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Income Tax Appellate Tribunal, “C” BENCH : KOLKATA
Before: Hon’ble Shri A T Varkey, JM, & Shri M.Balaganesh, AM]
This appeal by the Revenue arises out of the order of the Learned Commissioner of Income Tax(Appeals)-4, Kolkata [in short the ld CIT(A)] in Appeal No. 247/ CIT(A)- 4/Ward-10(4)/Kol/15-16 dated 26.05.2016 against the order passed by the ITO, Ward- 10(4), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 12.03.2015 for the Assessment Year 2012-13.
The first issue to be decided in this appeal is as to whether the ld CITA was justified in deleting the addition made in the sum of Rs 1,98,00,000/- towards share premium u/s 68 of the Act in the facts and circumstances of the case.
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 3. The brief facts of this appeal are that the assessee company filed its return for the Asst Year 2012-13 on 22.9.2012 declaring total income of Rs 3,46,856/-. The ld. AO observed that since there was no substantial business activity except profit on sale of investment carried on by the assessee, the assessee company cannot command huge share premium. Accordingly he sought to verify the veracity of the share capital and share premium raised by the assessee. The assessee submitted that it is engaged in the business of investment in unquoted equity shares of companies and properties. The assessee raised share capital and share premium from 18 corporate entities. The assessee company issued 220000 equity shares of Rs 10 each at a premium of Rs 90 per share totaling to Rs 2,20,00,000/-. Out of this, total sum of Rs. 2,20,00,000/- a sum of Rs. 22,00,000/- was attributed towards share capital and remaining sum of Rs. 1,98,00,000/- was attributed towards share premium. The ld AO admitted in his order that in support of share subscriptions received , the assessee company had furnished documents supporting the payment of share subscription amounts by share subscribers. Notice u/s 133(6) of the Act were issued to all the shareholders which were duly replied by them directly before the ld. AO. The ld. AO observed that reply sent by the share holders were almost identical in style and submitted almost at the same point of time. Even address of the registered office of some of the companies were same with common directors. Accordingly, the ld. AO alleged on the connivance of the assessee with the shareholder companies. The summons u/s 131 of the Act was issued to the directors of the assessee company to examine the receipt of premium and the assessee was also directed to produce the directors of the share holder companies for examination of identity, genuineness of transactions and creditworthiness of the investors. The ld. AO observed that the summons issued u/s 131 of the Act remained uncomplied and the assessee did not produce the directors of the investor companies before the ld AO. For non-compliance of the summons u/s 131 of the Act, by not producing the directors of the share holder companies, the ld. AO concluded that the share premium raised by the assessee in the sum of Rs. 1,98,00,000/- as unexplained cash credit u/s 68 of the Act. 2
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 The ld. AO however accepted the receipt of share capital in the sum of Rs. 22,00,000/- from the very same shareholders as genuine in the assessment.
The assessee pleaded before the ld. CIT(A) that it had furnished various documentary evidences substantiating the share capital along with share premium. The documents so furnished inter alia included copies of letters of allotment, copies of relevant bank statements in respect of accounts from which share application monies were paid, PAN and address of the share subscribers for the year ended 31.3.2012, explanation regarding the immediate source of payment of share application monies, audited financial statements and ITR acknowledgements for filing of return for Asst Year 2012-13 of the share applicants. The assessee also furnished a copy of return filed, allotment of shares in form no. 2 filed with ROC. The assessee also submitted each of the assessee subscriber company was regularly assessed to income tax and the payments towards share capital and share premium amounts were made by them to the assessee through their respective bank accounts. It was also submitted that the notice issued u/s 133(6) of the Act to the share subscribers independently were duly complied with by them before the ld. AO. It was submitted that the summons u/s 131 of the Act was issued asking the directors of the assessee company to appear before the ld AO. The director of the assessee company appeared before the ld AO for giving his deposition along with his identity proof, copy of bank statement of the assessee company supported by the bank ledger and share subscribers’ ledger but the ld AO did not gave him an opportunity to present his case before him. Later the director of the assessee company furnished the explanation and the details called for in summons u/s 131 of the Act in writing as directed by the ld AO. It was pleaded that apart from the aforesaid documents, confirmations together with explanation with regard to immediate sources of payment of share premium were also furnished before the ld. AO. It was pleaded that the assessee also placed on record the fact that the investor companies had sufficient investible funds to make investment in the assessee company thereby proving their 3
