The share amount of share capital subscribed by it in this financial year has been verified u/s by it in this financial year has been verified u/s 133(6).
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The. AO issued summon u/s 131 to the share applicant at the fag end of the assessment proceedings fixing the date of hearing on 17.03.2015. The directors of share applicant Mr. Mohit Bajpai and Mr. Ashish Kumar Pathak both are residents of Madhya -Pradesh. As such they could not comply with the same at such short notice towards the end of the Financial Year. The appellate filed company master data which showing the address of both the directors residing in Madhya Pradesh. In spite of that the summon was duly served. Evidences were filed. As such mere non-compliance of the summon by the creditor cannot be held against the appellant. In this regard the appellate placed his reliance on the judgement of Delhi High Court in case of CIT vs Victor Electrodes Ltd 329 ITR 271 (Delhi), Hon'ble ITAT Kolkata, in M/s Cygnus Developers (I) Pvt Ltd. vs ITO Ward-9(3) and The Gujarat High Court in the case of DCIT Vs Rohini Builders (127 Taxman 523). The AR has also filed his reply on the case laws which were relied by the AO and submitted that the facts are not similar to that case as mentioned above. I find that the AR has submitted, regarding Identity of the investor the appellant filed copies of master data, Memorandum and Articles of Association, PAN Card, Directors PAN Card and their ITRs. The share subscriber is also available at the given address for verification. Hence, identity of the subscribers is established beyond all doubt. So far as genuineness of the transactions, it is stated that share subscriptions were received through banking channel which is traceable from the origin to the destination of such payment and further confirmed through documents furnished. Further, the impugned share application monies were recorded in the balance sheets and duly reflected in their returns filed with the respective Assessing Officer of the share applicants. Therefore, the genuinity of the transactions regarding receipt of share application is beyond controversy and cannot be called into question. As far as creditworthiness of the share applicants is considered, it is stated that the entire gamut of transactions was undertaken by way of account payee cheques only. In respect of the share applicant, there were more than enough funds to subscribe, to the shares of the appellant as the following facts will unequivocally testify and prove. It is pointed out that funds held on account of shareholders disclosed in the balance sheets as on the 31-03-2012. In compliance to the summon, the investor appeared and filed all the details, documents and evidences as called for. Therefore, considering the totality of the facts and circumstances of the case, 1 find substance in the argument of the AR. In view of the aforesaid findings and respectfully following the decisions of Hon'ble Apex Court, Hon'ble Jurisdictional High Court, Hon'bie other High Court, Hon'ble Jurisdictional Tribunal (supra) and Co-ordinate bench decisions of various tribunals, supra, I have come to the conclusion that the issue is' squarely covered by the decision of various courts and tribunals as mentioned and discussed above and also various other decisions relied upon by the AR which are not considered here for the sake of brevity. 1 have no option but to accept the arguments tendered by the AR of the appellant in this respect. Further, I have no hesitation to hold that the impugned addition made by invoking the provisions of section 68 by the AO is not justified in the circumstances and accordingly, the AO is directed to delete the addition made on this account. These grounds of appeal are allowed.”
Aggrieved by the aforesaid action of Ld. CIT(A) giving relief to the assessee, the Revenue has preferred this appeal before us.
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 7. Assailing the decision of Ld. CIT(A), the Ld CIT DR Shri Sandeep Chaube contended that M/s Saibaba (sole share applicant) was only incorporated on 26.02.2010 and has subscribed to the shares at a face value of Rs. 10 along with share premium of Rs. 1,990/- which cannot be believed. According to him, standard of proof accepted in the field of taxation law is based on the principle of “preponderance of probability” and per-se this transaction looks improbable. He drew our attention in page 47 of PB wherein the bank statement of M/s Saibaba is found placed. According to Ld. D.R a perusal of the same, it could reveal money coming in and going out from the account in regular interval; and thereafter he drew our attention to page 105 of the balance sheet of M/s Saibaba and wondered as to how this company which has been incorporated just two years back has share capital of Rs. 2,15,73,250/- and reserve & surplus of Rs. 35,87,43,750/-. According to Ld. D.R, even though the AO had issued summons u/s 131 of the Act to the M/s Saibaba, no directors appeared before the AO to substantiate that they had genuinely subscribed for the shares of assessee company and justified the premium of Rs. 1,990 per share of the assessee company. According to Ld. D.R the whole transaction is an eye wash and so unbelievable, per-se improbable for the share subscribing company to do so. Therefore according to Ld. D.R the order of Ld. CIT(A) is erroneous and therefore he wanted us to reverse the order of Ld. CIT(A) and uphold the order of AO.
