ITO, WARD-10(2), KOLKATA, KOLKATA vs M/S MOONDHARA MERCANTILE PVT. LIMITED, KOLKATA

Income Tax Appellate Tribunal, “C” BENCH : KOLKATA

Before: Hon’ble Shri S.S. Godara, JM & Hon’ble Shri Dr. Arjun Lal Saini, AM]

ORDER Shri S.S. Godara, JM:

This Revenue’s appeal for assessment year 2012-13 arises against the CIT(A), 4, Kolkata’s order dated 04-07-2016 passed in case no. 863/CIT(A)-4/Ward- 10(2)/Kol/15-16 involving proceedings u/s 143(3) of the I.T Act, 1961 (in short ‘Act’) . Heard both the parties. Case file perused.

The Revenue’s sole substantive ground/grievance raised in the instant appeal challenging the correctness of CIT(A)’s action reversing the assessment findings treating the assessee’s share application/premium amounting to Rs.1,01,00,000/-as unexplained cash credits made in assessment order dated 23-03-2015. The CIT(A)’s detailed discussion to this effect reads as under:- 4.2. I have considered the submissions of the issue raised in the assessment order in the light of the arguments made by the appellant. The only issue involved is whether the share application money with share premium aggregating to Rs.6,00,00,000/- received by the appellant invite

M/s. Moondhara Mercantile Pvt. Ltd the mischief of the provisions of s. 68 of the Act or not. I find from record that during the year the assessee company raised Equity Share Capital along with premium totaling to Rs.6,00,00,000/-. Accordingly I confine my attention to addition of Rs. 6,00,00,000/- as unexplained cash credit u/s 68 of Income Tax Act, 1961. Section 68 is reproduced as follows: - "68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the f3ssessee of that previous year. "

4.3. According to this section, if identity, creditworthiness of the creditor and genuineness of the transaction is not proved or the explanation offered by the assessee is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as income of the assessee of that previous year. In the instant case, the appellant had disclosed receipt of share application money including share premium money of Rs.6,00,00,000/- from various share applicants. It is observed that the addition was made with the predetermined mindset that share application monies received by the appellant is not genuine as identity and creditworthiness of the shareholders were bogus in nature as they did not exist and the transactions were an eyewash only for bringing its black money into circulation without paying any tax to the revenue. Each of the share subscribers is regularly assessed to income tax; and the investments made by each of them are duly and fully reflected in their audited books of accounts as well as their income tax return. The appellant had duly filed its return of total income u/s 139(1) of the Act in respect of the AY 2012-13. In the course of the assessment proceedings, the appellant in response to the requisitions made by the AO, from time to time, produced its audited books of accounts, filed copies of its audited annual accounts including various details and other documents as desired by the AO. The details and documents so produced and filed with the AO included, inter alia, full details of each of the share applicants, who had subscribed to the aggregate share capital as well as share premium money raised by the appellant during the assessment year under appeal. The AO, on receipt of the aforesaid details from the appellant, issued notices u/s 133(6) of the Act to the share subscribers. The replies M/s. Moondhara Mercantile Pvt. Ltd

M/s. Moondhara Mercantile Pvt. Ltd received in response thereto by him from such share applicants were not considered by the AO. He doubted the genuineness of the said share capital and the creditworthiness of the share applicants and added the sum of Rs.6,00,00,000/- in respect of the entire share capital the total income of the appellant u/s 68 of the Act on the premise that the said amounts represented unexplained cash credits which ultimately should form part of the total income of the assessee for the year under consideration.

4.4. It is observed that that the AO had issued notices u/s 133(6) of the Act, to each of the share applicants. Such notices were duly served upon the respective share applicants at their respective addresses on the records of the appellant. Service of such notices u/s 133(6) of the Act to each of the share applicants at their respective known addresses proves their respective identities. It is further observed that the corporate share applicants are registered under the Companies Act, 1956 and are on the records of Registrar of Companies functioning under Ministry of Corporate Affairs, Government of India and the individuals are having Permanent Account Numbers. In fact, each of the share applicants has responded to the statutory notices issued to them u/s 133(6) of the Act. In their respective replies, the share applicants had disclosed, inter alia, their Permanent Account Numbers along with the acknowledgment of submission of their return of income and furnished audit report and financial statements which in my humble opinion proves their identities to the hilt. It is also observed that each of the share applicants maintained bank accounts; and copies of their respective bank accounts from which they made payments to the appellant for subscribing to the shares issued to them, was filed by each of them before the AO. Further, each of the share applicants accepted the fact that they had subscribed to the shares issued by the appellant; and that such transactions were duly reflected in their respective books of accounts, as well as in their audited Balance Sheets. These facts, in my opinion, clearly prove the genuineness of the transactions. 4.5. It is also observed that each of the share applicants explained the source of funds in their respective replies to notice u/s 133(6) of the Act, from which they made payments to the appellant for subscribing to its share capital. The facts furnished on record by the share applicants, in my opinion, clearly prove their source of funds, and their capacity for making such payments and accordingly, the criteria of their M/s. Moondhara Mercantile Pvt. Ltd

