TaxTMI 
TaxTMI 
2018 (1) TMI 316
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....7 and 2485/Del/2017 for Assessment Year 2012-13. 2. Now, therefore, we take up the ITA No. 2491/Del/2017 in case of Globus Projects Pvt. Ltd. 3. The assessee has raised the following grounds of appeal in ITA No. 2491/Del/2017 for Assessment Year 2012-13: "(A) That on the facts & circumstances of the case and the statement of Mr. Sanjay Singhal, CMD of M/s Bhushan Power and Steel Ltd. the learned CIT u/s 263 erred in: i) Holding that the A.O. has failed to thoroughly examine/ investigate the identity/ genuineness/ creditworthiness/ of the parties from whom the alleged share application money/ share capital have been received Inspite of the A.O. conducting detailed enquiries and servicing notices on all shareholders, companies u/s 131 and 133(6) of the Income Tax Act & due compliances by them including recording of Directors statement on oath. ii) Holding that the capital contributed by M/s KDK Food Grains Pvt. Ltd., M/s Leisure Buildcon Pvt. Ltd. and M/s Manomay Foods & Beverages Pvt. Ltd. in the Assessee Company was not genuine as it was out of funds advanced by the M/s Bhushan Power and Steel Ltd to them. iii) Holding that the Assessment order passed u/s 153A(l)(b) by....
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.... (iii) M/s Manomay Food & Bev. Pvt. Ltd., Shop No. 17, Plot No. 13E, Gali No. 20, Guru Complex, Madhu Vihar, Delhi -110092 (Rs. 1,71,00,000/-) During the course of assessment proceedings assessee was required to give the source of the share capital the company, please also furnish detail of any changes in the share capital of the compare, the year . In response to the assessee has submitted its reply vide letter dated 12.03.2014 the assessee company has allotted 2,46,000 fresh shares. To prove the identity, genuineness of the transactions and creditworthiness of each of the above said share holders, following documents are enclosed herewith for verification and record. a) Share application form b) Board resolution for investment in the assessee company in case the share holder is a company. d) Copy of extract of hoard meeting of the. assessee company in which allotment of shares has been made. d) Copy of allotment letter. e) Copy of confirmation of accounts. f) Bank statement reflecting the said payment of shares and its sources of funds. g) Copy of income tax return acknowledgement h) Copy of balance sheet showing the investment in the Assessee company. ....
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....s Pvt Ltd. Sh. Ajay Kumar, E-635/B, Pratap Vihar, Ghaziabad Sh. Mahindra Saxena, E-648, Sec-10, Pratap vihar, Vijay Nagar, Ghaziabad No compliance made till date 2 M/s Leizure Buildcon Pvt Ltd. Sh. Surabh Jain and Sh. Ramji, 27 KHokari Village, Sunlight colony. New Delhi No compliance made till date 3 M/s Manomay Foods & Beverages Pvt Ltd. Sh. Ajay kumar, E-635/B, Pratap Bihar, Ghaziabad Sh. Mahindra Saxena, E-648, Sector-to, No compliance made till date 4 M/s SPB Propcon Pvt. Ltd. Pratap Vihar, Vfioy Nagar, GhaziabadSh. Surabh join and Sh. Ramji, 27 Kitokari Village, Sunlight colony, New Delhi No compliance made till date 5 M/s Strap Creation Pvt Ltd Sh. Jai Narayan, 106 Dua Business Center, Main Vikas Marg, Shakarpur, Delhi, Sh. Anil*Kumar, A-62, Laxmi Nagar, Delhi No compliance made till date 6 M/s Syns Construction Pvt Ltd. Sh. Mahesh Prasad, Sh. Sudhir Sharma and Nitin Yadav, A-69, Laxmi Nagar, New Delhi, Sh. Santosh Kumar, G-29, Laxmi Nagar, New Delhi No compliance made till date Till date not a single director or anybody on the behalf of the company has appeared. During the survey on BPSL on 27.12.2012 Sh Sanjay Singhal, CMD BPSL was asked abo....
