Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
Per Shri Mahavir Singh, JM:
1. This appeal by revenue and Cross Objections by assessee are arising out of order of CIT(A)-I, Kolkata vide Appeal No. 374/CIT(A)-I/Wd-3(4)/08-09 dated 09.01.2012. Assessment was framed by ITO, Wd-3(4), Kolkata u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2006-07 vide his order dated 26.12.2008.
The two inter-connected issues in this appeal of revenue is against the order of CIT(A) deleting the addition made by AO on account of share application money of Rs.1,49,40,000/- and undisclosed cash deposit of Rs.75,05,400/-.
We have heard rival submissions and gone through facts and circumstances of the case. Briefly stated facts are that the AO made addition of share capital of Rs.63.40 lacs and share capital premium of rs.96,00,000/- received by assessee from different share applicants as unexplained cash credit u/s. 68 of the Act. The assessee company during the year under consideration issued 634000 equity shares of Rs. 10/- each at a premium of Rs.15/- each.
Accordingly, there was increase in share capital at Rs.63.40 lacs and share premium of Rs.95.10 lacs. During the course of assessment proceedings, the assessee filed details of share applicants i.e. identity of the applicants, share application money was received through account payee cheques and all the share applicants are private limited companies. The copies of incorporation and other details are verifiable from the applicants and their directors and also on official website of the Ministry of Corporate Affairs, which appears in www.mca.gov.in and assessee filed the same in the paper book at paged 23 to 51. The assessee also filed details of income tax particulars of these applicants having PAN and jurisdiction details. The assessee before the AO as well as before CIT(A) claimed that in such circumstances the transaction is genuine for the reason that applicants have received the share application money through banking channels. For this, it enclosed copies of bank statement highlighting the entries relating to receipt of share application money and share premium. The assessee also filed form no. 2 and Xerox copies of annual return as filed with Registrar of Companies and return of allotment of shares tallying the total number of shares allotted and amount received. Ld. Counsel for the assessee stated that all these details were referred to AO for remand report and AO in his remand report admitted that this share application money and share premium is explained. The relevant remand report is reproduced in para 4.3 of CIT(A)’s order, which reads as under: “4.3 Remand report was called for from the A.O. The remand report has been submitted by the A.O, the relevant portion is reproduced as below: In addition to the report made earlier the assessee has now submitted the copy of Form No.-2 as was filed to the ROC which is verified by this office from the ROC website (MCA21) as well. Further, the Inspector attached to this office have been directed to make certain physical enquiries at the addresses of the relevant share applicants to find their existences, nature of business activities, etc. The learned authorized representative was requested to clarify with reference to the document filed earlier and Form no. 2 and annual return filed now. As said, physical verification is made by the inspector attached to this office for the following companies to find out their existence, activities mode of payments made to assessee etc., as far as possible.
Shivpujan Commodities Pvt. Ltd, 2. Vishnupriya Properties Pvt. Ltd.
3. Jai Matadi Advisory Pvt. Ltd.
Reward Sales Promotion Pvt. Ltd.
5. Gunjan Agency Pvt. Ltd.
6. Angels India Pvt. Ltd.
Neminath Vyapaar Pvt Ltd.
8. Medhavi Goods Pvt. Ltd.
9. Dherar Textile Pvt. Ltd.
The inspector made enquiries from time to time and submitted his report of his finding which is satisfactory, as apparent, nothing adverse reported.
In respect of the names of the share applicants, examination of the contents of Form-2, the paper book (page No.-21, 22) and the lists of share applicant as was furnished in course of the assessment proceedings and the list now furnished as part of the Form-2, it is found that the assessee wrongly mentioned certain concerns, extra, in the list furnished earlier in course of the assessment proceedings as 'M/s Dheraj Textile (P) Ltd.' for 40000 shares and 'M/s JP Enterprise (P) Ltd..' for 60000 shares. Whereas, such companies do not exists and which are clarified to be read as 'Dherar Textile (P) Ltd .' & 'M/s JPS Enterprise (P) Ltd. instead.