Per contra, the Ld. A.R of the assessee Shri S. M. Surana supported and justified the impugned action of the Ld. CIT(A). According to Ld. A.R. the assessee company manufactures and exports Iron Ore fines and also trades in coal. And he brought out the following facts against the contention of the Revenue raised in the first ground of appeal, that Assessee Company does not do any business which can be noticed. According to Ld. A.R, the turnover of the assessee company during the year was more than Rs. 227 crores. And the turnover of the immediately earlier year was Rs. 373 crores. And the net profit during the year was more than Rs. 1.88 crores and immediately earlier year was Rs. 2.12 crores. The fixed assets of the assessee
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 company were more than Rs. 2.78 crores (after depreciation) and secured loans from bank was to the tune of Rs. 25,57,400/- (Refer paper book page 6).
In respect of the share issued during this assessment year, the Ld. A.R submitted that during the year the assessee had issued 47,500 shares of Rs. 10/- each at premium of Rs. 1990 and this capital was raised from a sister concern of the assessee i.e. sole share applicant / subscriber (M/s Saibaba). The AO during assessment proceedings had asked for full details and evidences of the Capital raised vide notice u/s 142(1) dated 4.3.2015 and fixing date of hearing on 13.3.2015. According to him, the assessee had filed all the replies, explanations and details asked for vide letter dated 11.03.2015 which is placed at paper book page 40-41 and also drew our attention to the paper book Serial Number 5, A- to O (Pages 46-116 of PB) which according to him also includes the proof of source of the investment. It was pointed out by the Ld. A.R that the AO had also raised query about the applicability of section 56(2)(viib) which was also explained vide page 41 of PB and brought to our notice that in this relevant assessment year (i.e. assessment year 2012-13) as per the law prevailing in this assessment year, the premium received could be treated only as a Capital receipt.
In respect of non-appearance of directions of M/s Saibaba, which led to the AO taking an adverse view against the assessee company, the Ld. A.R pointed out that the AO had issued summons u/s 131 for personal appearance of the authorized person and not for perusal appearance of the director. According to him, this fact is discernible from the admission made by the AO in the assessment order itself to this effect and drew our attention to para 2 page 2 of the assessment order. And further brought to our notice that very little reaction time was given by the AO for the appearance of the authorized person of Assessee Company. Elaborating further on the less time given by AO for physical appearance, the Ld. A.R submitted that after the assessee had filed the reply dated 13.03.2015, pursuant to the notice of AO dated 04.03.2015, the AO issued summons to appear on 17.3.2015 for the purpose of explaining the bonafide of
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 share application made by it as well as the premium offered for such share application. Thus, it was pointed out by the Ld. A.R that what the AO wanted was the personal appearance of the authorized person of M/s Saibaba to explain the share application; and the supposed to be huge premium even though according to Ld. A.R the premium was duly justified vide the submission of the assessee referred (supra) and the Breakup value of the share which will be discussed infra. Further according to Ld. A.R, the summons issued by AO was duly served upon the shareholder M/s Saibaba. It was brought to our notice that Sri Utkarsh Suresh Shelar and Shri Ashish Kumar Pathak was common director of the assessee company as well as shareholder company in AY 2012-13 and Ay 2013-14 respectively and drew our attention to page 71/76 of PB which is annual return of assessee company and page 81 of PB which is the Master data of shareholder company M/s Saibaba and other documents which will be discussed in detail [infra]. The Ld. A.R submitted that two of the directors were residents/stationed at State of Madhya Pradesh and other one was resident of Pune, so could not appear within the short time allowed and therefore the AO erroneously assumed that the non-appearance by the directors of M/s Saibaba was willful. It was brought to our notice that later on the directors in fact had appeared before AO; however their statements were not recorded by the AO on the plea that assessment was completed on 26.3.2015. The Ld. A.R challenged the following conclusion of AO "From profit and loss account and Balance sheet of the said Saibaba Finvest Pvt Ltd. produced by the assessee, it is evident that no business activity has been carried on justifying the huge premium." However, according to Ld. A.R, the AO missed the vital point that the share premium is to be decided on the basis of business activity and breakup value of the shares of company which issues the same (i.e. in this case the assessee company) and not on the basis of the business of the share applicant (M/s Saibaba). According to Ld. A.R, the AO misdirected himself on the issue before him and thereafter the AO referred to certain decisions of Hon’ble Apex Court namely Sumati Dayal, Durga Prasad More, Precision Finance Ltd. which according to Ld AR are not applicable to the facts of this case and thus erroneously added back the entire share capital & premium amount as unexplained.