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....s regard we respectfully submit as under: Statement of Facts 1. The Assessee is Private Limited Company engaged in the business of Construction and development of Residential and Commercial Complexes. 2. A search and seizure operation under section 132 of the Act was carried out on Bestech Group of cases on 4th July, 2012, wherein some papers relating to assessee company were also seized. 3. During the year under assessment the assessee company has received share application money/share capital from the following companies : S. No. Name of Shareholder Amount Received 1 KDK Food Grains Pvt. Ltd. 3,36,00,000 2 Leisure Buildcon Pvt. Ltd. 2,31,00,000 3. Manomay Food & Beverages Pvt. Ltd. 1,71,00,000 4. The assessee company has duly discharged onus cast on it as per Section 68 of the Income Tax Act, to prove identity of shareholders, creditworthiness of the shareholders and genuineness of transactions by filing requisite proofs / documents to the Assessing Officer vide its letter dated 04.04.2014 wherein it has filed the following documents: Share Application Form Board Resolution of Investor Company authorizing board to make investment &nbs....
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....icial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. * In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. It is pertinent to note that "Records‟ includes all records relating to any proceeding under this Act available at the time of examination by Learned Commissioner. * The second feature would come when he will judge an order passed by an Assessing Officer based on record available at ....
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.... not feel satisfied with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) if the AO- has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee. the decision of the AO cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. Independent Verification by Assessing Officer during Assessment Proceedings Sir n the present case, assessee company has received share application money/ share applicants tabled above. During the assessment proceedings itself:- * Necessary documents in support of said share application money/ share capital ere fed by the assessee company before the learned assessing officer in order scharge onus cast on it as per Section 68 of the Income Tax Act, to prove identity of shareholders, creditworthiness of the shareholders and genuineness of transaction. * Assessing office has independently made inquiries and verification of ....
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.... 133(6) of the Act and Statements of directors of shareholder companies recorded on oath in response to notice u/s 131 of the Act, are forming part of "records‟ as defined in explanation 1(b) of Section 263 of the Act. These records may have skipped your examination / may have not been made available to your goodself while judging the assessment order of the Assessing Officer and framing an opinion that identity, creditworthiness of share applicants and genuineness of transactions has not been thoroughly examined / investigated during assessment proceedings whereas assessing officer has framed the assessment order after making adequate inquiries and verification. Thus, the case of the assessee may not be covered under the provisions of Section 263 of the Act. Order Passed by Leaned Assessing officer cannot be termed as Erroneous:- Sir based on the provisions of section 263 of the Act and broad principles established by various judicial pronouncements, the order passed by the Assessing Officer should :treated at erroneous for the following reasons: * The Learned AO has made sufficient enquiries during the course of assessment proceedings on the relevant issues by making ....
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.... of the assessee company. 2. That the allegation that these share applicant companies does not have any meaningful business and exist only on papers are just presumptions and there is no basis to allege so. It is evident from the assessment records that the addresses of all the investor companies were genuine where all the summons/ notices/ correspondences have been served/ delivered and complied adequately. None of the correspondence mailed by the leaned assessing officer returned back undelivered. All the investor companies were existent and were available on the given addresses. All these share applicant companies are in regular business has sufficient means to invest in the shares of assessee company and same as also been explained and proved by them by submitting the requisite documents and recording of statement on oath in person of one of their respective director before the learned assessing officer. Moreover, Sir, when all share applicant companies are existent and has admitted the investment with assessee company, the addition at all could be made in the hands of the applicant companies and not the assesses company. 3. That a search and seizure operation was cond....
