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Income Tax Appellate Tribunal, DELHI “G” BENCH: NEW DELHI
Before: SHRI ANUBHAV SHARMA & SHRI MANISH AGARWAL
Year : 2013-14] ITO, vs Sourabh Logistics Pvt.Ltd., Ward-24(1), H-4/5, Plot No.93, New Delhi Suvidha Kunj, Pitampura, New Delhi-110034. PAN-AAPCS4485B APPELLANT RESPONDENT Appellant by Shri Narpat Singh, Sr. DR Respondent by Shri Sarwar Raja, Adv., Shri Mohammad Zaid, Adv. & Shri Arnav Chakraborty, Adv. Date of Hearing 23.06.2025 Date of Pronouncement 12.09.2025 ORDER
PER MANISH AGARWAL, AM :
The captioned appeal is filed by Revenue against the order passed by Ld. Commissioner of Income Tax (Appeal), National Faceless Appeal Centre (“NFAC”), Delhi [“Ld.CIT(A)”] dated 10.02.2023 in Appeal No. CIT(A), Delhi-8/10624/2016-17 u/s 250 of the Income Tax Act, 1961 [“the Act”] arising out of assessment order dated 30.03.2016 passed u/s 143(3) of the Act pertaining to Assessment Year 2013-14.
Brief facts of the case are that assessee company filed its return of income on 17.09.2013, declaring total income at INR 4,83,770/-. The case was selected for scrutiny and assessment was completed on the basis of material available as the assessee has not filed complete details as sought from time to time and the addition of INR 6,15,34,820/- was made u/s 68 of the Act on account of unexplained credits in the shape of share application money, unsecured loans and cash deposits in the bank accounts. Besides this, disallowance of unverifiable expenses to the extent of INR 2,90,787/- was also made and accordingly, total income of the assessee was assessed at INR 6,23,09,377/-.
3. Against this order, an appeal was filed by the assessee before Ld.CIT(A) who vide impugned order dated 10.02.2023 has allowed part relief to the assessee wherein addition of INR 4.50 crores on account of share application money and INR 1.50 crores on account of unsecured loans were deleted by Ld. CIT(A).
Against the said order, the Revenue is in appeal before the Tribunal by taking following grounds of appeal:- 1. “That on the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts by deleting the addition of Rs. 4,50,00,000/- on account of share application money received by assessee but treated unexplained credit u/s 68 of the IT, Act by the AO, without going into the creditworthiness of the lender and genuineness transaction.
2. That on the facts and circumstances of the case, Ld. CIT(A) has erred in deleting the addition of Rs. 1,50,00,000/- made u/s 68 of the IT Act, without appreciation of the finding of the AO as assessee failed to prove creditworthiness of the parties and genuineness of the transaction during assessment proceedings. Page | 2
The appellant craves to amend, modify, alter, add or forego any ground of appeal at any time before or during the hearing of this appeal.”
Ground of appeal No.1 raised by the Revenue is with respect to the addition of INR 4.50 crores made by AO and deleted by Ld. CIT(A).
6. Before us, Ld. Sr. DR for the Revenue supports the order of AO and submits that during the year under appeal, assessee received total INR 9.50 crores as share application money out of which INR 4.50 crores were received from two individuals namely, Shri Ramesh Chander of INR 2,32,50,000/- and from Shri Mahender Pal Khanna of INR 2,17,50,000/-. He further submits that before AO, only confirmation and copy of acknowledgement of ITR of both of these parties were filed and neither their bank statements were filed with respect to establish their creditworthiness nor they have responded in compliance to notice issued u/s 133(6) of the Act by the AO. Ld. Sr. DR submits that Ld. CIT(A) deleted the additions since the assessee filed complete details including their bank statements as additional evidences. Ld. Sr. Dr submits that ld. CIT(A) erred in admitting the additional evidences filed by assessee by ignoring the fact that AO had provided sufficient opportunities but the assessee failed to file all such details. He further submits that there were deposits of large amount in their bank accounts immediately prior to issue of cheques to the assessee and source of funds in the hands of these two investors were not explained. Ld.