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The Ld. A.R then submitted that the assessee aggrieved by the action of AO had filed an appeal before the Ld. CIT(A) who took note of the number of queries and requisitions made by the AO u/s 142(1) in the first notice itself i.e. on 4.3.2015 which have been reproduced at page 4 of the CIT(A) order. According to Ld. A.R., the Ld. CIT(A) further noted that the assessee company had filed each and every details called for by the AO. According to Ld. A.R, the Ld. CIT(A) took note of the market value of the shares at both breakup value under Rule 11UA of the Income Tax Rules, 1962 (hereinafter referred to as the Rules) and computation by yield method was also noted and referred to page 5 of his order which computation justified the premium. Moreover, according to Ld. A.R, it was also noted by the Ld CIT(A) that the shareholder (M/s Saibaba) was a promoter group company which fact was noted at page 11 of the impugned order. According to Ld. A.R, the Ld CIT(A) also noted to the fact that in the subsequent year i.e. in assessment year 2013-14 huge loan of Rs. 15,13,50,000/- was given by the same shareholder to the assessee which was duly accepted by the very same AO in the scrutiny assessment completed u/s 143(3) which fact is evident from perusal of paper book page 136-137 (ledger account of M/s Saibaba) and 138-144 assessment order of assessee company for AY 2013-14. The Ld. CIT(A) noted that originally the amount in question was also taken as loan which fact is evident from a perusal of page 46 of the paper book (ledger account of assessee company) which was subsequently transferred to issue of shares. Moreover, according to Ld. A.R, the Ld. CIT(A) noted the net worth of the assessee company was to the tune of Rs. 38,03,17,000/- (as on 31.3.2011) which fact is evident from perusal of paper book page 105. The Ld. CIT(A) took note of the fact that M/s Saibaba was incorporated on 10 January 1996 and is registered NBFC which fact is evident from perusal of page 105 whereby statutory reserve u/s 45C of Reserve Bank of India (RBI) Act has been created and the auditor’s report at page 100 clearly spells out that this company (M/s Saibaba) is registered NBFC and that it is regularly assessed to tax and had undergone scrutiny assessment which were completed u/s 143(3) of the Act and
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 that too without any adverse remark which fact is evident from paper book page 170- 175.
