TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 1215
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....t year under consideration. The AO noted that the assessee company has received share application money to the tune of Rs. 5,60,000/- in cash from the following persons:- Name of the person Share Application Money Berisal Singh 11/04/2012- Rs. 20,000/- 17/05/2012 - Rs. 20,000/- 22/06/2012- Rs. 20,000/- Dasrathi Biswal 30/05/2012 - Rs. 20,000/- 12/02/2013- Rs. 20,000/- Gayatri Devi Palode 18/04/2012 - Rs. 20,000/- 22/06/2012 - Rs. 20,000/- 16/01/2013 - Rs. 20,000/- Indu Devi Dadhich 05/04/2012 - Rs. 20,000/- 15/06/2012 - Rs. 20,000/- 12/02/2013 - Rs. 20,000/- 20/03/2013 - Rs. 20,000/- Mahavir Prasad Palode 25/04/2012 - Rs. 20,000/- 24/05/2012 - Rs. 20,000/- 10/01/2013 - Rs. 20,000/- Parmeshwar Lal Tiwari 25/04/2012 - Rs. 20,000/- 30/05/2012- Rs. 20,000/- 10/10/2012- Rs. 20,000/- 24/12/2012- Rs. 20,000/- Ram Kumar Sharma 17/07/2012- Rs. 20,000/- 20/11/2012- Rs. 20,000/- 18/01/2013- Rs. 20,000/- Sitam Ram Sharma 16/05/2012 - Rs. 20,000/- 12/09/2012 - Rs. 20,000/- 22/01/2013- Rs. 20,000/- Tikam Chand Sharma 20/07/20....
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....ice issued u/s. 133(6) all the share applicants filed evidences in the form of : a. Balance sheets b. ITR acknowledgements for the a.y 2013-14 c. Bank statements. 8. According to the AO since the assessee did not file any evidence regarding source of cash deposits, he made an addition of Rs. 5,60,000/- . Before the ld. CIT(A) the assessee had filed the following additional documents :- i. account statements of the share applicants ii. share application forms iii. copy of bank account of the share applicants iv. copy of ledger account of the share applicants. 9. However, ld. CIT(A) without looking into the balance sheets filed by them, which shows that share subscribers were creditworthy still did not accept the genuineness of the transaction. We note that before the ld. CIT(A) the assessee had brought to the notice the following detailed facts about each of the share subscribers, which are discussed below:- (a) Berisal Singh: This Individual made share application for Rs. 60,000/- in the appellant company. The share application was made by cash. This Individual has duly filed his return of income before ITO Ward 45(3), Kolkata and was having PAN ALJPS0552K. This I....
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....n was made by cash. This Individual has duly filed her return of income before ITO Ward 35(2), Kolkota and was having PAN ADTPD4922C. This Individual was having a capital of Rs,12J19,075/- as on 31/03/2013 and Rs. 10,93,115/- as on 31/03/2012 respectively. The copy of the account statements for the year ended 31/03/2013 and 31/03/2012 was made available in the paper book. The copy of the ledger account also made available in the paper book. The copy of the IT Acknowledgement for the Asst. Year ended 31/03/2012 is available in the paper book. The copies of the share application forms are also available in the paper book. All the relevant documents for this Individual are available on pages 89-97 of the paper book. (e) Mahabir Prasad Palode: This Individual made share application for Rs. 60,000/- in the appellant company. The was made by cash. This Individual has duly filed his return of income before ITO Ward 44(4). Kolkata and was having PAN AFVPP5929B. This individual was having a capital of Rs. 7,91,862/- as on 31/03/2013 and Rs. 6,84,902/- as on 31/03/2012 respectively. The copy of the account statements for the year ended 31/03/2013 and 31/03/2012 was made available in the pa....
