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Income Tax Appellate Tribunal, DELHI BENCH “C”: NEW DELHI
Before: SHRI I.C.SUDHIR & SHRI PRASHANT MAHARISHI
Revenue by : Sh. T Vasanthan, Sr. DR Assessee by: Dr. Rakesh Gupta, Adv Mr. Somil Agarwal, Adv Date of Hearing 27/04/2016 Date of pronouncement 21/06/2016 O R D E R PER PRASHANT MAHARISHI, A. M. This is appeal filed by the revenue against the order of the ld CIT (A)-VII, New 1. Delhi dated 12.01.2012 for the Assessment Year 2006-07. The revenue has raised the following grounds of appeal:- 2. “1. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 75,00,000/- made by the AO on account of unexplained credit u/s 68 of the Act.
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the relief of Rs. 91,984/- on account of expenses.”
3. The brief facts of the case is that the assessee is a private limited company who filed its return of income on 26.11.2006 showing an income of Rs. 279190/-. During the year assessee has received Rs. 75 lacs as a share capital from four companies. During the course of assessment proceedings it was found that that assessee company has not started its business activities and further, the bank statement and copy of income tax returns as well as the balance sheet of the depositor companies were not filed. Further there was an allegation that these investors are accommodation entry ITO V Gazipur properties Private Limited Page 2 of 7 providers, therefore, addition u/s 68 was made. Assessee carried the matter before the ld CIT (A). During the hearing additional evidences were submitted and remand report was obtained. Before the ld CIT(A) assessee submitted copy of return of income, balance sheet, profit and loss account, bank statement and confirmation from the above parties. Based on above the ld CIT (A) deleted the addition of Rs. 75 lacs u/s 68. Therefore, now revenue is in appeal before us.
The ld DR submitted that the income tax return submitted of the lenders is for AY 2004-05 and these returns shows very low income. During the course of assessment proceedings the assessee was asked to produce the parties which assessee could not. Further, summons issued to the parties were also remain unserved. He further, stated that there is no business carried on by these companies and further source of credit entries where from the fund is received is not established and therefore according to him genuineness of the transaction is doubted. He further relied on the decision of Hon’ble Delhi High court in case of Nova Promoters and Navodaya Castles. He further submitted that the matter should be set aside to the file of Assessing Officer for further enquiry.
Against this ld AR submitted that as Depositor companies are registered on the website of MCA, they are PAN holders, the balance sheet and the audited accounts of the depositors are available, the return of income is filed and therefore, the identity and creditworthiness of the parties is established. He further submitted that the sources of the funds are available from sale of investment and therefore sources of funds cannot be doubted. He further submitted that though there may be low income but the sources of funds is received from sale of investment which is proved beyond doubt by submission of the bank statement of the depositors. He submitted that the remand report obtained by the ld CIT (A) wherein ld Assessing Officer could not give any adverse finding on the details submitted. He further submitted that in response to the summons all the depositors have submitted their reply directly to the ld Assessing Officer. He further submitted that all the depositors have appeared through their counsel ITO V Gazipur properties Private Limited Page 3 of 7 before Assessing Officer during the remand proceedings and confirmed the transactions. He further submitted plethora of decisions of jurisdictional High Court to support its claim. He further stated that assessee cannot be burdened with an onus to prove the source of the source when complete details are submitted of depositor, who is assessed to income tax, to the Assessing Officer. He further stated that though ld Assessing Officer is referring to some investigation report but they were never confronted to the assessee. He further objected to the plea of setting aside of the appeal to the file of Assessing Officer.
Ld DR in rejoinder stated that the copies of the enquiry report were never asked from the AO and he submitted that the matter should be set aside for further investigation to the file of Assessing Officer.