Further, there is no 'M/S Gagan Agency (P) Ltd.' claimed to have had applied 20000 Nos. of shares, it should be 'M/s Gunjan Agency (P) Lto.,' To clarify the following out of the above are the actual and existing-
• 'M/s Dherar Textile (P) Ltd. ' • M/s Gunjan Agency (P) Ltd .. • M/s JPS Enterprises (P) Ltd.
The assessee committed yet another such typographical mistake in respect of mentioning a concern namely 'Rewanel Distributors P Ltd.' in the paper book, even whereas, as per Form-2 the concern is 'Reward Distributors P Ltd. '
The discrepancies as reported earlier in my first report in terms of Number of share applied by different applicants. etc., are now reexamined and observed to be clarified. The discrepancies were due to mentioning of certain extra names in the list and wrong names, as well. The Ld. AR requested to consider tobe a typographical error made from the assessee. To mention, these mistakes were not discussed and clarified in course of the assessment proceedings which obviously created confusion as it appears.
Finally, as verified now from the online submission of the Form No.-2 and the corresponding entries in Assessee's bank Ale in support of the share application money received from all 16(sixteen) concerns, appears to be correct as far as the share application money claimed to have been received.”
In view of the above, we find that the CIT(A) has deleted the addition by observing in para 4.4 as under: “4.4 I have cone through the assessment order, detailed submissions of appellant and the remand report submitted by the A.O. The A.O. has made the addition of Rs.1,49,40,000/- on account of Share Capital of Rs.63,40,000/- and Share Premium of Rs.96,00,000/- (minus Rs.10,00,000/- as the A.O. has received the reply). The addition was made as the notices u/s 133(6) could not be served on the shareholders and thus the A.O. could not verified the physical existence, genuineness of the transactions as well as creditworthiness of the share applicants. During the appellate proceedings, the appellant has furnished the detailed submissions, copy of which was given to A.O also.
A remand report was called for from the A.O. The A.O. has submitted the remand report. The relevant portion of the remand report dt.04.01.2012 as under:
4 & CO No.43/Kol/2013 High Growth Exports Pvt. Ltd., AY 2006-07 ''Finally, as verified now from the online submission of the Form No-2 and the corresponding entries in Assessee's bank A/C in support of the share application money received from all 16(sixteen) concerns, appears to be correct, as far as the share application money claimed to have been received.” Thus the A.O. has examined the share application money received from all concerned and submitted that it is correct. In view of the factual report submitted by the A.O. and in view of the detailed submissions made by the appellant, the appellant gets relief on this issue of addition of Rs.l,49,40,000/-. The A.O. is directed to delete the addition made as unexplained cash credit, in view of the factual remand report of the A.O., wherein it has been accepted by the A.O. that share application money appears to be correct.”
4. We find that the assessee has received share application money through account payee cheques and through normal banking channels. It is not the case of the revenue that the share application was not made from the bank account of the applicant companies and the share applicants were also produced before the AO. It is also not the case of the revenue that the shares were allotted to the subscribers are matter of records of ROC and confirmed by annual return and return of allotment as filed with ROC but the AO has not made any verification with respect to bank vis-a-vis respective companies nor has been called for any records of the respective companies. Even the AO has accepted the genuineness of these companies and receipt of share application money as well as share premium. In such circumstances, we are of the view that this is a genuine share application money and CIT(A) has rightly deleted the addition basing his decision on remand report of the AO. We confirm the order of CIT(A).
The next issue which is inter-connected with the first issue is as regards to the addition of undisclosed cash deposit of Rs.75,05,400/-.
