TaxTMI 
TaxTMI 
2021 (9) TMI 856
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....nterest of the revenue, in absence of which the entire proceedings u/s 263 is vitiated. Therefore, the impugned order dated 11.02.2021 u/s 263 of the Act kindly be quashed. 3. The ld. Pr. CIT seriously erred in law as well as on the facts of the case in assuming jurisdiction u/s 263 of the Act by wrongly and incorrectly holding that the subjected assessment order u/s 143(3) dated 16.11.2018, was passed without making proper enquiries or verification w.r.t.: (a) Allotment of 1,80,000 shares of Face Value @ Rs. 10/- with premium @ Rs. 50/- per share for total consideration of Rs. 1.08 Crore u/s 68 proviso and, (b) Receipt of large share premium u/s 56(2)(vii) and any other relevant section of the Act. with a direction to the AO to properly examine the identity (typed as entities) 85 creditworthiness of the shareholders/investors and also genuineness of the transactions and also to examine applicability of S. 56(2)(viib) of large share premium and any other relevant section of the Act and also to make necessary additions to the total income or u/s 115JB(1) of the Act, wherever required. The assumption of jurisdiction -u/s 263 and the directions so given there under, being co....
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....received in the form of share premium are from disclosed sources and have been correctly offered to tax." Thereafter, various other necessary notices were issued and after considering the required information and documents, the A.O. accepted the returned income filed by the assessee. Later on, through show cause notice dated 13.01.2021, it was proposed to invoke revisional proceedings u/s 263 of the Act on the ground that captioned assessment order dated 16.11.2018 passed by the AO is erroneous in so far as prejudicial to the interest of Revenue because the AO did not verify /examine the issues which he ought to have made, by observing as under: "2. Thereafter, on examination of records by the undersigned it is seen that the assessee company had issued 1,80,000 shares at face value of Rs. 10/- and as per share premium of Rs. 50/-. Thus, the assessee company had received a total consideration of Rs. 1,08,00,000/- in F.Y. 2015-16 relevant to A.Y. 2016-17. 2.1 The detailed breakup of issued shares to whom the shares have been allotted is mentioned as under:- S.No. Name of share holder No. of shares issued during the year Amount of total shares 1. Smt. Chelna Devi Jain ....
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....o be erroneous in so far as it is prejudicial to the interest of revenue." The Ld. Pr.CIT, thereafter, referred to the first proviso to S.68 inserted w.e.f A.Y. 2013-14 and alleged that the AO did not examine the identities and creditworthiness of the shareholders. He further alleged that the AO also did not examine the applicability of the provisions of S. 56(2)(viib) of the Act. He alleged that the AO failed to make proper enquiry in respect of core issues for which the case was selected and such lack of enquiry has rendered the subjected assessment as erroneous. In response, the assessee filed detailed written submission dated 25.01.2021before the ld. PCIT, Udaipur. The ld. PCIT, however feeling dissatisfied, rejected the contentions and held the assessment order erroneous and prejudicial to the interest of revenue, by holding as under: "6. I have carefully examined the written submission of the assessee. The contentions of the assessee have been considered. It is pertinent to mention here that the various additional documentary evidences which have been furnished in compliance to notice u/s 263 of the I.T. Act were not produced before the AO. This becomes all the more import....
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....come Tax Rules. However, an opportunity of being heard should be given to the assessee before passing the order." 4. Now the assessee is in appeal before the ITAT by taking the above mentioned grounds of appeal. 5. All the grounds taken by the assessee in this appeal are interrelated and interconnected but the assessee is mainly aggrieved by the order of the ld. Pr.CIT for passing the order U/s 263 of the Act. In this regard, the ld. AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. Pr.CIT and also relied upon the written submissions filed before the Bench and the same are reproduced below: Legal Position on Sec.263 - Judicial Guideline: Before proceeding, we may submit as regards the judicial guideline, in the light of which, the facts of this case are to be appreciated. 1.1 The pre-requisites to the exercise of jurisdiction by the CIT u/s 263, is that the order of the AO is established to be erroneous in so far as it is prejudicial to the interest of the Revenue. The CIT has to be satisfied of twin conditions, namely: (i) The order of the AO sought to be revised is erroneous; and, (ii) It is prejudicial to the interes....
