VIKAS ROAD CARRIERS LTD,MUMBAI vs. DCIT 7(3), MUMBAI

The assessee has filed this Appeal challenging the order dated 28.1.2011 passed by Ld CIT(A)-13, Mumbai for assessment year 2002-03. The Ld. CIT(A) has confirmed the order passed by the AO u/s 143(3) r.w. section 148 of the Act. The assessee has taken the following grounds of appeal:

During the course of hearing, arguments were made by both the parties. The sole ground raised by the assessee in this appeal is with regard to the addition of Rs.46,50,000/- made by the AO for the share application money received by the assessee company as income from undisclosed sources u/s 68 of the Act.

The brief facts as culled out from the assessment order are that, in this case, the return of income was filed by the assessee on 31.10.2002 which was accepted by the AO in the order passed by him u/s 143(1)(a) on 24.02.24.2.2003. Subsequently, proceedings under section 147 were initiated by issuing notice u/s 148 dated 30.3.2009, and case of the assessee was reopened. In response to the notice u/s 148, the assessee company filed its return by requesting that original return filed by the assessee on 31.10.2002 should be treated as return filed by the assessee in response to the notice u/s 148 of the Act. In the ‘Reasons’ recorded, it was alleged by the AO that the share application money received by the assessee was not genuine. Accordingly, during the course of reassessment proceedings, the assessee was asked to substantiate share capital received by it from two companies i.e M/s Drishti Securities Pvt Ltd aggregating amount to Rs.10 lacs and TSL Industries Ltd aggregating amount to Rs.36.50 lacs, both aggregating to Rs.46.50 lacs. The AO also asked the assessee to produce the parties for verification and method of transaction. The assessee replied vide letter dated 25.8.2009 that the amount was received by account payee cheques and submitted various documentary evidences to substantiate the creditworthiness of the creditors and genuineness of the transactions of the share capital receipt. With regard to the production of the parties, the assessee submitted that these parties were neither in contact with the assessee nor the assessee had any control over them, therefore, the AO should exercise his powers under law to enforce the presence of these persons. But, the AO did not accept the contention of the assessee and treated the aforesaid amount as undisclosed amount of the assessee and made addition u/s 68 of the Act.

It is noted that while making the addition, the AO has made a mention in the assessment order of one Mr. Narendra Shah and mentioned that Mr. Shah was involved in facilitating bogus share application money to the intending wrongful beneficiaries. It was further mentioned that the assessee arranged share application money through said Mr. Shah. Finally, the AO made the addition by summarising his observations as under : “Since the assessee has not been able to furnish the latest address of the particular share holders as mentioned above, the receipt of share application money with the premium amount is not proved to be a genuine transaction, This is further clear from the letter dated 19/03/2009 of ACIT Central Circle 13, Mumbai intimating that there inquiries in connection with search action u/s 132 of the I.T Act 1961 in the case of Shri Narendra R Shah and persons and entities connected with him, resulting in assessments u/s 153A following Special Audit u/s 142(2A) has mentioned that Mr. Narendra Shah was involved in facilitating bogus share application money to the intending wrongful beneficiaries. It is stated these arranged share application money through Shri Narendra R Shah. Since receipt o the share application money from share applicants could not be cross examined with respect to their credit worthiness of investing such a huge amount in assessee company, the purpose of their investment, there PAN and whether they are assessed to tax or not etc, the claim of assessee regarding genuineness of transaction can't be accepted. Therefore the amount so received by the assessee is held to be a non genuine transaction and the same is treated as income from undisclosed sources of the assessee and the same is added to the total income of the assessee. I am satisfied that the above transactions made by the assessee is a colourful device to evade the taxes, penalty proceedings u/s 271(1) (c) is initiated for concealment of income.”

Being aggrieved, the assessee contested the matter before the Ld. CIT(A), wherein the written submissions along with documentary evidences were submitted. However, Ld. CIT(A) did not accept the submissions of the assessee, and endorsing the observations of the AO, the additions made in the assessment order were confirmed.

Being aggrieved, the assessee filed this appeal before the Tribunal. During the course of hearing before us, it has been submitted by the Ld. Counsel for the assessee that various factual and legal issue were raised by the assessee before the ld. CIT(A), some of them have been reproduced by the ld. CIT(A) in his order in para 2.5 at page 5. But while rejecting the appeal, the Ld. CIT(A) has not dealt with these issues, and the addition has been confirmed in highly unjustified manner, and by passing a cryptic and non- speaking order. It is further submitted by him that the assessee requested for an opportunity for cross-examination of Mr. Narendra R Shah and also copy of the statement. Our attention has been drawn to page 67 of the assessee’s paper book which is a copy of letter date 25.8.2009 submitted by the assessee to the AO, wherein this request was made. It was further submitted that the entire amount was received through banking channel and complete documentary evidences have been furnished by the assessee and therefore, the assessee has discharged his burden under law. Therefore, no addition should been made under section 68 by treating the amount of share capital as income from undisclosed source of assessee. It was further submitted that the assessee has no concern and no knowledge about the sources of deposits in the accounts of share applicants. It was submitted that the assessee has no nexus with M/s Rushab Enterprises and no proper opportunity was given to the assessee before making adverse inference drawn against the assessee by the lower authorities. A reliance was placed on the decision of the Hon’ble Supreme Court in the case of Lovely Exports (P) Ltd. reported in 216 CTR 194) (SC) and the decision in CIT Vs. Creative World Telefilms Ltd., 333 ITR 100 (Bom.).

