TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 29
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.... of Shri Shirish C. Shah who happened to be main persons engaged in providing bogus accommodation entries like long term capital gains, share capital, share premium and loan etc. Shri Shirish C. Shah directly and indirectly controlled more than 200 companies which include some of the public limited companies also. It was seen from the impounded material that assessee company has received Rs. 45 lakhs in three transactions Dated 18.06.2009 from M/s. Prraneta Industries Ltd., through Shri Shirish C. Shah Group. Perusal of the information revealed that M/s. Prraneta Industries Ltd., Now known as Aadhar Venture India Ltd., [Investor Company] is one of the conduit company which is controlled and managed by Shri Shirish C. Shah for the purpose of providing accommodation entries. The statement of Shri Omprakash Khandelwal, Promoter of the Company was recorded where he admitted to provide accommodation entries of the Investor Companies after charging Commission @ 1.8%. The A.O. noticed that in assessment year under appeal the assessee has received Rs. 45 lakhs as share capital/share premium from the Investor Companies, therefore, reasons recorded for reopening of the assessment under sect....
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....00/- on account of Commission. The assessee challenged the reopening of the assessment as well as addition on merits before the Ld. CIT(A), however, the appeal of assessee has been dismissed. 4. Learned Counsel for the Assessee reiterated the submissions made before the authorities below and referred to PB-2 which is reasons recorded for reopening of the assessment and submitted that reasons are borrowed satisfaction and that A.O. did not apply his mind to the information received from Investigation Wing, therefore, reopening of the assessment is invalid and bad in Law. He has referred to objections filed by assessee to the reopening of the assessment Dated 27.06.2017 [PB-4] in which the assessee has requested the A.O. to provide copy of statement of Shri Shirish C. Shah and Shri Om Prakash Khandelwal, copy of the assessment order of Investor Company, copy of the Bank account of Investor Company and whether action have been taken under section 148 in case of other parties also. Learned Counsel for the Assessee also referred to PB-9 which is the Order of the A.O. Dated 17.07.2017 dismissing the objections filed by assessee against reopening of the assessment in which the A.O. has s....
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....e Indore Bench of ITAT have been confirmed by the Hon'ble Madhya Pradesh High Court by dismissing the Departmental appeal. In the case of PCIT vs., Chain House International Pvt. Ltd., 98 taxmann.com 47 (MP) in which it was held that "once genuineness, creditworthiness and identity of the Investors are established, no addition could be made as cash credit on ground that shares were issued at excessive premium." He has submitted that the Judgment of the Hon'ble Madhya Pradesh High Court have been confirmed by the Hon'ble Supreme Court by dismissing the SLP of the Department in the matter of PCIT vs., Bharat Securities (P.) Ltd., reported in [2020] 113 taxmann.com 32 (SC). Learned Counsel for the Assessee submitted that the ITAT, Delhi C-Bench in the case of INS Finance & Investment P. Ltd., New Delhi vs., ITO, Ward-12(3), New Delhi in ITA.No.9266/Del./2019 for the A.Y. 2010-2011 considered the identical issue of reopening of the assessment and addition on merit in respect of the same Investor Company M/s. Prraneta Industries Ltd., based on the statement of same persons Shri Shirish C. Shah and Shri Omprakash Khandelwal vide Order Dated 26.10.2020 addition on merit have been deleted.....
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....ejected the explanation of assessee because of the findings given by the Investigation Wing. The Ld. D.R. submitted that the statement of Shri Omprakash Khandelwal was confronted to the assessee by referring to part statement in the show cause notice Dated 30.08.2017 and that assessee did not produce Director of the Investor Company, therefore, addition is rightly made by the authorities below. The Ld. D.R. relied upon Judgment of Hon'ble Supreme Court in the case of NRA Iron & Steel Pvt. Ltd., 13 taxmann.com 48 (SC) in which meager income declared by Investor was considered against the assessee because assessee failed to explain the creditworthiness of the Investor Company. He has also relied upon Judgments of Hon'ble Delhi High Court in the cases of CIT vs., NR Portfolio Private Limited [2014] 42 taxmann.com 338 (Del.), Nova Promoters & Finlease Pvt. Ltd., ITA.No.342 of 2011and NDR Promoters Private Limited ITA.No.49 of 2018. The Ld. D.R, therefore, submitted that authority below rightly confirmed the addition. 5.1. The Ld. D.R. also filed copy of the Order of SEBI Dated 04.09.2017 in the matter of M/s. Kavit Industries Limited in which name of the Investor Company is referred. ....
