2018 (4) TMI 11 - AT - Income Tax

Tribunal overturns disallowance under Income Tax Act, rules in favor of assessee

The Tribunal allowed the appeal of the assessee, overturning the disallowance of Rs. 3,00,00,000/- under Section 68 of the Income Tax Act related to the ... Disallowance u/s 68 on account of sale of shares - parties to whom shares were sold did not respond to the notices issued under section 133(6) - Held that:- It is undisputed fact that the necessary details as the confirmation and contract notes were duly filed by the assessee in respect of the aforesaid parties and no defect of whatsoever was pointed out by the lower authorities. On specific question from the Bench to the learned DR about the remand report submitted by the AO, the learned DR has not pointed out any defect.Assessing Officer was not able to brought anything on record that it was assessee’s own money which was rooted in the form of share application money, thus addition to be deleted - Decided in favour of assessee Disallowance of expenses as no activity was carried on by the assessee - Held that:- In the instant case, the assessee has claimed certain expenses to keep the status of the assessee-company active. These expenses were claimed as business loss under the head “business and profession”. It is well settled law that a private limited company being a body corporate has to incur certain expenses to keep its status active. In this regard, we find support and guidance from the judgment of Hon'ble Calcutta High Court in the case of CIT vs. Ganga Properties Ltd.(1989 (5) TMI 10 - CALCUTTA High Court) - Decided in favour of assessee. Issues Involved:1. Confirmation of the disallowance of Rs. 3,00,00,000/- under Section 68 of the Income Tax Act.2. Disallowance of revenue expenditure amounting to Rs. 43,852/-.Issue-wise Detailed Analysis:1. Confirmation of the Disallowance of Rs. 3,00,00,000/- under Section 68 of the Income Tax Act:Facts and Background:- The assessee, a private limited company, engaged in the business of manufacturing and dealing in appliances, sold its investment in shares of M/s Regent Realtech Private Limited (RRPL) for Rs. 3,00,00,000/-.- The sale was conducted offline to six different parties.- The Assessing Officer (AO) issued a notice to verify the genuineness of the transaction but received no compliance from the parties involved.Assessment Proceedings:- The AO observed that no details were furnished by the assessee to substantiate the ownership and transaction of the shares.- Notices issued to the six purchasing companies under Section 133(6) were either unserved or not responded to.- The AO concluded that the sale proceeds represented the assessee's own money routed through these companies and treated the amount as unexplained income under Section 68.Appeal to CIT(A):- The assessee provided confirmations and other supporting documents during the appellate proceedings.- The CIT(A) called for a remand report and observed inconsistencies in the addresses and financials of the purchasing companies.- The CIT(A) upheld the AO's order, noting that the assessee failed to prove the identity and creditworthiness of the purchasers and the genuineness of the transaction.Tribunal's Findings:- The Tribunal noted that the assessee had provided confirmations and other necessary details, and the AO had accepted the genuineness of the transaction for four out of the six companies in the remand report.- The Tribunal observed that the ownership of the shares was confirmed by RRPL and reflected in the annual returns filed with the ROC.- The Tribunal held that the assessee had satisfied the conditions under Section 68 for four companies and that the lower authorities had not provided sufficient evidence to doubt the transactions.- For the remaining two companies, the Tribunal found that the transactions were recorded in the annual returns of RRPL and confirmed by the company.- The Tribunal concluded that the assessee had discharged its onus under Section 68 and allowed the appeal.2. Disallowance of Revenue Expenditure Amounting to Rs. 43,852/-:Facts and Background:- The assessee claimed expenses of Rs. 43,852/- in its profit and loss account.- The AO disallowed the expenses on the ground that no business activity was carried on by the assessee during the year.Appeal to CIT(A):- The assessee argued that the expenses were necessary for maintaining the company's status.- The CIT(A) upheld the AO's order, noting that the company had ceased operations and the expenses were not proved to be genuine.Tribunal's Findings:- The Tribunal noted that a private limited company has to incur certain expenses to maintain its status and comply with statutory obligations.- Citing the judgment of the Hon'ble Calcutta High Court in CIT vs. Ganga Properties Ltd., the Tribunal held that such expenses are allowable even if the company is not carrying on business.- The Tribunal reversed the order of the lower authorities and allowed the appeal.Conclusion:The Tribunal allowed the appeal of the assessee on both issues, reversing the disallowance of Rs. 3,00,00,000/- under Section 68 and the disallowance of revenue expenditure amounting to Rs. 43,852/-.