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Income Tax Appellate Tribunal, DELHI BENCH ‘E’ NEW DELHI
PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
This appeal is filed by the Department against the order dated 4.3.2010 passed by the Ld. CIT(A)-XVI, New Delhi for Assessment Year 2006-07.
The return of income for the year under consideration was filed declaring income at Rs.46,968/-. The return was originally processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter called ‘the Act’) on 21.11.2007 and later the case was selected for scrutiny through CASS. The Assessing Officer completed the assessment u/s 143(3) of the Income Tax Act, 1961 at an income of Rs.76,46,970/- after adding Rs. 76.00 lacs on account of share capital as unexplained sum u/s 68 of the Act. The Ld. CIT (A), on appeal, deleted this entire addition. Now, the department is in appeal against the deletion by the Ld. CIT (A).
It is seen from the records that during the year, the assessee company had shown receipt of share application money/share capital of Rs. 76.00 lacs from the following companies in its books:-
S. No. Name and address of the person form whom taken Amount in Rs. M/s Chitpurni Credit & Leasing Pvt. Ltd. 15,00,000.00 1 M/s Ethnic Creations Pvt. Ltd. 8,00,000.00 2 3 M/s Garg Finvest Pvt. Ltd. 10,00,000.00 4 M/s Performance Trading & Investment Pvt. Ltd. 15,00,000.00 5 M/s Rahul Finlease Pvt. Ltd. 15,00,000.00 6 Shri Dinanath Lahariwala Spinning Mills Pvt. Ltd. 10,00,000.00 7 M/s Sparrow Marketing Pvt. Ltd. 3,00,000.00 Total 76,00,000.00
The Assessing Officer has observed in his assessment order that on perusal of the bank account of all the investors, it was Assessment Year 2006-07 seen that there were deposits in the bank accounts through pay orders before the issuance of cheques in favour of the assessee.
The Assessing Officer has observed that no credible evidence regarding the genuineness of the transactions or the creditworthiness of the investors was forthcoming either from the assessee or from the investors. He was of the opinion that although confirmation and Return of Income of the investors has been filed, neither the shareholders were produced nor any documents from them were produced to establish the availability of funds with reference to their sources of income. He accordingly added back the entire sum received u/s 68 of the Act because, as per him, the assessee had failed to discharge the onus.
The Ld. CIT (A), on appeal, however observed that the assessee had filed the following documents in the course of assessment proceedings to prove the transactions:
a) Name and address of the shareholders b) Income Tax particulars of the shareholders c) Share application forms d) Confirmation of shareholders with regard to share capital subscribed by them 3 Assessment Year 2006-07 6. The Ld. CIT(A) has observed that the Assessing Officer could not prove with certainty that the investors/entities were entry providers and that the transactions entered into by the assessee were bogus. He has observed that the Assessing Officer has not effected any inquiries to bring out any fact which could suggest that the parties have given accommodation entries to the assessee and that the money received from these parties was assessee’s own undisclosed income routed back to the assessee in the guise of share application money. The Ld. CIT(A) also pointed out that the Assessing Officer had simply relied on the information provided by the information wing of the Department and had made no concrete efforts to verify the facts. He, accordingly, deleted the entire addition.
The Ld. DR strongly supported the Assessing Officer’s order.
The Ld. AR relied on the order of the Ld. CIT (A) and submitted that the assessee had proved the identity of the investor as well as the genuineness of the transactions. It has offered an explanation about the nature and source of money
found credited in its book of account as envisaged u/s 68. He submitted that once the identity of share applicant/shareholders is proved, there is no case for addition in the hands of the Assessment Year 2006-07 assessee company. If there was any doubt about the creditworthiness of share applicant/s, necessary action should have been taken in the hands of share applicant/s. He submitted that there was no reason left for the A.O. to draw any adverse inference.