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.... on 31/03/2013 and Rs. 9,21,665/- as on 31/03/2012 respectively. The copy of the account statements for the year ended 31/03/2013 and 31/03/2012 was made available in the paper book. The copy of the ledger account also made available in the paper book. The copy of the IT Acknowledgement for the Asst. year ended 31/03/2012 is available in the paper book. The copies of the share application forms are also available in the paper book. All the relevant documents for this Individual are available on pages 123-130 of the paper book. (i) Tikam Chand Sharma: This Individual made shore application for Rs. 60,000/- in the appellant company. The share application was made by cash. This Individual has duly filed his return of income before ITO Ward 45(3), Kolkata and was having PAN BATPS2701. This Individual was having a capital of Rs. 8,12,516/- as on 31/03/2013 and Rs. 6,98,776/- as on 31/03/2012 respectively. The copy of the account statements for the year ended 31/03/2013 and 31/03/2012 was made available in the paper book. The copy of the ledger account also made available in the paper book. The copy of the IT Acknowledgement for the Asst.year ended 31/03/2012 is available in the paper ....
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....ed for the assessment records and had confirmed that pursuant to the notice issued by the AO u/s. 133(6) of the Act to the share applicants they had confirmed about the transaction with the assessee. The shareholders had submitted all the relevant details and had confirmed the transactions with the appellant assessee. He also notes that from the submissions of the assessee that the evidences are available in the paper book pages 67-138. All these evidences were filed before the ld. CIT(A) and despite it has been shown to the ld. CIT(A) that all the 9 (nine) share applicants had enough creditworthiness to give amount ranging Rs. 40,000/- to Rs. 80,000/- and their bank statements showing the amount being withdrawn, then also he did not accept the claim of the assessee and found that assessee failed to prove the genuineness of the transactions. 13. We note that in this case all the aforesaid shareholders had submitted the following relevant details as called for and had confirmed the transaction with the assessee company. The evidence which were filed before the AO included the following details.- (a) Income Tax Return of the share holders (b) Confirmation given by the share hold....
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....ars) stands fully discharged if the identity of the creditor is established and actual receipt of money from such creditor is proved. In case, the Assessing Officer is dissatisfied about the source of cash deposited in the bank accounts of the creditors, the proper course would be to assess such credit in the hands of the creditor (after making due enquiries from such creditor). In arriving at this conclusion, the Hon'ble Court has further stressed the presence of word "may" in section 68. Relevant observations at pages 369 and 370 of this report are reproduced hereunder:- "Merely because summons issued to some of the creditors could not be served or they failed to attend before the Assessing Officer, cannot be a ground to treat the loans taken by the assessee from those creditors as non-genuine in view of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has t....
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....nfined to the transactions, which have taken place between the assessee and the creditor nor does the wording of section 68 indicate that section 68 does not authorize the Revenue Department to make inquiry into the source(s) of the credit and/or sub-creditor. The language employed by section 68 cannot be read to impose such limitations on the powers of the Assessing Officer. The logical conclusion, therefore, has to be, and we hold that an inquiry under section 68 need not necessarily be kept confined by the Assessing Officer within the transactions, which took place between the assessee and his creditor, but that the same may be extended to the transactions, which have taken place between the creditor and his sub-creditor. Thus, while the Assessing Officer is under section 68, free to look into the source(s) of the creditor and/or of the sub-creditor, the burden on the assessee under section 68 is definitely limited. This limit has been imposed by section 106 of the Evidence Act which reads as follows: "Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden) of proving that fact is upon him. " ** &nbs....
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....ssee and the creditor, and it is not the business of the assessee to find out the source of money of his creditor or of the genuineness of the transactions, which took between the creditor and sub-creditor and/or creditworthiness of the sub-creditors, for, these aspects may not be within the special knowledge of the assessee. " ** ** ** " ... If a creditor has, by any undisclosed source, a particular amount of money in the bank, there is no limitation under the law on the part of the assessee to obtain such amount of money or part thereof from the creditor, by way of cheque in the form of loan and in such a case, if the creditor fails to satisfy as to how he had actually received the said amount and happened to keep the same in the bank, the said amount cannot be treated as income of the assessee from undisclosed source. In other words, the genuineness as well as the creditworthiness of a creditor have to be adjudged vis-a-vis the transactions, which he has with the assessee. The reason why we have formed the opinion that it is not the business of the assessee ....
