2023 (1) TMI 1171 - AT - Income Tax

Tribunal upholds deletion of Rs. 4.67 crore addition under Section 68 of Income Tax Act

ITO, Ward-6 (1), Kolkata Versus Naina Distributors Pvt. Ltd.

The Tribunal upheld the Ld. CIT(A)'s decision to delete the addition of Rs. 4,67,50,000 made by the AO under Section 68 of the Income Tax Act. The Ld. ... Unexplained cash credit u/s 68 - Bogus share capital and share premium - genuineness and creditworthiness of the investors could not be verified due to non-production of the managing directors of share subscribing companies - HELD THAT:- Non-production of directors of the investors cannot be a ground for making addition in the hands of assessee u/s 68 when the other evidences relating to the raising share capital and also qua the share subscribers are available on record as furnished by the assessee and also the cross-verification done by the AO on the basis of notices issued u/s 133(6) - The case of the assessee is squarely covered by the decisions in the case of Crystal Networks Pvt. Ltd. [2010 (7) TMI 841 - KOLKATA HIGH COURT] wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. The assesse has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. AO simply harped on the non production of managing directors of the share subscribing companies to make the addition which is not correct. CIT(A) has passed a very reasoned and speaking order discussing all facts and satisfaction of all the ingredients of section 68 while allowing the relief as stated above. We are inclined to uphold the order of CIT(A) by dismissing the appeal of the revenue. Issues Involved:- Deletion of addition of Rs. 4,67,50,000/- by the Ld. CIT(A) as made by the AO on account of share capital and share premium by treating the same as unexplained cash credit under Section 68 of the Income Tax Act.Issue-Wise Detailed Analysis:1. Deletion of Addition by Ld. CIT(A):The revenue appealed against the Ld. CIT(A)'s order which deleted the addition of Rs. 4,67,50,000/- made by the AO. The AO had treated this amount as unexplained cash credit under Section 68 of the Income Tax Act. The assessee had issued equity shares at a high premium, raising Rs. 4,68,15,000/-. The AO called upon the assessee to prove the genuineness of the transactions, identity, and creditworthiness of the shareholders. Notices under Sections 131 and 133(6) were issued to the directors and shareholders, respectively. Although the shareholders responded with requisite information, the AO added the amount due to the non-production of the managing directors of the shareholding companies.2. Findings of Ld. CIT(A):The Ld. CIT(A) allowed the appeal of the assessee, noting that the assessee had filed all necessary documents and evidences, including names, addresses, PAN numbers, bank statements, and audited balance sheets of the investors. The AO had also conducted independent investigations through notices under Section 133(6), which were duly responded to by the shareholders. The Ld. CIT(A) found that the addition was made primarily because the managing directors were not produced, despite the comprehensive evidence provided. The Ld. CIT(A) emphasized that non-compliance with summons under Section 131 cannot be a ground for addition when sufficient evidence is provided under Section 133(6).3. Legal Precedents and Distinguishing Factors:The Ld. CIT(A) relied on various High Court decisions, distinguishing the case from Pr. CIT vs. NRA Iron & Steel Pvt. Ltd., where investor companies were non-existent and failed to furnish bank statements. In contrast, in this case, the investors provided all necessary documents, and the assessee discharged its onus of proving the identity, creditworthiness, and genuineness of the transactions.4. Tribunal's Observations:The Tribunal observed that the assessee had provided all details supporting the share capital and share premium, including names, addresses, PANs, share allotment advice, application forms, bank statements, and financial statements of the investors. The AO's sole reason for the addition was the non-production of managing directors, without pointing out any defects in the evidence provided. The Tribunal upheld the Ld. CIT(A)'s order, finding no infirmity in the detailed and reasoned decision, which considered all factual details and satisfied the requirements of Section 68.5. Supporting Case Laws:The Tribunal referenced the Calcutta High Court decision in Crystal Networks Pvt. Ltd. vs. CIT, which held that non-compliance with summons is insignificant if identity and creditworthiness are proved through other materials. Similarly, the Tribunal cited the coordinate bench decision in ITO vs. M/s Cygnus Developers India Pvt. Ltd., which supported the view that non-production of directors does not negate the identity of share applicants.Conclusion:The Tribunal concluded that the assessee had furnished all necessary evidence proving the identity and creditworthiness of the investors and the genuineness of the transactions. The AO's addition based on non-production of managing directors was incorrect. The Tribunal upheld the Ld. CIT(A)'s reasoned and speaking order, dismissing the revenue's appeal. The appeal of the revenue was dismissed, and the order was pronounced in the open court on 4th January, 2023.