DCIT, CIR-12(2), KOLKATA, KOLKATA vs. M/S P. N. MEMORIAL NEURO CENTRE & RESEARCH LTD., KOLKATA

ORDER Shri S.S. Godara, JM:

Heard both the parties. Case file perused.

2 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. Neon healthcare & Research Institute Ltd. The AO found that the appellant claimed to have received Rs.68,50,0001- by cheque, Rs.6 crores for supplying Medical Equipments and Rs.33,35,0001- on account of pathological tests conducted by the said concern. The AO issued notice u/s 131 which was duly served but was not complied with. The AO issued show cause notice dated 11.03.2013 to the assessee informing that the notice u/s 131 was not complied with and to explain the said credit. The appellant filed a reply on 19.03.2013 explaining the share capital credits of Neon Health care & Research Institute Ltd., submitted the copy of the bills for purchase of machineries from the said concern. The AO rejected the explanation of the appellant on the ground that the party did not comply with the summons and further on enquiry from the Registrar of Companies, it was informed by ROC that the name of such company was not available in MCA base. The AO, therefore, added back the sum of Rs.7,02,00,0001- as unexplained cash credit. 4.1. At the appellate stage, the AR of the appellant argued on the matter and filed written submission. The AR submitted that the appellant duly filed the details of the credit and that the sum of Rs. 68,50,000/-was received by account payee cheque and the bank statement was produced. It was submitted that the appellant also produced all the bills and evidences for purchase of machineries and equipments as well as the amount payable for pathological tests to the said party. It was submitted that the AO has not doubted the said purchase of Machinery and equipments or amount payable on account of pathological tests. It was also submitted that the said concern was an old shareholder of the appellant company holding 47.73% of the equity of the appellant company which was evident from the explanation filed on 19.3.2013. It was submitted that the AO has not disputed the explanation dated 19.3.2013. On my query with regard to the non availability of the name of the shareholder company in MCA site, it was explained that the AO did not raise the said issue in the course of assessment proceedings or in the show cause notice. It was submitted that the name of the shareholder company was changed to Desun Healthcare and Research Institute Ltd., and that this fact was also available from the purchase bills of Machinery, copy of which was duly filed before the AO. It was therefore submitted that the addition was not called for. It is submitted that AO was not justified in making the addition. In so far as the assessee was concerned, the receipt was proved. The Rs.68,50,000/ was received by account payee cheques for which the bank statements were produced, a copy of which 2

3 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. was also produced during the appellate proceedings. The remaining amount was on account of supply of equipments or for against the services rendered by them. The said sister concern supplied equipment of Rs.6,00,00,000/- on the orders from the assessee. The copies of the bills issued by the sister concern were filed before the AO, copy of which was also produced before me. It is apparent from the copies of the bills of the sister concern that they were filed before the AO. It is apparent from the copies of the bills of the sister concern that it contains the VAT, CST, Service tax Registration No. and more importantly the PAN. The AO went to enquire from the ROC but did not enquire from his own PAN Data. In any case the copy of the acknowledgement of filing of the I.T. Return by the said sister concern was filed along with the copy of its balance sheet. The data downloaded from MCA site are also filed which showed that the said sister concern have been regularly complying with the statutory requirements of the ROC and the information available with R was not correct. Moreover the AO has duly accepted the said purchase of equipments as well as the credits for pathological test bills raised by the sister concern for which the details were filed and after going through the same, depreciation on the said equipments have been allowed. The notice u/s. 133(6) and 131 were served which proved the existence of the sister concern. Out of the amount of Rs.7,02,20,000/-, shares were allotted to the extent of Rs.4 Crores and balance Rs.3,02,00,0001- was outstanding as at the end of the year the figures of which tally with the balance sheet of the said shareholder. The assessee duly explained the receipt after the show cause notice was issued by the AO. The AO, as it appears, have not properly looked into the MCA sites. In fact, the name of the company was Neon Health Care and Research Institute Limited which was changed to Desun Healthcare & Research Institute Ltd. on 12.9.2011. As required, the copy of the certificate issued by MCA and downloaded from ROC site was filed during the course of the appellate proceeding. The AO would have come to know this fact once the enquiry was made from PAN of the said company made available to the AO. It is therefore contended that the credit of the amount cannot be disputed or doubted and that in view of the above, the credit of Rs.7,02,00,000/- could not in any way attract any adverse observation by the AO.

