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Income Tax Appellate Tribunal, MUMBAI BENCH “H” MUMBAI
Before: SHRI C.N. PRASAD & SHRI N.K. PRADHAN
ORDER
PER N.K. PRADHAN, AM
This is an appeal filed by the assessee. The relevant assessment year is 2007-08. The appeal is directed against the order of the Commissioner of Income Tax-12, Mumbai [in short ‘CIT(A)’] and arises out of the assessment completed u/s 143(3) r.w.s. 147 of the Income Tax Act 1961, (the ‘Act’).
The 1st ground of appeal
In the facts and the circumstances of the case and in law, the AO erred in passing the order u/s 143(3) r.w.s. 147 and therefore rendering the Jagson Carriers Pvt. Ltd. 3rd party statement.
3. In a nutshell, the facts are that the appellant, a transporter filed its return of income for the assessment year (AY) 2007-08 on 31.10.2007 declaring total income of Rs.26,96,460/-. During the course of search and seizure action conducted by the Department u/s 132 of the Act in the case of Mahasagar Securities Pvt. Ltd. (later on known as Alag Securities Pvt. Ltd.) and its group companies headed by Shri Mukesh Choksi, it was found that the appellant had taken entries of share application money from the above group. The information in respect of the appellant pertains to introduction of capital by way of share application money ploughed into three concerns belonging to Shri Choksi and two individuals closely related to him. On the basis of the above information, the AO issued notice u/s 148 of the Act. In appeal, the Ld. CIT(A) has decided the issue on merit, as the above ground of appeal was not before her for adjudication. Before us, the Ld. counsel of the assessee submits that the notice u/s 148 issued by the AO is bad in law as it was based on borrowed satisfaction, surmises and on the basis of third party statement. On the other hand, the Ld. DR supports the reopening done by the AO by issuing notice u/s 148.
4. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decision are given below.
Jagson Carriers Pvt. Ltd. In the instant case, the return of income filed by the assessee on 31.10.2007 was processed u/s 143(1) of the Act. Thereafter, on the basis of the findings of search action u/s 132 in the case of Mahasagar Securities Pvt. Ltd., the AO reopened the assessment on the basis of the reason that the appellant had obtained accommodation entries of share application money from Shri Choksi and his group companies. In the case of ACIT v. Rajesh Jhaveri Stock Brokers P. Ltd. 291 ITR 500 (SC), it has been held by the Hon’ble Supreme Court that intimation u/s 143(1)(a) is not an assessment and therefore, held the notice issued u/s 148 as valid. In view of the above position of law, we uphold the action of the AO in issuing notice u/s 148 and dismiss the 1st ground of appeal
5. The 2nd ground of appeal In the facts and circumstances of the case and in law, the AO erred in adding Rs.20,00,000/- in respect of alleged unexplained cash credit u/s 68 even though all the details were filed. The 3rd ground of appeal In the facts and circumstances of the case and in law, the AO erred in addition Rs.20,00,000/- even though the payments were received by A/C Payee Cheques from the disclosed bank accounts and without issuing notice u/s 133(6) or without issuing summons u/s 131 and relying upon third party statement.
6. The above two grounds of appeal are discussed together below as they address a common issue. As per the findings of the said search Jagson Carriers Pvt. Ltd. AO observed that the appellant, during the year under consideration, had obtained share application money as under:
Name of Mukesh Choksi’s Co. Amount F.Y Buniyad Chemicals Ltd. 10,00,000 2006-07 Talent Infoway Ltd. 10,00,000 2006-07 Total 20,00,000 During the course of assessment proceedings, the AO observed that the assessee failed to substantiate the introduction of share application money by documentary evidence such a bank statement, bank book/cash book, share issue register, details regarding date of allotment and date of subsequent transfer, copies of share certificate, share transfer forms, minutes of AGM approving issue of shares, attendance register for the AGM etc. Also the AO observed that the documents placed on record by the assessee contained contradictory data that were not coherent and consistent. Therefore, the AO made an addition of Rs.20,00,000/- as unexplained credit u/s 68 of the Act.
In appeal before the Ld. CIT(A), the appellant made an application u/s 46A for admission of additional evidence. After considering the same, the Ld. CIT(A) called for a remand report from the AO after making necessary inquiries. The remand report submitted by the AO dated 08.09.2015 has been extracted by the Ld. CIT(A) at page 2-7 of the appellate order dated 03.03.2016. The rebuttal to the remand report filed by the appellant has also been extracted at page 8-14 of the said Jagson Carriers Pvt. Ltd. order. Having examined the above, the Ld. CIT(A) observed that (i) it was accepted by Shri Choksi that his related concerns were bogus and they were involved in the activity of giving fraudulent bills and were involved in the business of providing bogus speculation profit/loss, long term capital gain/loss etc., (ii) the details submitted are self-created evidences and copy of bogus bills are invariably available, (iii) correct documentary evidence is required which was not submitted by the assessee, (iv) even the appellant has not established that these investors have any profit motive to invest in the company, (v) nearly seven years have passed but the appellant is still not in a position to establish that the so-called investor had any profit motive, (vi) the appellant has not established/justified for the charging of share premium. Thereafter relying on the decision in CIT v. JD Italia (1993) 141 ITR 948, Eklingji Trust v. CIT (1986) 158 ITR 810 (Raj), CIT v. Nova Promoters and Finlease (2012) 342 ITR 169 (Del) and CIT v. Durga Prasad More 82 ITR 540 (SC), the Ld. CIT(A) sustained the addition of Rs.20,00,000/- made by the AO u/s 68 of the Act on the reason that the appellant failed to establish the genuineness of the transactions and true nature of the entries.