So, according to the Ld. A.R that it cannot be denied that numerous details were asked by AO during assessment from assessee and the assessee had filed all the details called for by the AO. And from the documents filed before the AO & Ld. CIT(A), it was proved that the shareholder (M/s Saibaba) is group concern and is an NBFC recognized by the RBI and that the directors were common and the fact that it has undergone scrutiny assessment cannot be denied. So according to Ld. A.R its existence of the company i.e. M/s Saibaba cannot be doubted or disputed nor have been disputed. Further according to Ld. A.R, the notice u/s 131 was issued to M/s Saibaba without allowing reasonable time and opportunity by fixing the date of appearance on 17.03.2015, still the directors appeared but their statements were not recorded. According to ld. A.R., subsequent year loan, almost double the amount of share capital from the same party i.e. Rs. 15 crores was accepted by the AO in the immediately next year, and that the shares were issued at the breakup value at the time of issue and therefore according to Ld. A.R, the Ld. CIT(A) was fully justified in deleting the addition and so he does not want us to interfere with the impugned order. The Ld. A.R also relied on the following case laws to support the action of Ld. CIT(A):
(a) Reliance was placed on the decision in the case of Cygnus Developers P Ltd., Kolkata ITA 282/K/2012 dated 2.3.2016 wherein the judgement of Allahabad High Court have been relied on that the production of director is not necessary when the credit is explained. Similar view is taken in the case of Devendra Kumar Sant.
(b) The Hon'ble Supreme Court in the case of Paradise Inland Shipping Co Ltd. reported in 2018 93 taxmann.Com 84 has held that when the assessee has filed all the evidences and documents from public offices and brought on record the
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 assessment orders passed in the case of said companies, addition cannot be made u/s 68 of the Act.
Further according to the Ld. A.R as far as the law in respect of addition made of share premium is concerned , the addition made on account of share premium is erroneous as per the law in force for the relevant assessment year 2012-13 is concerned. According to him, the share premium credited by the assessee could be treated only as a capital receipt and could not be taxed till 31.03.2012, because there was no provision to tax the same. And according to him, the provision for taxation of share premium was inserted by Finance Act, 2012 w.e.f. 01.04.2013 and so is applicable from next assessment year i.e. AY 2013-14 and not in this assessment year i.e. AY 2012-13. Moreover, it was pointed out to us that even after the amendment was made in law it came into force from the next AY 2013-14 onwards, and that too only the excess share issue price, that is over and above the market price could only be taxed u/s 56(2)(viib) of the Act which was also inserted by Finance Act, 2012 w.e.f. 01.04.2013 for AY 2013-14 and not in this AY 2012-13. Even though this was the legal position and the assessee as per law was not bound to justify the share premium price of Rs. 1900/-, however the assessee demonstrated before the AO that even the fair market value of shares if calculated as per Rule 11U of Income Tax Rules, 1962 (hereinafter referred to as the Rules) which was prescribed in Section 56(2)(viib) of the Act, still the price of Rs. 1,988/- per share whereas the assessee has sold the share at Rs. 10 at share premium of Rs. 1,990/- so the difference is negligible i.e. Rs. 2/- only in excess and even as per EPS (earning per share) it comes to Rs. 1,933/- per share so the share premium of Rs. 1,990/- is not excess and is fair and reasonable price. So in the aforesaid facts and circumstances, the Ld AR does not want us to interfere with the impugned order of Ld CIT(A).
Further the Ld AR in order to show that M/s Saibaba is a sister concern drew our attention to the fact that M/s Saibaba which is a private limited company was held by two private limited companies i.e. M/s Greenary Distributors Pvt Ltd and M/s
