TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 1268
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.... (14) companies as unexplained and made the addition. 3. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld. CIT(A), who after considering the facts and submissions of the case, deleted the addition by holding as under: "3.3.2 I have duly considered A/O's contention and appellant's submission, perused the materials on record, factual matrix of the case and also applicable legal position. The case was re-opened on 30/03/2012 on the basis of information received from Investigation Wing Delhi, with regard to share application money received by the assessee. Assessee has filed its objection for re-opening of assessment on 20.02.2013 but AO was unconvinced with that and rejected the same. During the reassessment proceeding, assessee provided all prima facie details such as Name with complete address, PAN, confirmation, bank statement, share application from & allotment etc. Assessee vide letter dated 25.03.2013 has requested AO to provide an opportunity to cross-examine Sh. Aseem Gupta and other directors of these beneficiary companies. However, the same was not offered by the AO. In view of these facts, the reference to the state....
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....roker Ltd 159 Taxman 306 Jafferali K Rattonsey 53 SOT 220 Nipuan Auto P Ltd 89 DTR 342 Kamdhenu Steel & Alloys Ltd and others 68 DTR 38 Dolphine Marbles (P) Ltd 57 DTR 58 Dadhimati Syntex P Ltd 259/Jodh/2013 Dt 31/7/13. Hon'ble ITAT Jodhpur Bench Bharti Syntex Ltd 52 DTR 73 ( Hon'ble ITAT Jaipur Bench) 3.3.2.2 Further, I also find that the established legal position on the subject under consideration as adopted in a large number of case laws is as follows:- (i) As held in the case of R.B. Mittal v. CIT 246 ITR 283 (AP) in an enquiry u/s 68 of the Act, the rule of audi alteram parterm has to be observed and the assessee must be given a fair and reasonable hearing to discharge the burden cast on him u/s 68 of the Act. (ii) Jurisdictional ITAT Bench Jaipur in case of Bharti Syntex Ltd 52 DTR 73 has held inter alia as under: " .................Held that certificate of incorporation of investor companies was placed on record. It means that they were registered companies under the Companies Act. PANs of all the three parties had been given and surprisingly no enquiry had been made by the Department from its own department whether the PANs allotted to these parties ....
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....d by the Investigation Wing Delhi at the back of the assessee. AO has even not referred to the relevant portion of such statement so as to establish the collusive arrangement the assessee company had with these persons. (iv) Further, in the case of N.P. Garodia (order dated13/01/2009 of Hon'ble P & H High Court in ITA no. 808 of 2008) and in the case of Brij Pal Sharma (order dated 17.02.2009 in ITA no. 685 of 2008 of Hon'ble P & H High Court) it was held that where the assessee provides identity and details pertaining to the lenders/creditors but is unable to produce them and requests the AO to issue summons u/s 131 of the Act for their attendance, it is the duty of the AO to issue such summons, failing which the addition would get deleted. It is also held in CIT v. Orissa Corporation Pvt. Ltd. 158 ITR 78 (SC) and Anis Ahmed 297 ITR 441 (SC) that mere non- production of the lender/shareholder cannot be a ground for making addition u/s 68 of the Act. (v) Similarly as held in the case of CIT v. Metachem Industries (2000) 245 ITR 160 (MP) where a credit is shown to have come from a person other than the assessee, there is no further responsibility of the assessee to show ....
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....s given the details of name and address of the shareholders, their PANIGIR number and had also given the cheque number, name of the bank. It was expected on the part of the assessing officer to make proper investigation and reach the shareholders. The assessing officer did nothing except issuing summons which was ultimately returned back with an endorsement 'not tenable'. In our considered view, the assessing officer ought to have found out their details through PAN Card, Bank Account details or from their bankers so as to reach the shareholders since all the relevant material details and particulars were given by the assessee to the assessing officer. In the above circumstances, the view taken by the Tribunal cannot be faulted. No substantial question of law is involved in the appeal. In the result, the appeal is dismissed in liminni with no order as to costs. " Similar decision has also been taken by the Hon'ble Chhattisgath High Court in ACIT v Venkateshwar Ispat Pvt. Ltd. (2009) 319 ITR 393. (vii) Further, the Hon'ble Delhi High Court relying on the judgment of the Apex Court in Lovely Exports Pvt. Ltd. (supra) has dismissed the department's appeals in limin....
