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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
The present appeal preferred by the assessee is directed against the impugned order dated 19th April, 2012 passed by the CIT(A)-9, Mumbai, for the assessment year 2008-09, which in turn has arisen from the order passed by the Assessing Officer dated 24/12/2010 under section 143(3) of the Income Tax Act, 1961( in short ‘the Act’).
2 Mobile 2 Win India Private Limited
The grounds of appeal raised by the assessee read as under:-
“1. That the Ld. CIT(A) has erred in facts and law by confirming the addition made by the AO u/s.68 amounting to Rs.3,25,13,110/- received towards share capital.
2. That the Id CIT(A) wrongly relied on the incorrect observation of the AD that there is no RBI approval for issue of shares to the Cyprus based company ignoring the law that no such approval by RBI is required and also documents required by RBI were duly filed by assessee and the copies thereof were duly produced before the CIT(A) and AO.
3. That the Id CIT(A) wrongly observed that there is no approval from SEBI for the issue of such shares when no such approval is required as the assessee company is a private limited company.
4. That learned CIT(A) has erred in law and facts in making a disallowance of Rs.1,04,36,195 u/s 40(a)(ia).
5. That learned CIT(A) has erred in law and facts in enhancing the income of the assessee by disallowing a sum of Rs. 1,04,36,195 u/s 40(a)(ia) when this issue was not before the AO and without giving any opportunity to the assessee u/s 251(2).
6. That the Id CIT(A) was not justified in making a disallowance of Rs.10436195 especially when the assessee has suo-moto made the disallowance amounting to Rs.10292587 u/s 40(a)(ia) and Rs.29450537 u/s 40(a)(i) in the return of income as per finding of auditor in the Tax Audit Report.
7. The learned CIT(A) has erred in law and facts in confirming the addition ofRs.1741 u/s 14A read with rule 8D of Income Tax.
2. In brief, the relevant facts are that the assessee is a company incorporated under the provisions of Companies Act, 1956 and, is inter- alia, engaged in the business of providing enterprise/content information and solutions namely, marketing campaigns, sales linked promotions,market research, CRM projects, SMS competition /polls / voting,alerts,etc. The assessee also provides content management and 3 Mobile 2 Win India Private Limited content development services. For the assessment year under consideration, it filed a return of income declaring a loss of Rs.3,15,22,658/- which was subject to scrutiny assessment, wherein the total income has been assessed at Rs.1,79,67,450/- after making certain disallowances/additions. The additions, inter-alia, included disallowance u/s.68 of Rs.3,25,13,110/-, adhoc disallowance of expenses- Rs. 1,03,12,486/-; out of information technology costs -Rs.66,67,771/-; and, disallowance under section 14A of the Act – Rs.1,741. The appeal of the assessee before CIT(A) on all the aforesaid issues has also been dismissed and, accordingly, the assessee is in further appeal before us.
The issue manifested by the Grounds of appeal Nos.1 to 3 is with respect to an addition of Rs.3,25,13,110/- made by the Assessing Officer by invoking section 68 of the Act. In this context, brief facts are that assessee was found to have issued 74,915 equity shares of Rs.10/- each at a premium of Rs.424/- per share, totalling to Rs.3,25,13,110/- The Assessing Officer required the assessee to explain the nature and source of the accretion in share capital to the above extent of Rs.3,25,13,110/-.The assessee contended that the said shares were issued to its 100% holding company i.e. Becrux Trade & Invest Ltd. , Cyprus and furnished the name, address as well as the Foreign Inward Remittance Certificates(FIRC) issued by the banks as also copies of share certificates issued. The assessee also contended that the transactions were in compliance with the regulations of Reserve Bank of India. The explanation furnished by the assessee was not found satisfactory by the Assessing Officer in as much as, according to him the foreign inward remittance certificates furnished by the assessee did
4 Mobile 2 Win India Private Limited not correspond to the previous year relevant to the assessment year under consideration and he held that the assessee company had failed to establish the identity or creditworthiness of the shareholder and the genuineness of the transaction of receipt of share capital and, therefore, he invoked the provisions of section 68 of the Act and added the amount of Rs.3,25,13,110/- as an unexplained cash credit. The CIT(A) has also affirmed the stand of the Assessing Officer primarily on the ground that the assessee has failed to satisfy the ingredients prescribed in section 68 of the Act.
