ITO, MOHALI vs. M/S GURU TEG BAHADUR ENGG. (P) LTD., MOHALI

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ITA 1118/CHANDI/2016Status: DisposedITAT Chandigarh11 July 2018AY 2008-099 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the deletion of the addition, finding that the assessee had discharged its onus of proving the identity, genuineness, and creditworthiness of the share applicants. The applicants' ownership of agricultural land was considered sufficient to presume agricultural income for investment.

What were the facts?

The Revenue appealed against the deletion of an addition made on account of unexplained share application money. The assessee had received share application money, and while some was confirmed, a significant portion remained unexplained by the Assessing Officer (AO).

What were the issues?

Whether the assessee discharged its onus to prove the identity, genuineness, and creditworthiness of share applicants for unexplained share application money, and if ownership of agricultural land is sufficient proof of income for investment.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DIVISION BENCH ‘A’, CHANDIGARH

Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA

For Appellant: Shri Surendra Mahajan
For Respondent: Shri Kultej Singh Bains
Hearing: 18/04/2018Pronounced: 11/07/2018

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘A’, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER

ITA No.1118/Chd/2016 (Assessment Year : 2008-09)

The ITO Vs. M/s Guru Teg Bahadur Engg. (P) Ltd. Ward 6(3) H.No. 2708-B, Sector 70 Mohali Mohali

PAN: AACCG1456F

(Appellant) (Respondent)

Appellant by : Shri Surendra Mahajan Respondent by : Shri Kultej Singh Bains Date of hearing : 18/04/2018 Date of Pronouncement : 11/07/2018

ORDER PER ANNAPURNA GUPTA, A.M. : The present appeal has been filed by the Revenue against the order of the Ld. CIT(A)-2, Chandigarh dt. 30/08/2016.

Sole issue in the present appeal relates to addition made under section 68 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) on account of share application money received during the year remained unexplained.

2.

Briefly stated, during assessment proceeding the AO noted that the assessee had shown share application money at Rs. 1,12,18,500/-. On being asked to submit details relating to the same, the assessee submitted list of all the persons along with their addresses from whom share application money was received. To verify assessee’s claim and to check their credit worthiness, letters were issued to the said persons, in response to which only one person, who had invested Rs. 31,00,000/- by way of share application money ,confirmed the same while the rest of the letters were either received back undelivered or no compliance was made on delivery. When confronted with the same the assesee furnished confirmations from the remaining persons and informed that all the said persons were agriculturist and did not have PAN . The AO stated that the confirmations were not acceptable at this stage and further stated that

from the plain reading of the balance sheet of the asessee , there appeared no reason why any investment would be made in the assesee company by persons who were not credit worthy since the accounts of the assessee company did not indicate any substantial growth in the near future. For the aforesaid reasons the AO held the share application money to the extent of Rs. 81,18,500/-, being the share application money of Rs. 1,12,18,500/- received as reduced by the amount confirmed of Rs. 31,00,000/-, as investment from the own unexplained sources of the assessee company and added the same to the income of the assessee.

3.

During appellate proceedings before the CIT(A), the assessee contended that the share application money of Rs. 1.12 Crores included opening balance of Rs. 37,18,500/- which could not be treated as the income earned by the assessee during the year. The assessee therefore contended that the addition if any that could be made was only to the extent of Rs. 44,00,000/-. With regard to the same the assessee contended that it had filed confirmation from all the persons who had invested in the share application money of the company who had confirmed investment made in the assessee company by way of demand draft and had also filed copy of demand draft and had also confirmed that they owned agricultural land and that their main source of income was agricultural income. The submissions of the assessee were forwarded to the AO who confirmed that the share application money included opening balance of Rs. 37,18,500/- and conceded that no addition with respect to the same was warranted. The AO further stated in his report that with regard to the share applicants of Rs. 44,00,000/- fresh verification had been done by asking the assessee to produce these persons who in turn were produced and their statements recorded wherein they had confirmed the investment made by them with assessee company. The AO stated that the said persons had stated that they were agriculturist and their source of income was agricultural income and had submitted an affidavit supported by evidence regarding agricultural land holding, their identity proof and photocopy of bank draft. Thereafter the AO sent another report stating that in all cases except two amounting to Rs. 2,00,000/- and Rs. 1,34,154/- received by way of share application from two persons, all the amounts were deposited in cash in the bank account of the share applicant and thereafter demand draft was issued in favour of the assessee. The AO further stated that summons were issued to the persons again

who had stated on oath that they were not known to the Managing Director of the company but had confirmed making investment in the said company on the advice of some other persons. Regarding the source of investment the said persons reiterated that the same was made from agricultural income submitting the copy of Jamabandi in proof of ownership of land. The AO submitted that no copy of Form J or copy of bank accounts in the books of commission agent was provided by the share applicant.

3.1 The report of the AO was forwarded to the assessee who contended that it had discharged its onus of proving the genuineness of the share application money which had been confirmed by the department also by repeatedly summoning the share applicants who had confirmed the said fact on oath also. It was also pointed out that all necessary evidence with regard to the identity genuineness of the transaction and credit worthiness of the share applicants had also been filed before the AO.