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....ments were recorded at the back of the assessee and have not been supplied to the assessee for filing an objection or to seek for cross-examination of their statements, therefore, such statements cannot be read in evidence against the assessee. We rely upon the Judgments of Hon'ble Supreme Court in the case of Kishanchand Chellaram 125 ITR 713 (SC) and Andaman Timber Industries 281 CTR 214 SC). This was the sole basis for the authorities below to doubt the explanation of assessee, however, the material found during the course of search in the case of above persons have not been confronted to the assessee and their statements were also not supplied to the assessee, therefore, same cannot be the basis to reject the explanation of assessee. The Ld. D.R. referred to the notice issued by the A.O. Dated 30.08.2017 to say that statement of Shri Omprakash Khandelwal was confronted to the assessee. This fact is not correct because the A.O. in his notices has only referred to part of the statement in the notice, but, it is a fact that A.O. never supplied the statements of above two persons recorded during the course of search in their cases to the assessee. Therefore, no statement or materia....
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....t. 17. He further submitted that the entire premise of the Assessing Officer is for disbelieving the entire share application money of Rs. 2,50,00,000/- is based on statement of Shri Omprakash Khandelwal. However, now the statement was later on retracted and had also come up for consideration before the Co-ordinate Bench of the Tribunal in the case of ACIT vs. M/s. Bharat Securities Pvt. Ltd. and this judgment had come up for consideration in the appeal before the Madhya Pradesh High Court in the case of PCIT vs. Chain House International Pvt. Ltd. [IT Appeal Nos. 110 to 115 of 2018 dated 7th Aug 2018] wherein the credential of the share holder company M/s. Prraneta Industries Ltd. (now known as M/s. Aadhaar Ventures India Ltd.) were found to be genuine by three consecutive authorities right from CIT(A), ITAT and Hon'ble High Court. The main thrust of Ld. AR's argument was that since the very same company has already been scrutinized and examined in great depth by Hon'ble High Court, there remains no doubt over the veracity of share capital of Rs. 2.50 crores received by the appellant company. Our attention was also drawn to observation in High Court's order regarding retraction ....
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....orthiness' in simple terms means the resources to pay money (investment in the present case) i.e. the person/entity should have necessary funds to pay. Now it is not necessary that those funds must be own funds or out of earnings but same could also be in the nature of borrowings. The sum and substance is that there should be explainable means in the hands of the investor. The last ingredient is 'genuineness' which apparently means that entire transaction must be real and there should not be any element of collusiveness or sham. Once these pre-requisites of section 68 are satisfied, the can be no case of any addition in the hands of the assessee. 21. When we examine the facts of the present case on the touchstone of pre-requisite of section 68, we find that M/s. Prraneta Industries Ltd. is a listed company and as such there can hardly be any dispute with regard to identity of the party which is subject to stringent of scrutiny by another statutory body SEBI during the listing process. Moreover, the appellant has placed on record the ITR acknowledgment, Certificate of Incorporation issued by MCA, Bank statement and Audited Financial Statements of the party in support of identity w....
