2019 (9) TMI 1753 - AT - Income Tax

Share application money and alleged accommodation entries: s.68 addition rejected after investors' identity, creditworthiness and genuineness proved

Whether share application money was liable to addition as unexplained cash credit under s. 68 turned on the assessee's discharge of the onus to establish ... Unexplained cash credit u/s. 68 - bogus share application money - onus to prove - assessee is beneficiary of hawala accommodation entries in the form of share application money, which came to the notice of the department during the Search & Seizure action on Shri Praveen Kumar Jain and its associate concern - CIT(A) deleted addition - HELD THAT:- AO has not carried out any further investigations or enquiries to find out whether these investors were genuine or not. CIT(A) has noted specifically that the assessee has discharged the onus cast upon it by filing all necessary evidences to prove identity, creditworthiness of the investors and genuineness of the transactions. The perusal of the financial data of the investors we observe that the investors had sufficient resources to invest in the assessee company and, therefore, we do not find any reason to interfere in the order of the CIT(A). Revenue appeal dismissed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether share application money received from eight subscriber entities could be treated as unexplained cash credit under section 68 on the basis of investigation information alleging accommodation entries, despite the assessee producing incorporation, statutory, banking, and tax records of the subscribers, and where the Assessing Officer did not conduct independent enquiry to rebut those documents. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Addition of share application money as unexplained cash credit under section 68 Legal framework (as discussed by the Tribunal): The Tribunal proceeded on the basis that, for section 68 in the context of share application money, the assessee must discharge the onus regarding identity of the subscribers, their creditworthiness, and the genuineness of the transaction; once prima facie discharged, the onus shifts and the Assessing Officer must undertake meaningful verification or bring material to controvert the assessee's evidence. Interpretation and reasoning: The Tribunal noted that the assessee had furnished multiple categories of primary evidence for each subscriber, including corporate incorporation and constitutional documents, share application documentation and board resolutions, income-tax return acknowledgements, affidavits, PAN and bank statements, and share allotment records. The Tribunal accepted the appellate finding that these materials were sufficient to discharge the initial burden on identity, creditworthiness, and genuineness. It further found that the Assessing Officer did not carry out any further investigation or enquiry (including any independent verification from the subscribers) to demonstrate that the documents were unreliable or that the transactions were sham. The Tribunal also considered that, on the financial data available, the subscribers had sufficient resources to make the investments. Additionally, the Tribunal relied on a co-ordinate bench decision on materially identical facts involving some common investors, where the addition was deleted because the assessee had discharged its onus and the Assessing Officer had not conducted enquiry or produced contrary evidence. Conclusions: The Tribunal upheld the deletion of the addition, holding that the share application money could not be assessed as unexplained cash credit under section 68 when the assessee had produced adequate evidence establishing identity, creditworthiness, and genuineness, and the Assessing Officer failed to undertake independent verification or bring any material to rebut the assessee's documentation. The challenge to the deletion was dismissed.