2012 (5) TMI 486 - AT - Income Tax

Tribunal deletes Rs. 27.6M share capital addition based on suspicion. Assessee wins appeal.

The Tribunal directed the deletion of the addition of Rs. 27,61,50,000 towards share capital and Rs. 6,42,00,000 towards share application money pending ... Addition u/s 68 - Addition of a sum of ₹ 27,61,50,000 and a sum of ₹ 6,42,00,000, being amount received on allotment of preference share capital and share application money received (pending allotment) - violation of the principles of natural justice - During the course of assessment proceedings, the AO noticed that the assessee had repaid loan to the tune of ₹ 16.90 crores by allotting preference shares to private corporate bodies - Tribunal in ITA No.3859/Mum/2009 for assessment year 2006-07 in the case of Chat Computers Ltd. vs. DCIT - The statements of the persons who allowed their bank accounts to be used for depositing cash and issuing account payee cheques for a commission,were recorded - Held that: The mode of payment of application money has been through banking channels and these details are available in the application forms. Thus the genuineness of the transaction has been prima facie established by the Assessee. The Assessee has given the Income Tax Permanent Account Number (PAN) in almost all the share applicants. This would be prima facie proof of the creditworthiness of the Assessee - It is settled proposition of law that the statement recorded during the course of investigation without corroborative evidence has no evidentiary value - Decided in favor of the assessee Issues Involved:1. Addition of share capital and share application money as unexplained cash credits under Section 68 of the Income Tax Act.2. Violation of principles of natural justice by not furnishing statements of directors to the assessee.3. Adequacy of opportunity for cross-examination of directors.4. Reliance on the investigation report by the Assessing Officer (AO).Issue-wise Detailed Analysis:1. Addition of Share Capital and Share Application Money as Unexplained Cash Credits:The assessee, engaged in trading shares and securities, received a total amount of Rs. 34,03,50,000 towards allotment of preference shares and share application money pending allotment. The AO treated these amounts as unexplained cash credits under Section 68 of the Income Tax Act, based on reports from the Additional Director of Income Tax (Investigation), Kolkata. The AO argued that the source of these funds was cash provided by the assessee itself, routed through various layers before coming back as share application money. The CIT(A) confirmed this addition, citing a similar decision in the earlier assessment year 2005-06.2. Violation of Principles of Natural Justice:The assessee contended that the AO violated the principles of natural justice by not furnishing the statements on oath of the directors of the companies that applied for shares. The CIT(A) upheld the AO's decision, stating that adequate opportunity for cross-examination was provided. However, the Tribunal found that the AO's reliance on these statements without providing them to the assessee for cross-examination was a violation of natural justice.3. Adequacy of Opportunity for Cross-Examination:The AO informed the assessee about the opportunity for cross-examination of the directors of the companies that applied for shares. The assessee, however, argued that it could not compel the directors to travel to Mumbai for cross-examination and that the AO should have summoned them. The Tribunal noted that the AO's failure to ensure the presence of these directors for cross-examination was a gross violation of principles of natural justice.4. Reliance on Investigation Report by the AO:The AO heavily relied on the investigation report and statements recorded by the ADIT (Inv.), Kolkata. The Tribunal observed that the AO did not conduct any independent inquiry during the assessment proceedings and solely relied on the investigation report. The Tribunal emphasized that the initial burden of proving the identity, genuineness, and creditworthiness of the share applicants was on the assessee, which it had discharged by providing relevant documents like PAN, bank statements, and income tax returns of the share applicants.Tribunal's Findings:The Tribunal found that the assessee had sufficiently explained the identity, genuineness, and creditworthiness of the share applicants. It noted that the AO failed to bring any direct or indirect evidence to show that the cash given by the assessee was routed back as share application money. The Tribunal held that the AO's reliance on the investigation report and the statements of directors, without corroborative evidence and cross-examination, was unjustified. The Tribunal referred to various judicial precedents, including the decisions of the Hon'ble Supreme Court and High Courts, which supported the assessee's case.Conclusion:The Tribunal directed the deletion of the addition of Rs. 27,61,50,000 towards share capital and Rs. 6,42,00,000 towards share application money pending allotment. It held that the AO's action was based on suspicion and not on concrete evidence, and the assessee had satisfactorily discharged its burden of proof. The appeal by the assessee was allowed.Other Grounds:Ground No. 2 was not pressed by the assessee, and Ground No. 3 regarding the charging of interest under Section 234-B was held to be consequential, with the AO directed to provide consequential relief.Order Pronounced:The appeal by the assessee was allowed, and the order was pronounced on 19.10.2011.