We have carefully considered the rival contentions. In the present case the assessee has submitted the name, address and income tax returns of the depositor company for AY 2006-07 along with their balance sheets and profit and loss accounts. Further copies of the bank statement for the relevant period showing amount of deposit with the company and sources of funds which were used to deposit money with the appellant company were submitted. The ld Assessing Officer was also granted opportunity to examine those details and in remand proceedings the AR of the depositor company filed complete submissions to the Assessing Officer directly. Ld. AO did not submit any adverse comment on the details submitted and further has not carried out any inquiry about the correctness of the details submitted instead he has just raised futile issues. The source of the fund of the companies for depositing was sale of the investment on those companies. These facts have not at all been controverted by the ld Assessing Officer or ld DR. Ld. CIT(A) has decided the issue as under:- “4. I have considered the written submission on behalf of the appellant, the findings of the Assessing Officer in the assessment order as well as in the remand report and the facts on record. During the course of assessment as well as appellate proceedings, the confirmations from the share-applicants and the following particulars / details were furnished on behalf of the appellant:-
ITO V Gazipur properties Private Limited Page 4 of 7 i) Names and Addresses of the share-applicants; ii) Permanent Account Numbers (PAN) and the copies of the Income- tax Returns for A.Y.2006-07; iii) Mode of payment of Share Application Money mentioning the names of the banks, cheque/D.D. number(s)and the dates on which the cheques were issued; iv) Copies of the profit and loss accounts, balance sheet in respect of the four share-applicant companies; and v) Copies of Bank statement of the share-applicants during the relevant period showing their respective transaction of the amount given to the appellant company. 4.1 Regarding the share application money/share capital, it is now well settled that where the assessee had furnished (i) the names and addresses of the share applicants (ii) the GIR Nos./P.A.N. Nos. (iii) the Ward/Circle Nos. where assessed (iv) the mode of payment and (v) other information which the assessee knows or possesses, then it can be said that initial burden on the assessee can be said to be discharged. Once the identity of the shareholders was established it also stands established that the shareholders have invested money in the purchase of shares and hence the onus, on the part of the assessee company, is discharged and there cannot be any addition in the hands of the assessee company on account of share application money or share capital. Reliance is placed on the following decisions of the Apex Court and the jurisdictional High Court of Delhi:- i) CIT vs. Lovely Exports (P) Ltd. (2008) 216 CTR (SC) 195; ii) CIT vs. Divine Leasing & Finance Ltd. (2007) 299 ITR 268 (Del). iii) CIT vs. Value Capital Services Ltd. (2008) 307 ITR 334 (Del.); iv) CIT vs. TDI Marketing Pvt. Ltd. (2009) 26 DTK (Del.) 358;and v) Bhav Shakti Steel Mines (P) Ltd. vs. CIT (2009) 179 Taxman 25(Del); (2010)320 ITR 419 (Delhi); vi) CIT vs. Winstral Petrochemicals (P) Ltd. (2010) 41 DTR (Del) 139;(2011)330 ITR 603(Delhi) vii) CIT vs United Biotech Pvt Ltd 2010-TIOL-533-HC-DEL-IT dated 05-07-2010; viii) CIT vs Prayag Hospital 2010-TIOL-537-HC-DEL-IT dated 22-07-2010; ix) CIT vs.Siri Ram Syal Hydro Power (P) Ltd (2011) 196 Taxman441 (Delhi); x) CIT vs.Samtel Color Limited-2011- TIOL-53-HC-DEL-IT; and xi) CIT vs. Oasis Hospitalities (Pvt) Ltd 2011-TIOL-69-HC-DEL-IT: (2011)238 CTR (Del) 402: 333 ITR119 (Delhi).
ITO V Gazipur properties Private Limited Page 5 of 7 4.2 In the present case, the assessee can be said to have discharged its onus under section 68 of the Act in proving the genuineness of the share capital in respect of the impugned 4 share applicants in the light of proposition laid down by the Supreme Court and Delhi High Court in the cases cited above. The appellant has given all the necessary details in order to establish the identity of the aforementioned share applicants. It is also observed that all the share applicants are corporate assessees, incorporated under Indian Companies Act. After considering the entire material placed on record, it is fair to conclude that the abovementioned share applicants were existing parties. It is also seen that the Assessing Officer could not point out any discrepancy in the evidences relied upon by the assessee. Further, what is the desired documentary evidence required to support the claim of the assessee as required by the A.O. is not coming out of the order of the A.O. During the remand proceedings also, there was compliance on 25-08-2011 by the Authorized Representative of the share-applicants with the summons issued to them. Thus the identity of the share-applicants is established. As the share-applicants were existing on the file of the Income Tax Department and their income-tax details were made available to the AO, it was equally the duty of the AO to have taken steps to verify their assessment records and if necessary to also have them examined by the respective AOs having jurisdiction over them (share-applicants), which has not been done by him. The appellant company has also sufficiently discharged its burden to prove the source of share application money received and their financial capabilities based on their balance sheets and bank statements. In these circumstances, it is held that the addition of Rs. 75,00,000/-on account of share application money under section 68 of the Act cannot be sustained and accordingly, the same is directed to be deleted. As a result, ground of appeal
No. 1 is allowed.”