4.2 I have considered the submissions of the AR of the appellant in the backdrop of the assessment order. I have also gone through the materials/documents as submitted which are on record. On a careful analysis of the rival contentions taking into account the materials on 3

4 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. record, my findings and decision thereon consequentially are as follows. There is no dispute to the fact the appellant has credited in its books of account a sum of Rs.7,02,00,000/- as share application money received from its sister concern M/s Neon Health Care & Research Institute Ltd. It is seen that in course of the assessment proceedings, the appellant filed the explanation dated 19.03.2013 which has not been contradicted by the AO. The major part of the contribution was from sue ply of machinery which has not been doubted by the AO and in fact, the AO has allowed depreciated on the said purchase of machinery and equipments. The AO has also allowed the expenses incurred by the appellant on pathological tests which was payable by the appellant. Apart from that the AO has also not disputed the fact that the said shareholder was holding 47.73% of the total equity shares of the company which was Rs.19,70,32,920/- as on 31.03.2009. As regards the non availability of the name of the company on MCA site, the AO did not raise any query in the course of assessment proceedings which on specific query raised by me was clarified by the assessee and evidence thereof was presented before me. I also find from the bills of machineries that the PAN of the shareholder company with their VAT, Service tax registration No. and CST numbers were mentioned. Therefore, if the AO had any doubt about the bonafide existence of the said shareholder company, he could have verified from the assessment records of the said company. It is quite apparent that the AO has simply relied on the information as available from the MCA site without making any further corroborative enquiry in this regard or in the alternative rejecting the explanation submitted by the appellant with cogent material evidences with regard to the identity and creditworthiness of the shareholder company. In view of the foregoing facts and circumstances, it is my considered opinion that the appellant had duly discharged its onus to prove the impugned credit. The AO has not come up with any convincing material or proposition that the impugned credit came within the purview of section 68 which would warrant the addition. On considering the material facts on record, I am unable to endorse the action of the AO in making the impugned addition of Rs.7,02,00,000/- which is therefore directed to be deleted. The AO is directed accordingly. “

5 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. rightly made in the course of assessment since the assessee failed to satisfy the three relevant parameters of identity, genuineness and creditworthiness of thereof.

5. It emerges from all the foregoing details assessee had in fact received supplies of equipments to the tune of Rs. 6 crores from its heading entity M/s. Neon Healthcare & Research Institute Limited and the said entity also carried out pathological tests amounting to Rs.3,35,000/- on its behalf. Learned counsel invited our attention to the fact that assessee’s foregoing detailed evidence(s) indicates that the amount of Rs.68,50,000/- had been received by a/c payee cheque(s) as per the corresponding bank statements and that the said entity holds assessee’s 47.73% stake. The Revenue fails to dispute the further clinching fact that assessee’s depreciation claim(s) on 5

6 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. medical equipments supplied forming subject matter of impugned addition averment also stood allowed during the course of assessment itself. This tribunal’s decision in M/s. ABA Earthline Communications Ltd v/s. ITO., Ward 1(4), Kolkata, ITA No. 1141/Kol/2017 A/y 2012-13 decided on 9-11-2018 holds that section 68 addition of unexplained cash credits in absence of actual cash credits/receipts is not sustainable as under:- “5. The facts in this case are not in dispute and the issue in question is a legal issue. Hence we dispose off the appeal on merits. We find that the assessee has filed before the Assessing Officer, details of share capital raised during the Financial Year 2012-13 along with Form No. 3 and list of allottees of shares. He filed the details giving the names of the share applicants, addresses, PAN Nos., number of shares issued, amount adjusted against share capital, amount adjusted against share premium and the total amount adjusted. 25,39,997 number of shares were raised during the year. Out of this for the Financial Year 2012-13 only 3,00,000 shares were issued for consideration in cash and 22,39,997 number of shares were issued for consideration other than cash. Notices u/s 133(6) of the Act, were issued by the Assessing Officer, to all the share applicants. These were duly replied by them, enclosing therewith with all the requisite information, directly to the Income tax Officer. These are placed from pages 81 to 171 of the paper book filed by the assessee.