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 creditworthiness beyond doubt. It was submitted that from the aforesaid documents and evidences, the identity and creditworthiness of the share subscribers stand conclusively proved together with the genuineness of the transaction. It was submitted that the share subscribers had even established the source of source of funds in the instant case. No lacuna, infirmity, falsity or defect was established or proved in the evidences placed on record nor was the ld. AO able to prove any falsity in the explanation furnished by the share applicants in respect of source and/or the source of source of investments. It was pleaded that the ld AO’s sole premise for making the addition was that the assessee failed to justify the reasons for issuing shares at a premium was contrary to the jurisdictional facts available on record. All the shares which were issued by the company were at the same value to all the shareholders. It was the joint call of all the subscribing shareholders to decide the value of the share issue. All the shareholders consented to the same and accordingly it was issued at the same value. There was no discrimination whatsoever. It was pointed out that there was no bar in the Companies Act, 1956 to issue shares at a premium especially when all the shareholders are being charged the same price. It was submitted that the assessee also did not want to have a large equity base since the servicing cost would have also been correspondingly high. The assessee was contemplating to make an Initial Public Offer (IPO) in future. If the assessee had created a large equity base, then the servicing cost by way of dividend would have been substantially high. The assessee therefore wanted to reduce the servicing cost of equity capital base and therefore shares having face value of Rs 10 each were issued at premium of Rs 90 per share. The assessee placed reliance on the decision of various High Courts including Hon’ble Jurisdictional High Court in support of its contentions. The assessee specifically argued before the Ld. CIT(A) that the allotment of shares at a premium cannot be considered as sham or income of the assessee. It was pleaded that in the instant case, the assessee had even justified with cogent reasons for issuance of shares at premium and that the premium was charged at the same rate for all the shareholders. 4
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13
The Ld. CIT(A) observed that the ld. AO had adjudicated the issue with a pre- determined state of mind that the share premium received by the assessee is not genuine. He also observed that the ld. AO held that the shareholders did not exist and the transactions were accordingly an eye wash only for bringing the black money of the assessee only into the company in the garb of share capital and share premium. The Ld. CIT(A) gave a categorical finding that each of the share subscribers are regularly assessed to income tax and that the investments made by each of them were duly and fully reflected in their audited books of accounts as well as in their income tax returns which are part of the paper book. The notices u/s 133(6) of the Act issued by the ld. AO to each of the share subscribers also stood duly complied with. He held that each of the share applicants maintained bank statement , from where, it is evident that all the transactions were routed through proper banking channels and duly reflected in their respective books of accounts which proves the genuineness of the transaction beyond doubt. He also observed that all the share applicants explained their respective source of funds in their replies to 133(6) notice directly before the ld. AO and that the net worth of each of the share subscribers are far higher than the amount of investments made by them in the assessee company, which clearly proved the creditworthiness of the share subscribers to make investments in the assessee company. He held that the very fact that notices u/s 133(6) were duly served on the respective share subscribers and that they were duly replied with by them directly before the ld. AO, proves their identity beyond doubt. Hence, he held that all the three ingredients of section 68 namely the identity of the share subscribers, creditworthiness of the share subscribers and genuineness of the transaction were proved in the instant case by the assessee.
5.1. The Ld. CIT(A) gave a categorical finding that the ld. AO had not doubted the identity and creditworthiness of the share subscribers and the genuineness of the transactions in respect of receipt of share capital in the sum of Rs. 22,00,000/-. While 5
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 that is so, how can the same be doubted for the purpose of receipt of share premium alone. Accordingly he deleted the addition made on account of share premium to the tune of Rs. 1,98,00,000/- for the year under appeal. Aggrieved the revenue is in appeal before us.