Sr.DR further filed detailed written submission which reads as under:- (i) “On Rs. 4,50,00,000/- Share Application Money: The assessee had claimed receipt of share application money from two individuals Shri Ramesh Chander (Rs. 2,32,50,000/-) and Shri Mahender Pal Khanna (Rs. 2,17,50,000/-). While confirmations and ITRs were filed, crucial documents such as bank statements showing the flow of funds from the creditors were initially not submitted during assessment proceedings. Even during the remand proceedings, the bank statements furnished showed that both investors received identical credit entries in their own accounts immediately prior to issuing cheques to the assessee. The pattern of sudden deposits followed by immediate issuance of cheques raises suspicion of an accommodation entry. The source of funds in the hands of the investors was not explained, and the remand report clearly mentions that no explanation was offered in this regard. The Ld. CIT(A), however, failed to address this critical aspect while deleting the addition. It is respectfully submitted that for A.Y. 2013-14, the first proviso to section 68 was applicable, which places an additional statutory burden on companies to prove not only the identity of the contributor but also the nature and source of funds in the hands of the person from whom such amounts are received. This dual requirement has not been satisfied in the present case. The assessee failed to demonstrate either the financial capacity of the investors or the commercial rationale behind the investment, especially in light of the fact that the share capital was never allotted and the funds were refunded after one year. Merely submitting PAN and ITRs, without explaining the immediate source of credit entries, does not discharge the onus under the amended provisions. Further, in para 4.1 of the appellate order, the Ld. CIT(A) has observed that "the AO has not offered any comment on the outcome of enquiry/investigation carried out by him. Further, there is nothing new in the remand report dated 12.07.2018 as it does not include the AO's comment on the outcome of enquiry/investigation inspite of the facts that the statement of creditor were recorded. To a large extent, it is just reiteration of assessment order." This observation is factually incorrect and does not reflect the record accurately. The remand report submitted by the AO in response to the CIT(A)'s direction contains specific comments, analysis, and conclusions drawn from the enquiries and statement recording of the alleged Page | 4 investors(remand report not clearly legible). Far from being a mere reiteration, the report gives substantive reasons as to why the credit entries claimed by the assessee could not be accepted as genuine. The AO categorically commented that: a) That the genuineness of the transaction is not proved. No documentary evidence has been produced in support of the contention raised by the assessee i.e. the money were given as share application money. Neither the assessee, nor the investors were able to explain how it could offer shares to complete strangers in violation of the specific provisions of the Companies Act by which a Private Limited Company is prohibited from inviting the public to Subscribe for any securities of the company. There is nothing on record to Show that the shares applicants are related to the promoters of the appellant company. Moreover why would these persons (presumably strangers) purchase shares of a Private Limited Company which are not freely transferrable not traded in the stock exchange. It appears that the appellant company has received share application money with an intention to allot shares to a complete stranger and in my understanding shares being allotted to a complete stranger is as good as offering to general public, in contravention of the provisions of the Companies Act. Thus, the transaction is void and cannot be accepted as genuine. b) That a cursory look at the balance sheet of this company shows that it does not have any asset. The assets consists of only cash and cash equivalents. The P&L account of the assessee shows no real business. The only income shown is from interest income. The financial statement of the assessee show all ingredients of a shell company. That the investors have done real transactions with the assessee company can not be accepted as genuine by any stretch of imagination. These comments go well beyond mere reiteration of the assessment order and directly support the AO's findings under section 68. The CIT(A)'s failure to address these specific remarks has led to an erroneous deletion of the addition. These findings, based on evidence and commercial reality, form a strong basis for restoration of the additions as made by the AO.” 6.1. He thus prayed for the restoration of the additions made by AO which were deleted by Ld.CIT(A).
On the other hand, Ld.AR for the assessee supports the order of Ld.CIT(A) and submits that assessee has discharged the burden by filing complete details of investors as additional evidences which were confronted to AO by Ld.CIT(A) by obtaining Remand Report who has not pointed out any defects in the details submitted. Rather in the statements recorded by AO, they accepted of making application for allotment of share and further confirmed the refund of application amount on being unsuccessful. He submits that assessee established the identity, genuineness and creditworthiness of the share applicants and further since the amounts were repaid in subsequent period when the shares were not allotted to them therefore, no addition could be made. He thus prayed for confirmation of the order of Ld.CIT(A).
Heard the contentions of both the parties and perused the material available on record. We find that Ld. CIT(A) in para 4.2 of the order, has discussed the submissions filed by assessee and Remand Report of the AO. It is further seen that at page 11 of the appellate order, Ld.CIT(A) has given the dates on which amounts were received by the assessee company and refunded back to the applicants. The copy of ITR and confirmations of both the applicants alongwith statements of bank accounts were submitted before Ld. CIT(A). Their statements were also recorded by the AO in remand proceedings where they accepted the subscription made for allotment of shares of assessee company and received back the refunds when their applications could not be matured /succeeded.