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....9.08.2017 (PB 8) as under: "With reference to the above subject it is submitted that the shares have been issued in the form of share premium from disclosed sources . It is submitted that the net worth of the Company as on 31.03.2015 is Rs. 55,47,060/- and estimated profit upto the date of issue of shares was Rs. 62,940/-, hence total net worth of the Company deemed is Rs. 56,10,000/-.Total 93,500 shares have been issued. Book value of the share was Rs. 60/- and the Company has issued Rights Issue as per book value of the Company. 10 rupees face value shares has been issued at the premium of Rs. 50/- i.e. @ Rs. 60/- per share, hence as per book value the Rights Issue has been allotted. We want a personal hearing the case and do not want E-proceeding facility through our account in e-filing website of the Income Tax Department. We opted out e-assessment proceedings." 2.2.2 Thereafter, in notice u/s 142(1) dated 25.06.2018 (PB 9-11) the AO raised more queries on the issue in hand: "3. To furnish copy of Directors' and Auditors' Report with financial statements as on 31.03.2014, 31.03.2015 & 31.03.2016. 4. To furnish complete detail of bank accounts & Post Office Accounts an....
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....e charged as under: "1 That we have allotted the shares on premium as per following calculation: Net Assets Value as on 31.03.2015 : 72,31,418.00 Less: Liabilities : 4,91,891.00 : 11,73,787.00 16,65,678.00 5565740/ 93500 = 59.53 as on 31.03.2015 and as per fair market Value which is Rs. 60/- per share. x x x x As per calculation we have taken the premium as per value of the shares i.e. face value is Rs. 10 per share and premium of Rs. 50/- per share hence total value is Rs. 60/- per share and there is no tax liability on share premium as they are from disclosed sources." The assesse also submitted the copy of bank statements of the assesse company (PB 24-28). 2.3 The ld. AR attended time to time, produced books of account including cash book, ledger, subsidiary records and filed various other details as required, stated above and also those even though not required, which were duly examined. The AO made all the inquiries, sought clarifications on all the relevant aspects to the extent he was supposed looking to the nature of the issue involved, the past accepted history of the case and the evidences and material already available therein together w....
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.... the portal of the department. Thus, in view of the binding judicial guideline, the AO was not obliged still to ask the assessee to provide source of source under the pretense of examination of the creditworthiness of the shareholder. 3.2 Following decisions of Hon'ble Rajasthan High Court are directly relevant for the purpose. 3.2.1 Kindly refer Labhchand Bohra V/s ITO (2008) 8 DTR 44 (Raj.) (DPB 1-4) held that "Cash credit- burden of proof- identity of the creditors established and the confirmed the credit. This discharged the burden of appellant to prove genuineness. However, capacity of the lender to advancement money to appellant was not a matter which the appellant could be required to establish and that would amount to calling upon him to establish the source of source. Hence addition cannot be sustained." 3.2.2 In Aravali Trading Co. v/s ITO (2008) 8 DTR 199 (Raj) (DPB 5-9) held that: "Once the existence of the creditors is proved and such persons own the credits which are found in the books of the appellant, the appellant's onus stand discharged and the latter is not further required to prove the sources from which the creditors could have acquired the money depo....