4.

The Ld. CIT(A) after considering the entire facts of the case and the enquiry and investigation carried out by the AO, held that vis-à-vis opening balance of the share application money to the extent of Rs. 37,18,500/-,as admitted by the AO himself, no addition was warranted. Vis a vis the balance amount of Rs. 44,00,000/- ,the Ld. CIT(A) held that the assessee had discharged its onus of proving identity, genuineness of the transaction and the credit worthiness of the persons who had made the investment and therefore deleted the addition made by the AO. As for the non furnishing of Form J by the share applicants as proof of their creditworthiness to make the investments, the ld. CIT(A) held that the same was not asked for from the share applicants while recording the statement on oath and further stated that the applicant had shown that they were agriculturist and earning income from agricultural land and had substantiated the same by filing document reflecting the ownership of sufficient agricultural land. He therefore deleted the addition made by the AO. The relevant findings of the order of Ld. CIT(A) at para 7.4 to 7.4.2 of the order is as under:

7.4 The remand reports of the AO, the submission of the appellant dated 09.11.2011 and 24.02.2016 and material on record have been considered. On careful consideration, it is seen that the assessing officer has arrived at the addition of Rs. 81,18,500/- by taking share application money at Rs. 1,12,18,500/- which included opening balance of Rs. 37,18,500/-. It means that company has received share application money amounting to Rs 75,00,000/- during the year out of which assessing officer have accepted the evidence and found genuine share application money of Rs. 31,00,000/-but did not agree for balance amount

of Rs 44,00,000/-. Therefore addition on this account could not have been more than 44,00,000/- as against 81,18,500/- made in the assessment order.

7.4.1 As regards the share application money of Rs 44,00,000/-, the appellant filed details of share application with name 2 addresses and confirmation from shareholders. When the notices/letters were returned unserved or served but not responded from these shareholders, the appellant on being asked by AO produced the shareholders, Sh. Harmohinder Singh, Sh. Sukhjinder Singh, Sh. Ranjit Singh, Gurbaz Singh, Harbans Singh, Dharminder Singh and Sh Sammitter Singh. Assessing officer recorded the statements of these persons on two occasion and they have confirmed that the investments have been made by them with the assessee company, They also stated that they are agriculturists and their source of income is agriculture income and they have made investment with the assessee company. In support of their contention they have furnished affidavits, copy of fard/ Jamabandi for agriculture land owned, copy of voter ID Cards and copies of their bank statements, The appellant on both, the occasions have confirmed that they have made investment in the share capital of assessee company out of their agriculture income through their bank accounts.

7.4.2 As the share application money have been paid through demand draft, in my opinion by filing the voter I Card and with personal presence and their statements on oath, the identity of the share applicants have been proved. As the payments towards share application money have come from their bank accounts for which they have filed copies of bank statements before the AO therefore the genuineness of the payment is also not in doubt. The share holders/ share applicants appeared before AO and filed copies of fard/jamabandi that they are the owners of sizeable agriculture land and therefore they have the source of income i.e. agriculture income . I have perused the statements on oath recorded by AO and found that nowhere AO has asked for ‘form 'J' from the share applicants while recording their statements on oath. They have specifically answered that they are agriculturist, possessing agriculture land and the investment in the appellant company have been made out of agriculture income and therefore the creditworthiness of the investors is also proved. I have perused the case laws relied upon by the appellant and it is seen that decision of the Hon' Supreme Court in the case of M/s Lovely exports Pvt. Ltd. and M/s Settller Investments Ltd. have been followed by Hon'ble P&H High Court in the case of GP International Ltd. (Supra). The case of the appellant is squarely covered by the said judgments of the Hon'ble Supreme Courts and Jurisdictional High Court. Respectfully following the same, it is held that assessee has discharged its onus of proving the identity, genuineness and capacity of the shareholders and therefore addition cannot be made in the hands of the appellant. It is held that assessing officer was not justified in making addition of Rs 81,18,500/- and the same is deleted. Ground of appeal no 3 is allowed.

5.

Aggrieved by the same the Revenue has came up in appeal before us

raising the following grounds:

1.

On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the appeal of the 'A' disregarding the factual findings recorded by the A.O. which showed that the share applicants were not creditworthy and the transactions were not genuine. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in allowing of the appeal without appreciating the fact that the 'A' had failed to discharge its onus of proving the creditworthiness of the share application and the genuineness of the transaction. 3. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the additions on account of undisclosed share application money by relying on the decision of the Hon'ble Supreme Court in the cases of

M/s Lovely Exports Pvt. Ltd. and M/s Steiler Investments Ltd. and the decision of the Hon'ble Punjab & Haryana High Court in the case of GP International Ltd. without appreciating the factual findings recorded by the A.O. and not considering the recent decision of the Delhi High Court in the case of Commissioner of Income Tax vs N Tarika Properties Investment vs Commissioner of Income Tax.

4.

The order of Ld. CIT(A) deserves to be set aside & that by the AO be restored.