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....s, the AO noticed that the assessee has received share application money and share premium amounting to Rs. 30 Crores in A. Y. 2012-13 and Rs. 25 Crores during for assessment year 2013-14. The details of share application money received during the year under consideration are as under : SN Name F. Y. 2012-13 Amount in Rs. F. Y. 2013-14 Amount in Rs. 1 M/s. Prraneta Industries Pvt. Ltd. (Later named as M/s. Aadhaar Venture India Ltd. PAN NO 15,75,00,000 25,00,00,000 2 M/s. Dhanus Technologies Ltd. PAN: AABCD3429L 9,75,00,000 3 M/s. Emporis Projects Ltd. PAN NO AABCN0273G 3,00,00,000 4 M/s. L. N. Polyesters Ltd. ( Later named as M/s. L N Industries India Ltd.) PAN NO AAACC4102B 75,00,000 5 M/s. Shri Ganesh Spinners Ltd. ( Later named as M/s. Yantra Natural Resources Ltd.) PAN NO AACCS4221Q 75,00,000 Total 30,00,00,000 25,00,00,000 6. The Directors and the four investor companies (except L. N. Industries Ltd) Complied with the requirement with Copy of Balance Sheets, Copy of ITR Ledger Account etc. Investor companies confirmed the investment made by them in the share capital of assessee-company. Page-13 11. The Asses....
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.... 21. Shri Omprakash Anandilal Khandelwal, the then director of Aadhaar Ventures India Ltd. appeared before CIT (A) and his statement was recorded wherein he stated that his company was not engaged in any business of providing any accommodation entries. He also stated that SCS was not controlling the business of his company. He was only a financial consultant. He further submitted that it was not correct that SCS was appointing dummy directors for his company. Regarding investment in Bharat Securities (P) Ltd. he categorically stated that prior to investing the fund in Bharat Securities (P) Ltd. necessary enquiries were made and two directors of the company namely Shri Jils Raichand Madan and Shri. Subramanya Kusnur visited Delhi and discussed the matter of investment with the directors of Bharat Securities (P) Ltd. namely Shri Naresh Kumar. He also stated that the due diligence report was also obtained from a company secretary at their own. Bharat Securities also provide share valuation report. He also stated that Board of Directors after considering the entire scenario decided to invest in equity shares of Bharat Securities (P) Ltd. He also stated that MOU was executed prior to in....
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.... found that the earlier statements did not merit acceptance for the reasons such as earlier statements were recorded behind the back of the assessee and also behind the back of the AO. No opportunity of cross examination was allowed despite specific and repeated requests. Even the opportunity of cross examination once sought to be provided was immediately snatched. The earlier statements were recorded much before the search on the appellant company. Bharat Securities was not in the picture and was not an issue during these statement. In such statements non had named Bharat Securities. We also observe that the Ld. CIT(A) held that the statements recorded by her are more authentic in all respect. Direct questions regarding investment in Bharat Securities were put up and replied. Books of accounts were produced and examined. Investment found recorded. Audited Balance Sheets also demonstrate the investment in share capital of Bharat Securities Pvt. Ltd. Source of the source has also been explained and found to be correct. In these circumstances, CIT(A) found herself in agreement with the statements recorded by herself. It was held that detailed statements were recorded and all the five....
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....ed in the earlier paras and to avoid any repetition I simply want to reiterate that the present statements given by both the directors of Aadhaar Ventures before me are totally confirmatory and corroborative to the earlier statement of Somabhai Sunderbhai Meena recorded by the AO during the assessment proceedings". 32. The AO had stated at various places in the assessment order that the share capital has been received from paper companies. CIT(A) examined the issue and held as under: "I find that the position in the present case is otherwise. All the five companies have produced the books of accounts. There is an audit reports. All the investors have appeared personally. The books of accounts were examined thoroughly and I find that such books of accounts contain purchases and sales transactions, payments and receipts by banking channels, incurring of various expenses such as payments of rent, electricity excise duty, sales tax, bank interest, staff salaries etc. The himself examined the director of major shareholder Aadhaar Ventures namely Somabhai Sunderbhai Meena and also examined the books of accounts produced by him during the course of assessment. It is very pertinent t....