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....een tried and decided earlier against him. The re-agitation may or may not be barred as res judicata. But if the same issue is sought to be re agitated, it also amounts to an abuse of the process of the court .........." 12. Though we were initially inclined to impose costs yet we are of the opinion that ends of justice would be met by giving a direction to the Revenue to be more careful before filing appeals in a routine manner. In our view, appeal should not be filed in matters where either no question of law arises or the issue of law is a settled one. We give this direction because the "judicial capital in terms of manpower and resources is extremely limited. 13. Registry is directed to communicate copies of this order to all the Chief Commissioners of Income Tax in Delhi for necessary action. With the aforesaid direction, the present appeals are dismissed in limine but without any order as to costs. " (viii) In the case of CIT vs. Fair Finvest Ltd. ITA no. 232/2012 dated 22-11- 2012, Hon'ble Delhi High Court has held as under:- "6. This Court has considered the submissions of the parties. In this case the discussion by the CIT(Appeals) would reveal that the assessee ha....
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....d 16/10/2014, the Hon'ble ITAT Bench Delhi has deleted the entire addition made on account of share application money by the assessee u/s 68 of the Act, relevant extract of which are reproduced as under:- "..................................................................................................................................... 16. In the present case, as noted above, the AO has not been able to bring on record any valid material or evidence to discredit the evidences and the explanation given by the assessee company. The only evidence which has been referred by the AO is statement of third parties recorded by the Investigation Wing. Admittedly these statements were not recorded by the AO but were recorded by the Investigation Wing at the back of the assessee. The AO has not even referred to the relevant portion of such statement so as to establish the collusive arrangement the assessee company had with these persons. 17. Accordingly we are of the view that the CIT(A) was justified in deleting the addition made by the Assessing Officer...................... " 18. In the result, the appeal of the revenue stands dismissed................." "3.3.2.3 Further, in view ....
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.... as unexplained cash credit in the form of share capital issued by the assessee. The ld. CIT(A) has allowed the appeal of the assessee by holding that the assessee has discharged its onus by establishing the identity, creditworthiness and genuineness with regard to the transactions for allotment of shares. 6. While pleading on behalf of the revenue with regard to the grounds raised in the appeal, the ld DR has relied on the orders of the Assessing Officer and submitted that the assessee has not discharged the onus. The ld. CIT(A) is not justified in deleting the addition. She submitted that the Assessing Officer has issued inquiry letters U/s 133(6) of the Act to the addresses provided by the assessee. No response was received in respect of ten companies who has invested in the shares. Shri Aseem Kumar Gupta, C.A. has confessed in his statement dated 24/11/2011 and 25/11/2011 that he was engaged in providing accommodation entries through number of entities controlled/managed by him. The explanation given by the assessee was not satisfactory and it lacks creditworthiness and genuineness. Hence the addition made u/s 68 of the Act made by the Assessing Officer may be confirmed and th....
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....y whether it has invested in share capital of the assessee or not - Sh. Aseem Kumar Gupta in his statement has stated that he was engaged in providing accommodation entries through this company. - Assessee has not produced the director. 4 M/s S.G. Portfolio Pvt. Ltd. WP-501, IIIrd Floor, Shiv Market, Ashok Vihar, New Delhi-110052 New Address: House No.191. IInd Floor, Naya Bans, Delhi-110006 PAN: AAHCS6809H 20,00,000 - Company has shown its inability in furnishing the requisite information and requested to grant two months time which is not possible as the assessee was only required to furnish the routine information. - Sh. Aseem Kumar Gupta in his statement has stated that he was engaged in providing accommodation entries through this company. - Assessee has not produced the director. 5 M/s Geefcee Finance Ltd. Geefcee House, 13/34, W.E.A. IVth Floor, Main Arya Samaj Road, Karol Bagh, New Delhi- 11005 PAN: AAACG1103H 10,00,000 No response was given by these companies. The assessee failed to prove the identity of the share capital subscribers due to non furnishing of latest confirmation with correct address and it is hard to believe that genuine companies would disappear an....