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 Pretty Dealers Pvt Ltd which are in turn held by two other companies i.e, M/s RBM Finance Pvt Ltd and M/s Bengal Credit Corporation Pvt. Ltd; which means M/s Greenary Distributors Pvt. Ltd. was held by M/s RBM Finance Pvt Ltd (40%) and M/s Bengal Credit Corporation Pvt. Ltd. (60%). And likewise, M/s Pretty Dealers Pvt. Ltd. was held by M/s RBM Finance Pvt. Ltd. (60%) and M/s Bengal Credit Corporation Pvt. Ltd (40%). And both these companies i.e. M/s RBM Finance Pvt. Ltd. and M/s Bengal Credit Corporation Pvt. Ltd. was held by M/s Sanrise Holdings Pvt. Ltd. for the financial year 2011-12 (i.e. AY 2012-13) which was the ultimate holding company of M/s Saibaba Finvest Pvt. Ltd. (sole share applicant in this case). It was brought to our notice that the following were the directors of M/s Sanrise Holdings Pvt. Ltd:- SL. No. Name From To 1. Vinay Rohidas Patil 17.03.2010 20.03.2012 2. Utkarsh Suresh Shelar 17.03.2010 21.01.2013 3. Alok Drolia 15.03.2012
Thereafter he drew our attention to the fact that Shri Utkarsh Suresh Shelar was the director of assessee company (M/s Nirnidhi Marketing Pvt. Ltd.) from 08.10.2011 to 05.10.2012, which shows that Shri Utkarsh Suresh Shelar was the common director of the holding company of M/s Saibaba (i.e. M/s Sanrise Holdings Pvt Ltd) as well as the director of the assessee company during the AY 2012-13. Thereafter he drew our attention to page nos. 71-76 of PB wherein we note that the annual return of the assessee company have been placed from where we note that the assessee company has been registered on 19.03.2008 and perusal of page 76 reveals that Shri Ashish Kumar Pathak who was the director of the assessee company was inducted as director of M/s Saibaba which fact is revealed from perusal of page no. 91 of PB which is the Company’s Master Data of M/s Saibaba from which it is noted that Shri Ashish Kumar Pathak is director from 30.05.2012 to 11.02.2016 (refer page no. 92 of PB). Thus, the Ld. A.R submitted that M/s Saibaba, the sole share applicant / holder was a sister concern in the relevant assessment year i.e. AY 2012-13 and subsequent assessment years and therefore, no adverse view ought to have been taken against the
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 assessee company for subscribing for shares. So in the aforesaid facts and circumstances, the Ld AR does not want us to interfere with the impugned order of Ld CIT(A).
We have heard both the parties and perused the records. We note that assessee is a manufacturer and exporter of Iron Ore Fines and also trades in Coal. The assessee company was incorporated on 16.03.2008 and started its business form F.Y. 2008-09 and in this assessment year it has returned income of Rs. 1,74,21,518/- and book profit of Rs. 1,88,83,977/- u/s 115JB of the Act. We note that in this assessment year (2012- 13) the assessee company has issued 47,500 numbers of equity shares of face value of Rs. 10 each at premium of Rs. 1,990/- per share to another private limited company M/s Saibaba Finvest Pvt. Ltd, which is a sister concern as brought to our notice [supra] wherein we noted that in this relevant assessment year common director was there in assessee company and holding company of M/s Saibaba. We note that Sri Utkarsh Suresh Shelar was common director of the assessee company as well as the holding company of share-subscribing company in AY 2012-13 as we noted in detail at para 14 [supra]; and Shri Ashish Kumar Pathak who was the director of the assessee company was inducted as director of M/s Saibaba in AY 2013-14 which is evident from the Master data of shareholder company M/s Saibaba. During the scrutiny assessment the AO issued notices u/s 142(1) and 143(2) of the Act and called for the following details & supporting documents: 1. Investor wise details of increase in share capital a. Name of Investor b. Date of Receipt c. Bank Statement of Investor d. Bank Statement of Assessee e. Details of Utilization f. Authorized Share Capital g. Form 2 h. Form 20B
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 i. Form 23AC j. Form 5 k. Date of Allotment l. No. of Shares Allotted m. Amount of Share Capital n. Amount of Share Premium
Justification of Share Premium with reference to NAV a. NAV as at 01.04.2011 b. EPS per Share c. Issue Price 3. Justification of Share Premium with reference to EPS
Financial Year 2009-10 2010-11 PAT No. of Shares EPS
Documents in support of the identity and creditworthiness of the share capital and genuineness of the transaction a. Company Master Data b. Signatory Detail c. Certificate of Incorporation d. Statement of Source of Fund e. PAN Card f. Acknowledgement of Return of Income g. Audited Financial Statement
And it is noted that in response to the same the assessee had filed all the details and documents and explanations as called for by the AO including documents in support of the identity and creditworthiness of the share capital and genuineness of the transaction and explanation regarding the justification of share premium with 14 | P a g e