M/s. Moondhara Mercantile Pvt. Ltd creditworthiness is proved. The AO has not found any defect and/or deficiency in the source of funds explained by the share applicants through their replies to the statutory notices issued u/s 133(6) of the Act to them and accordingly, this precondition is also satisfied in the circumstances. 4.6. It is also observed that every share applicant in their respective replies to the statutory notices issued u/s 133(6) of the Act, furnished copies of their income tax acknowledgments evidencing filing of income tax returns by each of them, copies of their audited accounts including Balance Sheets wherein such investments made by each of them in the subscription of share capital issued by the appellant are duly reflected as also copies of their bank statements for the relevant period from which such subscription monies were paid by them respectively and copy of the allotment advise received by them from the appellant in respect of shares allotted to them. The return of allotment as well as the annual return for the assessment year 2012-13 filed by the appellant with the Registrar of Companies, Ministry of Corporate Affairs, further categorically proves the fact of allotment of shares to the share applicants. It is further observed that the net worth of the each of the share applicants, as disclosed in their Balance Sheets, far exceeded the amount of investments made by them in the shares of the appellant company. It is accordingly observed that it adequately prove their creditworthiness to make investment in the share capital of the appellant. The aforesaid facts underlined by evidences clearly prove the identity of the share applicants, their capacity and source of funds, as well as the genuineness of the transactions in relation to the share capital issued by the appellant, which was subscribed to by each of them. Thus, it is proved beyond any doubt or dispute that the share applicants are actually found to have subscribed to the share capital issued by the appellant, in the impugned previous year relevant to the assessment year under appeal, as clearly evident not only from their respective books of accounts, but also from their audited accounts filed with the income tax authorities in relation to their own income tax assessments, and the sources of such funds are also explained by each of the share applicants in their replies addressed to the AO. However, the AO had not brought these indisputable facts on record but acted on his whims and fancies. It is observed that the burden which lay on the appellant, in relation to s. 68 of the Act, has been duly discharged by it and nothing further remains to be proved by it on the issue. There is no evidence on record to show that the identities of the share applicants M/s. Moondhara Mercantile Pvt. Ltd

M/s. Moondhara Mercantile Pvt. Ltd are not proved and/or that the introduction of share capital by them was not genuine and/or the source of investment was not fully explained to the satisfaction of the AO. Since the conditions precedent for discharging of burden under the provisions of s. 68 of the Act are met with adequate evidence, the addition made under such pretext deserves to be deleted.

4.7. Further the Hon'ble Supreme Court in CIT vs. Lovely Exports Ltd. (2008) 216 CTR 195 (SC) wherein has held as under: - "2. Can the amount of share money be regarded as undisclosed income under section 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. "

In other words, it is observed that if share application money is received by an assessee from subscribers, whose names are given to the AO, are allegedly bogus, then the Revenue is free to proceed to reopen their individual assessments in accordance with law. The facts of the present are on a better footing to the one as decided above. In the instant case, all the share applicants had confirmed their investment with the appellant and as such, there was no basis for the AO to come to any adverse conclusion and accordingly, the entire amount received by the appellant on account of share application as well as share premium monies cannot be regarded as undisclosed income u/s 68 of Act. 4.8 Therefore, considering the totality of the facts and circumstances of the case, I find substance in the argument of the AR that the appellant has made it case that the identity of the share applicants are established beyond doubt and on enquiries made by the AO there is no adverse finding reached on this aspect. Admittedly, all the share applicants are existing assessees under the Act which establishes the identity and authenticity of the share applicants. About the genuineness of the transactions, there is no any adverse finding in the assessment order which is distinct to the facts brought on record by the appellant during the course of assessment proceeding. The creditworthiness of the share applicants as regards their subscription to the share capital is proved by submission of their return, audited annual accounts, their bank statement and replies to notices u/s 133(6) of the Act as depicted hereinabove. The net worth of such M/s. Moondhara Mercantile Pvt. Ltd

M/s. Moondhara Mercantile Pvt. Ltd subscribers is in excess of the amount invested by each of them as explained hereinabove. The addition made by AO is based on extraneous parameters not germane for deciding the issue. The AO had not dealt with the issue judiciously and consistently with the evidence adduced during the course of the assessment proceedings by the appellant and the replies of the share applicants in respect of the share capital do not warrant the inference that such share application monies received is unaccounted cash credit. Hence, I am inclined to accept the arguments tendered by the AR of the appellant in this respect. In view of the above, I have no hesitation to hold that the impugned addition made by invoking the provisions of s. 68 by the AO is not justified in the circumstances and accordingly, direct him to delete such addition of Rs.6,00,00,000/- made on this account. Thus, these grounds are allowed.”

We have given our thoughtful consideration to the rival contentions and carefully gone through the facts of the case and the orders of the lower authorities. Mr. Srihari, CIT/ld.DR/the Revenue vehemently contends during the course of hearing the Assessing Officer had rightly made the impugned addition of unexplained cash credits on account of assessee’s failure in not providing/proving the identity/genuineness/creditworthiness of its share applicants/subscribers. He invites our attention to the assessment order to this effect making it clear that assessee’s directors had failed to appear in compliance to section 131 process during the course of scrutiny much less than producing the premium investor party(ies) before the Assessing Officer for necessary verification. The ld. AR fails to dispute this clinching factual position. We conclude in these peculiar facts that the instant sole issue of genuineness/creditworthiness of the assessee’s share application/premium needs afresh adjudication at the Assessing Officer’s end as per law. We order accordingly.

M/s. Moondhara Mercantile Pvt. Ltd

This Revenue’s appeal is allowed for statistical purpose in above terms. Order pronounced in the Court on 15 -05-2019 Sd/- Sd/- [ Dr. Arjun Lal Saini ] [ S.S.Godara ] Accountant Member Judicial Member Dated : 15-05-2019 **PRADIP, Sr. PS Copy of the order forwarded to:

1. 1. Appellant/Department: Income Tax Officer, Ward 10(2), P-7 Chowringhee Sq., 3rd Fl., Kolkata-69.

2. Respondent/Assessee: M/s. Moondhara Mercantile Pvt. Ltd.63/3B Sarat Bose Road, Kolkata-25. 3..C.I.T(A).- 4. C.I.T.- Kolkata.

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

ITO, WARD-10(2), KOLKATA, KOLKATA vs. M/S MOONDHARA MERCANTILE PVT. LIMITED, KOLKATA