In the above background, Ld. Representative for the assessee vehemently pointed out that the impugned share capital has been received from its 100% holding company and that the entire amount was received in terms of the RBI regulations. At the time of hearing, our attention was invited to the respective documents placed in the Paper Book filed, which according to the appellant, clearly demonstrate the nature and source of the impugned credits. Ld. Representative for the assessee has also made a statement at Bar that similar subscription towards share capital made by the holding company in the earlier assessment year has been accepted by the Revenue and there was no justification not to treat the impugned subscription to the share capital as an unexplained transaction.
On the other hand, Ld. Departmental Representative has primarily relied upon the orders of the authorities below in support of the case of the Revenue.
5 Mobile 2 Win India Private Limited
We have carefully considered the rival submissions. In the present case, the controversy is with respect to invoking of section 68 of the Act by the Assessing Officer in order to treat the addition in the share capital as unexplained credit. No doubt, section 68 puts the burden on the assessee to establish satisfactorily the nature and source of a sum credited in its books of account, and it is a well- settled proposition that such burden requires the assessee to prove the identity, creditworthiness of creditor and genuineness of the transaction. Section 68 of the Act empowers the Assessing Officer to charge to income-tax any sum found credited in the books of an assessee provided the assessee offers no explanation about its nature and source or the explanation offered is not found satisfactory by him. Quite clearly, section 68 of the Act is a rule of evidence and in the present case it would be required to be established as to whether the assessee has discharged the burden cast on it, having regard to the material on record.
6.1 In the above background, we may now examine the fact position in the present case. It is quite clear that the appellant before us is a subsidiary of Becrux Trade & Invest Ltd., a company with headquarters in Cyprus. It is also not in dispute that the assessee company is 100% subsidiary of M/s Becrux Trade & Invest Ltd., Cyprus. In the instant year Rs.3,25,13,110/- was received by the assessee against issue of 74915 equity shares of Rs.10/- each at a premium of Rs.424/- per share. The entire amount has been credited in the books of accounts as part of share capital and it has been found to be an unexplained credit by the Assessing Officer under section 68 of the Act. In our considered
6 Mobile 2 Win India Private Limited opinion, the material available on record clearly militates against the action of the Assessing Officer. Evidently, the appellant company had furnished Foreign Inward Remittance Certificates (FIRC) issued by the bank and it is also not disputed that contribution to the shareholder’s capital is in terms of RBI regulations. It is also clear from the copies of the documents submitted by the assessee company to the RBI in connection with receipt of share capital monies from Becrux Trade & Invest Ltd. that the nature of such receipts are of share capital. In fact the observation of the Assessing Officer that the FIRCs issued by the HDFC Bank do not pertain to the year under consideration is contrary to the fact-situation. In the Paper Book filed before us, assessee has placed copies of the three FIRCs issued by HDFC Bank, which clearly evidence that a sum of Rs.3,25,13,110/- has been received during the previous year relevant to the assessment year under consideration. At page 23 of the Paper Book are placed copies of the relevant forms submitted to the RBI for issuance of 74,915 equity shares of Rs.10/- each at a premium of Rs.424/- per share. In the Paper Book assessee has also placed copies of the share certificates issued to the holding company M/s. Becrux Trade & Invest Ltd., Cyprus and also other documents filed with the Registrar of Companies in connection with the issue of share capital. In fact, assessee company has also placed on record the financial statements of holding company Becrux Trade & Invest Ltd., Cyprus at pages 46 to 81 of the Paper Book, which clearly depicts investment made in the assessee company. On the basis of all the aforesaid material, which was very much before the lower authorities, it clearly emerges that the assessee had not only
7 Mobile 2 Win India Private Limited demonstrated the source but also explained the nature of impugned credits. Therefore, in view of such fact-situation, we find no reason for the Assessing Officer to invoke the provisions of section 68 of the Act to make an addition of Rs.3,23,13,110/-. As a consequence, the order of the CIT(A) is set-aside and the Assessing Officer is directed to delete the addition. Thus, in so far as Ground of appeal No.1 to 3 are concerned, the same are allowed.
