M/S RENUKA TRADERS PVT. LTD.,,NEW DELHI vs. DCIT, NEW DELHI

During the year, company has received a loan of Rs. 4600000/- from one M/s stalwart realtors private limited. Enquiries conducted by the investigation wing revealed that the company is not doing any real business and this lender company is created to build artificial capital and then providing accommodation entries to the other companies of the groups wherever the capital is needed. During the course of search on Thapar homes Ltd, it was found that one Shri BK Dhingra, who is one of the directors of the group companies and a chartered accountant, had created a web of more than 200 companies to build up artificial capital for use by the group companies. It was also found that shareholders in such companies were dummies and just name lenders and all such persons were of no means. During the course of search statement of some persons were recorded and they stated that they are just name lenders. One Shri Pradeep Sharma later acquired this company. During survey under Renuka Traders private Limited V DCIT A Y 2009-10 section 133A of the act on 20/10/2008 some pay in slips were found which showed that amount received from various bogus companies floated by Sh. BK Dhingra into M/s Stalwarts realtors private limited as proceeds from sale. Accordingly, such sales were not the actual sales and therefore according to the Ld. assessing officer such capital built up by M/s stalwarts realtors private limited is fictitious capital. As this company has given loan of Rs. 46 lakhs during the year to the appellant company and since the appellant failed to prove the creditworthiness of the Stalwart Realtors private limited and also the genuineness of the loan having not been proved this amount of Rs. 46 lakhs was added to the total income of the assessee applying the provisions of section 68 of the Income Tax Act, 1961. Against this, appellant company preferred an appeal before the CIT (A) who in turn vide his order dated 20 March 2013 confirmed the addition under section 68 of the Income Tax Act of Rs 46,00,000/-. Though companies financial statement as on 31st of March 2008 showed that it was trading in wholesale fabric and the closing stock of the company was Rs 73.48 lakhs and accumulated profit of Rs. 3.59 crores reflected in the balance sheet, ld. CIT (A) held that it is a sham buildup of capital and therefore, he confirmed the action of the Ld. assessing officer of adding the sum to the total income of the assessee under section 68 of the Income Tax Act, 1961. Against this, assessee is in appeal before us.

Ld. authorized representative of the assessee submitted that Stalwart Realtors private Ltd is regularly assessed to income tax and during the course of assessment proceedings, submitted following documents:- Renuka Traders private Limited V DCIT A Y 2009-10 a. The copy of assessment order under section 143 (3) of the act for assessment year 1990 -91 passed on 18/11/1992 of appellant. b. Copy of Sales tax assessment order of appellant. c. Copy of bank account maintained with South Indian bank of the assessee in respect of business carried on by the assessee. d. Annual accounts of Stalwarts realtors private limited. having invested in share capital by way of share application money of Rs. 46 lakhs. e. Copy of income tax returns filed by Stalwarts realtor Ltd for AY 2008-09 f. confirmation of stalwarts realtors private limited 5. In view of these documents, it was submitted that that appellant has discharged its initial onus cast under section 68 of the Income Tax Act of proving identity, genuineness of transaction and creditworthiness of the lender. It was further submitted that that this company has huge accumulated surplus in reserve and surplus of the company of Rs 3.59 crores. Therefore, the creditworthiness of the party is not in doubt. He stated that the revenue has not taken any action against Stalwart Realtors arbitrators private Ltd, despite having observed that this company has allegedly having generated fictitious capital. Further lender company is assessed to income tax and filing its return of income year to year. He submitted that the bank account of stalwart realtors private limited with Corp bank account shows that the amount of Rs. 46 lakhs were advanced on 13/12/2008 to the assessee. There was an identical credit on Renuka Traders private Limited V DCIT A Y 2009-10 11/12/2008 received by that that company by cheque of syndicate bank. He submitted that even before the receipt of Cheque of Rs. 46 lakhs, there was a balance of Rs. 25,67,000/- in the bank account of the lender i.e. Stalwart realtors private limited. He further submitted that that the same lender Starwood realtors private limited has also advanced loans to Mr. Avinash Setia of Rs. 19 lakhs and to M/s prime Infoways private limited of Rs. 90 lakhs in assessment year 2008 – 09, which is accepted by the assessing officer. During the course of assessment proceedings, the Ld. assessing officer has relied on so many observations, which are based on the observation of investigation wing and the statement of so many persons. However, none of the statements or cross-examination of such parties were confronted to the assessee and no opportunity to cross-examine them. In view of this, it was submitted that as lender is assessed to income tax on year-to-year basis and having sufficient capital, loan amount received from it cannot be added into the hands of the appellant company under section 68 of the Income Tax Act. He further relied on host of decisions to buttresses above claim. Therefore, he submitted that the assessing officer under section 68 in the hands of the appellant wrongly makes the addition and further, the Ld. Commissioner of Income Tax (appeals) has erred in confirming the action of the Ld. AO.

