2024 (9) TMI 1447 - AT - Income Tax

Assessee proves identity and creditworthiness of share applicants, deletion of section 68 addition upheld

Income Tax Officer Ward–1 (1), Nagpur Versus M/s. Axykno Enterprises Pvt. Ltd.

ITAT Nagpur dismissed Revenue's appeal against deletion of addition under section 68. Assessee successfully proved identity, genuineness and ... Addition u/s 68 - bogus LTCG - share capital received by the assessee treated to be not genuine - HELD THAT:- We are of the considered view that the assessee has proved the share application money are received from the share applicants companies by necessary documents justifying the identity, genuineness and creditworthyness of the said parties and accordingly are of the considered view that the Assessing Officer grossly erred in making the additions to share application money under section 68 of the Act and which was rightly deleted by the learned CIT(A). Consequently, we decline to interfere with the order passed by the learned CIT(A) and dismiss the grounds of appeal raised by the Revenue. Issues Involved:1. Deletion of addition due to lack of specific incriminating document linking investor to the appellant.2. Deletion of addition based on principles of natural justice and lack of cross-examination opportunity.3. Evaluation of the genuineness of share premium and reliance on jurisdictional High Court judgments.4. Assessment of corroborative evidence furnished during assessment and appellate proceedings.5. Application of Section 68 of the Income Tax Act, 1961.Detailed Analysis:1. Deletion of Addition Due to Lack of Specific Incriminating Document Linking Investor to the Appellant:The Revenue contended that the CIT(A) erred in deleting the addition by stating there was no specific incriminating document linking the investor to the appellant. However, the CIT(A) found that the Assessing Officer (AO) relied solely on the statement of Shri Praveen Kumar Jain, which did not specifically reference the appellant company. The CIT(A) noted, 'In the entire statement, there is no reference of the appellant company,' and 'There are no evidences to show that there is any cash trail in respect of the amounts received by the appellant company from the investors.'2. Deletion of Addition Based on Principles of Natural Justice and Lack of Cross-Examination Opportunity:The CIT(A) emphasized that the AO did not provide the appellant an opportunity for cross-examination of Shri Praveen Kumar Jain, despite the appellant's request. This was deemed a violation of the principles of natural justice. The CIT(A) stated, 'Opportunity for cross-examination was not provided to the appellant even though specifically asked for by the appellant.' The Tribunal upheld this view, noting that the statement of Shri Praveen Kumar Jain had been retracted and thus lacked evidentiary value.3. Evaluation of the Genuineness of Share Premium and Reliance on Jurisdictional High Court Judgments:The AO questioned the genuineness of the share premium of Rs. 490 per share, considering it exorbitant given the company's business activities and asset base. However, the CIT(A) and the Tribunal referred to the Hon'ble Bombay High Court's judgment in CIT v/s Gagandeep Infrastructures Pvt. Ltd., which held that prior to the insertion of the proviso to Section 68 by the Finance Act, 2012, the source of share capital and premium did not need to be established. The Tribunal noted, 'Prior to insertion of provisions of section 68 of the Act, the question of establishing the source of source in respect of share capital and share premium did not arise.'4. Assessment of Corroborative Evidence Furnished During Assessment and Appellate Proceedings:The appellant provided various documents, including confirmation letters, bank statements, balance sheets, and income tax returns of the creditor companies. The CIT(A) observed, 'The above documents prove identity of the creditor companies, their creditworthiness and genuineness of the transaction.' The Tribunal concurred, noting that the AO did not carry out any independent enquiry to disprove the documents filed by the assessee.5. Application of Section 68 of the Income Tax Act, 1961:The AO made the addition under Section 68, which deals with unexplained cash credits. However, the CIT(A) and the Tribunal found that the appellant had discharged its burden under Section 68 by proving the identity, genuineness, and creditworthiness of the share applicants. The Tribunal stated, 'Once the assessee has filed complete details of identity and their creditworthiness, then it is for the Assessing Officer to carry out necessary independent enquiries to disbelieve the documents filed by the assessee.'Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the addition of Rs. 1,58,50,000 under Section 68. The Tribunal emphasized the lack of specific incriminating evidence, violation of natural justice, and the appellant's compliance with the requirements of Section 68. The order was pronounced in the open court on 02/09/2024.