In so far as Ground of appeal No.4 to 6 are concerned, the same relate to a disallowance of Rs.1,04,36,195/-, which has been made by the CIT(A) under section 40(a)(ia) of the Act. In this context, brief facts are that in the course of assessment proceedings, Assessing Officer required the assessee to furnish complete details of the expenses debited in the P&L account where the expenses exceeded Rs.5.00 lacs. In terms of the discussion in the assessment order, it transpires that the Assessing Officer was not satisfied with the explanation furnished by the assessee and, therefore, proceeded to make an adhoc disallowance of 5% of expenses debited under three heads – Cost of operation; Personnel expenses; Administrative and selling ; and, such disallowance worked out to Rs. 1,03,12,486/-. Further, the Assessing Officer has also disallowed an expenditure of Rs.66,67,771/- debited under the head ‘information technology cost’, as according to him it was not in the nature of revenue expenditure.
7.1 When the assessee company carried the matter in appeal before the CIT(A), the CIT(A) noticed that in an order passed for the instant assessment year by the CIT(A) dated 23/02/2012 in proceedings arising from orders under section.201(1)/201(1A) of the Act assessee was 8 Mobile 2 Win India Private Limited held to be an assessee in default for non-deduction of tax at source on amount of Rs.1,04,36,195/-. For the said reason, the CIT(A) held that such expenditure was not allowable under section 40(a)(ia) of the Act. Considering disallowances of Rs.1,03,12,486/- and Rs.66,67,771/- made out of expenses debited in the P&L account, the CIT(A) reduced the disallowance to Rs.1,04,36,195/- contending that the provisions of section 40(a)(ia) are attracted since requisite tax was not deducted at source on such amount.
7.2 Before us, the Ld. Representative for the assessee pointed out that the addition sustained by the CIT(A) is completely misplaced because in the return of income filed, assessee had made a suo-motu disallowance of Rs.1,05,47,651/- and the same was indeed noticed by the CIT(A) in his order dated 23/02/2012, which has been relied upon by the instant CIT(A). For this purpose out attention was invited to a copy of the order of CIT(A) dated 23/2/2012, rendered in proceedings arising from the order of the Assessing Officer us/ 201(1)/201(1A) of the Act, which have been placed in the Paper Book at pages 430 to 439. In particular, attention was invited to para 7 of this order, wherein it is noted that a provision of Rs.1,05,47,651/- was made as on 31/3/2008, which has not been claimed as deduction while computing total taxable income. It was, therefore, contended that no further disallowance as done by the CIT(A), was required to be made. Apart therefrom the Ld. Representative for the assessee pointed out that the issue of any disallowance under section 40(a)(ia) of the Act was not before the CIT(A) as no such disallowance was made by the Assessing Officer. It was pointed out that the CIT(A) did not show cause the assessee on 9 Mobile 2 Win India Private Limited this aspect at all before making the disallowance of Rs.1,04,36,195/- and even on this count disallowance is unwarranted.
7.3 Ld. Departmental Representative has not controverted the factual matrix brought out by the Ld. Representative for the assessee, but relied upon the order of the CIT(A).
7.4 We have carefully considered the rival submissions. The discussion in Paras 5.1 to 5.9 of the order of the CIT(A), clearly reveal that no show casue notice was issued to the assessee for disallowing a sum of Rs.1,04,36,195/- by invoking the provisions of section 40(a)(ia) of the Act. Quite clearly, the issue relating to invoking of section 40(a)(ia) was not before the Assessing Officer at all and in this background, it was imperative for the CIT(A) to have issued an appropriate notice to the assessee . In fact the provisions of section 251(2) of the act clearly militate against the aforesaid approach of the CIT(A). Moreover, even on facts, the assessee has pointed out that the impugned amount is a part of a suo-motu disallowance made in the return of income itself. Copies of the return of income have been placed in the Paper Book at page 455. The plea of the assessee is also fortified by the observation made by the CIT(A) in his order dated 23/2/2012(supra). Thus, considering the entirety of circumstances, in our view, the impugned addition is unwarranted and is hereby directed to be deleted. Thus, on Grounds of appeal No. 4 to 6 assessee succeeds.
8. The last Ground relates to a disallowance of Rs.1,741/- made under section. 14A of the Act . After considering the rival stands, we
10 Mobile 2 Win India Private Limited find no reason to interfere with the orders of the authorities below and accordingly on this issue assessee fails.
In the result, appeal of the assessee is partly allowed, as above.
Order pronounced in the open court on 13 July,2016