2023 (11) TMI 1292 - AT - Income Tax

Assessee wins unexplained share capital case under Section 68 with proper documentation despite non-appearance of shareholders

ITAT Kolkata ruled in favor of the assessee in a case involving unexplained share capital/share premium under section 68. The assessee had provided ... Unexplained share capital/share premium u/s 68 - Assessee has failed to prove identity, creditworthiness and the genuineness of the transaction. - HELD THAT:- We note that the assessee has filed the names and addresses of the subscribers, their balance sheets, net worth, bank statements and ITRs etc. along with copies of PAN. However, the AO has not examined these documents and only harped on the technicalities to draw adverse inference. In our opinion, the assessee has filed all the evidences concerning the identity and creditworthiness of the investors and their net worth available with the subscriber companies. We observe from the perusal of the order of the authorities below that none of the authorities below has carried out any investigation looking into the matter. So far as the issue of share at a premium are concerned, we note that the same were issued on the basis of the valuation report by the technical expert. Under the circumstances we are not in a position to concur a conclusion drawn by the Ld. CIT(A). Besides, the mere non-production of share holders/directors of the assessee before the AO cannot be the reason for making the addition. We note that despite having filed all the evidences, no enquiry was done and the Ld. CIT(A) has simply affirmed the finding of the AO by holding that no identity and creditworthiness of the creditors could not be proved by the assessee by ignoring all the evidences placed before him. Case of the assessee is also squarely covered by the decisions of Crystal Networks (P) 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. Decided in favour of assessee. Issues Involved:1. Delay in filing the appeal.2. Addition of Rs. 1,53,31,318/- as unexplained share capital/share premium under Section 68 of the Income Tax Act.Issue-wise Detailed Analysis:1. Delay in Filing the Appeal:The appeal was filed with a delay of 24 days. The assessee explained the delay by submitting an affidavit stating that the director responsible for taxation matters was out of the country, which delayed the process. The Tribunal found the reasons sufficient and noted that the assessee did not benefit from the delay. Consequently, the delay was condoned, and the appeal was admitted for adjudication.2. Addition of Rs. 1,53,31,318/- as Unexplained Share Capital/Share Premium under Section 68 of the Income Tax Act:The assessee filed a return showing a total loss, and the case was selected for scrutiny. Due to non-compliance with statutory notices, the assessment was done ex-parte. The AO observed that the company, incorporated on 09.09.2013, had credited Rs. 1,53,31,318/- as share capital/share premium. Notices under Section 133(6) were issued to 17 subscribers, but only 11 were served, and none responded. The AO required the production of directors from subscriber companies, but there was no compliance. Consequently, the AO added the amount as unexplained share credit, citing failure to prove identity, creditworthiness, and genuineness of the transaction. The CIT(A) upheld the AO's decision.Upon appeal, the Tribunal noted that the assessee had raised share capital by issuing equity shares at a premium based on a valuation report from a Chartered Accountant. The assessee provided names, addresses, balance sheets, net worth, bank statements, ITRs, and PAN copies of the subscribers. The AO, however, did not examine these documents and focused on technicalities to draw adverse inferences.The Tribunal observed that the AO had not conducted any investigation and ignored the evidences filed by the assessee. The Tribunal referred to the Supreme Court's decision in CIT vs. Orissa Corporation Ltd. [1986] 159 ITR 78 (SC), which held that if the Revenue does not pursue the matter further after the assessee has provided necessary details, the assessee cannot be faulted.Further, the Tribunal cited the Calcutta High Court's decision in Crystal Networks (P) Ltd vs CIT 353 ITR 171 (Cal), which emphasized that non-compliance with summons is insignificant if the assessee has provided sufficient evidence of identity and creditworthiness.The Tribunal also referred to similar judgments from the ITAT Kolkata Bench and the Bombay High Court, which supported the view that non-production of directors does not invalidate the identity of the investor if sufficient documentary evidence is provided.Given that the assessee had furnished all necessary documents proving the identity and creditworthiness of the investors and the genuineness of the transactions, the Tribunal found no justification for the addition made by the AO. The Tribunal set aside the order of the CIT(A) and allowed the appeal of the assessee.Conclusion:The Tribunal condoned the delay in filing the appeal and allowed the appeal on merits, setting aside the addition of Rs. 1,53,31,318/- as unexplained share capital/share premium. The Tribunal emphasized the importance of considering all evidence and conducting proper investigations before drawing adverse inferences.