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....s not the case of the revenue that the borrowing was made in cash so as to justify any suspicion. There was no cash deposit made in their bank A/C just prior to issue of cheque to the assessee company. For the completeness, the details of the amount received from the shareholders is as under: Smt. Chelna Devi Jain, PAN AGTPJ3772H: S.No. Name of share-holder No. Of shares issued during the year Amount of total shares 1 Smt. Chelna Devi Jain 63,475 38,08,500 The payment received by the company in its Bank account maintained with SBBJ having no 61264902049 on dated as under: Date Amount in Rs. 18.12.2015 16,92,000 28.01.2016 21,16,500 Total 38,08,500 Shri Manohar Lal Jain, PAN ATZPS8153L S.No. Name of share-holder No. Of shares issued during the year Amount of total shares 2 Shri Manohar Lal Jain 28,900 17,34,000 The payment received by the company in its Bank account maintained with SBBJ having no 61264902049 on dated as under: Date Amount in Rs. 18.12.2015 7,71,000 28.01.2016 9,63,000 Total 17,34,000 Shri Dharm Chand Jain, PAN ABRPJ4861E S.No. Name of share-holder No. Of shares issued during the year Amount of tota....
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....hs and her total capital stood at Rs. 148.18 lakhs. Her financial capacity was duly verified by the AO. There is nothing on record to arise any suspicion of the AO nor the Ld. CIT pointed out any adverse material though available on the assessment record but ignored by the AO warranting further investigation with regard to all the three aspects relevant for S.68. INCOME DETAILS OF Smt. CHELNA DEVI (PAN: AGTPJ3772H) HEAD ASSESSMENT YEAR 2016-17 2015-16 2014-15 2013-14 2012-13 Gross Total Income 12,23,031 11,75,948 10,57,444 6,09,139 5,48,768 Manohar Lal Jain: He is also an old and regular income tax assesee. This fact can be verified from the PAN Card data. The ROI was filed showing gross total income of Rs. 6,74,581/- and total income of Rs. 5,23,430/- for A.Y. 2016-17. He also declared agricultural income of Rs. 1,50,000/-. He is also running a proprietary in the name of the M/s Om Tractor Agencies since 2008. He has been regularly showing substantial agricultural income in the past, this capital was of 1.19 cr. A look on the income declared in the preceding four years will show that declared income ranging between Rs. 7,00,000/- to more than Rs. 9,00,....
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.... in Lovely Exports [2015] 59 taxmann.com 232 (Mumbai - Trib.). Hence, it cannot be said that the impugned assessment order was erroneous and therefore prejudicial to the interest of the revenue, for want of further enquiry by the AO. 4.3 We also rely upon w/s Pg- 2-5 (PB 65-68) made to the CIT. 5. Credit self-explanatory: Further the undisputed facts are that all the three shareholders were allotted equity shares as per the details given at pg 2 of the Impugned Order in consideration of Rs. 60 per share. Necessary formality of filing return of allotment and making entries in the record were completed as per the provisions of the Companies Act, 2013. Thus, the subjected receipts of Rs. 1.08 Cr from the three shareholders was in consideration of the 1.80 lakhs equity shares. Such credits, were not loan/ borrowings to be termed as Cash Credits u/s 68. The law is well settled and more particularly, by the decision of the Hon'ble Rajasthan High Court that receipt of the consideration in the exchange of the movable/ immovable property or anything, is a case of self-explanatory credit, hence u/s 68 should not be applied. Kindly refer Smt. Harshila Chordiya vs. ITO (2008) 298 ITR 3....
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..../total lack of inquiry. He himself admits in the Impugned Order that the AO did make enquiry on both the issues. The law is well settled that the Assessment order cannot be held to be erroneous simply on the allegation of inadequate enquiry. Unless there is an established case of total lack of enquiry. Kindly refer CIT vs. Sunbeam Auto Ltd. (2011) 332 ITR 167 (Del) (DPB 10-20), wherein Delhi High Court was considering the aspect, when there is no proper or full verification, and it was held that: "One has to see from the record as to whether there was application of mind before allowing the expenditure in question as revenue expenditure. Learned counsel for the assessee is right in his submission that one has to keep in mind the distinction between "lack of inquiry" and "inadequate inquiry". If there was any inquiry, even inadequate that would not by itself give occasion to the CIT to pass orders under section 263 of the Act, merely because he has a different opinion in the matter. It is only in cases of "lack of inquiry" that such a course of action would be open." 6.2 In another case of Narain Singla v. PCIT [2015] 62 taxmann.com 255 (Chandigarh - Trib.) (DPB 21-30) it was he....