The bank statements of both the applicants perused and we find that there was sufficient balance when the funds were released to the assessee company. We find that all these facts were appreciated by Ld.CIT(A) while deleting the additions and observed in para 4.3 as under:- 4.3. Decision “In accordance of section 68 of Income Tax Act the appellant has to prove that it is a bonafide transaction. For this, over the years the yard stick developed is that following three important conditions must be satisfied: 1) Identity of the Creditor 2) Genuineness of transaction and 3) Creditworthiness of the creditor In this case, during the assessment the following evidences have been furnished to the AO for fulfilling above conditions:-
1. 1. Identify the Creditor- The confirmation of the creditor was filed. The copy of income tax return of the creditor namely Sh.Ramesh Chander Khanria and Sh. Mahender Pal Khanna has been filed. The income tax return mentions PAN, Address and Income of the individual.
2. Genuineness of the transaction- The appellant company had provided bank statement which reflected the receiving of amounts.
3. Creditworthiness of the creditor- The Income Tax Returns of Sh. Ramesh Chander and Sh. Mahender Pal Khanna. For AY 2013-14 Sh. Ramesh Chander and Sh. Mahender Pal Khanna had filed a return of Rs.78,43,466 and Rs. 86,65,239/ respectively. Further, AO issued notice u/s 133(6) to Sh. Ramesh Chander and Sh. Mahender Pal Khanna which was not responded. Analysing the above details with AO, only the non-response to notice u/s 133(6) of the I.T. Act, 1961, alone is not sufficient to rule out identity of the creditor (The name alongwith PAN and address of the assesse being already furnished), creditworthiness of the creditor (the return of income of both the creditors reflects healthy financial status showing capability of investment which has been made) and Genuineness of the transaction (is through banking channel).
Further in this case during the remand report proceedings (remand report was submitted to then CIT Appeal)-80 on 12.07 2018, uploaded for faceless proceedings), the appellant has furnished that these amounts have been refunded back to the creditors in the subsequent financial year. The details of which has been furnished below: (a) A complete Detail of when the Amount was received and when refunded are provided below: Date Amount a) 25/07/2012 125,00,000/- b) 11/08/2012 15,00,000/- c) 13/08/2012 35,00,000/- d) 21/09/2012 20,00,000/- e) 25/09/2012 37,50,000/- Rs.2,32,50,000/- and refund of these amount were made on following dates: Date Amount a) 24/07/2013 1,00,00,000/- b) 17/10/2013 1,32,50,000/- Rs.2,32,50,000/- From Mahender Pal Khanna, these amounts were received on the following dates: Date Amount a) 25/07/2012 1,25,00,000/- b) 11/08/2012 15,00,000/- c) 13/08/2012 35,00,000/- d) 21/09/2012 5,00,000/- e) 25/09/2012 37,50,000/- Rs.2,17,50,000/- and refund of these amount were made on following dates: Date Amount a) 24/07/2013 1,00,00,000/- b) 27/07/2013 36,00,000/- c) 29/07/2013 40,00,000/- d) 17/10/2013 42,50,000/- Rs.2,17,50,000/- Further, the appellant has also furnished bank statements of Sh. Ramesh Chander Khanna and Sh. Mahender Pal Khanna for the period 01/04/2012 to 31/03/2014 which reflected the receipt of payments and refund of the payments. The non-furnishing of bank statements of the creditors during the assessment proceedings has been major objection of the AO to disallow the credits as per section 68 of the I.T. Act, 1961.
During the remand proceedings, the statement of Sh. Ramesh Chander Khanna and Sh. Mahender Pal Khanna has been recorded in which they have confirmed there source of income, long association with the appellant, confirmation about the investment of Rs.2,32,50,000/- and Rs.2, 17,50,000/- with appellant company. Both personally furnished the bank statements and confirmed that entire amount was refunded by the appellant in F.Y. 2013-14. The scanned copy of the recorded statements of the creditors is reiterated as follows:-
The above facts of the case clearly proves identity, creditworthiness of the creditor alongwith the genuineness of transaction. AO in the assessment order has made a reference of various case laws which have different facts from the instant case. On facts Itself, the provisions of Section 68 is not applicable in this case, hence addition of the amount of Rs.4,50,000,00/- as share application money is deleted. The ground no.1 of the appellant is allowed.”
We find that before us, ld. Sr. DR failed to controvert the findings of ld. CIT(A) and relied upon the observation made by AO while making the additions and in the Remand Report. While alleging the genuineness of the transactions, AO solely based his findings on the bank statements of both the applicants where funds were deposited immediately before the release of funds to the assessee.