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....mounts from the creditors aforementioned by way of cheques, the assessee must be taken to have proved that the creditor had the creditworthiness to advance the loans. Thereafter the burden had shifted to the Assessing Officer to prove the contrary. On mere failure on the part of the creditors to show that their sub-creditors had creditworthiness to advance the said loan amounts to the assessee, such failure, as a corollary, could not have been and ought not to have been, under the law, treated as the income from the undisclosed sources of the assessee himself, when there was neither direct nor circumstantial evidence on record that the said loan amounts actually belonged to, or were owned by, the assessee. Viewed from this angle, we have no hesitation in holding that in the case at hand, the Assessing Officer had failed to show that the amounts, which had come to the hands of the creditors from the hands of the sub-creditors, had actually been received by the sub-creditors from the assessee. In the absence of any such evidence on record, the Assessing Officer could not have treated the said amounts as income derived by the appellant from undisclosed sources. The learned Tribunal se....
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....e through the Inspector to verify the statements." 21. In a case where the issue was whether the assessee availed cash credit as against future sale of product, the AO issued summons to the creditors who did not turn up before him, so AO disbelieved the existence of creditors and saddled the addition, which was overturned by Ld. CIT(A). However, the Tribunal reversed the decision of the Ld. CIT(A) and upheld the AO's decision, which action of Tribunal was challenged by the Hon'ble High Court, Calcutta in the case of Crystal Networks (P.) Ltd. v. CIT [2013] 35 taxmann.com 432/216 Taxman 151 (Mag.)353 ITR 171 wherein the Tribunal's decision was overturned and decision of Ld. CIT(A) upheld and the Hon'ble High Court has held that when the basic evidences are on record the mere failure of the creditor to appear cannot be basis to make addition. The court held as follows: 8. Assailing the said judgment of the learned Tribunal learned counsel for the appellant submits that Income-tax Officer did not consider the material evidence showing the creditworthiness and also other documents, viz., confirmatory statements of the persons, of having advanced cash amount as agains....
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.... by the creditors have been established the Tribunal should not have ignored this -fact finding. Indeed the Tribunal did not really touch the aforesaid fact finding of the Commissioner of Income-tax (Appeals) as rightly pointed out by the learned counsel. The Supreme Court has already stated as to what should be the duty of the learned Tribunal to decide in this situation. In the said judgment noted by us at page 464, the Supreme Court has observed as follows: "The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act; it is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all the contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law. " 11. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law. It is also ruled in the said judgment at page 465 that if the Tribunal does not discharge the duty....
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....l) and the Tribunal below followed the well-accepted principle which are required to be followed in considering the effect of Section 68 of the Act and we thus find no reason to interfere with the concurrent findings of fact recorded by both the authorities." 23. Our attention was also drawn to the decision of the Hon'ble Supreme Court while dismissing SLP in the case of CIT v. Lovely Exports (P.) Ltd. as has been reported as judgment delivered by the CTR at [2008] 216 CTR 195: "Can the amount of share money be regarded as undisclosed income under section 68 of the Income tax Act, 1961? We find no merit in this special leave petition for the simple reason that if the share application money is received by the assessee- company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law. Hence, we find no infirmity with the impugned judgment. 24. Our attention was also drawn to the decision of the Hon'ble Calcutta High Court while relying on the case of Lovely Exports, in the appeal of CIT v. Roseberry Mercantile (P.) Ltd. [ITAT No. 241 of 2010 dated 10- 01-2011] ha....