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....e examination of the fact as to whether the funds received in the form of share premium were from disclosed sources or not. Evidently, there was no pointed reference made to S.68 therefore, the technical requirement of S. 68 being establishing the identity and creditworthiness of the creditor and genuineness of the transaction could not have been presumed by the Ld. Pr. CIT and consequently, he could not have expected the AO to get the same proved by the assesse to the hilt. In other words, this could not be a good basis for holding the subjected assessment as erroneous and prejudicial to the interest of the revenue. It cannot be denied that the very reason of selection was certainly enquired into by the AO in as much as the funds of Rs. 1.08 Cr in the form of share premium were found received from disclosed sources as they were received from the regular income tax assesses through banking channels. That being the fact, there was no reason, to offer such amount to tax. b) Thereapart, the reason for selection does not speak of S. 56(2)(viib) as well. Hence, here also therefore, the AO could not have made enquiries on this aspect. Although the AO has duly applied mind on the aspect....
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....n, thereto, the assesse also submitted a report of the expert dated 10.10.2015 under Rule 11UA (PB 46-58) which fully justified charging premium @ Rs. 50 per share. Hence, the AO was fully justified in not applying in S. 56(2)(viib). There appears no valid basis to compute excessive value of Rs. 1.73 per share which is not supported by any expert report but mere suspicion. In other words, it was nothing but a substitution of opinion by the Ld. CIT. Therefore, on this aspect also the subjected assessment order could not be covered u/s 263 as it was neither erroneous nor prejudicial to the interest of the revenue. He also got valuation done u/r 11UA by expert which is binding upon AO, as held in Rameshwaram Strong Glass Pvt Ltd vs. AO 195 TTJ465 (Jp) . We also rely on w/s to the CIT ( PB 69-72). 9. The allegation of the Ld. CIT that various evidential documents were furnished itself goes to show that the AO did not make requisite enquiries, is not a good basis to invoke S.263 and is mere suspicion and substitution of opinion. moreover, once all the details were made available before the CIT, he should not have decided the issues instead of setting aside to the AO. kindly refer Elde....
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....ng interest of Rs. 41,100/ u/s 115JB(1) of the Act. Thereafter, the A.O. by passing the assessment order U/s 143(3) of the Act accepted the returned income filed by the assessee. Thereafter, the ld. Pr.CIT passed the impugned order mentioning the fact that the assessment order dated 16.11.2018 passed by the AO is erroneous in so far as it is prejudicial to the interest of Revenue. 7. From perusal of the record, we observed that the pre-requisites to exercise of jurisdiction by the ld. Pr.CIT u/s 263 of the Act is that the order of the AO is established to be erroneous in so far as it is prejudicial to the interest of the Revenue. The Pr. CIT has to be satisfied of twin conditions, namely (i) the order of the AO sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If any one of them is absent i.e. if the assessment order is not erroneous but it is prejudicial to the Revenue, Sec.263 cannot be invoked. This provision cannot be invoked to correct each and every type of mistake or error committed by the AO; it is only when an order is erroneous as also prejudicial to revenue's interest, that the provision will be attracted. An incorrect assump....
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....61 (the Act) with tax including interest of Rs. 41,100 u/s 115JB(1) of the Act for the year under consideration. Thereafter, the case was selected for limited scrutiny assessment through Computer Aided Scrutiny Selection (CASS) for the issue that "Whether the funds received in the form of share premium are from disclosed sources and have been correctly offered for tax." and notice u/s 143(2) of the Act issued on 12.08.2017 for 29.08.2017 duly served upon the assessee company through its registered E-mail. Subsequently, notices u/s 142(1) of the Act issued on 25.06.2018 and 09.09.2018 for 03.07.2018 and 19.09.2018 respectively duly served upon the assesse company through its registered E-mail. In response to those notices, the assessee company through its authorized signatory and representative CA Dharm Chand Jain, who is director's of the assessee company filed the required information and documents from time to time. On examining the information, material and documents furnished by the assessee company in its e-ITR and during assessment proceedings through its authorized signatory, it has found that the assessee company has increased its share capital with share premium which va....