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....oss examine Sh. Aseem Kumar Gupta who is alleged to have stated to provide accommodation entry inspite of the specific request of the assessee vide letter dated 05.03.2013 and 25.03.2013 (PB 34-36). It may be noted that in respect of this company assessee has filed the share application form, confirmation and the bank statement (PB 38-40). Thus, assessee has discharged his primary burden of proving the identity of the share applicant, genuineness of the transaction and creditworthiness of the creditor. Thus, the share capital money received from this company is fully explained and the addition made by the AO is rightly deleted by the CIT(A). 2. In case of M/s KMC Portfolio Pvt. Ltd. the AO treated the share capital amount as unexplained because in Annexure-3 of the Balance Sheet furnished by the company which shows the details of the investments made in share application money in different companies, the name of the assessee does not appear. However, AO has not made any further enquiry from the company more particularly when the investment is verifiable from its bank account (PB 43). Further in respect of this company assessee has filed the share application form and confirmation....
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....d. If these parties did not turn up then necessary actions should have been taken against these companies and for that reason no adverse view can be taken in case of the assessee. The assessee had furnished complete details to the AO regarding the transactions in question, which include confirmation, share application form, copy of bank account and their permanent account numbers (PB 51-78). These companies are not referred as providing accommodation entries in the notice issued u/s 148. These companies (except M/s Chhoti Leasing & Finance Pvt. Ltd.) are also not covered in the list given by Sh. Aseem Gupta in his statement as being used for providing accommodation entries (PB 21-30). Further as per his statement the bank account no. 252 of Corporation Bank of M/s Chhoti Leasing & Finance Pvt. Ltd. was used for providing accommodation entries whereas assessee has received the amount from bank a/c no. 5043 on 08.09.2005 as evident from his bank statement placed at PB 62.Thus, this account is a different account than the account used by Aseem Gupta for providing accommodation entries. In these circumstances, assessee has discharged his primary burden of proving the identity of the sh....
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....d issued notice u/s 133(6) inter alia to M/s KMC Portfolio Pvt. Ltd. as well as to another company in response whereto both the companies had confirmed investments made by them and filed share receipt confirmation, bank statements of the relevant period, acknowledgments of the income tax returns and balance sheet. Tribunal while sustaining the view of the CIT(A) observed that assessee had filed documentary evidence to prove genuineness of share application money consisting of (i) share application forms; (ii) copies of bank accounts of share applicants; (iii) copies of income tax returns of share allottees; (iv) balance sheets; and (v) copies of share allotment certificates and of Board's resolution of the share applicants. Identity of applicants was established by production of copies of PAN cards and registration certificate with the Registrar of Companies. Financial capacity was also proved by filing of copies of the bank accounts from where the share application money was transferred through banking channels to the assessee. The genuineness of the transaction had been established by filing of the documents and in view of the confirmation by both the companies of the respect....
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....e creditor, credit worthiness of the creditor and genuineness of transaction. The assessee has provided necessary details including the ward/circle where the share applicants/ investing companies were assessed to income tax and discharged the onus cast on it. All the amounts were received, through banking channels by way of cheques issued in favour of the appellant company towards share application money. The shares were allotted as per the documents furnished before ROC. The assessee has produced possible/best evidence to support its claim. The AO has simply acted on the information received from the Investigation Wing without verifying the details furnished by the assessee company and also not placing before the assessee the information and findings of the Investigation Wing violating the principles of natural justice. If there is any discrepancy in the books of accounts maintained by the investing companies, there is a case for reopening of the assessment of the respective shareholders/investing companies. The assessee cannot be penalized for the mistakes/faults committed by the share holders. The AO has not found any discrepancy in the books of account and bank accounts maintai....