6.

During the course of hearing before us the Ld. DR relied on the order of

the AO, and further stated that credit worthiness of the share applicants had not

been proved since no evidence in support of their claim that the amount had

been invested from the agricultural income earned by them, by way of Form J

or their account statement with their commission agent to whom the ag

ricultural produce had been sold had been filed. Ld.DR therefore stated that the

Ld.CIT(A) had erred in holding that the assessee had discharged its onus of

proving the genuineness of the share application money received .

7.

Ld. Counsel for the assessee on the other hand relied on the order of the

Ld. CIT(A).

8.

We have heard the contention of both the parties and gone through the

orders of the authorities below. The issue before us relates to addition made on

account of share application money to the extent of Rs. 81,18,500/- treating the

same as income of the assessee from unexplained sources.

9.

On going through the relevant findings of the Ld. CIT(A) and after hearing

the contention of both the parties we find no merit in the present appeal filed

by the Revenue.We find that out of the addition of Rs. 81,18,500/- made on

account of share application money remaining unexplained, Rs. 37,18,500/- was

admittedly opening balance, which the AO after examination of the records of

the assessee had so confirmed and had also accepted that no addition on

account of the same was warranted, in his report dt. 24/02/2012 reproduced at

para 7.3 of the CIT(A). In view of the same the deletion of addition made to the

extent of Rs. 37,18,500/- by the Ld. CIT(A) we hold warrants no interference. And

the order of the CIT(A) to this effect is therefore upheld.

10.

As for the balance amount of Rs. 44,00,000/- the same we find related to

the following share applicants as listed at page 8 of the CIT(A) order as under:

Sr. No. Name of Share Holder Shares application money 1. Sh. Harmohinder Singh Rs. 3,00,000/- 2. Sh. Gurtej Singh Rs. 2,00,000/- 3. Sh. Sukhinder Singh Rs. 5,00,000/- 4. Sh. Ranjit Singh Rs. 5,00,000/- 5. Sh. Gurbaz Singh Rs. 11,00,000/- 6. Sh. Dharminder Singh Rs. 5,00,000/- 7. Sh. Harbans Singh Rs. 6,00,000/- 8 Sh. Samitter Singh Sekhon Rs. 7,00,000/- Total Rs. 44,00,000/-

10.1 With respect to the same the assessee has contended that all necessary

evidences had been filed proving the identity and creditworthiness of the share

applicants and also the genuineness of the transaction and further that the

share applicants had appeared in person twice before the AO ,once on being

produced by the assessee and thereafter in response to summons issued by the

AO u/s 131 of the Act,and had confirmed making the investment.The list of the

evidences filed was submitted by way of a detail before the Ld.CIT(A) and the

same is reproduced at page 10 -11 of the order is as under:

11.

Considering the above, Ld. CIT(A) held that the assessee had discharged its onus of proving the identity ,genuineness and creditworthiness of share applicants and thus deleted the addition made.

12.

The grievance of the revenue before us is not vis a vis the identity of the applicants not having been proved but that the creditworthiness and the genuineness of the transaction remained unproved and the reason stated before us is that no evidence of earning of agricultural income ,which was stated to be the source of investment of the share applicants ,was filed.

13.

We find no merit in the same. The share applicants undisputedly had repeatedly asserted that the source of investments was from agricultural income earned and had filed proof of ownership of agricultural land in this regard. As per the detail reproduced above most of the share applicants had proved that they were owners of more than 100 kanals of land and it is noted that they had made investments ranging from 2lacs to 5lacs in the assessee company.Only one applicant owned 55 kanals of land and made investment of 5lacs in the assessee company. The Revenue having accepted this fact of ownership of agricultural land it is logical to presume that agricultural income was earned from the same unless some fact proving otherwise is brought on record by the revenue. And without pointing out any anamoly in the agricultural income attributed to have been earned from the same and invested in the assessee company, the revenue was ,we hold wrong in stating that the share applicants had failed to establish having earned agricultural income during the year and hence their creditworthiness for making investment in the assessee company. Moreover we find that it is not disputed that the investments had been made through the bank accounts of the applicants by way of demand drafts, copies of which were also filed .Also as observed by the Ld.CIT(A) ,the AO did not ask for the J forms as evidence of agricultural income while recording the statements of the share applicants. We find no reason therefore to interfere in the order of the Ld. CIT(A) in this regard since the Revenue has not disputed the fact of ownership of sizeable agricultural land by the share applicants and has also not pointed out as to how the land ownership was not sufficient to establish the earning of agricultural income from the same for making the impugned investment. We are in complete agreement with the CIT(A) that the assessee

has sufficiently discharged its onus of proving the identity ,genuineness and creditworthiness of the share applicants in view of the voluminous evidences filed and the repeated confirmation of the same by the applicants before the AO.

14.

In view of the above we uphold the order of the CIT(A) deleting the addition made on account of share application money amounting to Rs.81,81,500/-

15.

The grounds raised by the Revenue are therefore dismissed and the appeal of the Revenue is therefore dismissed.

Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 11/07/2018 AG

Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR

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