The Hon'ble Delhi High Court in the case of PCIT vs. Agson Global Pvt. Ltd reported in [2022]134 Taxmann.com 256 (Delhi) while allowing the appeal in favour of the assessee towards the additions made u/s 68 of the Act has held as under : Section 68 of the Income-tax Act, 1961 – Cash credits (Share capital money) – Assessment years 2012-13 to 2017-18 – Assessee-company received share capital and share premium money from several investors – Assessing Officer made addition in respect of same on account of unaccounted income under section 68 on basis of recorded statement of managing director of assessee-company – Whether since assessee placed sufficient documentary evidence to establish that money which assessee had paid to investors was routed back to it in form of share capital/share premium and identity, creditworthiness and genuineness of investors was proved, there was no justification to make addition under section 68 – Held, yes [Paras 11.4, 11.5 and 14.4] [In favour of assessee]
It is also relevant to state that an amendment is made vide Finance Act, 2022 wherein second proviso to section 68 is added, so as to provide that the nature and source of any sum, whether in the form of loan or borrowing, or any other liability credited in the books of an assessee shall be treated as explained only if the source of funds is also explained in the hands of the creditor or entry provider. However, this additional onus of proof of satisfactorily explaining the source in the hands of the creditor, would not apply if the creditor is a well-regulated entity, i.e., it is a Venture Capital Fund, Venture Capital Company registered with SEBI. This amendment has taken effect from 1st April, 2023 and accordingly applies in relation to the assessment year 2023-24 and subsequent assessment years. The year before us is AY 2013-14 thus this amendment is not applicable. The requirement of explaining ‘Source’ of ‘Source’ in respect of loans is applicable from A.Y. 2023- 24 and subsequent years. Further, both the applicants have appeared before AO and their statements were recorded wherein nothing contrary was found by the AO.
In view of these facts, we find no infirmity in the order of Ld.CIT(A) who has rightly deleted the additions and therefore, the order of Ld.CIT(A) is upheld on this issue. Therefore, ground of appeal No.1 raised by the Revenue is dismissed.
Ground of appeal No.2 raised by the Revenue is with respect to the deletion of addition of INR 1.50 crores made by the AO of unsecured loan taken held as unexplained credit. Page | 13
14. Before us, Ld. Sr. DR for the Revenue submits that during the year under appeal, assessee took a loan of INR 1.00 crore from M/s. Sabee Finanz Pvt. Ltd. and of INR 50.00 Lakhs from M/s. Jas Logistics Pvt. Ltd. It is submitted by him that cash was deposited before issue of cheques in the bank accounts of both of these two companies and therefore, the AO was of the opinion that the cash was unexplained. Ld. Sr. DR further submits that Ld. CIT(A) deleted the addition for the sole reason that these are the group companies and funds were advanced for acquiring industrial property. Ld. Sr. DR submits that in case of M/s. Jas Logistics Pvt. Ltd., INR 50 Lakhs were deposited in cash on 10.05.2012 and the amount was given to the assessee on the same day through banking channel. As per Ld. Sr.DR, explanation given by the assessee was that the company has given advances to the villagers for purchasing their lands however, they failed to fulfill the commitments thus amounts advanced were returned back which was deposited in the bank account.
15. With respect to M/s. Sabee Finanz Pvt. Ltd., it is submitted by Ld. Sr. DR that INR 50 Lakhs in three trenches were deposited on 28.09.2012 and on the same day, the amount was advanced to the assessee company. With respect to the source of the same it was submitted by ld. SR DR that similar type of explanation was given as was given in case of M/s. Jas Logistics Pvt. Ltd. therefore, it is argued by Ld. Sr. DR that during the assessment as well as remand proceedings, no credible evidences were provided to establish the source of these cash deposits. As per Ld. Sr. DR, assessee itself admitted that these two companies are the group companies and therefore, the assessee was in a position to control the bank accounts of these two entities, where assessee deposited its unexplained cash and took the same as loan. He, therefore, requested to confirm the additions made by the AO. He further, submits that Ld. CIT(A) has failed to appreciate the fact that additional evidences submitted in this regard, are not in accordance with the provisions of Rule 46A of the Income Tax Rules, 1962 as the AO had provided sufficient opportunity to the assessee and assessee has not make out a case of sufficient cause in not filing such evidences before the AO and now could be admitted as additional evidences. He prayed accordingly.