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....respect of the allegation of the Investigation Wing. Thus, on the basis of the above facts and by relying upon the various judgments, the Ld. CIT(A) held that assessee has discharged its onus and accordingly deleted the addition. The Hon'ble ITAT held as under:- 13. We have heard both the parties. The only issue here is the addition of Rs. 60 lacs made by the Assessing Officer as unexplained credit on account of the share application money. On going through the facts of the case, we notice that assessee has filed the relevant details which it could have filed in support of its contention of having received the share application money from each of these shareholder companies. 14. The Assessing Officer has issued summons to the directors of these shareholder companies. In response there to, the directors have not attended. Assessing Officer has not conducted any further inquiry for non-attendance of the persons. Non-attendance on issuing summons itself cannot be a ground for rejecting all the relevant documents furnished by the assessee company. Summons issued by Assessing Officer have not been received back as unserved. Therefore, it cannot be said that these companies were not ....
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....iled in response to notice u/s 153A no disclosed income pertaining to relevant year was declared by Assessee-AO observed that during year under consideration, assessee showed total turnover of Rs. 2.05 crores on which assessee returned a net loss of Rs. 13,29,220-AO observed that assessee had obtained share capital and share application money from various companies-AO held that amount received from stated companies in form of share capital was only accommodation entries and genuineness of Share capital received by assessee company could not be accepted-AO passed Order u/s 153 and made addition of Rs. 60,00,000 on account of alleged unexplained share capital received by assessee company from following persons-CIT(A) upheld addition made by AO- Held, AO could issue notice u/s 143(2)-In assessee's case, search was conducted on 06/5/2010 and AO issued notice on 16/09/2011 u/s 153A read with s 143(2)-During course of search, no incriminating documents were found therefore, no notice could be issued u/s 153A read with s 143(3) because no proceeding was pending before AO which abated for issue of notice on date of initiation of search-Thus, on technical ground, order passed u/s 153A read ....
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....ecord. The Assessing Officer has treated the share capital received from M/s SAM Portfolio Pvt.Ltd. as unexplained for the reason that the company has not furnished Schedule-5 of the balance sheet, which shows the details of investments. Only because Schedule-5 to the balance sheet is not furnished by the company, the investment made by it in the share capital of the assessee cannot be considered as unexplained. This company has made investment in the share capital of the assessee through J&K Bank. From this bank account, investment of Rs. 5,00,000/- made by it is fully verifiable. Even Aseem Gupta in his statement while providing the list of entities providing the accommodation entries has not stated that J&K Bank of SAM portfolio Pvt. Ltd. has been used by him for providing the accommodation entries. Further in spite of the specific request made by the assessee, the AO has not utilised his power under the Act to enforce the attendance of the Director of the company. The assessee was also not provided an opportunity to cross examine Sh. Aseem Kumar Gupta who is alleged to have stated to provide accommodation entry. The assessee has filed the share application form, confirmation an....
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....4 of the chart mentioned in earlier paragraphs, it has been stated that the assessee has given the latest address available with him. This is proved from the fact that the summons issued to them is not returned back unserved. The assessee had furnished complete details to the AO regarding the transactions in question, which include confirmation, share application form, copy of bank account and their permanent account number. These companies (except M/s Chhoti Leasing & Finance Pvt. Ltd.) are also not covered in the list given by Sh. Aseem Gupta in his statement as being used for providing accommodation entries. As per the statement of Shri Aseem Gupta, the bank account no. 252 of Corporation Bank of M/s Chhoti Leasing & Finance Pvt. Ltd. was used for providing accommodation entries whereas assessee has received the amount from bank a/c no. 5043 on 08.09.2005 as evident from his bank statement placed at page No. 62 of the paper book. By filing number of identity of these share applicants and the assessee has specifically requested the Assessing Officer to enforce the attendance of Director of these companies. The assessee has prima facie discharged the onus on it. Further the statem....