We have heard the rival submissions. The fact stated hereinabove remain undisputed before us by either of the parties and hence the same are not reiterated for the sake of brevity. At the outset, we find that the assessee had received share capital of Rs. 22,00,000/- from 18 corporate entities and Rs. 1,98,00,000/- from the very same shareholders towards share premium. The share capital received by the assessee has been duly accepted by the ld. AO within the ken of section 68 of the Act. However, share premium component has been doubted by the ld. AO. We find that the assessee in the instant case had duly complied with by furnishing the complete details of share subscribers to prove their identity, genuineness of the transaction and creditworthiness of share subscribers beyond doubt. These are duly supported by the documentary evidences. The ld. AO had not found any falsity or any adverse inference of the said documents. We find that the Ld. CIT(A) had placed heavy reliance on these documents and had granted relief to the assessee. All the share subscribers are duly assessed to income tax and the transaction with the assessee company are duly routed through banking channels and are duly reflected in their respective audited balance sheets which are also placed on record before us. In any case, once the receipt of share capital has been accepted as genuine within the ken of section 68 of the Act, there is no reason for the ld. AO to doubt the share premium component received from the very same shareholders as bogus. We held that all the three necessary ingredients of section 68 had been duly complied with by the assessee with proper documentary evidences. We find that notices issued u/s 133(6) have been duly complied with. We find that the director of the assessee company was present before the ld AO and the assessee had submitted that the ld AO had informed them to file the necessary details called for in the summons u/s 6
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 131 of the Act in his office through proper mode in tapal, which was accordingly done by him. It was also submitted that the director of the assessee company offered himself for deposition which was refused by the ld AO. This fact was not controverted by the revenue before us. In our considered opinion, for this reason alone, there cannot be any addition u/s 68 of the Act in the facts of the instant case. We find that the decision of Hon’ble Delhi High Court in the case of Novo Promoters and Finelease Pvt. Ltd. reported in 342 ITR 169 (Del) vehemently relied upon by the ld. DR before us, is not applicable in the instant case, as in the facts before the Hon’ble Delhi High Court, the notices u/s 133(6) have not been duly complied with. Hence the decision rendered by the Hon’ble Delhi High Court in the case referred to supra is not applicable to the facts of the instant case and is factually distinghuishable..
6.1. We find that the reliance placed by the ld. AR in the decision of Hon’ble Bombay High Court in Pr. CIT vs. Apeak Infotech reported in 88 Taxmann.com 695 dt 08.06.2017 wherein the question raised before the Hon’ble Bombay High Court are as under: “A. Whether on the facts and circumstances of the case and in law, the Tribunal was correct to uphold the decision on Commissioner of Income Tax (Appeals) that the share premium received by the assessee-company cannot be taxed under Section 68 of the Act ignoring the ratio laid down by this Court in its decision reported in the case of Major Metals Ltd. vs. Union of India [2013] 359 ITR 450 (Bom)? B. Whether on the facts and circumstances of the case and in law, the Tribunal as well as the Commissioner of Income Tax (Appeals) was right in deleting addition made by the Assessing Officer, by holding that the share premium receipt is capital in nature?” The Hon’ble Court held as under: Regarding Question A: (a) The issue raised by the Revenue in this question is to bring to tax the share premium received under section 68 of the Act. We find that the issue of bringing the share premium to tax under section 68 of the Act was not an issue which was urged by the appellant Revenue before the Tribunal. The only issue which was urged before the Tribunal as recorded in para 11 of the impugned order is the addition of share capital and share application money in the hands of the assessee as income under section 7
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 28(iv) of the Act. We find that the Commissioner of Income-tax (Appeals) did consider the issue of applicability of section 68 of the Act and concluded that it does not apply. The Revenue seems to have accepted the same and did not urge this issue before the Tribunal. Mr. Bhoot, learned counsel appearing for the Revenue also fairly states that the issue of applicability of section 68 of the Act was not urged by the Revenue before the Tribunal. (b) It is a settled position in law as held by this court in CIT v. Tata Chemicals Ltd. [2002] 122 Taxman 643/256 ITR 395 (Bom.) that in an appeal under section 260A of the Act, the High Court can only decide a question if it had been raised before the Tribunal even if not determined by the Tribunal. Therefore, no occasion