8. As before ld CIT (A) the assessee has proved the identity, creditworthiness and genuineness of the transactions. Further Ld AO has neither provided the company of investigation report and nor any other material to prove that those parties are accommodation entry providers. In absence of this it remains mere allegation. Further plethora of case laws relied up on by the parties has been perused and ratio laid down therein have been followed in deciding this issue. Hence, We do not find any infirmity in the order of the ld CIT(A) in deleting addition of Rs. 75 lacs made by the ld Assessing Officer u/s 68 of the Act. Further No fruitful purposes will be served by setting aside the issue to file of Assessing Officer as ld CIT(A) has obtained a remand report on the same set of evidence which are available before us. Ld DR could not point out any new document which needs verification by the Assessing Officer now, which was not available before him during remand proceedings. In view of this we also reject the request of ld DR for setting ITO V Gazipur properties Private Limited Page 6 of 7 aside the issue to the file of ld Assessing Officer. In the result ground No. 1 of the appeal is dismissed.
9. Ground No. 2 of the appeal is with respect to deletion of disallowance of Rs. 91984/-. The above disallowance is with respect of expenditure such as audit fees, salaries, professional charges and other statutory expenses. The ld AO disallowed the same without assigning any reason. Before us ld DR relied upon the order of ld AO whereas the ld AR relied upon the order of the ld CIT(A).
We have carefully considered the rival contentions. Ld CIT(A) has deleted the disallowance as per para No. 5 of his order as under:- “5. Ground of appeal no. 2 relates to the grievance of the appellant against the action of the Assessing Officer in ignoring expenses of Rs. 91,984/- while computing taxable income. It was submitted on behalf of the appellant, inter alia that "The learned AO has ignored the expenses amounting to Rs. 91984/ - incurred and claimed by the assessee during the relevant assessment year without assigning and recording reasons for not allowing the same and even making any expresses remarks for making the additions. appears that the learned AO has wrongly made the calculations of taxable income with completely ignoring the amount of loss as appearing in the Profit & loss Account The company made various expenses including statutory expenses such as Audit Fee, Professional Fee, ROC Filling fee etc. for compliance of various statutory provisions and some other expenses such as staff salary for office boy and accounting charges etc., which were bare minimum and were necessary for the existence and regular operations of the company. No where during the assessment proceedings, the AO has asked for the justification of the expenses incurred and also has not recorded any reason for ignoring the expenses while framing the assessment order. The learned AO has deprived the assessee from his right to have opportunity to be heard / submit detail by calculating the taxable income without expenses in arbitrary manner. " 5.1 I have considered the written submission on behalf of the appellant, the findings of the Assessing Officer in the assessment order and the facts on record. It is observed that in the assessment order that there is no finding made by the Assessing Officer regarding disallowance of the impugned expenses. However it is not disputed that the business activities of the appellant company have not yet started during the year under appeal but some expenses have to be incurred by the assessee as the same are essential to keep up the corporate entity. The nature of the expenses claimed relate to items such as audit fees, salaries, professional charges, ROC Filing fee etc. In view of the above, the contention of the appellant merits consideration. The AO is accordingly directed to allow ITO V Gazipur properties Private Limited Page 7 of 7 the impugned expenses after necessary verification of the same while giving effect to the present appellate order. Subject to the above remarks, ground of appeal NO.2 is treated as allowed.”