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....ase in share capital by Rs. 52,03,500/- was nothing but the introduction of the assessee's own undisclosed funds/income into the books of accounts of the assessee company. The Assessing Officer accordingly treated the investment as unexplained credit under Section 68 of the Income Tax Act and added the same to the income of the assessee. Being aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) being the First Appellate Authority and contended that the Assessing Officer had no material to show that the share capital was the income of the assessee company and as such the addition made by the Assessing Officer under Section 68 of the Act was wrong. The learned Commissioner of Income Tax (Appeals) after hearing the department and the Assessee Company deleted the addition of Rs. 52, 03,500/- to the income of the assessee company during the Assessment Year in question. The learned Commissioner of Income Tax Appeals found that there were as many as 2155 allottees, whose names, addresses and respective shares allocation had been disclosed. The Commissioner of Income Tax Appeals, further found that the Assessee Company received the applications....
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....the aforesaid case where, despite several opportunities being given to the assessee, nothing was disclosed about the identity of the shareholders. In the instant case, the assessee disclosed the identity and address and particulars of share allocation of the shareholders. It was also found on the facts that all the shareholders were in existence. Only nine shareholders subscribing to about 900 shares out of 6, 12,000 shares were not found available at their addresses, and that too, in course of assessment proceedings in the year 1994, i.e., almost 3 years after the allotment. By an order dated 2nd May, 2001, this Court admitted the appeal on three questions which essentially centre around the question of whether the Appellate Commissioner erred in law in deleting the addition of Rs. 52, 03, 500/- to the income of the assessee as made by the Assessing Officer. We are of the view that there is no question of law involved in this appeal far less any substantial question of law. The learned Tribunal has concurred with the learned Commissioner on facts and found that there were materials to show that the assessee had disclosed the particulars of the shareholders. The factual findings ....
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....tax Act and the Tribunal below rightly held that the onus was validly discharged. We, thus, find that both the authorities below, on consideration of the materials on record, rightly applied the correct law which are required to be applied in the facts of the present case and, thus, we do not find any reason to interfere with the concurrent findings of fact based on materials on record. The appeal is, thus, devoid of any substance and is dismissed summarily as it does not involve any substantial question of law." 27. In the light of the aforesaid decisions of the Hon'ble Apex and jurisdiction High court and other High Courts we have examined the present case in hand of each share subscribers totaling nine (9). The relevant facts in respect of each share subscribers has thrown light as to the identity, creditworthiness and genuineness of the share subscribers, which we have discussed at para 6 (a) to (i) supra. 28. From the details as aforesaid which emerges from the paper book filed before us as well as before the lower authorities, it is vivid that all the share applicants are (i) income tax assessee's, (ii) they are filing their return of income, (iii) the share app....
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....uired to be done by the assessee as per law as it stood/ applicable in this assessment year. The share applicants have confirmed the share application in response to the notice u/s 133(6) of the Act and have also confirmed the payments which are duly corroborated with their respective bank statements and all the payments are by account payee cheques. 30. We also note that recently the ITAT Kolkata in several cases has deleted the addition on account of share application in similar circumstances. The relevant portion of the decisions are as follows: (a) The Ld ITAT Kolkata. in Dy. CIT v. Global Mercantiles (P.) Ltd. [2016] 67 taxmann.com 166 (Kol. - Trib.). In this the decision the Ld. Tribunal held as follows: "3.4. We have heard the rival submissions and perused the materials available on record including the detailed paper book filed by the assessee. The facts stated hereinabove remain undisputed are not reiterated herein for the sake of brevity. We find that the assessee had given the complete details about the share applicants clearly establishing their identity, creditworthiness and genuineness of transaction proved beyond doubt and had duly discharged its onus in f....