to consider the question as prayed for arises. (c) In any case, we may point out that the amendment to section 68 of the Act by the addition of proviso thereto took place with effect from April 1, 2013. Therefore, it is not applicable for the subject assessment year 2012-13. So for as the pre-amended section 68 of the Act is concerned, the same cannot be invoked in this case, as evidence was led by the respondents-assessees before the Assessing Officer with regard to identity, capacity of the investor as well as the genuineness of the investment. Therefore, admittedly, the Assessing Officer did not invoke section 68 of the Act to bring the share premium to tax. Similarly, the Commissioner of Income-tax (Appeals) on consideration of facts, found that section 68 of the Act cannot be invoked. In view of the above, it is likely that the Revenue may have taken an informed decision not to urge the issue of section 68 of the Act before the Tribunal. (d) We may also point out that decision of this court in Major Metals Ltd. v. Union of India [2012] 19 taxmann.com 176/207 Taxman 185/[2013] 359 ITR 450 Bom. proceeded on its own facts to uphold the invocation of section 68 of the Act by the Settlement Commission. In the above case, the Settlement Commission arrived at a finding of fact that the subscribers to shares of the assesseeâ€"company were not creditworthy inasmuch as they did not have financial standing which would enable them to make an investment of Rs. 6,00,00,000 at premium at Rs. 990 per share. It was this finding of the fact arrived at by the Settlement Commission which was not disturbed by this court in its writ jurisdiction. In the present case the person who have subscribed to the share and paid share premium have admittedly made statement on oath before the Assessing Officer as recorded by the Tribunal. No finding in this case has been given by the authorities that shareholder/share applicants were unidentifiable or bogus. (e) In the above view Question No. A is not being entertained in view of the decision in Tata Chemical Ltd. (supra). Accordingly, the question (A) is not entertained.
Regarding Question B : (a) We find that the impugned order of the Tribunal upheld the view of the Commissioner of Income-tax (Appeals) to hold that share premium is capital receipt and therefore, cannot be taxed as income. This conclusion was reached by the impugned order following the decision of this court in Vodafone India Services (P.) Ltd. (supra) and of 8
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 the apex court in G. S. Homes and Hotel (P.) Ltd. (supra). In both the above cases the court has held that the amount received on issue of share capital including premium are on capital account and cannot be considered to be income. (b) It is further pertinent to note that the definition of income as provided under section 2(24) of the Act at the relevant time did not define as income any consideration received for issue of share in excess of its fair market value. This came into the statute only with effect from April 1, 2013 and thus, would have, no application to the share premium received by the respondentâ€"assessee in the previous year relevant to the assessment year 2012-13. Similarly, the amendment to section 68 of the Act by addition of proviso was made subsequent to previous year relevant to the subject assessment year 2012-13 and cannot be invoked. It may be pointed out that this court in CIT v. Gagandeep Infrastructure (P.) Ltd. [2017] 80 taxmann.com 272/247 Taxman 245/394 ITR 680 (Bom.) has while refusing to entertain a question with regard to section 68 of the Act has held that the proviso to section 68 of the Act introduced with effect from April 1, 2013 will not have retrospective effect and would be effective only from the assessment year 2013-14. (c) In view of the above, question No. B as proposed also does not give rise to any substantial question of law as it is an issue concluded by the decision of this court in Vodafone India Services (P.) Ltd. (supra) and in the apex court in G. S. Homes and Hotels (P.) Ltd. (supra). Thus not entertained. Therefore, all the six appeals are dismissed. No order as to costs.”
6.2. We find that the issue under dispute was the subject matter of adjudication on exactly similar facts by this tribunal in the case of ITO vs Trend Infra Developers Pvt Ltd in dated 26.10.2018 for Asst Year 2012-13, wherein the addition made towards share premium was deleted. The findings given therein are not reiterated for the sake of brevity.
6.3. In view of the aforesaid observations in the facts and circumstances of the case and respectfully following the judicial precedents relied upon hereinabove, we hold that the Ld. CIT(A) had rightly granted relief to the assessee in the peculiar facts and circumstances of the case, which in our considered opinion, does not require any interference. Accordingly, the Grounds 1 to 2 raised by the revenue are dismissed.
M/s Tanish Dealers Pvt. Ltd. A.Yr. 2012-13 7. The Ground No. 3 raised by the revenue is general in nature and does not require any specific adjudication.
In the result, the appeal of the revenue is dismissed. Order pronounced in the Court on 07.12.2018