Brief facts are that the AO noted that the assessee has made deposit of cash into the bank account on various dates which is narrated in the chart given at pages 9 and 10 of the assessment order totaling to Rs.75,05,400/-. According to AO, this is undisclosed cash deposit and hence, he made addition of the same. Before the CIT(A) assessee claimed that during the year assessee company was engaged in the business of trading in iron and steel. The assessee’s total sales was to the tune of Rs.13,09,98,510/- out of which there was cash sale of Rs.24,22,505/- which constitute merely 1.84% of the total sale. The assessee explained the cash deposit that the AO considered the sale as income of the assessee which includes cash sale of Rs.24,22,505/- but he also assessed separately this amount of Rs.24,22,500/- as undisclosed income. It was explained that balance of Rs.51 lacs was deposited in bank on different dates which was out of cash withdrawals from the bank on different dates. For this, assessee filed bank statement in its paper book. The assessee also filed a statement of deposit of cash and bank and source of deposits and withdrawals. When these documents were remanded back to the AO, he filed his remand report, which is reproduced in para 6.3 of the order of CIT(A), which reads as under: “It is now that the AR on behalf of the assessee clarified the issue with certain documented evidence and marking the transactions. A statement of the concerned Bank A/C of the assessee, No. (CA-5865) held with Federal Bank Ltd., R N Mukherjee Road Branch, Kolkata, however, already furnished but was not cross checked due to a fact that the corresponding ledger of cash sale was not made available to this office by the Ld. AR, in course of the assessment proceedings, as it appears. However, it is now that the assessee has furnished the copy of the ledger A/C concerned in support of the cash sales to different retail customers for a total amount of Rs.24,22,505/- in the year vide the last such cash memo No.-CM/135/05-06 dt. 28.05.2005. Cash memos are also furnished and produced. It is noted that the cash sale were made during the period from 02.04.2005 to 28.052005, in the whole year. As per the summarized statement of affairs of the cash sales as now furnished, the amount consolidated on different date do matches with the sales ledger as was already furnished in course of the assessment proceedings, as is observed. The cash withdrawal from the said bank A/C is however evident from the statement of the Bank A/C concerned of a total amount of Rs. 63,84,000/-, there is no dispute. The Date(s) of deposit and date(s) of cash withdrawn from the bank and date(s) of cash sale do support the source, as apparent in support of the cash deposits as mentioned and listed in the assessment order for a total amount at Rs.75,05,400/-. The value of the opening stock as on 01.04.2005 was shown at Rs.64,40,667/-. The assessee again produced the concerned ledger of the stocks, purchases in support.”
We find that the CIT(A) deleted the addition by observing in para 6.4 as under: “I have gone through the assessment order, detailed submissions of the appellant and the remand report submitted by the A.O. The A.O. has made the addition of Rs.75,05,400/- u/s. 68 of the Act as undisclosed source in respect of cash deposit into bank. In the remand report, the A.O. has submitted that the assessee has furnished the copy of the ledger A/C concerned in support of the cash sales to different retail customers for a total amount of Rs.24,22,505/- in the year, vide the last such cash memo No.-CM/135/05-06 dt 28.05.2005. Cash memos are also furnished and produced. It is noted that the cash sale were made during the period from 02.04.2005 to 28.05.2005, in the whole year. As per the summarized statement of affairs of the cash sales as now furnished, the amount consolidated on different date do matches with the sales ledger. Further, the A.O. had submitted that the cash withdrawal from the said bank A/C is however evident from the statement of the Bank A/C concerned of a total amount of Rs.63,84,000/-, there is no dispute. The Date(s) of deposit and date(s) of cash withdrawn from the bank and dates(s) of cash sale do support the source, as apparent in support of the cash deposits as mentioned and listed in the assessment order for a total amount of Rs.75,05,400/-. The value of the opening stock as on 01.04.2005 was shown at Rs.64,40,667/-. The assessee again produced the concerned ledger of the stocks, purchases, in Support. Thus, the A.O. has stated that here is no dispute of the amount total of Rs.63,84,400/- as the date of deposit of cash withdrawal from the bank and date of cash sale do support the source. Thus, the A.O. is directed to delete the amount of Rs.75,05,400/- in view of the factual remand report dt.04.01.2012.”
6 & CO No.43/Kol/2013 High Growth Exports Pvt. Ltd., AY 2006-07 7. In view of the above, we find that the assessee has co-related the withdrawals made with that of cash deposit and also cash sales made during the period 02.04.2005 to 28.05.2005. The assessee has filed complete summary of cash withdrawals and cash deposit and cash sales which is co-related to the cash deposit with the bank account and/or treated as undisclosed. We find that the CIT(A) has deleted the addition based on the remand report of the AO, who admitted that these cash deposits are explained by the assessee in remand proceedings. In view of the above facts and circumstances, we confirm the order of CIT(A) and this issue of revenue’s appeal is dismissed.
Cross Objection of assessee is dismissed as withdrawn.