2026 (2) TMI 320 - HC - Income Tax

Unexplained share capital and premium dispute over subscriber identity and genuineness; documented bank traceability leads to relief for assessee

Addition under unexplained share capital and share premium was contested on identity, creditworthiness and genuineness of subscribers. Tribunal accepted ... Addition u/s 68 - unexplained share capital and share premium - assessee failed to prove the identity of the alleged shareholders, their creditworthiness and also the genuineness of the whole transaction - Doctrine of 'source of source' and Doctrine of 'origin of origin' - ITAT deleted addition - Revenue’s grievance is that the learned Tribunal failed to appreciate the 'Test of Human Probability.' - HELD THAT:- In the present case, the investors are traceable taxpayers who confirmed the transactions through Section 133(6) responses. To equate 'traceable investors' with 'phantom entities' is a leap in logic that this Court cannot countenance. Assessment Year 2009-10, the 'Source of Source' doctrine remains inapplicable as the proviso to Section 68, introduced by the Finance Act, 2012, is prospective. The Tribunal noted that the subscribers possessed substantial Net Worth (Reserves and Surplus) far exceeding the investment amounts, thereby satisfying the creditworthiness test. In a corporate assessment, documented traceability through legitimate banking channels carries greater evidentiary weight than the subjective suspicion of an officer. Terms like 'money laundering' or 'round-tripping' should not be used casually without specific, corroborative evidence showing a 'live link' that the funds originated from the assessee’s own coffers. No such evidence has been brought on record by the Revenue. In the result, we find no perversity in the findings of the learned Tribunal. Decided in favour of assessee. Issues: (i) Whether the ITAT erred in deleting the addition of Rs. 7,26,50,000/- under Section 68 for unexplained share capital and premium; (ii) Whether the ITAT erred in concluding that the assessee discharged the initial onus under Section 68; (iii) Whether the ITAT erred in appreciating facts properly in favour of the assessee; (iv) Whether the ITAT erred by not following the High Court decision in Pr. CIT vs BST Infratech Ltd.; (v) Whether the ITAT erred by not applying the Exceptional Clause in Board's Circular dated 15/03/2024; (vi) Whether the ITAT erred by not considering the doctrines of 'source of source' and 'origin of origin'.Issue (i): Whether the ITAT erred in deleting the addition of Rs. 7,26,50,000/- under Section 68 for unexplained share capital and premium.Analysis: The Court examined the documentary evidence placed before the authorities including PAN details, share application forms, allotment advices, bank statements, ITR acknowledgments, and audited financial statements of the subscriber companies. The Tribunal's findings on documented banking flow and traceability were considered and compared with Revenue's reliance on low declared incomes and non-appearance of directors.Conclusion: The deletion of the addition under Section 68 is sustained in favour of the assessee.Issue (ii): Whether the ITAT erred in concluding that the assessee discharged the initial onus under Section 68.Analysis: The Court applied the settled principle that when an assessee furnishes a reasonable explanation supported by strong documentary evidence of identity and banking flow, the initial statutory onus under Section 68 stands discharged and shifts to the Revenue. The AO's dismissal of audited documents as mere 'paper compliance' without contrary evidence was found insufficient.Conclusion: The Court held that the assessee discharged the initial onus under Section 68; the finding is in favour of the assessee.Issue (iii): Whether the ITAT erred in appreciating facts properly in favour of the assessee.Analysis: The Court reviewed the factual record, noting the presence of substantial net worth in subscriber companies and available documentary corroboration. It rejected the argument that suspicion or non-appearance of directors substitutes for positive evidence, and emphasised that the AO must use powers under Section 131 or seek verifications instead of relying on inference.Conclusion: The Court found no perversity in the factual appreciation and upheld the Tribunal's factual conclusions in favour of the assessee.Issue (iv): Whether the ITAT erred by not following the High Court decision in Pr. CIT vs BST Infratech Ltd.Analysis: The Court considered the precedent relied upon and distinguished the present facts from cases involving 'phantom' entities; it observed that the investors here were traceable taxpayers who responded under Section 133(6), unlike cases where notices were returned unserved.Conclusion: The Court held that the Tribunal was not bound to follow the cited decision as the factual matrix differed and the conclusion favoured the assessee.Issue (v): Whether the ITAT erred by not applying the Exceptional Clause in Board's Circular dated 15/03/2024.Analysis: The Court examined the applicability of the Board's Circular and observed that the exceptional clause relied upon did not change the legal effect of the documentary evidence and traceability shown; no specific corroborative material invoking the Exceptional Clause was produced by the Revenue.Conclusion: The Court held that the Exceptional Clause did not apply to reverse the Tribunal's finding and the conclusion is in favour of the assessee.Issue (vi): Whether the ITAT erred by not considering the doctrines of 'source of source' and 'origin of origin'.Analysis: The Court held that the 'source of source' doctrine (and related doctrines) as embodied by the proviso to Section 68, introduced prospectively by the Finance Act, 2012, was inapplicable to the Assessment Year 2009-10; the Tribunal correctly declined to apply those doctrines retrospectively.Conclusion: The Court concluded against the Revenue and in favour of the assessee on this issue.Final Conclusion: The Tribunal's findings that the assessee discharged the initial onus under Section 68 by producing cogent documentary evidence and that Revenue failed to rebut such evidence are upheld; accordingly, no substantial question of law arises and the Revenue's appeal is dismissed.Ratio Decidendi: Once an assessee furnishes a reasonable explanation supported by conclusive documentary evidence establishing identity and banking traceability, the initial onus under Section 68 is discharged and the burden shifts to the Revenue to produce contrary evidence; suspicion or non-appearance of third parties cannot substitute for such contrary evidence, and prospective statutory amendments to Section 68 cannot be applied retrospectively.