ITA No. ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 reference to EPS and NAV rence to EPS and NAV; and the AO has acknowledged that the Ld. A.R of the acknowledged that the Ld. A.R of the assessee had appeared before him and furnished requisite documents. However, taking assessee had appeared before him and furnished requisite documents. However, taking assessee had appeared before him and furnished requisite documents. However, taking note that the assessee had issued share capital plus premium of Rs. 9.5 crores, he note that the assessee had issued share capital plus premium of Rs. 9.5 crores, he note that the assessee had issued share capital plus premium of Rs. 9.5 crores, he thereafter issued summons to the share subscribing company M/s Saibaba y M/s Saibaba u/s 131 of the Act summoning the authorized persons ( authorized persons (directors) of the assessee of the assessee company to appear before him on 17.03.2015 appear before him on 17.03.2015. However since none appeared before him since none appeared before him, he drew adverse inference against the share applicant M/s Saibaba and made an addition u/s 68 the share applicant M/s Saibaba and made an addition u/s 68 the share applicant M/s Saibaba and made an addition u/s 68 of the Act and framed the assessment on 26.03.2015. On appeal the Ld. CIT(A) of the Act and framed the assessment on 26.03.2015. On appeal the Ld. CIT(A) of the Act and framed the assessment on 26.03.2015. On appeal the Ld. CIT(A) has addressed the allegation of the AO that share premium of Rs. 1,990/ addressed the allegation of the AO that share premium of Rs. 1,990/ addressed the allegation of the AO that share premium of Rs. 1,990/- of the assessee company is very high since the company is very high since the assessee company is not into any business activity. assessee company is not into any business activity. The Ld. CIT(A) has taken note of the following financial data of the assessee The Ld. CIT(A) has taken note of the following financial data of the assessee The Ld. CIT(A) has taken note of the following financial data of the assessee company which shows that AO erred in his finding that assessee company was not company which shows that AO erred in his finding that assessee company was not company which shows that AO erred in his finding that assessee company was not doing any business.
The Ld. CIT(A) examined the aspect ined the aspect of share premium of the assessee company share premium of the assessee company i.e. Rs. 1,990/- per share. The Ld. CIT(A) noted in this context that the assessee had filed per share. The Ld. CIT(A) noted in this context that the assessee had filed per share. The Ld. CIT(A) noted in this context that the assessee had filed detailed calculation of price of shares as per Net Asset Value method (NAV) as well detailed calculation of price of shares as per Net Asset Value method (NAV) as well detailed calculation of price of shares as per Net Asset Value method (NAV) as well as Earning Per Share capitalizations capitalizations (EPS) methods and that the assessee company for the assessee company for AY 2011-12 (previous assessment year) had turnover of Rs. 373.89 crores and profit 12 (previous assessment year) had turnover of Rs. 373.89 crores and profit 12 (previous assessment year) had turnover of Rs. 373.89 crores and profit after tax (PAT) was Rs. 1.45 crores and earning per share (EPS) was Rs. 145.43 per after tax (PAT) was Rs. 1.45 crores and earning per share (EPS) was Rs. 145.43 per after tax (PAT) was Rs. 1.45 crores and earning per share (EPS) was Rs. 145.43 per share – therefore the market value of share by capitalizing the et value of share by capitalizing the EPS =(PAT/ number of EPS =(PAT/ number of shares) @ 7% tax free rate tax free rate would come to Rs. 1,933/- per share. Therefore the Ld. . Therefore the Ld. CIT(A) took note of the fact that the value of share of assessee company at a price CIT(A) took note of the fact that the value of share of assessee company at a price CIT(A) took note of the fact that the value of share of assessee company at a price of