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....18, which is at page No. 11 of the paper book, which reads as under: "3. Copies of the Directors' Report and Auditor's Report for the FY ended on 31.03.2014, 31.03.2015 & 31.03.2016 are enclosed. 4. Details of bank account are enclosed in the format provided by you. 5. In respect of point no. 5 : It is submitted that the shares have been issued in the form of share premium from disclosed sources ." The AO again issued a notice u/s 142(1) dated 09.09.2018, which are at page No. 12-13 of the paper book, calling for explanation, directly on the issues in hand, as under: "Particulars of Accounts and/or documents required. 1. To explain with supporting documents that whether the funds received in the form of Share Premium are from disclosed sources and have been correctly offered for tax. 2. To prove the genuineness to transactions with proving the identity of persons and explain their creditworthiness regarding receipts of share capital and share premium. 3. To explain and justify with supporting documents that whether the provisions of section 56(2)(viib) of the Income-Tax Act, 1961 read with rule 11UA(2) of the Income-Tax Rules, 1962 are not applicable on receipts of S....
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....of the parties (PB 43-45) duly signed by the shareholder. As stated, he was able and he looked into the file of the shareholders in the portal of the department. In this regard, we draw strength from the decision as relied by the ld. AR in the case of Labhchand Bohra V/s ITO (2008) 8 DTR 44 (Raj.), the Hon'ble High has held that "Cash credit- burden of proof- identity of the creditors established and the confirmed the credit. This discharged the burden of appellant to prove genuineness. However, capacity of the lender to advancement money to appellant was not a matter which the appellant could be required to establish and that would amount to calling upon him to establish the source of source. Hence addition cannot be sustained." In the case of Aravali Trading Co. v/s ITO (2008) 8 DTR 199 (Raj) it has been held that: "Once the existence of the creditors is proved and such persons own the credits which are found in the books of the appellant, the appellant's onus stand discharged and the latter is not further required to prove the sources from which the creditors could have acquired the money deposited with him and, therefore the addition u/s 68 cannot be sustained in the absen....
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....res issued during the year Amount of total shares 1 Smt. Chelna Devi Jain 63,475 38,08,500 The payment received by the company in its Bank account maintained with SBBJ having no 61264902049 on dated as under: Date Amount in Rs. 18.12.2015 16,92,000 28.01.2016 21,16,500 Total 38,08,500 Shri Manohar Lal Jain, PAN ATZPS8153L S.No. Name of share-holder No. Of shares issued during the year Amount of total shares 2 Shri Manohar Lal Jain 28,900 17,34,000 The payment received by the company in its Bank account maintained with SBBJ having no 61264902049 on dated as under: Date Amount in Rs. 18.12.2015 7,71,000 28.01.2016 9,63,000 Total 17,34,000 Shri Dharm Chand Jain, PAN ABRPJ4861E S.No. Name of share-holder No. of shares issued during the year Amount of total shares 3 Shri Dharm Chand Jain 87,625 52,57,500 The payment received by the company in its Bank account maintained with SBBJ having no 61264902049 on dated as under: Date Amount in Rs. 18.12.2015 23,37,000 28.01.2016 29,20,500 Total 52,57,500 13. We also observed from perusal of the record that the creditworthiness of the shareholders also stands fully est....