16. On the other hand, ld.AR for the assessee placed reliance on the judgement of Ld.CIT(A) and submits that AO has made the additions for the sole reason that there were cash deposits in the bank accounts of the lender companies. He submits that there were withdrawn made by both these companies prior to deposit and was utilized for making advance payment to agriculturists for acquiring their lands however, when they failed to fulfill the commitment made, deal was cancelled, and advance was taken back and redeposit in the bank accounts. It is thus submitted by ld. AR that there is no reason to hold these cash deposits as unexplained money of the assessee. Ld. AR submits that ld. CIT(A) appreciated these facts and deleted the additions. He thus, prayed for the confirmation of the order of Ld.CIT(A).
17. Heard the contentions of both the parties and perused the material available on record. It is seen that out of the total loan taken at INR 1.50 crores from two companies, a sum of INR 1.00 crore was deposited in cash in bank account of lender companies on the same day when the amounts were transferred to the assessee as loan. The immediate source of the same was explained as the realization of the advances given for acquisition of the lands to the agriculturists. It was further explained that the cash was withdrawn from the bank accounts of these two lender companies for making such advances. Since villagers did not have bank accounts and it was their first dealing with the lender companies, so they insisted for the cash payments. However, when they failed to fulfill the commitments, advance was refunded to the lender companies which were re-deposited in the bank accounts. With respect to the balance amount of INR 50.00 lakhs, it was stated that this amount represents the redemption of mutual funds.
18. From the perusal of order of Ld.CIT(A), we find that Ld.CIT(A) has accepted this explanation of the assessee and also admitted the additional evidences such as Iqrarnama (agreement) between M/s. Jas Logistics Pvt. Ltd and villagers according to which advances were given and upon non-fulfillment of the commitments, refunds were made. Ld.CIT(A) further observed that such Iqrarnama cum Cancellation agreements were also produced. However, from the Page | 16 order of Ld.CIT(A), it appears that these documents were not forwarded to AO nor was any opportunity provided to AO to examine the villagers who have stated to received the advance and refunded back upon cancellation of the agreement. Thus, in the interest of justice and fair play, in our considered opinion, AO should provide atleast one opportunity to examine all these evidences. Accordingly, the loan taken from M/s. Jas Logistics Pvt.Ltd needs to be re-examined by the AO.
19. With regard to loan of INR 1.00 crore received from M/s. Sabee Finanz Pvt. Ltd., a sum of INR 50 Lakhs was deposited in cash on 28.09.2012 and explanation was given that the cash was withdrawn on earlier dates for the projects but when the projects were not materialized, the advances refunded were deposited in bank account. Ld.CIT(A) deleted the addition on the premises that there were cash withdrawals of INR 75.00 Lakhs on 15.03.2012 and on 03.04.2012 INR 75.00 Lakhs and INR 25.00 Lakhs respectively out of which INR 50 Lakhs were re-deposited in the bank account for giving loan to the assessee company. It is further seen that remaining amount of INR 50 Lakhs is stated to have been paid out of redemption of Mutual Funds but neither any details of advances for the projects and nor of redemption of Mutual Funds were submitted by the assessee before the AO. Merely stating that cash was withdrawn for some project and when the said project was not going through, advance was taken back. This plea cannot be accepted without any cogent material or evidences therefore, we are not in agreement with Ld. CIT(A) in this regard. It is not clear whether the same amount which was withdrawn earlier were re-deposited or not applied elsewhere in other project in absence of complete details of project and of the persons to whom advances given and taken back therefore, the addition to the extent of INR 50.00 lakhs as loan received out of cash deposits in the bank account of the lender company cannot be accepted. Accordingly, the same is hereby upheld. With respect to the remaining addition of INR 50 lakhs stated to have been given out of redemption of Mutual Funds, we set aside this issue to the file of AO for re-examination of the facts.
In view of the above discussion, we set aside the order of Ld.CIT(A) on this issue and direct the AO to examine the source of cash deposit in bank account of M/s. Jas Logistics Pvt. Ltd. of INR 50.00 Lakhs which were utilized for making loan to the assessee company and further direct to examine the documents of redemption of Mutual Funds in respect of loan of INR 50.00 Lakhs given by M/s. Sabee Finanz Pvt. Ltd. The remaining amount of INR 50.00 Lakhs from M/s. Sabee Finanz Pvt. Ltd. is hereby upheld as unexplained cash credit. Accordingly, Ground of appeal No.2 raised by the Revenue is partly allowed.
In the result, appeal of the Revenue is partly allowed.
Order pronounced in the open Court on 12.09.2025.