We have heard the rival submissions and carefully perused the relevant material placed on record. It is seen that the AO has not verified the details furnished by the assessee and I.T. records of the shareholders/investing companies. The averments of the assessee before the AO were not controverted by the AO. The assessee has discharged its burden of providing basic details which were required for verification to fulfill the conditions as laid down by higher judicial authorities for examining the issue u/s. 68 of the Act. In the case of CIT vs. Divine Leasing & Finance Ltd. 207 CTR 38, the Hon’ble Jurisdictional High Court has observed as under:-
‘There cannot be two opinions on the aspect that the pernicious practice of conversion of unaccounted money through the masquerade or channel of investment in the share capital of a company must be firmly excoriated by the Revenue. Equally, where the preponderance of evidence indicates absence of culpability and complexity of the Assessee it should not be harassed by the Revenue’s insistence that it Assessment Year 2006-07 should prove the negative. In the case of public issue, the company concerned cannot be expected to know every details pertaining to the identity as well as financial worth of each of its subscribers. The company must, however, maintain and make available to the Assessing Officer for his perusal, all the information contained in the statutory share application documents. In the case of private placement the legal regime would not be the same. A delicate balance must be maintained while walking the tightrope of section 68 and 69 of the Income Tax Act. The burden of proof can seldom be discharged to the hilt by the assessee; if the Assessing Officer harbours doubts of the legitimacy of any subscription he is empowered, nay duty-bound, to carry out thorough investigations. But if the Assessing Officer fails to unearth any wrong or illegal dealings, he cannot obdurately adhere to his suspicions and treat the subscribed capital as the undisclosed income of the company.’ ‘Further, a distillation of the precedents yields the following proposition of law in the context of section 68 of the Income Tax Act. The Assessee has to prima facie prove (1) the identity of the creditor/subscriber; (2) the genuineness of the transaction, namely : whether it has been transmitted through banking or other indisputable channels; (3) the credit worthiness or financial strength of the creditor/subscriber; (4) if relevant details of the address of PAN identity of the creditor/subscriber are furnished to the Department along with copies of the shareholders Register, Share Application Forms, Share Transfer Register etc. it would constitute acceptable proof or acceptable explanation by the assessee; (5) the Department would not be justified in drawing an adverse inference only because the creditor/subscriber fails or neglects to respond to its notice; (6) the onus would not stand discharged if the creditor/subscriber denied of repudiated the transaction set up by the assessee nor should the Assessing Officer take such repudiation at face value and construe it, without more, against the 6 Assessment Year 2006-07 assessee; (7) the Assessing Officer is duty- bound to investigate the credit worthiness of the creditor/subscriber the genuineness of the transaction and the veracity of the repudiation.”
With regard to the issue of share application money, while dismissing the SLP filed by the Department, the Hon’ble Supreme Court in the case of CIT Vs. Lovely Exports (P) Ltd. (216 CTR 195) observed as under:
Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment.
The Hon'ble Delhi High Court in the case of CIT vs Nipun
Auto Pvt. Ltd. (2014) 361 ITR 155 (Delhi) held as under:-
“10. ………..Whereas in the present case, the identity of the two companies which are sister companies stood established. Furthermore, this is not a case of mere furnishing of copies of bank accounts of the subscribers. But, in the present case, as noted by the Commissioner of Income-tax (Appeals) the assessee had filed the income-tax returns of the subscriber companies as also their bank statements and balance- sheets in addition to the confirmation letters from the said two companies. A copy of Form No. 2 filed by the assessee with the Registrar of Companies regarding Assessment Year 2006-07 the allotment of shares to the said two companies had also been furnished. It is in this backdrop that the Commissioner of Income-tax (Appeals) had concluded that the assessee had been able to prove its case and that the Assessing Officer could not shift the burden back onto the assessee-company without the Assessing Officer producing any tangible material to doubt the veracity of the documents furnished by the assessee. The Income-tax Appellate Tribunal concurred with the views taken by the Commissioner of Income-tax (Appeals).”