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....al right of the investor. Unless proven otherwise with some documentary evidence, it cannot be alleged that all the apparent is not real who alleges to be so. It cannot be alleged merely on the basis of apprehensions and on third party statement, without allowing cross examination and bringing any concrete material on record to show that the money invested is assessee's money. 86. All the notices issued by the Revenue Authorities, i.e. investigation Wing, Assessing Officer and CIT(A) to this company were served and duly complied by the said company. We find that said company is a listed company and duly complying with all the statutory requirement of SEBI and Stock Exchange. The assessee has filed copy of share application and confirmation submitted of the said company ( PB- 333-334 ), copy of ITR acknowledgement ( PB-460-461/Volume-2) for A.Y. 2012-13 and 2013-14, copy of balance sheet reflecting the investment made in the share capital the assessee BSPL ( PB-345-355), bank statement ( PB-336-343& 839-846), copy of ledger account of the assesse in the books of investor company ( PB-344) and reply dtd. 14.07.2014 in response to summons dtd. 25.06.2014 issued by ADIT (Inv.)-Delhi ....
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....ous injustice rightly decide to summon the witness on whose statements the AO had placed reliance without giving the opportunity of cross examination to the assessee. All the witness appeared before the CIT(A) and they were examined by her and their statements were recorded and opportunity of cross examination was given to the appellate company. From careful perusal of such statement and logical analyses of thereof we are convinced that there statements were found to be strongly supporting the explanation and stand of the assessee company against the made by the AO u/s. 68 of Act. We also find that the Ld. CIT(A) send these statement and other relevant evidence for examination, verification and comments of the AO providing due opportunity to him. However, AO and not made any adverse comment on these statements except contending that the same cannot be considered in favour of the assesse. We are unable to see any valid reason to disbeliever or discard statement recorded by the Ld. CIT(A) and thus we hold that the first appellate authority was right in considering he same in right prospective and hence we are unable to see any valid reason to interfere with the findings of Ld. CIT(A)....
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.... order and the AO submitted his comments and comments on the statement of directors and third parties were filed by the CIT(A) ( refer paper book page No. 313 to 322, page No. 144-146, ( OAK) 161-162 (SCS) 224-213, (CKS) and 224-225 (Jajoo) of the order of CIT(A). However, no adverse comments appears to have been made by the AO on these statements except merely saying that statement cannot be recorded at this stage. 92. In our considered opinion as per sub section (4) of section 250 of the Act, the Ld. CIT(A) before disposing any appeal may make such further any enquire as he thinks fit, or he may direct the AO to make such enquiry and to report the result of the same thus according to this provisions the CIT(A) is empowered to make any further enquiry and in the present case the Ld. CIT(A) conducted the proceeding with the ambit of the said provisions. Therefore, in our opinion, the Ld. CIT(A) has duly discharged her obligation by conducting examination of the key person involved by way recording statement and examination of books of accounts. These evidence brought on record proved and established the identity and creditworthiness of share applicant and investor and genuinene....
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....R 65 )MP), (2013) 216 Taxman 320(MP)/(2013) 35 Taxmann.com 444 (Madhya Pradesh) is squarely gives shelter to the assessee, wherein it was held that where the assessee establishes the identity of share applicant, burden of proving creditworthiness was not on assessee. 122. In the light of above discussion, we held that the AO was not justified in making addition of Rs. 30 crores by treating the share application money received by the assessee as unexplained cash credit u/s. 68 of the Act. Therefore, we are in agreement with the findings of Ld. CIT(A) in deleting the same, as there was no case for making such addition either on protective basis or on substantive basis. Since, we have held that the assessee company has genuinely received share application money, therefore, question of payment of any commission does not arise and therefore, we find no infirmity in the order of CIT(A) accordingly, her findings are upheld. Accordingly, all the grounds of appeal of Revenue are dismissed." 23. This order of the Tribunal was challenged by the Department before the Madhya Pradesh High Court in the case of Chain House International (supra) wherein the Hon'ble High Court had analyzed and....
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....tual scenario of the case, the appellate authority found that the earlier statements did not merit acceptance for the reasons such as earlier statements were recorded behind the back of the assessee and also behind the back of the AO. No opportunity of cross examination was allowed despite specific and repeated requests. The earlier statements were recorded much before the search on the appellant company. BSPL was not in the picture and was not an issue during these statements. In such statements none had named BSPL and held that the statement recorded by the CIT (Appeals) are more authentic in all respect and held as under :- "I examined this issue in detail and found that there is no evidence to prove, firstly generation of unaccounted cash and transfer of such cash to others for obtaining accommodation entries. In have also found that during the course of search at the appellant company and also on its associate companies and residence of the directors when every corner of the house was searched, not a single paper, evidence or record was unearthed by the search team which support the allegation of generation of any unaccounted cash and transfer of such cash for the purpose of....