The Ld. departmental representative relied on the orders of lower authorities and submitted that the investigation wing of the Income Tax Dept has carried on investigation, which shows that this company belong to the Pradeep Sharma group, and B K Renuka Traders private Limited V DCIT A Y 2009-10 Dhingra who are engaged in the business of providing accommodation entries to various parties and therefore the genuineness of the transaction is not established and hence the addition has rightly been made by the Ld. assessing officer and rightly confirmed by the CIT (Appeal).

We have carefully considered the rival contentions. We have also perused the relevant paper book filed by the Ld. AR of the appellant, which is part of the record before the lower authorities. During the course of assessment proceedings assessee received a Cheque of Rs. 46 lakhs by cheque No. 795738 of Corp bank, which was cleared in the bank account of stalwarts realtors private limited on 13/12/2008 and for the satisfaction of the assessing officer, assessee submitted confirmation showing address, as well as the permanent account number of the lender. It also submitted a copy of the income tax return filed by Stalwarts Realtors private limited for assessment year 2008 – 09, along with copy of the bank account of stalwarts realtors private limited with Corp bank from 1st December 2008 to 31st December 2008. As per the bank account opening balances in the hands of the lender was Rs. 25,67,771/-and subsequently there is an inward credit in the bank account of the lender 13.12.2008 of Rs. 46 lakhs through banking channels from syndicate bank, therefore, before the issuance of cheque to the appellant company, available balance in the hands of the lender was Rs. 7167771/-and out of this balances an amount of Rs. 46 lakhs was issued by account payee cheque No. 795738 on 10/12/2008, which was cleared into the bank account of the lender on 13/12/2008 . Even after the issue of this cheque, there Renuka Traders private Limited V DCIT A Y 2009-10 was an outstanding balance in the bank account of the lender of Rs. 2567771/-. Assessee has also submitted the copy of the balance sheet of the lender for the year ended 31st of March 2009 wherein though company has „ issued share capital‟ of Rs. 1 lakh, however, reserve and surplus of the company were Rs. 33311037/-and in the immediately preceding year such reserve and surplus was Rs. 35924446/-. The company has sundry debtors of Rs 1399993/- , as well as the cash and bank balance of Rs. 135624/- and further loans and advances of Rs. 2.53 crores. The lender company has also disclosed turnover of Rs. 48 lakhs for the current year and Rs 2 crores in the previous year. It was further submitted that that this amount of Rs. 46 lakhs were returned by the appellant, on 11th February 2010 by cheque No. 815458 of syndicate bank and this fact has not been controverted by the lower authorities. Furthermore it is apparent that the Ld. assessing officer has stated that based on the enquiries conducted by investigation wing it was found that Shri B K Dhingra who is one of the director of the Thapar homes group companies and was also chartered accountant has created a vast Web of more than 200 companies to built-up artificial capital for use by the other group companies. It was further stated by the Ld. AO that the investigation wing of the Dept and carried out investigation, where such companies were found to be dummies and just name lenders. It was further stated by him that there are statement of certain persons were recorded, by the investigation wing and they stated that these companies are just name lenders. The Ld. AO was further of the view that survey under section 133A was conducted on 20/10/2008 at the Renuka Traders private Limited V DCIT A Y 2009-10 business premises of Mr. Pradeep Sharma, wherein certain play pay slips were impounded and these pay in slip shows that the amount received from various bogus companies floated by Shri B K Dhingra into M/s Starwood realtors private limited as proceeds from sale and such sales were not the actual sales.

We failed to understand that when ld. AO has so much of the information why the assessee was not confronted by this evidence by providing the copies of such statements, copies of inquiry report and giving assessee an opportunity to rebut theses evidences. Ld AO has not done this basic exercise. Further, when the sales are stated to be bogus , the cases of the Stalwarts Realtors has not been reopened / reexamined under any of the section of the Income tax Act. Further, though the sales of the lender were found to be bogus, however, the profit derived from such bogus sales has been taxed by the revenue authorities. Therefore, the ld. AO has made this addition without adducing any evidence on which he strongly relies. The Ld. assessing officer, Ld. CIT (A) and Ld. departmental representative before us did not controverted that profits of Stalwarts Realtors from the bogus sales have been assessed and despite having evidences against that company , no actions have been initiated against that lender. It was not also denied that stalwart realtors private Ltd is a company which is regularly filing its return of income and has an accumulated reserve and surplus of Rs. 3.59 crores which is been accumulated from year-on-year. It is also apparent from the balance sheet filed by the assessee of stalwart realtors private limited that it has substantial amount of bank balances, sundry debtors and loans and advances. Therefore, it