Before us, the Ld. counsel of the assessee files a Paper Book (P/B) containing (i) computation of income & ITR-V, (ii) copy of ITR-VI with names of shareholders, (iii) audited set of accounts, (iv) tax audit report, (v) copy of assessment order & demand notice, (vi) share application forms, (vii) share allotment letters, (viii) Form No. 2 with list of allottees with ROC challan, (ix) Form No. 5 for increasing capital, (x) bank Jagson Carriers Pvt. Ltd. (xi) confirmations of shareholders, (xii) ITR-VI & balance sheets of shareholders, (xiii) ledger copy of share capital, (xiv) annual return along with name of shareholders and (xv) remand report by ITO and copy of response to remand reports submitted. The Ld. counsel submits that the above documents in complete were filed before the AO during the remand proceedings. Regarding the comment made by the AO in the remand report alleging that genuineness of transaction has not been established in the present case, the Ld. counsel submits that (i) the appellant had accepted the share application from M/s Buniyad Chemical Ltd. of Rs.10,00,000/- and from M/s Talent Infoway Ltd. of Rs.10,00,000/- and 25,000 equity shares allotted to each party on 10.03.2008; the appellant is not concerned with Choksi group, (ii) since the Director of M/s Buniyad Chemical Ltd. and M/s Talent Infoway Ltd. agreed to invest in the share of the appellant company at a reasonable premium, the assessee accepted their proposal, (iii) after that they sent the share application form along with account payee cheques (iv) the AO has wrongly alleged that Form No. 2 of the Registrar of Companies is not having the investor name; whereas the name of both the investors is appearing therein, (v) the AO has wrongly alleged that the data as per Form 2, return of income and balance sheet are all different; the fact is in Form 2, the investor name i.e. M/s Buniayd Chemical Ltd. and M/s Talent Infoway Ltd. as well as share allotment details of Rs.20,00,000/- are appearing, in the return of income, only computation of income appears which does not contain Jagson Carriers Pvt. Ltd. share allotment transactions, in the balance sheet, cumulative figures of paid up capital and share premium account are appearing, (vi) the AO has wrongly concluded that the sources of share application money with premium is assessee’s own unaccounted cash, without any evidence, (vii) the minutes of meeting, resolution passed, share register are statutory requirement under the Companies Act, 1956 and the assessee has maintained and submitted, (xiii) the share application was received of Rs.5,00,000/- on 21.03.2007 and Rs.5,00,000/- on 23.02.2007 from M/s Buniyad Chemical Ltd. and of Rs.5,00,000/- on 21.03.2007 and Rs.5,00,000/- on 23.03.2007 from M/s Talent Infoway Ltd., (ix) the AO has wrongly alleged that the balance sheet as at 31.03.2007 does not reflect either the sum in question, whereas Rs.20,00,000/- was shown in liabilities side of balance sheet under the main head ‘current liabilities’, sub-head ‘share application money received’ (Schedule-9), (x) as per the provisions of the Companies Act, 1956, Form 2 must be filed within 30 days when the Board of Directors approves the allotment of shares. since the matter was pending with the Board of Directors and the matter came for agenda in March 2008, accordingly Form 2 was filed with the Registrar of Companies on 28.03.2008, (xi) the AO has wrongly alleged that there is difference between Form 2 and Annexure to Form 2. In Form 2 and its Annexure, investor names i.e. M/s Buniyad Chemical Ltd. and M/s Talent Infoway Ltd. as well as share allotment details of Rs.20,00,000/- are appearing, (xii) shareholding pattern is also reported in Annual Return under the Companies Act, 1956; the AO has not specifically asked for this, (xiii) the expenses towards share subscription, share ratio are booked under general office expenses.
Jagson Carriers Pvt. Ltd. Thus the Ld. counsel concludes that the addition of Rs.20,00,000/- made by the AO u/s 68 be deleted.
On the other hand, the Ld. DR submits that the findings from the search action u/s 132 of the Act conducted in the case of Mahasagar Securities Pvt. Ltd. clearly indicates that the appellant-company had obtained accommodation entries of share application money from Mr. Choksi and his group companies. Relying on the findings of the Ld. CIT(A) that the correct documentary evidence in the present case were not filed by the assessee, the Ld. DR supports the order confirming the addition of Rs.20,00,000/- made by the AO u/s 68 of the Act.
We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We are of the considered view that the above contentious issue could be resolved through a combined reading of the remand report dated 08.09.2015 filed by the AO and its rebuttal filed by the assessee before the Ld. CIT(A) along with the related documents. Admittedly, the appellant had received share application from M/s Buniyad Chemical Ltd. of Rs.10,00,000/- and from M/s Talent Infoway Ltd. of Rs.10,00,000/- and 25,000 equity shares were allotted to each party on 10.03.2008. The appellant has correctly filed Form 2 before the Registrar of Companies. In the said Form, investor name i.e. M/s Buniyad Chemical Ltd. and M/s Talent Infoway Ltd. as well as share allotment details of Rs.20,00,000/- are appearing. The share application was received of Rs.5,00,000/- on 21.03.2007 and Rs.5,00,000/- on 23.03.2007 from M/s Buniyad Chemical Ltd. and of Rs.5,00,000/- on