FLORENCE DEALER PVT LTD,KOLKATA vs. ITO WARD 9(2), KOLKATA

3.2 The ld. counsel has further invited our attention to the impugned order of the CIT(A) to submit that even the ld. CIT(A) without considering any of the submissions and evidences furnished by the assessee confirmed the addition in a mechanical manner.

4. We find that the only observation made by the assessing officer in the impugned order is that the burden was upon the assessee to prove the identity, and creditworthiness of the subscribers and genuineness of the transaction. Thereafter he straightaway held that there was no compliance on the part of the assessee and that the assessee has failed to prove satisfactorily the source and nature of the amounted credited in its accounts. On the other hand, the ld. Counsel for the assessee, referring to the paper book has demonstrated that all the necessary documents establishing the identity and creditworthiness of the share subscribers and proving the genuineness of the transactions including the source of the funds of the subscribers were duly furnished before both the lower authorities. Though the Assessing Officer has noted in the assessment order that the assessee has filed its submissions, but there is no discussion about any of the documents furnished by the assessee. Even the Assessing Officer has not mentioned in the assessment order as to what was the name of the share subscriber companies from whom the share subscription was received and how much amount was received from each of the share subscriber what to say of other documents furnished by the assessee to prove the identity and creditworthiness of the creditors and genuineness of the Assessment Year: 2012-13 Florence Dealer Pvt. Ltd transaction. The Assessee, in this case, as noted above, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company. The Assessing Officer, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details furnished before him. Even, one of the directors of the share subscribers namely Shri B. K. Jain appeared and deposed before the Assessing Officer confirming the aforesaid transaction. However, the Assessing Officer simply wrote that his deposition was not satisfactory without pointing out which part of his statement/deposition was not satisfactory and why the Assessing Officer was not satisfied from his deposition. The Assessing Officer has made the addition in a mechanical manner.

4.1 Even the ld. CIT(A) has also dismissed the appeal of the assessee without pointing out any defect or discrepancy in any of the documents furnished by the assessee. It was also pointed out before the CIT(A) that the assessee has received share application money from the four share subscribers, the details of which is as under:

Name, Address & PAN of the Allottees No. of Shares Total allotted Amount (Rs.) Vardhaman Textiles Co. Pvt. Ltd. 50,000 50,00,000 Swift Realcon Pvt. Ltd. 50,000 50,00,000 Almighty Mercantile Pvt. Ltd. 50,000 50,00,000 Aakruti Infrarealty Pvt. Ltd. 50,000 50,00,000 Total 2,00,000 2,00,00,000 4.2 It was also submitted that all the share subscribers have sufficient net worth to invest in the assessee company. The assessee explained the financial worth of the share subscriber companies and Assessment Year: 2012-13 Florence Dealer Pvt. Ltd genuineness of the transaction and also made the following written submissions before the ld. CIT(A):

“While finalizing the assessment, the Ld. A.O. has treated the amount received towards subscription of equity share capital as unexplained cash credit u/s 68 of Income fax Act, 1961. Main Contention of Ld. A.O. was that identity as well as credit worthiness and genuineness of the shareholders could not be established by- the assesses company. Further the Ld. A.O has stated in his order that summon u/s 131 Of the Income Tax Act, 1961 Was issued to directors of the subscriber company for personal attendance and to produce the details. In compliance, Mr. Binod Kumar Jain director of one subscriber company appeared and made deposition but satisfactory reply was not received regarding vital questions. The Ld. A.O has not specify the reason for dissatisfaction in respect of reply by the director appeared before him, Ld. A.O. also stated that other directors for the remaining subscriber companies were not appeared. As the summon has been served to the respective subscribers, the identity of the subscriber has been proved. Even the Ld. A.O. has also not informed assesses that other subscriber has not appeared. As per section 68 of the L T, Act, 1961 - “The onus lies on the assesses to satisfy the department about the identify of art investor, its credit Worthiness and genuineness of the transaction0. So to decide whether section 68 should be applied on the assessee company, let us first examine the details of the allottee companies.