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 Rs.10 + Rs. 1,990 = Rs. 2,000/- is not unreasonable. And as per the net asset value method (NAV) value of shares as computed as per Rule 11UA of the Rules as on 31.03.2011 was Rs. 1,988/- per share and thus the issue price of Rs. 2,000/- cannot be said to be high. Even though the assessee had filed all the details and documents called for by the AO u/s 142(1) of the Act, the AO has drawn adverse view against the share capital & premium while framing the assessment on 26.03.2015 just because the director of M/s Saibaba (share subscribing company) did not turn up before him (AO) on 17.03.2015. It was brought to our notice that all the directors except one who resides at Pune, are residents of State of Madhya Pradesh and therefore could not come on short notice. It was also brought to our notice that the summons issued u/s 131 of the Act was duly served upon the address of company. According to Ld AR, no adverse view ought to have been taken against the assessee since it had filed all the details / explanations / documents asked for by the AO u/s 142(1) of the Act which is found placed at pg 40 and 137 of PB. In this context we note that the assessee had filed all the documents to substantiate the identity, creditworthiness and genuineness of the share subscribing company M/s Saibaba which has been incorporated on 10.01.1996 and it is a registered NBFC by RBI (refer page 100 & 105 of PB) which shows that statutory reserve u/s 45C of the Reserve Bank of India Act has been created and the auditor’s report at page 100 clearly spells out M/s Saibaba is a registered NBFC. It has not been disputed by the revenue that the share subscribing company is a regular income tax assessee. We note that assessment in respect of M/s Saibaba for AY 2014-15 has been completed u/s 143(3) of the Act and copy of which is placed at Page 170 to 175 of the Act. Moreover, it has been noted by the Ld. CIT(A) that this assessee company has received a loan of Rs. 3 lakhs. during the relevant assessment year from this share subscribing M/s Saibaba and has received loan aggregating to Rs. 15,13,50,000/- for (assessment year i.e. AY 2013-14) from the very same share subscribing company M/s Saibaba. Our attention was drawn to the fact that scrutiny assessment was completed by the AO of the assessee company wherein the said loan transaction [Rs 15.13 crores] has been accepted as genuine by the very same AO (by name and designation) who took adverse view of M/s Saibaba
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 in this relevant assessment year. So when the fact is that the share subscribing company M/s Saibaba has undergone scrutiny assessment u/s 143(3) for AY 2014-15 and M/s Saibaba’s action of giving loan of Rs. 15.13 crores to assessee company has been accepted by the very same AO for subsequent year i.e. AY 2013-14 in scrutiny assessment of assessee company for AY 2013-14, then it cannot be said that share subscribing company M/s Saibaba’s identity and creditworthiness can be doubted. Moreover, we note from a perusal of page 105 of PB which is the balance sheet of M/s Saibaba as on 31.03.2012, the share capital was to the tune of Rs. 2,15,73,250/- plus reserve and surplus to the tune of Rs. 35,87,43,750/- totaling to Rs. 38,03,17,000/-. Thus, it can be noted that M/s Saibaba had creditworthiness as on 31.03.2012 to invest Rs. 9.5 crores in the assessee company. Moreover, we note that M/s Saibaba had income from operation (business) for AY 2011-12 at Rs. 68,06,774/- and in this year Rs. 24,71,368/-. The copy of bank statement of M/s Saibaba is placed from page 47 to 52 which reveals that the share application money has been transferred from bank account of M/s Saibaba to the assessee company. Thus, there can be no doubt against the identity, creditworthiness and genuineness of M/s Saibaba. It is noted that the Ld. CIT(A) has clearly given a finding a fact that the share applicant company M/s Saibaba had enough fund for subscribing for shares in the assessee company which factual finding have not been challenged by the Revenue/Department in this appeal, so this finding of fact crystallizes. Therefore, we find no infirmity in the order passed by the Ld. CIT(A) and confirm the same.
In the result, appeal of the revenue is dismissed.
Order is pronounced in the open court on 09.12.2020.
Sd/- Sd/- (J(((J. S. Reddy) (A. T. Varkey) Accountant Member Judicial Member Dated: 09.12.2020 SB, Sr. PS
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ITA No. 1960/Kol/2017 M/s Nirnidhi Marketing Pvt. Ltd. A.Y. 2012-13 Copy of the order forwarded to:
Appellant- ACIT, Circle-5(2), Kolkata 2. Respondent- M/s Nirnidhi Marketing Pvt. Ltd., 150, Lenin Sarani, 2nd Floor, Kolkata-700013. 3. The CIT(A)- 2, Kolkata (sent through e-mail) 4. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)