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.... confirmed that his company had invested a sum of Rs. 40.75 crores in the share capital of the appellant company in Fys. 2011-12 and 2012-13. he produced the books of account of the company and was thoroughly examined by the AO. This investment was found recorded in the books of account as verified by the AO. He explained the source of investments with reference to the books of account. Such source was then examined by the AO also obtained copies of the necessary ledger accounts with reference to the source of investments. He explained that his company was never engaged in providing accommodation entire and on the contrary was carrying on real business where the turnover runs into approx. 171 crores and 133 crores in Fys. 2011-12 and 2012-13 respectively. He also produced the bank accounts of his company with reference to the share capital invested in Bharat Securities. The AO also required him to send certain documents. Consequently copy of resolution, shareholding pattern, copy of share certificate, copy of MOU, copy of arbitration award, copy of due diligence report, copy of share valuation report and legal notice were sent by his company vide letter dated 18.3.2016. The AO neve....
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.... key associates could be the employee of SCS namely Chandan Kumar Singh. In the statement recorded by me he has denied all such allegations. He has admitted that SCS was not involved in any business of providing accommodation entries and nor he has ever seen SEC Controlling these five companies. Hence I do not agree with the conclusion arrived at by the AO." 51. The learned ITAT after due examination of the order of CIT (Appeals) and the documents on record insofar as identity creditworthiness, genuineness of transaction of M/s. Aaadhaar ventures (I) Ltd, M/s. Dhanush Technologies Ltd, M/s. Emporis Projects Ltd and M/s. L.N. Industries Ltd (formarly known as L.N. Polyster Ltd) came to the conclusion that the assessee company having receipt share application money through bank channel and furnished complete details of bank statements, copy of accounts and complied with notices issued and the directors of the subscriber company also appeared with books of accounts before the appellate authority and confirmed the investment made by them with the assessee company, therefore, the identity and creditworthiness of investor and genuineness of transaction of the share applicant has been....
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....ITR 612 (SC). 55. The question of share premium has been considered by the Delhi High Court in the case of CIT v. Anshika Consultants (P.) Ltd.[2015] 62 taxmann.com 192 wherein it was held thus :- "The onus cast upon the assessee under Section 68 of the Act to satisfy the department about the true identity of an investor, its creditworthiness and genuineness of a transaction was explained by the Supreme Court in CIT v. Lovely Exports (P) Ltd., [2008] 216 CTR 195,. Whilst, the AO acted legitimately in enquiring into the matter, the inferences drawn by him were not justified at all in the circumstances of the case. Whether the assessee company charged a higher premium or not, should not have been the subject matter of the enquiry in the first instance. Instead, the issue was whether the amount invested by the share applicants were from legitimate sources. The objective of Section 68 is to avoid inclusion of amount which are suspect. Therefore, the emphasis on genuineness of all the three aspects, identity, creditworthiness and the transaction. What is disquieting in the present case is when the assessment was completed on 31.12.2007, the investigation report which was specifica....
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....a Industries Ltd. is a genuine concern and veracity and authenticity of share capital received by the appellant from the said investor cannot be questioned. 25. Further, the issue of share premium as raised by Ld. DR also gets dispelled by above the decision of Hon'ble High Court wherein it has been held that issuance of share at premium is prerogative of the board and wisdom of the investor. Moreover, in absence of any prohibition with regard to share premium in the Income tax Act, 1961 as relevant for the year under reference i.e. AY 2010-11, no adverse inference is warranted. In any case, the assessing officer having not disputed the value of shares or premium, we fail to see any merit in the contention of Ld DR particularly when the identity, creditworthiness and genuineness of transaction stood established. 26. The decision of Hon'ble Supreme Court in the case of PCIT v. NRA Iron and Steel P. Ltd. 412 ITR 161 (SC) as relied upon by ld. DR and other revenue favouring decisions are clearly distinguishable on facts and not applicable. In fact, in the case of NRA Iron and Steel (Supra), the assessing officer conducted detailed enquiry and identity of the parties was under seri....
