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Facts
The Income Tax Officer appealed against the CIT(A)'s order which deleted additions of Rs. 1,20,00,000/- and Rs. 1,35,00,000/- made on account of share application money. The Assessing Officer held that the assessee failed to prove the genuineness and creditworthiness of the share applicants.
Held
The Tribunal observed that the primary onus is on the assessee to prove the genuineness, identity, and creditworthiness of share applicants. Once discharged, the onus shifts to the department. In this case, the assessee discharged its onus, and the Assessing Officer failed to bring any evidence to show the transactions were not genuine.
Key Issues
Whether the assessee has successfully discharged the onus of proving the genuineness and creditworthiness of share application money received?
Sections Cited
250, 143(3), 68
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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI RATNESH NANDAN SAHAY
O R D E R
Per : Ratnesh Nandan Sahay, Accountant Member:
This appeal has been filed by the Income Tax Officer- 12(2)(1), Mumbai against the order of the Ld. CIT Appeal passed u/s. 250 of the Income Tax Act, 1961 [the ‘Act’ in short] vide Order No. ITBA/NFAC/S/250/2023- 24/1053538381(1) dated 03/6/2023 for the assessment year 2012-13.
Following grounds of appeal have been raised.
2 Page | 2 M/s. Generotrade Exim Private Limited “i. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the appeal of the assessee by deleting the addition of Rs. 1,20,00,000/-, without appreciating the fact that the assessee failed to prove the genuineness and creditworthiness of the share application money received amounting to Rs 1,20,00,000/-, by not providing the requisite supporting documents/details during the assessment/remand proceedings. ii. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the appeal of the assessee by deleting the addition of Rs. 1,35,00,000/-, without appreciating the fact that the assessee failed to prove the genuineness and creditworthiness of the share application money received amounting to Rs 1,35,00,000/-, by not providing the requisite supporting documents/details during the assessment/remand proceedings. "The appellant craves leave to add, amend, alter and/or vary any of the grounds of appeal before or at the time of hearing."
3. The facts of the case, in brief, are that assessment order u/s. 143(3) of the IT Act was passed in this case on 30/3/2015 wherein it was held that the assessee could not explain the genuineness of the transaction and the credit worthiness of the persons from whom share application money amounting 3 Page | 3 ITA No.2529/M/2023 M/s. Generotrade Exim Private Limited to Rs.2,55,00,000/- and therefore, the same was added u/s. 68 of the IT Act.
4. The assessee challenged the order of the assessing officer and filed an appeal before the Ld. CIT Appeal. The Ld. CIT Appeal vide its Order No. ITBA/NFAC/S/250/2023- 24/1053538381(1) dated 03/06/2023 for the assessment year 2012-13 passed order u/s. 250 of the IT Act and deleted the additions made by the assessing officer stated as above on the ground that the assessee had sufficiently discharged its onus of proving identity of the share applicants, genuineness of transactions and their credit worthiness.
5. Aggrieved by the order of the Ld. CIT Appeal, this appeal has been filed before us. We have carefully considered the assessment order, the order of the Ld. CIT Appeal and the rivals submissions made before us. It is found that the Assessing officer in his Assessment order has already discussed the entire modus operandi of the assessee at length and concluded that the entire transaction is a sham transaction as the assessee couldn’t establish the genuineness of the transaction and also the creditworthiness of the parties from whom share application money were received.
6. The Ld. CIT Appeal, on the other hand, has also examined the factual and legal matrix of the entire case and came to the conclusion that the assessee has sufficiently discharged its onus to prove the genuineness of the transactions and also the creditworthiness of the parties who had invested a sum of Rs.2,55,00,000/- as share application money.
4 Page | 4 M/s. Generotrade Exim Private Limited 7. Thus, after considering all aspects involved in this case, we find that there is no infirmity in the order of the Ld. CIT Appeal and thus, there is no reason to interfere with the impugned order. So far the legal position is concerned; the appellant has submitted the decisions of the various courts including the decision of the jurisdictional High court and also the orders of the coordinate benches of Hon’ble ITAT Mumbai wherein it has already been held that primary onus is on the assessee to prove the genuineness of the transactions, identity of the parties and their creditworthiness and once the assessee discharge that onus, the onus shifts to the department to prove it otherwise. Here, in this case also, the assessee has discharged its onus to establish the genuineness of the transactions and the creditworthiness of the parties who had made investment in the share application money but the Assessing officer brought no evidence on record to show that it is not genuine. Accordingly, the order of the Ld. CIT Appeal is upheld and appeal of the appellant is dismissed.
In the result, appeal is dismissed. Order pronounced in the open court on 30.04.2024.