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.... under no circumstances, can the amount of such capital be regarded as undisclosed income of the assessee company if certain shareholders were bogus and money was provided by some other persons, reopening of assessment of such persons would be sensible". Hon‟ble High court of Delhi has held in CIT VS. DOLPHIN CANPACK ITD (2006) 283 ITR 190{(2000) 283 ITR 190} that "Tribunal, while observing that complete details i mg confirmations details of bank account, PAN of subscribers to the shares ..ere furnished by the assessee and payments were made by cheques, was jstified in deleting addition under section 68. The Hon‟ble High Court of Rajasthan in the case of ARAVALI TRADING CO. VS. INCOME TAX OFFICER {(2008) 8 DTR 199) held "Once the existence of the creditors is proved and such persons own the credits which are found in the books of the assessee, the assessee‟s onus stands discharged and the latter is not further required to prove the source from which the creditors could have acquired the money deposited with him either in terms of sec.68 or on general principal". The judgement of the Delhi High Court in the case of CIT vs Oasis Hospitalities (P) Ltd. (333/....
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.... addition, if any, could be made in the hands of applicant companies. In the present case, the assessee company has duly discharged onus cast on it to prove identity of shareholders, creditworthiness of the -shareholder and genuineness of transaction by providing requisite proofs / documents as detailed above in the submission. The Learned Assessing officer has also independently verified the Identity, Creditworthiness of share applicant and genuineness of transactions by independently calling the directors of the companies u/s 131 and/or calling information U/s 133(6) of Income Tax Act. Thus, no addition u/s 68 of the act is warranted in the hands of the assessee company. In case the learned assessing officer was not at all satisfied about the transaction, appropriate action may have been taken against the share applicant as per the provisions of Income Tax Act. 5. That, it is submitted that confession by some person in some other case (although in our case no such confession has been made by BPSL), could not lead to the conclusion that assessee Company has indeed received the accommodation entry. In this regard, your honor‟s attention is hereby drawn to the case of....
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.... substantiated that all these advances, were genuine business advances. It is further submitted that Manomay Foods & Beverages Pvt. Ltd. which has paid share application to assessee company out of fund received from BSPL has also repaid back advances received by it. The confirmation of the same is awaited and will be submitted to your goodself in next date of hearing. In the present case, the assessee company, has duly discharged onus cast on it to prove identity of shareholders, creditworthiness of the shareholder and genuineness of transaction by providing requisite proofs / documents. The Learned Assessing officer has also independently verified the Identity, Creditworthiness of share applicant and genuineness of transactions by independently calling the directors of the companies u/s 131 and/or calling information U/s 133(6) of Income Tax Act. Further, the sources of funds out of which share capital has been paid to assessee company has also been confirmed by Mr. Singhal, CMD of BPSL. Thus, no addition u/s 68 of the Act may be made in the case of the assessee company. In case the your goodself is still not at all satisfied about the transaction, appropriate action may hav....
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....fied about the genuineness of transaction, appropriate action may have been taken against the share applicant as per the provisions of Income Tax Act as laid down by various judicial pronouncements. Thus, on the basis of fact and circumstances and various judicial pronouncements and merits of the case, it is hereby prayed that the proceedings initiated u/s 263 of the Act may please be dropped in the interest of justice and oblige." 7. Consequently, vide order dated 17.02.2017 the ld CIT passed order u/s 263 holding that order passed by the ld Assessing Officer is erroneous and prejudicial to the interest of the revenue. The main reasons of the order of the ld CIT were as under:- "1.A perusal of the facts shows that the assessment order in the case of M/s Globus Projects Private Limited u/s 153A(l)(b) of the IT.Act, 1961 for A.Y. 2012-13, was passed by Dy. Commissioner of Income Tax, Central Circle-I, Faridabad on 13.06.2014. 2. (a) The assesseereceived the following amounts of shareapplication money/ share capital: Sr. No. Name of the company from whom share application money/share Address Amount 1 capital receivedM/s KDK Food Grains Pvt. Ltd. Shop No. 17, Plot No 1....
