2009 (5) TMI 290 - HC - Income Tax

Court rules unexplained share capital not income, dismisses appeal.

ASSISTANT COMMISSIONER OF INCOME-TAX Versus VENKATESHWAR ISPAT P. LTD.

ASSISTANT COMMISSIONER OF INCOME-TAX Versus VENKATESHWAR ISPAT P. LTD. - [2009] 319 ITR 393 (Chhattisgarh) Issues:1. Whether the Tribunal was justified in upholding the order of the Commissioner of Income-tax (Appeals) and confirming the deletion of the addition made by the Assessing Officer on account of unexplained investment in share capital.2. Whether the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) in respect of the share capital without verification of its source.3. Whether the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) deleting the addition despite specific provisions of the Income-tax Act.Analysis:Issue 1: The main issue in this appeal was whether the Tribunal and the Commissioner of Income-tax (Appeals) were justified in deleting the addition made by the Assessing Officer regarding unexplained investment in share capital. The facts revealed that the Assessing Officer added an amount towards holdings of shareholders whose confirmation could not be established. The assessee sought permission to provide additional evidence, which was accepted by the Commissioner of Income-tax (Appeals). The Tribunal, based on the additional evidence and considering subsequent assessment years, upheld the deletion of the addition. The respondent argued that the investment was verified based on the additional evidence, citing the judgment in the case of CIT v. Lovely Exports P. Ltd. The Supreme Court's ruling in the Lovely Exports case clarified that share application money from alleged bogus shareholders cannot be considered undisclosed income of the assessee-company. The Court found no substantial question of law and dismissed the appeal.Issue 2: Another question raised in the appeal was whether the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) regarding the share capital without verifying its source. The facts indicated that the Assessing Officer questioned the identity and creditworthiness of share applicants due to incomplete addresses and unreturned letters. However, the Commissioner of Income-tax (Appeals) allowed the appeal based on additional evidence provided by the assessee and confirmed in subsequent assessment years. The Tribunal, following the judgment in the Lovely Exports case, upheld the deletion of the addition, emphasizing that the investment by alleged bogus shareholders does not constitute undisclosed income for the assessee-company.Issue 3: The final issue revolved around whether the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) in deleting the addition despite specific provisions of the Income-tax Act. The Supreme Court's ruling in the Lovely Exports case clarified that share application money from alleged bogus shareholders does not amount to undisclosed income for the assessee-company. The Court emphasized that while the Department can proceed against individual investors, it cannot consider such investments as undisclosed income of the company. Therefore, the Tribunal's decision to confirm the deletion of the addition was in line with the legal principles established by the Supreme Court.In conclusion, the High Court upheld the decisions of the Tribunal and the Commissioner of Income-tax (Appeals) in deleting the addition made by the Assessing Officer, based on the additional evidence provided by the assessee and the legal precedent set by the Supreme Court in the case of CIT v. Lovely Exports P. Ltd. The Court found no substantial question of law warranting further adjudication and dismissed the appeal accordingly.