In the case of Anu Industries Ltd. vs ACIT (2009) 19 DTR (Del), Delhi ITAT observed as under:- “We have considered the rival contentions and found that identity of the share applicants are not in dispute. The Hon’ble Supreme Court in case of Divine Leasing & Finance Ltd. (supra) has held that if the share application money is received by the assessee company even from the bogus shareholders whose names are given to the AO then the Department is free to proceed to, reopen their individual assessments in accordance with law. Accordingly, addition made under s. 68 which was deleted by the Hon’ble High Court was upheld by Hon’ble Supreme Court. A perusal of the orders of the Hon’ble Supreme Court in the case of Divine Leasing & Finance Ltd. referred to supra is in regard to SLP filed by the Revenue against the order of the Hon’ble jurisdictional High Court. The Hon’ble Supreme Court has specifically with a speaking order dismissed the SLP. The Hon’ble Supreme Court in the various decisions referred to by the learned Authorized Representative has categorically held that the addition in regard to the share capital cannot be treated as the undisclosed income of the assessee if the share application money is received by the assessee company from alleged bogus shareholders whose names are given to the AO. Further the Hon’ble Supreme Court has categorically held that the Revenue is free to proceed to reopen the individual assessments of such alleged bogus shareholders. The decision of the Hon’ble jurisdictional High Court in the case of Value Capital Services Ltd. (supra) has also categorically held that there is additional burden on the Revenue to show that even if the applicant does not have the means to make 8 Assessment Year 2006-07 the investment, but the investment made by the applicant should be shown to have emanated from the coffers of the assessee so as to enable it to be treated as undisclosed income of the assessee. It is noticed that the Revenue has not been able to specifically show that the investments had emanated from the coffers of the assessee in this case. In these circumstances, respectfully following the decision of the Hon’ble jurisdictional High Court as also Hon’ble Supreme Court referred to supra, the addition made by the AO and confirmed by the learned CIT(A) in regard to the alleged bogus shareholders represented by the increase in share capital of the assessee cannot be treated as unexplained cash credits in the hands of the assessee. Respectfully following the decision of the Hon’ble Supreme Court we direct the Assessing Officer to delete the addition made under s.68. However, the Department is free to proceed to reopen the individual assessments of the share applicant in accordance with law. We direct accordingly.”
It is seen that in the present case, the identities of the share applicants are not in dispute. The Hon’ble Supreme Court in case of Divine Leasing & Finance Ltd. (supra) has held that if the share application money is received by the assessee company even from the bogus shareholders whose names are given to the AO then the Department is free to proceed to reopen their individual assessments in accordance with law. The addition in regard to the share capital cannot be treated as the undisclosed income of the assessee if the share application money is received by the assessee company from alleged bogus shareholders whose names are given to the AO. Further the Hon’ble Supreme Court has categorically held that the Revenue is free to proceed to reopen Assessment Year 2006-07 the individual assessments of such alleged bogus shareholders.
In these circumstances, respectfully following the decision of the Hon’ble jurisdictional High Court as also Hon’ble Supreme Court referred to supra, the addition made by the AO and deleted by the learned CIT (A) represented by the increase in share capital of the assessee cannot be treated as unexplained cash credits in the hands of the assessee. We have no hesitation to conclude that the assessee has provided necessary details including the ward/circle where the share applicants were assessed to income tax and discharged the onus cast on it. The AO has not brought anything on record to dispute the facts/details furnished by the assessee.
The AO has not found any discrepancy in the books of account and bank accounts maintained by the assessee. Thus, in our considered opinion, in views of facts as narrated above and the judicial pronouncements, the share capital to the extent of Rs. 76.00 lacs stands explained. Hence, the order of the Ld. CIT (A) does not call for any interference. The grounds of appeal are dismissed.
In the result, the appeal of the department is dismissed.
The order is pronounced in the open court on 31/03/2016.