"4. We have heard the rival submissions. At the outset; we find that the assessee had not raised any share capital by receipt of cash consideration in the instant case. The shares were issued for consideration other than cash in lieu of assessee company making investment in shares in some other company. Effectively, the assessee purchased certain shares from the aforesaid six shareholders and 6

7 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. instead of paying cash to them, assessee company issued shares in its own company to those shareholders. Hence the assessee had made investments in shares of another company for which consideration was settled through issuance of its shares to those shareholders. Now the crucial point is whether the provisions of section 68 could be invoked in the instant case for making investment towards share capital. There was no receipt of any sum as provided u/s 68 of the Act in the instant case. It would be pertinent here to refer to the decision of Hon 'ble Supreme Court in the case of Shri H.H. Rama Varma vs. CIT reported in 187 ITR 308 (SC) wherein it was held that 'any sum' means 'sum of money'. We find that Id. CIT(A) had deleted the addition by observing as under:

6. On consideration of the AR's submission, especially the portion reproduced above, it is seen that section 68 of I. T. Act, 1961 does not apply to cases of purchase of share assets and allotment of shares by the appellant when purchase and allotment are under a barter system. The AD has not refuted the appellant's claim that shares were allotted in exchange for acquisition of shares by the appellant from the companies which surrendered such shares to the appellant Though as per the AO to apply section 68 to make the said addition in the appellant's hand. Transactions purportedly executed by entry operators involve multiple layers and other complexities, introducing delays in introduction of unaccounted cash/money and multiple players being incorporated entities. Measures taken by the AO in the course of the assessment proceeding falls much short of what is required to be done in such case laws, which have evolved on this issue, call for concerted actions on the part of the AO pinpointing utilization of unexplained/unaccounted/untaxed money and the players and the beneficiaries effectively using the weblike scheme to plunder black money. For example introduction and use of black money in the present case may be at a different point of time and in different hands. The AO's action in the present case cannot be upheld in law. I, therefore, delete the additions and grounds of appeal Nos. 3 & 4 are allowed.

4.1. We find that the Hon 'ble Allahabad High Court in the case of CIT vs. Sohanlal Singhania reported in 235 ITR 616 (All) had held in the context of allowability of donation as deduction u/s 80G of the Act that the expression 'any sum paid' used in the said section denotes' sum of money paid' . Hence if certain shares were donated by a person, then the same would not fall eligible for deduction u/s 80G of the Act. We also 7

8 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. find that the Hon 'ble jurisdictional High Court in the case of Jatia Investment Company {Co.] vs. CIT reported in 206 ITR 718 (Cal) also supports the case of the assessee herein, wherein it was held as under:

"It is finally emphasised by learned counsel for the assessee that the ultimate result is that the firm becomes a debtor to GB and Co. and the three non-financial companies of the group got discharged. Learned counsel also emphasised that, at the worst, it can be said that the assessee-firm has received valuable assets being the said shares of the equivalent value of the debt taken over by it from the companies, i.e., Rs. 11.20 lakhs.

Therefore, the question of cash credit does not come in, there being no actual passing or receipt of cash. In other words, the transactions are mere book entries. It was contended that the fact that the entries passed through the cash book could not detract from or efface the essential nature of the entries. It was also urged that the entries were passed through the cash book so that the repayment of loans by the said three companies could be established before the Reserve Bank of India. But, according to Shri Bajoria, that does not mean that it amounts to an artifice employed to deceive any authorities, because the transactions showing the amount as received in cash and paid away spontaneously and simultaneously were not actual but only notional. He, however, stated that, as far as the question of section 68 is concerned, the nature of the transactions and the entries clearly show that no cash, in fact, flowed. It was further stressed that the transactions are above board. No outsider is involved. The entries were made in the books of the concerns of the same group. The shares in question were also of the companies of the group. There was no attempt at hiding the transactions. Nor is it the case of any of the parties to the transaction that there was any passing of cash. Every party unequivocally stated that the transactions were carried into effect merely by way of adjustments of the said loans and the share transfers.