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....ified the details furnished by the assessee and I.T. records of the shareholders/investing companies. The assessee has discharged its burden of providing basic details which were required for verification to fulfill the conditions viz. identity of the creditor, credit worthiness of the creditor and genuineness of transaction. The assessee has provided necessary details including the ward/circle where the share applicants/ investing companies were assessed to income tax and discharged the onus cast on it. All the amounts were received, through banking channels by way of cheques issued in favour of the appellant company towards share application money. The shares were allotted as per the documents furnished before ROC. The assessee has produced possible/best evidence to support its claim. The AO has simply acted on the information received from the Investigation Wing without verifying the details furnished by the assessee company and also not placing before the assessee the information and findings of the Investigation Wing violating the principles of natural justice. If there is any discrepancy in the books of accounts maintained by the investing companies, there is a case for reope....
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.... income tax returns, copies of PAN cards, balance sheet, copy of Certificate of Incorporation and Memorandum of Articles of Association of the companies, that the status of these companies is 'active' on the ROC Website and that the opportunity of cross examination was not provided to the appellant in respect of the allegation of the Investigation Wing. Thus, on the basis of the above facts and by relying upon the various judgments, the Ld. CIT(A) held that assessee has discharged its onus and accordingly deleted the addition. The Hon'ble ITAT held as under:- 13. We have heard both the parties. The only issue here is the addition of Rs. 60 lacs made by the Assessing Officer as unexplained credit on account of the share application money. On going through the facts of the case, we notice that assessee has filed the relevant details which it could have filed in support of its contention of having received the share application money from each of these shareholder companies. 14. The Assessing Officer has issued summons to the directors of these shareholder companies. In response there to, the directors have not attended. Assessing Officer has not conducted any further inquiry for ....
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....cturing of jewellery-Search and seizure operation was carried by department u/s 132 and survey u/s 133A was made on Members of 'X' of which Assessee was one of Members-AO issued notice u/s 153A and Assessee was asked to file true and correct return of income as prescribed under r 12 of the Income Tax Rules, 1962-In return of income filed in response to notice u/s 153A no disclosed income pertaining to relevant year was declared by Assessee-AO observed that during year under consideration, assessee showed total turnover of Rs. 2.05 crores on which assessee returned a net loss of Rs. 13,29,220-AO observed that assessee had obtained share capital and share application money from various companies-AO held that amount received from stated companies in form of share capital was only accommodation entries and genuineness of Share capital received by assessee company could not be accepted-AO passed Order u/s 153 and made addition of Rs. 60,00,000 on account of alleged unexplained share capital received by assessee company from following persons-CIT(A) upheld addition made by AO- Held, AO could issue notice u/s 143(2)-In assessee's case, search was conducted on 06/5/2010 and AO issued notic....
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....ived from the Investigation Wing, Mumbai and after due examination thereof, the AO has formed a prima facie view and a reason to believe that the income has escaped assessment and has thus assumed jurisdiction u/s 147 of the Act. At the same time, such a prima facie view has to be finalized and a firm view has to be taken on basis of examination of documents so brought on record and further investigation to be carried out before any tax liability is fastened on the assessee. In the instant case, we find that the assessee company has submitted detail documentation in regard to these companies from whom a total amount of Rs. 35 lakhs was received namely (i) share application form (ii) copy of Board Resolution (iii) Copy of Bank Statements reflecting payment through cheque (iv) Audited Statement of Accounts and Acknowledgement of ITR (v) Copy of certificate of Incorporation and Certificate of Commencement of Business (vi) Copy of PAN Card. Where the assessee furnishes the documentation and necessary explanation, the AO should examine whether the documents so submitted and explanation so offered establishes the three ingredients i.e. identity of the investor company, creditworthiness o....
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....t case. Further, we find that there is no action taken by the AO in terms of calling information from these companies under section 133(6) and/or issuing summons to directors of these companies under section 131 of the Act. Further, where the AO relies upon the statement of third parties (Praveen Jain and others)recorded u/s 132(4), without getting into controversy whether the said statement was retracted subsequently, the fact remains that the assessee deserves an opportunity to cross examine such persons as held by the Hon'ble Supreme Court in case of Andaman Timber Industries (supra). During the course of assessment proceedings, the assessee company has made specific request to the AO to allow cross examination of these persons which has however not being provided to the assessee company. In light of above discussions, we don't find any basis for making addition under section 68 of the Act. In the result, ground no.2 taken by the assessee company is allowed." 21. In the instant case, we find that the Assessing officer has relied solely on the information received from the Investigation Wing Delhi without carrying out any further examination of documents submitted durin....