Assessment Year: 2012-13 Florence Dealer Pvt. Ltd Source of fund of the shares subscribed is enclosed herewith for your record. Our above mentioned contention is duly supported by the following judicial pronouncement.

1. CIT Vs Lovely Exports Pvt Ltd. 216 CTR 195 2. Anshika Consultants Pvt Ltd Vs. GIT (A) (Delhi High Court) 3. CIT VS Steller Investment Ltd, (2001) 251ITR 263 (SC & HC) 4. CIT Vs Gagandeep Infrastructure: Pvt. Ltd, Bombay High Court Considering the above facts, the Ld. A.O was not justified in treating the share capital issued by Assesses Company as unexplained cash credit u/s 68 of the Income Tax Act, 1961 and therefore, the order of the A. O. should be quashed.” 4.3 However, a perusal of the order of the CIT(A) would reveal that the ld. CIT(A) has rejected the contentions of the assessee only on the ground that the revenue from operations of the subscriber companies was low as compared to the investments made by them. However, the ld. Counsel for the assessee has explained that the subscriber companies were investment companies. That there was no denial of the fact that the subscriber companies have sufficient net worth to invest in the assessee company. The ld. CIT(A) even has failed to observe that the assessee has duly proved the source of the source of the share subscribers. He simply held that it were the accommodation entries received by the assessee. The observations of the ld. CIT(A) are nothing more than suspicions, whereas, the assessee has duly proved his case. The Ld. Counsel for the assessee has rightly placed reliance upon the decision of the Hon’ble Bombay High Court in the case of ‘PCIT, Panji vs. Paradise Inland Shipping Pvt. Ltd.’ reported in (2017) 84 taxman.com 58 (Bom), wherein, the Hon’ble High Court has held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case. Further the jurisdictional Calcutta High Assessment Year: 2012-13 Florence Dealer Pvt. Ltd Court in the case of “Crystal networks (P) Ltd. vs CIT” (supra) has held as under:

We find considerable force of the submissions of the learned counsel for the appellant that the Tribunal has merely noticed that since the summons issued before assessment returned unserved and no one came forward to prove. Therefore it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter creditworthiness. As rightly pointed out by the learned counsel that the CIT(Appeals) has taken the trouble of examining of all other materials and documents viz., confirmatory statements, invoices, challans and vouchers showing supply of bidi as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued in our view is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the produce of the assessee or not. When it was found by the CIT(Appeal) on fact having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact finding.

Thereafter the hon’ble Supreme court summed up the principles which emerged after deliberating upon various case laws as under:

Assessment Year: 2012-13 Florence Dealer Pvt. Ltd “11. The principles which emerge where sums of money are credited as Share Capital/Premium are: The assessee is under a legal obligation to prove the genuineness i. of the transaction, the identity of the creditors, and credit- worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit- worthiness of the creditor/subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act.” The Hon’ble Supreme court, thus, has held that once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness of the subscribers, then the AO is duty bound conduct to conduct an independent enquiry to verify the same. However, as noted above, the Assessing Officer in this case has not made any independent enquiry to verify the genuineness of the transactions. The assessee having furnished all the details and documents before the Assessing Officer and the Assessing Officer has not pointed out any discrepancy or insufficiency in the said evidences and details furnished by the assessee before him. As observed above, the assessee having discharged initial burden upon him to furnish the evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the burden shifted upon the Assessing Officer to examine the evidences furnished and even made independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidences furnished by the assessee and confronting with the same to the assessee. In view Assessment Year: 2012-13 Florence Dealer Pvt. Ltd of this, even applying the ratio laid down by the Hon’ble Supreme Court in the case of PCIT vs. NRA Iron and Steel Pvt. Ltd., impugned additions are not warranted in this case.