Shri A. C. Moitra, the learned advocate for the Revenue, reiterated the grounds on which the Tribunal has affirmed the addition of the amount of Rs. 11.20 lakhs as unexplained cash credit He particularly emphasised that the assessee's contention that the entries are only adjustment entries is not acceptable, because the adjustment entries are not made through the cash book. It is an accepted principle of 8

9 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. accounting that book adjustments and the entries in effecting them are made by journal entries and not cash entries. He urged that the purported motive of the entries being the reduction of loans of the three limited companies does not explain the whole matter, because the entries are cash entries. The fact remains that, at every stage, the parties showed the payments and receipts of cash even when there was no cash available for such entries. This quite justifies the addition as sustained by the Tribunal.

We have perused the assessment order carefully. We find that cash did not pass at any stage though entries were made in the cash book showing payments and receipts; but since the entries made a complete round, no passing of cash was necessary for the purpose of making the entries. That there was no passing of cash is also admitted by the Income- tax Officer himself. We have already extracted the observation of the Income- tax Officer in paragraph 14 of his assessment order. The Income- tax Officer has clearly opined that all the respective parties did not receive cash nor did pay cash as none had any cash for the purpose. The only point in the assessment order is that the entries not involving the passing of cash should not have found a place in the cash book, but in the ledger account through journal entries. There is another self- contradiction in the Income-tax Officer's finding that, if there was no real cash entry on the credit side of the cash book, but merely a notional or fictitious cash entry, as admitted by him, there is no real credit of cash to its cash book; the question of inclusion of the amount of the entry as unexplained cash credit cannot arise.

One of the grounds of the Tribunal for disbelieving the assessee's case is that the adjustment entries were made by notional cash entries with a view to bringing down the debt-and-capital ratio, i.e., that while being discharged of the debt the said companies also jettisoned their assets, i.e., the shares held by them of equivalent sum without achieving the avowed purpose. Here the Tribunal certainly misdirected itself. The ratio to be reduced is of the loan in relation to the share capital and the reserves. jettisoning the shares had the desired effect of reducing the borrowed capital.

Again, as regards the Tribunal's refusal to take notice of the directions of the Reserve Bank, it is not correct for the Tribunal to hold that the said document was a new evidence in the true sense of the term. The assessee 9

10 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. has been consistently pleading before the lower authorities that the entries had to be made in order to bring the companies in conformity with the said direction. Moreover, the direction of the Reserve Bank is a public document within the meaning of section 74 of the Evidence Act, 1872. Documents of a public nature and public authority are generally admissible in evidence subject to the mode of proving them as laid down in sections 76 and 78 of the Evidence Act.

In our view, the effect and import of the transactions is that the assessee took over the liability of the aforesaid non-financial companies to GB and Co. in exchange for the shares as aforesaid. In the premises, we answer all the questions, in the affirmative and in favour of the assessee and against the Revenue."

4.2 It would be pertinent to note that in the instant case, the Id. AO had not doubted the investment made in shares by the assessee company. There is no dispute raised by the Id. AO with regard to number of shares; value thereon invested by the assessee company. We also find that the Co-ordinate Bench decision of Pune Tribunal in the case of Kantilal and Bros. vs. ACIT reported in 52 ITD 412 (Pune Trib.] also supports the case of the assessee.

4.3. In view of the aforesaid observations, in the facts and circumstances of the case and respectfully following the aforesaid judicial precedents relied upon hereinabove. we hold that the Id. AD had erroneously invoked the provisions of section 68 of the Act to the facts of the instant case, which, in our considered opinion, are not at all applicable herein. This is a simple case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and instead the consideration was settled through issuance of shares to the respective parties. Moreover, in the balance sheet of the assessee company in the schedule to share capital, it is very clearly mentioned by way of note that the fresh share capital was raised during the year for consideration other than cash. Hence we hold that provision of section 68 of the Act are not applicable in the instant case and accordingly the entire addition deserves to be deleted which has rightly been done by the Id. CIT(A) which does not require any interference. Accordingly, grounds raised by the revenue are dismissed."