It was reiterated that the assessee had raised various issues before the Ld. CIT(A), pointing out various doubts, gaps and contradictions in the observations made by the AO in the assessment order. It was also pointed out that no adverse material was provided to the assessee and the AO relied upon the same information allegedly given by Mr. Narendra R Shah allegedly involved in providing bogus share application money. The Ld. CIT(A) did not deal with the issues raised before him, and confirmed the addition, without giving any further reasoning.

On the other hand, the Ld. DR argued the case and invited our attention to the page 3 of the assessment order in support of his argument that the addition has been correctly made by the AO and confirmed by the Ld. CIT(A). The amount of share application money received by the assessee company during the year was not genuine, the onus was not discharged by the assessee u/s 68 of the Act and therefore the addition has been rightly made by the AO and correctly confirmed by the Ld. CIT(A) in accordance with law and facts of this case. He distinguished the judgments relied upon by the Ld. counsel of the assessee and submitted that the AO had made proper inquiries and asked for the addresses of the share applicants, summonses were issued by him to the shares holders. The summons issued to the parties returned back un-served. The assessee neither gave proper address nor produced these persons for verification of the AO. There was no proper cooperation from the side of the assessee in making proper verification of the real facts. He has placed reliance on the judgment of the Mumbai Bench of the Tribunal in the case of DCIT V/s M/s Pratiksha Mercantile Pvt Ltd in (AY-2001-02) dated 10.8.2012 and submitted that in this case, the Hon’ble Bench has discussed and distinguished the case of Lovery Exports (P) Ltd(supra) and Creative World Telefilms Ltd(supra). In this case, the Tribunal held that the primary onus is on the assessee in establishing that the amount received by him during the year under consideration is genuine and the assessee is bound to discharge the onus as has been provided u/s 68 of the Act.

In reply, the Ld. Counsel of the assessee has drawn our attention to the reply submitted to the Ld. CIT(A) which is available at pages 194 to 196 of the paper book, wherein application justification has been given with respect to the doubts raised by the lower authorities with respect to the source of deposits in the hands of the shareholders. Ld. Counsel once again requested for copy of material along with the opportunity to cross-examine Mr Narendra R Shah. It was further submitted that a request was made to Ld. CIT(A) to direct the AO to exercise his powers u/s 131 to direct Shri Narendra R Shah for proper verification of the facts. But nothing was done and Ld. CIT(A) simply confirmed the addition without making any justification or giving any reasons.

We have heard the rival contentions and perused the material available before us and also gone through orders of lower authorities including the judgments relied upon by the parties. In our view, undoubtedly primary onus to explain the sum found credited in the books of account of the assessee is on the shoulders of the assessee. However, this case has been reopened u/s 147 after recording the ‘Reasons’ for reopening the case on the basis of some allegations made in the ‘Reasons’ by the AO, based upon the some information and material claimed to be in his possession. During the reassessment proceedings, the assessee submitted primary evidences to explain and substantiate the nature and source of the sum found credited in its books, thereby discharging its primary burden under the law. Thus, under these circumstances, the burden was shifted on the shoulders of the AO to prima facie show as to how the transaction of the assessee was not genuine and income of the assessee had escaped, as the proceedings were initiated by him u/s 147. Our view finds support from the judgment of the Hon’ble Delhi High Court in the case of CIT v. Pradeep Kumar Gupta 303 ITR 95 (Del).

It is seen that when the assessee had submitted documentary evidences in his possession to the AO, he was asked by the AO to produce the shareholder. The assessee showed his inability to do so on the ground that these persons were not in the control of the assessee. It is noted that the impugned transactions pertain to the financial year 2001-02 and the assessee was asked to produce these persons in the year 2009-10 i.e. after more than 7 years after the date of the transactions. Under these circumstances, we cannot expect the assessee to necessarily maintain control over all the persons with whom it had entered into the transactions and that too after so many years. Thus, in our view, when the assessee made a request to the AO that these persons were not in the control of the assessee, and therefore, the AO should exercise his powers under the law to call for the information from the said persons directly and enforce their attendance also, then, under these circumstance, the onus had shifted upon the shoulders of the AO. It is noted that both the shareholders are assessed to the income tax and these were registered as company under the Companies Act, 1956 and existed on the record of the Registrar of Companies. It is further noted that the assessee had requested for providing a copy of seized material along with the opportunity of cross-examination of Shri Narendra R Shah. But, none of these were provided to the assessee. All these issues were also raised before the Ld. CIT(A) by the assessee. But the Ld. CIT(A) ventured into some other exercise of finding out sources of details of deposits in the hands of shareholders. It is seen from the material placed before us that the assessee had also filed some replies in responses to the doubts expressed by Ld. CIT(A). But Ld. CIT(A) has neither discussed nor decided the issues raised by the assessee in its written summations. He did not even deal with the reply filed by the assessee. No proper reasoning has been given while confirming the addition. The crucial issues and objections raised by the assessee remained to be addressed or answered by the Ld. CIT(A). Therefore, we deem it fit and proper to send this appeal back to the file of the Ld. CIT(A) with a direction that he shall deal with all the issues that were raised before him and also those issues which have been raised before us. Before adjudicating this appeal, he shall give adequate and proper opportunity of being heard. He should also call for assessment records and provide a copy of adverse material to be used against the assessee along with the opportunity of cross-examination of the concerned persons, in case it is sought be used against the assessee. He shall also keep in mind the position of law as discussed above. Thus, this appeal is sent back to the file of the Ld. CIT(A) with the directions as given above.

In the result, the appeal of the assessee is allowed for statistical purposes.