ITO, WARD-10(1), KOLKATA, KOLKATA vs. M/S SUNGLOW DEALCOM PRIVATE LIMITED, KOLKATA

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ITA 2178/KOL/2016Status: DisposedITAT Kolkata16 November 2018AY 2012-135 pages
AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that Section 68 is not applicable when shares are allotted for consideration other than cash, such as in a share-swapping arrangement. The CIT(A)'s deletion of the addition was upheld.

What were the facts?

The assessee company received share capital at a premium. The Assessing Officer made an addition under Section 68, treating it as unexplained cash credit. The CIT(A) deleted the addition, holding it was a non-cash transaction through book entries.

What were the issues?

Whether Section 68 of the Income Tax Act, 1961, is applicable to share capital received for consideration other than cash, specifically through book entries and share swapping.

Which sections of the Income-tax Act were involved?

Section 68

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Income Tax Appellate Tribunal, KOLKATA ‘D’ BENCH, KOLKATA

Before: Sri J. Sudhakar Reddy & Sri S.S. Viswanethra Ravi

Appearances by: Shri S.M. Surana, Advocate, appeared on behalf of the assessee. Shri C.J. Singh, Sr. D/R. appearing on behalf of the Revenue. Date of concluding the hearing : October 31st, 2018 Date of pronouncing the order : November 16th, 2018 ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the revenue is directed against the order of the Learned Commissioner of Income Tax (Appeals)-4, Kolkata, (hereinafter the ‘Ld. CIT(A)’), dt. 26/09/2016, passed u/s 250 of the Income Tax Act, 1961 (hereinafter the ‘Act’), relating to Assessment Year 2012-13.

2.

The assessee is a company and is in the business of investment. An addition of unexplained cash credit u/s 68 of the Act, were made by the Assessing Officer on the ground that the assessee failed to explain the sources of funds for the share capital received by it at a premium. On appeal the ld. First Appellate Authority, held that the allotment of shares in this case was a non-cash transactions and that they were subscribed through book entries. He held that Section 68 of the Act, does not apply as the assessee has proved the identity, creditworthiness and genuineness of the transactions. He gave a factual finding and deleted the addition. 2.1. Aggrieved, the revenue is in appeal before us.

Assessment Year: 2012-13 M/s. Sunglow Dealcom Private Limited

3.

We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 4. The undisputed fact in this case is that the allotment of shares were for consideration other than by way of cash. The four companies which applied for allotment of shares, have sold their investment to the assessee company and the assessee company, has as consideration for the purchase of those shares had allotted shares at a premium. It is a case of swapping of shares. The shares were allotted for consideration other than cash. The question is whether under these facts and circumstances Section 68 of the Act, would be attracted. 4.1. The ld. D/R, submits that the premium is not justified and that the ld. CIT(A) was wrong in holding that the assessee has proved the identity, creditworthiness and genuineness of the transaction. He relied on the order of the Assessing Officer. In reply the ld. Counsel for the assessee, submits that each of the above companies have filed replies before the Assessing Officer to the notice issued u/s 133(6) of the Act. He further pointed out that the ld. CIT(A) called for a remand report the Assessing Officer had not disputed the identity, creditworthiness of the share subscribers as well as the genuineness of the transactions. He relied on the order of the ld. CIT(A). 4.2. The undisputed fact is that shares were issued at a premium, as consideration for the purchase of shares from the share applicant companies. This issue is squarely covered by the decision of the Kolkata ‘C’ Bench of the Tribunal in the case of ITO vs. M/s. Anand Enterprises Ltd., & C.O. No.56/Kol/2016; dt. 26/09/2018, wherein under identical circumstances, at para 4.3. it was held as follows:- “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. AO 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 Assessment Year: 2012-13 M/s. Sunglow Dealcom Private Limited

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.” 4.2. The Hon’ble Jurisdictional High Court in the case of Jatia Investment Co .v. Commissioner of Income-tax [1994] 206 ITR 718 (CAL.) held as follows:-

“Section 68 of the Income-tax Act, 1961 – Cash credits – Assessment year 1976- 77 – Partners of assessee-firm were members of one ‘J’ group running several businesses and industries – Accounts of assessee-firm showed that it had borrowed certain amount from GB, a proprietary concern of one of its partners JM, which was invested in purchase of shares – ITO found that GB had no cash balance to advance said amount to assessee – He, thus, concluded that source of funds for purchase of shares by assessee was not explained, and consequently, assessed that amount as income from undisclosed sources – It was contended by assessee that notional cash entries were made to reduce indebtedness of three companies of ‘J’ Group to GB in order to comply with certain directions of RBI – Assessee-firm substituted three companies of ‘J’ Group as debtor to GB – It was further stated that question of cash credit did not arise, there being no actual passing or receipt of cash but transactions were mere book entries – Whether, in aforesaid circumstances, effect and import of transaction was that assessee took over liability of aforesaid three companies to ‘GB’ in exchange for shares and, therefore, amount of loan in question could not be treated as assessee’s income from undisclosed sources – Held, yes” 4.3. Recently, the Hon’ble Madras High Court in the case of V. R. Global Energy (P.) Ltd. v. Income-tax Officer, Corporate Ward 3(4), Chennai [2018] 96 taxmann.com 647 (Madras) while dealing with a case where cash credit towards share capital were admittedly, only by way of book adjustments and no actual cash was received towards share subscription money held as follows:-

“25. However, the second question is answered in favour of the assessee and against the Revenue by the judgment of the Division Bench of this Court in Electro Polychem Ltd., (supra) and Steller Investment Ltd., (supra).

26.

This case is distinguishable from the case of CIT v. Lovely Export (P.) Ltd. [2008] 216 CTR 195 (SC) in that the transactions were only book transactions, and there was no cash receipt. The decisions in (i) CIT v. Focus Exports (P.) Ltd. [2014] 51 taxmann.com 46/228 Taxman 88 (Delhi) (Mag.); (ii) CIT v. Globus Securities & Finance Pvt. Ltd. [2014] 41 taxmann.com 465/224 Taxman 237 (Delhi); (iii) Onassis Axles (P.) Ltd. v. CIT [2014] 364 ITR 53/224 Taxman 80 (Mag.)/44 taxmann.com 408 (Delhi); (iv) Olwin Tiles India (P.) Ltd. v. Dy. CIT [2016] 382 ITR 291/237 Taxman 342/66 taxmann.com 8 (Guj.); (v) B.R. Petrochem (P.) Ltd. v. ITO [2017] 81 taxmann.com 424 (Mad.); and (vi) Rajmandir Estates (P.) Ltd. v. Pr. CIT [2016] 386 ITR 162/240 Taxman 306/70 taxmann.com 124 (Cal.), cited on behalf of the respondent are distinguishable, in that the cash credits towards share capital

Assessment Year: 2012-13 M/s. Sunglow Dealcom Private Limited were admittedly only by way of book adjustment and not actual receipts which could not be substantiated as receipts towards share subscription money.” 5. Applying the propositions of law laid down in the above cases to the facts of this case, we uphold the order of the ld. First Appellate Authority and dismiss this appeal of the revenue.

6.

In the result, appeal of the revenue is dismissed.

Kolkata, the 16th day of November, 2018.

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