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....gus purchases or for buying capital goods. From the analysis of ITR and ROC data of the above mentioned companies, it is found that these companies are not doing any meaningful business activities and are existing only on papers. Summons were issued to the companies and their directors on 02.09.2014. No. Name of the company to which summons issued Name of the Directors to which summons issued Remarks 1 M/s KDK Food Grains Pvt Ltd. Sh. Ajay Kumar, E-635/B, Pratap Vihar, Ghaziabad Sh. Mahindra Saxena, E-648, Sec-10, Pratap vihar, Vijay Nagar, Ghaziabad No compliance made till date 2 M/s Leizure Buildcon Pvt Ltd. Sh. Surabh Jain and Sh. Ramji, 27 KHokari Village, Sunlight colony. New Delhi No compliance made till date 3 M/s Manomay Foods & Beverages Pvt Ltd. Sh. Ajay kumar, E-635/B, Pratap Bihar, Ghaziabad Sh. Mahindra Saxena, E-648, Sector-to, No compliance made till date 4 M/s SPB Propcon Pvt. Ltd. Pratap Vihar, Vfioy Nagar, GhaziabadSh. Surabh join and Sh. Ramji, 27 Kitokari Village, Sunlight colony, New Delhi No compliance made till date 5 M/s Strap Creation Pvt Ltd Sh. Jai Narayan, 106 Dua Business Center, Main Vikas Marg, Shakarpur, Delhi,....
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....assessee was required to give the I source of the share capitaLof the company, please also furnish detail of any changes in / the share capital of the company the year . In response to the assessee has submitted its / reply vide letter dated 12.03.2014 the assessee company has allotted 2,46,000 fresh ' shares. To prove the identity, genuineness of the transactions and creditworthiness of each of the above said shareholders, following documents are enclosed herewith for verification and record. a) Share application form b) Board resolution for investment in the assessee company in case the share holder is a company. c) Copy of extract of board meeting of the assessee company in which allotment of shares has been made. d) Copy of allotment letter. e) Copy of confirmation of accounts. f) Bank statement reflecting the said payment of shares and its sources of funds. g) Copy of income tax return acknowledgement. h) Copy of balance sheet showing the investment in the Assessee company. (iii) The DDIT(Inv.)-I, Faridabad vide his report dated 17.04.2015 reported as under:- "A survey operation u/s 133A was carried out in the case of M/s Bhushan Power and Ste....
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....ji, 27 Kilokari Village, Sunlight colony, New Delhi No compliance made till date 3 M/s Manomay Foods & Beverages Pvt. Ltd. Sh. Ajay kumar, E-635/B, Pratap Bihar, Ghaziabad Sh. Mahindra Saxena, E-648, Sector-10, PratapVihar, Vijay Nagar, Ghaziabad No compliance made till date 4 M/s SPB Propcon Pvt. Ltd. Sh. Surabh Jain and Sh. Ramji, 27 Kilokari Village, Sunlight colony, New Delhi No compliance made till date 5 M/s Strap Creation Pvt. Ltd. Sh. Jai Narayan, 106 Dua Business Center, Main Vikas Marg, Shakarpur, Delhi, Sh. Anil Kumar, A-62, Laxmi Nagar, Delhi No compliance made till date 6 M/s Syns Construction Pvt. Ltd. Sh. Mahesh Prasad, Sh. Sudhir Sharma and Nitin Yadav, A-69, Laxmi Nagar, New Delhi, Sh. Santosh Kumar, G-29, Laxmi Nagar, New Delhi No compliance made till date Till date not a single director or anybody on the behalf of the company has appeared. During the survey on BPSL on 27.12.2012, Sh. Sanjay Singhal, CMD BPSL was asked about the purpose of making such huge advances. He could not give any explanation and admitted for disallowance of interest on these advances given. Thus, assessee himself admitted that no goods have been purchased from the....