11 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. 7. Applying the proposition of law laid down in the case-law cited above, to the facts of the case on hand, we delete the addition in question made u/s 68 of the Act.

6. We conclude in these facts that the CIT(A) has rightly deleted the impugned unexplained cash credits/share application money addition of Rs. 7.02 crores. The Revenue fails in its instant former substantive ground.

5.1. At the appellate stage, the AR of the appellant discussed the issue and also filed written submission. It was submitted that that the AO did not properly appreciate the provisions of sec. 79. The AR drew my attention to section 79 which is as under:

Notwithstanding anything contained in this Chapter, where a change in shareholding has taken place in a previous year in the case of a company, not being a company in which the public are substantially interested, no loss incurred in any year prior to the previous year shall be carried forward and set off against the income of the previous year unless - 11 (a) On the last day of the previous year the shares of the company carrying not less than fifty one percent of the voting power were beneficially held by persons who beneficially held shares of the company carrying not less than fifty one percent of the voting power on the last day of the year or years in which the loss was incurred: Provided that nothing contained in this voting power takes place in a previous year consequent upon the death of a shareholder or on account of transfer of shares by way of gift to any relative of the shareholder making such gift. Provided further that nothing contained in this section shall apply to any change in the shareholding of an Indian company which is a subsidiary of a foreign company as a result of amalgamation or demerger of a foreign company subject to the condition that fifty one percent shareholders of the amalgamating or demerged foreign company continue to be the shareholders of the amalgamated or the resulting foreign company.

It was submitted that if 51 % of the shareholder continues to be the same in the year in which the loss was incurred and in the year of set off then the loss is be allowed set off. It was submitted that the loss being depreciation loss was for the assessment year 2009-10 when more than 51% of the shares of the company were held by XL Enterprises (27.34% and Neon Health Care (47.73%) and that in the assessment year 2010- 11 these two shareholders held 26.02% and 53.87% of the shares leaving aside other shareholder who also continued to be shareholders in the company. Therefore both in the year of loss and in the assessment year in question same shareholder held more than 51 % of the shares. It was submitted that this fact was brought to the notice of the AO vide letter filed on 19.3.2013. It was therefore submitted that the action of the AO was not in accordance with law.

5.2. On a careful consideration of the rival contentions in the backdrop of the material on record, my findings and decision thereon consequentially are as follows. It is apparent that more than 51 % of the shareholders continued to be the same both in AYs 2009-10 and 2010- 11. The requirement of law is that 51% of the voting powers should be held by the same persons. There is no deviation in the same. Even otherwise, provision of section 79 is not applicable on the loss brought forward on account of depreciation as has been held by the Hon'ble 12

13 A.Y 2010-11 M/s. P.N. Memorial Neuro Centre & Research Ltd. Supreme Court in the case of Shri Subhulaxmi Mills Ltd. 249 ITR 795 (Se). In view of this, the AO is directed to allow the set off after due verification in this regard based on material facts. This ground is allowed statistically.”

8. We notice herein as well that assessee’s shareholders to the extent of 51% of its stake i.e M/s. XL Enterprises and M/s. Neon Health Care had admittedly held 27.34% and 47.73% of its stake in preceding assessment year and 26.02% and 53.87% in the impugned assessment year; respectively. Coupled with this, the CIT(A) has also held that hon’ble apex court’s decision (supra) settled the law long back that section 79 of the Act does not apply on brought forward losses on account of depreciation. We therefore affirm the CIT(A)’s findings for this latter issue as well.

1. 1. Appellant/Department: DCIT, Cir-12(2), Aaykar Bhawan, P-7, Chowringhee Sq., 6th Fl., Kolkata-69.

2. Respondent/Assessee: M/s. P.N. Memorial Neuro Centre & Research Ltd 8/1A/1 Keyatala Road, Kolkata-29. 3..C.I.T(A).- 4. C.I.T.- Kolkata.

5. CIT(DR), Kolkata Benches, Kolkata.