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.... he is empowered, nay duty-bound, to carry out thorough investigations. But if the Assessing Officer fails to unearth any wrong or illegal dealings, he cannot obdurately adhere to his suspicions and treat the subscribed capital as the undisclosed income of the Company. We are therefore of the view that there is no infirmity in the findings of the ld CIT(A) that in absence of any falsity which have been found in the documents so submitted by the assessee company to prove the identity, creditworthiness and genuineness of the share transaction and any satisfaction to that effect recorded by the AO, these documents cannot be summarily rejected as has been done by the AO in the instant case. Further, we find that there is no action taken by the AO in terms of calling information from these companies under section 133(6) and/or issuing summons to directors of these companies under section 131 of the Act. 22. Further, being the reassessment proceedings, where the AO is ceased of certain information and documents, it is incumbent upon him to confront the same to the assessee and allow the latter to file its objections and rebuttal. The additions made, merely relying on these information ....
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....reby dismissed. " The ITAT, Jaipur Bench in the case of M/s Choice Buildstate Pvt. Ltd. Vs. ITO in ITA No. 431/JP/2016 order dated 28/03/2018 has held as under" "9. We have heard the rival contentions and perused the material available on record including the legal authorities relied upon by both the parties. On perusal of the reasons recorded before issuance of notice under section 148, it is stated therein that on the basis of information brought on record, the assessee company has taken accommodation entries of Rs. 35 lacs in the nature of bogus investments/share application from seven companies whose complete details in terms of name, address, date of payment, amount of investment, bank account and the branch through which the payment has been made were stated therein the reasons. It was further stated in the reasons that these companies are indulged in providing accommodation entries in lieu of cash obtained from the beneficiaries and not doing any genuine business activity as divulged during the course of search and seizure proceedings in case of Praveen Jain Group, Mumbai. It was further stated in the reasons so recorded that the assessee company is a beneficiary who has ....
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.... of M/s TRN Energy Pvt ltd and M/s Superline Construction P Ltd were rendered in peculiar facts and circumstances in those cases and are thus distinguishable on facts. The decision of Hon'ble Delhi High Court in case of Rajat Exports India (supra) among others relied upon by the Id DR supports the case of the Revenue. In view of the same, we are of the considered view that there is no illegality in action of the AO in assuming jurisdiction under section 147 in the instant case. In the result, ground no. 1 of the assessee's appeal is hereby dismissed. 10. Now, coming to the merits of addition of Rs. 35 lacs made by the AO under section 68 of the Act. On careful examination of material available on record, we find that it is a case where the AO has relied blindly on information supplied by the Investigation Wing Mumbai without carrying out any further examination of documents submitted during the course of assessment proceedings and independent investigation of these investor companies. As we have noted above, the information so received from the Investigation Wing, Mumbai and after due examination thereof, the AO has formed a prima facie view and a reason to believe that t....
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....ess activities as divulged during the course of search and seizure operations in case of Praveen Jain group. In these situations, the Courts have held that the Assessing Officer cannot sit back with folded hands and then come forward to merely reject the explanation so made, without carrying out any verification or enquiry into the material placed before him by the assessee. If the Assessing Officer harbours any doubts of the legitimacy of any subscription he is empowered, nay duty-bound, to carry out thorough investigations. But if the Assessing Officer fails to unearth any wrong or illegal dealings, he cannot obdurately adhere to his suspicions and treat the subscribed capital as the undisclosed income of the Company. We therefore agree with the contentions of the Id AR that in absence of any falsity which have been found in the documents so submitted by the assessee company to prove the identity, creditworthiness and genuineness of the share transaction, these documents cannot be summarily rejected as has been done by the AO in the instant case. Further, we find that there is no action taken by the AO in terms of calling information from these companies under section 133(6) and/....