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....i Nagar, Delhi 2,31,00,000/- 12,50,00,000/- 3 M/s Maonmay food & Bev. Pvt. Ltd. Shop No. 17, Plot No 13E, Gali No. 20, Guru Nanak Complex, MadhuVihar, Delhi 1,71,00,000/- 9,00,00,000/- (b) No evidence as to the nature of capital advances/capital goods purchased/genuineness of the same have been produced/proved. (c) Sh. Sanjay Singhal admitted to the disallowance of interest on the aforesaid alleged advances. (d) The repayment of advances by the share applicant companies who had received advances from BSPL to BSPL only confirms the allegations about non genuineness. (e) The nodus operandi and financial credentials of above entities to which payments were made, it is concluded that payments were made to these entities for siphoning off funds from BPSL. Payments made by BPSL to the above mentioned paper entities have finally been introduced in the entities of Bestech Group in form of bogus share capital/premium. Thus, prima facie from the discussed modus operandi, it is clear that cash paid by Bestech group for taking bogus share capital/premium accommodation entries through paper entries has been given equal amount to BPSL group. (f). The A.O has ....
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....& 14) M/s Maonmay Food & Bev. (P) Ltd. Rs. 1,71,00,000/- * Query reg. share holdings vide para-22 of questionnaire dt.05.02.14 (3) * Notice u/s. 133 (6) dt.25.05.14 to Maonmay (9) * Reply to A.O. by assessee vide para-4 (giving details of documents furnished by the assessee to A.O.) (15) * Details of all shares allotted (21) * Board resolution dt.30.03.12 for allotment of shares (22) * Reply by Maonmay of notice u/s. 133 (6) (giving details of documents furnished to A.O.) (23) * Letter dt.30.03.12 by assessee to Maonmay for allotment of shares (24) * Application form by Maonmay applying for shares (25) * Resolution by Maonmay to purchase the shares (26) * Bank statement of Maonmay (27-28) * ITR ack. of Maonmay of A. Y. 12-13 (29) * Audited financial statement of Maonmay of A.Y.12-13 showing the investment (36, 32) * Confirmation from Maonmay (40) * Notice u/s. 13 1 to Sh. Mahendra Saxena, Director of Maonmay (84) * Copy of statement of director of Maonmay (86-89) (specially ans. to Q. Nos.5, 9, 10, 11, 13 & 14) M/s Leisure Buildcon (P) Ltd. Rs. 2,31,00,000/- * Query reg. share holdings vide para-22 of questionnaire dt.05.02.14 (3) ....
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....terestingly, the CIT silent as to what further queries/investigation ought to had been done by the A.O. * Thus, there existed no circumstances which may permit for invoking provisions of sec.263 of the Act. * Further, there is no material on record to show that cash has been given against receipt of share capital, hence this finding of CIT is without any material and basis (Authorities laying down this legal proposition have been given separately) * Further, in case the asstt. order dt. 13.06.14 is silent on this issue, that does not mean that this issue was not raised or was not examine by the A.O. since, it is not necessary for the A.O. to discuss each and every aspects of examination in the asstt. order. (Authorities laying down this legal proposition have been given separately) * Further, source of the source is not the responsibility of the assessee. However in this case even the source of source also stands explained. The assessee received share capital from above 3 companies. These 3 companies received the corresponding amount from Bhushan. Thus even the source of source stands explained and confirmed. (Authorities laying down this legal proposition have be....
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....port, clearly proves that Bhushan gave the amount to these companies and these companies, in turn, purchased the share of the assessee * The amount given by Bhushan to these companies was finally refunded by these companies to Bhushan (OTPg.7) Thus there is nothing adverse in the DDIT report also, even on merits Four * CIT, did not himself carry out any inquiries or verification to substantiate * No discrepancy was found either by the A.O. or by the CIT in any of the documents/information * The CIT, did not carry out any inquiries/verification himself * The report of DDIT, the only adverse document with CIT, clearly mentioned all the facts which clearly proved the source as well as the source of the source * Hence, in the absence of any further material/information/inquiry/verification by the CIT himself, there was no occasion for invoking sec.263 (Authorities laying down this legal proposition have been given separately) Five * The directions for framing the asstt. denovo is illegal * The show cause notice was issued for verification of receipt of share capital from 3 parties. * However, the CIT set aside the whole asstt. for framing as denovo i.....