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.... amount of Rs. 57,00,000/-in the facts and circumstances of the case. 4.1. The brief fact of this issue is that the assessee had received share application monies from 20 individuals in the earlier year which were kept in share application money account. During the asst year under appeal, the assessee allotted shares to these 20 individuals out of transferring the monies from share application money account to share capital account. The details of 20 individuals are reflected in page 6 & 7 of the Learned CIT(A) order. The Learned AO asked the assessee to produce the shareholders before him. He found that the assessee did not do so but furnished copies of pay orders used for payments to the assessee company and also furnished income tax particulars and balance sheets of all the shareholders. The Learned AO on analyzing all the balance sheets observed that the shareholders have paltry income and small savings and none of them have any bank account and huge cash balances were shown in their hands out of which Pay orders were obtained. Based on this, the Learned AO concluded that these shareholders do not have creditworthiness to invest in the assessee company and brought the e....
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....oreover, it does not require any fresh examination of facts. Hence the same is admitted herein for the sake of adjudication. 4.4.1. We find from the details available on record that the share application monies from 20 individuals in the sum of Rs. 57,00,000/- has been received by the assessee during the financial year 2004-05 relevant to Asst Year 2005-06 and only the shares were allotted to them during the asst year under appeal. Admittedly no monies were received during the asst year under appeal and hence there is no scope for invoking the provisions of section 68 of the Act. Hence we hold that the order passed by the Learned CITA in this regard does not require any interference. Accordingly the ground no. 3 raised by the Revenue is dismissed. (b) The ITAT Kolkata in ITO v. R.B Horticulture & Animal Projects Co. Ltd. [IT Appeal No. 632 (Kol) of 2011, dated 13-01-2016]. In this the decision the Ld. Tribunal held as follows: "6. We have heard the Learned DR and when the case was called on for hearing , none was present on behalf of the assessee. However, we find from the file that the assessee had filed a detailed paper book and written submissions. Hence the ca....
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....ervices P Ltd. reported in (2008) 307 ITR 334 (Del) , wherein it was held that: "In respect of amounts shown as received by the assessee towards share application money from 33 persons, the Assessing Officer required the assessee to produce all these persons. While accepting the explanation and ITA No. 632/KoI12011--C-AM M/s. R.B Horticulture 6 & Animal Proj. Co. Ltd the statements given by three persons the Assessing Officer found that the response from the others was either not available or was inadequate and added an amount of Rs. 46 lakhs pertaining to 30 persons to the income of the assessee. The Commissioner (Appeals) upheld the decision of the Assessing Officer. On appeal, the Tribunal set aside the order of the Commissioner (Appeals) and deleted the additions. On further appeal: Held, dismissing the appeal, that the additional burden was on the department to show that even if the share applicants did not have the means to make the investment, the investment made by them actually emanated from the coffers of the assessee so as to enable it to be treated as the undisclosed income of the assessee. No substantial question of law arose. " 6.3. We ....
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....Revenue since long. Some of them are even registered as Non-Banking Financial Companies with Reserve bank of India. They have been filing returns regularly with Registrar of Companies and RBI since long. The letters might have been received at their old addresses because in case of change in the address, people instruct the incumbents at old addresses not to refuse the receipt of letters and receive the same. Just because, a letter was received at the old address instead of present address, it cannot be said that the identity of the applicant has not been verified. All of these companies had duly replied to notice u/s. 133(6) and confirmed the transaction with all the evidences. The AO has not raised any objection on any of the information furnished before him. The AO has not asked the respective Company applicants also to explain the alleged discrepancy in the address. The AO has not brought any material on account of record to disbelief the evidences furnished with him and treat the transaction as not genuine. The assessee submitted the following material at the time of assessment. (a) Copy of share applications from the share applicants (copies enclosed) (b) Copy of Form 2 f....