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....cide the legality of additions made over and above the reasons recorded in the light of scope of proceedings u/s 147 of the Act. As mentioned earlier, the provisions of section 147 are potent and its application is restricted to deserving cases having satisfied the defined criteria i.e. existence tangible material evidencing escapement of income and application of mind. Further, the act has inbuilt checks and balances to ensure proper exercise of power u/s 147 which included prior approval of superior authority. 32. It is the argument of the Ld. AR appearing for the appellant assessee that once the assessing officer records reason and obtains approval for issue of notice u/s 148, the scope of proceedings u/s 147 gets laid down and it is not open to assessing officer to make roving and fishing enquiry and arbitrarily enhance the scope of reassessment proceedings as per whims and fancies. It was further contended that Explanation 3 to section 147 does not provide unfettered power to assessing officer to go beyond the reasons and same has to be read in conjunction with principle provision of section 147, 148 and 151. The upshot of argument of Ld. AR is that for making any further en....
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....cer and subsection (1) thereof mandates service of notice to the assessee before the Assessing Officer proceeds to assess, reassess or re-compute the escaped income. Section 147 mandates recording of reasons to believe by the Assessing Officer that the income chargeable to tax has escaped assessment. All these conditions are required to be fulfilled to assess or reassess the escaped income chargeable to tax. As per Explanation 3 if during the course of these proceedings the Assessing Officer comes to conclusion that some items have escaped assessment, then notwithstanding that those items were not included in the reasons to believe as recorded for initiation of the proceedings and the notice, he would be competent to make assessment of those items. However, the Legislature could not be presumed to have intended to give blanket powers to the Assessing Officer that on assuming jurisdiction under section 147 regarding assessment or reassessment of the escaped income, he would keep on making roving inquiry and thereby including different items of income not connected or related with the reasons to believe, on the basis of which he assumed jurisdiction. For every new issue coming be....
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....t the time of issuance of notice u/s 148. 35. In the present case, in respect of share capital of Rs. 5,12,40,000/- received from 18 parties, the assessing officer initiated fresh enquiry during the course of reassessment proceedings on the basis of books of account of the appellant. There is no dispute that very same material was in existence when assessing officer recorded reasons and it is neither the case of the assessing officer that there was any failure or omission on part of the appellant in disclosing any information nor any case of fresh information coming to the notice of the assessing officer. The original action u/s 148 was on the basis of some information which was has already been affirmed by us. However, in respect of other items, the assessing officer himself made random enquiry which is absolute misuse of power in the context of scope of section 147 as well as settled legal principle. 36. It is further noted that there is no iota of material or information with regard to share capital of Rs. 5,12,40,000/- received from 18 parties. In fact the assessing officer gathered the information after calling for bank statement from the bank as evident from para 10 of th....
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....enches of the Tribunal, it is an undisputed fact that assessee produced documentary evidences before the A.O. to establish that assessee has received genuine share capital/premium from the Investor Company. The documentary evidences have not been doubted by the authorities below. The Investor Company has declared income of Rs. 173.55 Lacs in assessment year under appeal and has sufficient funds to make investment in assessee-company. It is a Public Limited Company and listed with BSE. Therefore, the assessee-company has been able to prove the identity of the Investor, its creditworthiness and genuineness of the transaction in the matter. Therefore, there were no justification for the authorities below to make or confirm the addition against the assessee under section 68 of the I.T. Act, 1961. The Ld. D.R. relied upon Judgment of Hon'ble Supreme Court in the case of NRA Iron & Steel Pvt. Ltd., (supra) which is also considered by the ITAT, Delhi Bench in the case of INS Finance & Investment P. Ltd., (supra) and this decision is also distinguishable on facts because the Investor Company has declared income of Rs. 173.55 Lacs in the return of income for the assessment year under appeal....