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.... CIT who is not the assessing officer. * In that case, such findings are not open for disturbance u/s 263. AUTHORITY CIT VS. SMT. A YA/f POORNA MM A CHANDRASHEKHAR 204 BRIJ BHUSHAN AGGARWAL (2005) 2 SOT 811 (AGRA) Held that Asstt, order passed by the ITO after consultation with and under supervision of Jt, CIT & on appreciation of evidence furnished by the assessee, though may be cryptic one, but could not be said to be erroneous and prejudicial to the interest of revenue." 9. The ld Departmental Representative vehemently submitted that in the present case on 17.04.2015 the report of the DDI was received which was after survey carried out in case of Bhusan Power and Steel Ltd on 27.12.2012. It was further submitted that in the report it was stated that these are the paper companies. At the time of examination of the records by the ld CIT this information was available and therefore, the ld CIT(A) has stated that there is no proper enquiry made by the ld AO. She further referred to the page No. 69 of the paper book which is bank statement of KDK Foodgrains Pvt. Ltd with Axis Bank wherein, it is apparent that money paid to the assessee were earlier credited in the ba....
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.... the list of share holders stating their name, address, PAN along with the details of their shareholdings. The assessee submitted the above details vide letter dated 09.12.2013 and 30.05.2014 where, requisite details were submitted. Assessee submitted that it has issued 246000 shares during the year and submitted the shareholder wise details along with confirmation of the share holders coupled with their share application form, bank statement, income tax return copies and annual accounts of the subscribing companies. It further submitted board resolution for investment in the company, copy of the allotment letter, copy of confirmation etc. The assessee further requested that AO may also verify the facts of the above said transaction independently. The ld Assessing Officer thereafter, issued notice u/s 133(6) of the Act to those companies vide letter dated 27.05.2014 to which the shareholders replied on 12.06.2014 submitting their requisite details as called for. Such shareholders confirmed the fact of application of share, amount of share application money, their assessment particulars and also the copy of the balance sheet where these investments are reflected. They also submitted....
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....ake the order of the ld Assessing Officer erroneous but in fact shows that assessee has proved even the source of the source of the money deposited in the assessee company. Further, the ld CIT has alleged that transaction of the repayment of the loans by the share holder companies to Bhushan Steel Pvt. Ltd shows about the in genuineness of the whole transaction. With respect to repayment of the loan taken by the share holders of the company does not make any impact on the creditworthiness of the depositors as well as the genuineness of the transaction. The ld CIT therefore, has stated that the ld Assessing Officer has failed to thoroughly examine/ investigate the identity/ genuineness/ creditworthiness of the parties from whom the alleged share application money has been received. In the present case in the assessment proceedings the ld Assessing Officer has made whatever enquiries were possible. The order of the ld CIT also did not suggest that what are the enquiries further required to be made by the ld Assessing Officer. It also does not show that how the enquiry made by the ld Assessing Officer are inadequate. According to us the Commissioner has set aside the assessment to the....
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....ous. We do not agree with the contention of the ld AR because according to explanation 1(b) of Section 263 the "records‟ include all records pertaining to the proceedings available at the time of examination by ld CIT. In the present case, when the records were examine by ld CIT such survey report was available on the record and hence, no fault can be found with the order of the ld CIT on this count. 14. The ld DR has vehemently stated that the order passed by the ld Assessing Officer does not discuss all these enquiries made by him or has not made any observation in the assessment order. It was further stated that the order of the ld Assessing Officer is "brief and cryptic‟. We are of the opinion that "brief and cryptic" nature of the order does not make it erroneous and prejudicial to the interest of revenue. The revenue could not controvert that all these enquiries made by the ld Assessing Officer were either "not made‟ or merely an "eyewash‟. 15. The ld Departmental Representative has vehemently relied on the decision of the Hon'ble Calcutta High Court in case of Rajmandir Estates Pvt. Ltd Vs. CIT 70 Taxman.com 124 against which the Hon'ble Sup....