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.... facts and in law I am of the opinion that the AO was not justified in making, the addition aggregating to Rs. 54,00,000/- u/s.68 of the Act being the amount of share application money by holding that the appellant company has failed to prove the identity, and creditworthiness of The creditors as well as the genuineness of transactions. It is observed that all the three share applicant companies i.e. M/s. Shree Shyam Trexim Pvt. Ltd., M/s Navalco Commodities Pvt. Ltd. and M/s. Jewellock Trexim Pvt. Ltd. had filed their confirmations wherein each of them confirmed that they had applied for shares of the appellant -company. All the three companies provided- the cheque number, copy of bank statements and their PAN. It is observed that these companies also filed, copies of their return of income and financial statements for as well as copy of their assessment order u/s. 143(3) of the I. T Act for AY 2005-06. In the case of M/s. Jewellock Trexim Pvt. Ltd. the assessment for AY 2005-06 was completed by the ITO Ward 9(3), Kolkata and the assessments in the case of M/s. Navalco Commodities Pvt. Ltd. and M/s. Shree Shyam Trexim Pvt. Ltd. for A. Y.2005-06 and AY.2004-05 respectively were com....
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....Similarly Jewellock Trexim Pvt. Ltd was assessed to tax for A Y.2005-06 by the very same ITO- Ward- 9(3), Kolkata assessing the Assessee. In the light of the above factual position which is not disputed by the Revenue, it cannot be said that the identity of the share applicants remained not proved by the assessee. The decision of the Hon'ble Allahabad High Court as well as ITAT Kolkata Bench on which reliance was placed by the learned counsel for the assessee also supports the view that for non production of directors of the investor company for examination by the AO it cannot be held that the identity of a limited company has not been established. For the reasons given above we uphold the order of CIT(A) and dismiss the appeal of the Revenue. " 31. Reliance in this regard is also placed on the decision of the Delhi High Court in the case of CIT v. Gangeshwari Metal (P.) Ltd. [IT Appeal No. 597 of 2012, dated 21-1-2012]. In this case the assessee had received share application money of Rs. 55.50 lacs during the year in question. The assessee filed the complete names, addresses of the share applicants, confirmatory letters from them, copies of bank statements of both the compan....
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.... same without conducting any inquiry or verification whatsoever. The Court thus held that the decision of CIT v. Nova Promoters & Finlease (P.) Ltd. (supra) was not applicable to the facts of the case. Instead it was held that the issue in hands was on the lines of the decision of the Supreme Court in the case of CIT v. Lovely Exports (P.) Ltd. [2009] 319 ITR (St.) 5. Accordingly the addition made under Section 68 on account of share application was deleted. 32. We would like to reproduce the Hon'ble High Court order in CIT v. Gangeshwari Metal (P.) Ltd. (supra) the Hon'ble High Court after considering the decisions in the case of Nova Promoters & Finlease (P.) Ltd. (supra) and judgement in the case of CIT v. Lovely Exports 319 ITR (Sat 5)(5. C) held as follows:- 'As can be seen from the above extract, two types of cases have been indicated. One in which the Assessing Officer carries out the exercise which is required in law and the other in which the Assessing Officer 'sits back with folded hands' till the assessee exhausts all the evidence or material in his possession and then comes forward to merely reject the same on the presumptions. The present case fa....
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....uently, the question is answered in the negative. The decision of the Tribunal is correct in law' 33. The case on hand clearly falls in the category where there is lack of enquiry on the part of the A. O. as in the case of Ganjeshwari Metals (supra). (b) In the case of Finlease (P.) Ltd. (supra) in ITA 232/2012 judgement dt. 22.11.2012 at para 6 to 8/ it was held as follows. "6. This Court has considered the submissions of the parties. In this case the discussion by the Commissioner of Income Tax (Appeals) would reveal that the assessee has filed documents including certified copies issued by the ROC in relation to the share application affidavits of the directors, form 2 filed with the ROC by such applicants confirmations by the applicant for company's shares, certificates by auditors etc. Unfortunately, the Assessing Officer chose to base himself merely on the general inference to be drawn from the reading of the investigation report and the statement of Mr. Mahes Garg. To elevate the inference which can be drawn on the basis of reading of such material into judicial conclusions would be improper, more so when the assessee produced material. The least that the Assessi....