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....the Hon'ble Rajasthan High Court that receipt of the consideration in the exchange of the movable/ immovable property or anything, is a case of self-explanatory credit, hence u/s 68 should not be applied. In the case of Smt. Harshila Chordiya vs. ITO (2008) 298 ITR 349 (Raj) wherein it was held the Tribunal has found as a fact that the assessee was receiving money from the customers against which delivery of vehicles was made - such cash deposits are self - explanatory and would not attract S. 68 - Therefore, no addition could be made. The Ld. CIT has not doubted the ownership of the respective shareholdings by the three shareholders and also must have been considered by the respective AO/s. Therefore, it cannot be doubted that this was undisclosed income of the assesse company which might have been introduced through bogus credits so that the AO must have made enquiries to prove otherwise of what was apparent on the face. Therefore, the level of the proof required in a normal case of cash credit u/s 68 could not have been blindly applied and expected of the AO to have the same degree of proof in the peculiar facts of this case (though assesse did furnish the requisite details and ....
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....equate that would not by itself give occasion to the CIT to pass orders under section 263 of the Act, merely because he has a different opinion in the matter. It is only in cases of "lack of inquiry" that such a course of action would be open." In another case of Narain Singla v. PCIT [2015] 62 taxmann.com 255 (Chandigarh - Trib.) it was held that when AO was fully aware of matter, he had appraised evidences filed by assessee and then had formed a view to accept same, Commissioner was unjustified in invoking jurisdiction under section 263. Whether if there was an enquiry, even inadequate, that would not, by itself, give occasion to Commissioner to pass order U/s 263, merely because he has a different opinion in matter; it is only in case of 'lack of inquiry' that such a cause of action can be open. In the case of CIT vs. Chemsworth Pvt. Ltd. (2020) 275 Taxman 408 (Kar), it was held that: Revision-Erroneous and prejudicial order-AO taking plausible view-AO completed the assessment without considering expenditure which was not allowable under s. 14A-CIT held that non-consideration of disallowable expenditure under s. 14A was erroneous and is prejudicial to the interest of ....
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....uch amount to tax. b) There apart, the reason for selection does not speak of S. 56(2)(viib) as well. Hence, here also therefore, the AO could not have made enquiries on this aspect. Although the AO has duly applied mind on the aspect of share premium (and other related issues on his own) but this fact itself could not have authorized the CIT to have enlarged the scope of limited scrutiny for the purposes of S. 263. Moreover, once complete details were filed before the CIT, he was supposed to adjudicated the issues on merits instead of sending it back to the AO. The observation and allegation of the Ld. CIT appears to be factually incorrect. On the first page of the Impugned Order also, he wrongly narrated the basis of the selection of the case under CASS under limited scrutiny for the reason Large share premium received during the year (verify applicability of S. 56(2)(viib) or any other relevant section. It has not known where from the Ld. CIT has adapted this reason of selection. Therefore, on the face of the record, no fault could be find in the subjected assessment order on this aspect. Thus, on this aspect also the AO could not have proceeded to examine the application of S....
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....ed for limited scrutiny in terms of mismatch of sales turnover is concerned the Principal CIT has not recorded any adverse findings in terms of lack of enquiry or inadequate enquiry on part of the AO-Therefore, the order passed by the Principal CIT under s. 263 is set aside and the order of the AO is sustained." In in the case of CIT v/s Smt. Padmavathi (2020) 4 NYPCTR 682 (Mad), it was held that: "Revision-Erroneous and prejudicial order lack of proper enquiry-AO in his limited scrutiny, has verified the source of funds, noted the sale consideration paid, the expenses incurred for stamp duty and other charges-Source of funds was verified and the AO was satisfied with the same-Principal CIT while invoking his power under s. 263, faults the AO on the ground that he did not make proper enquiry-It is not clear as to what in the opinion of the Principal CIT is 'proper enquiry'-Further, merely because the guideline was higher than the sale consideration shown in the deed of conveyance, cannot be the sole reason for holding that the assessment is erroneous and prejudicial to the interest of revenue" In the case of Su-Raj Diamond Dealers (P) Ltd. v/s PCIT (2020) 203 TTJ (Mumbai) 137, ....
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....ion on the issue of large share premium received by the assesse and the applicability of S.56(2)(viib) and other relevant sections even though this was not the reason for scrutiny selection. Alternatively and without prejudice to above, even otherwise on merits, there has been due and proper application of mind inasmuch as the AO raised directly relevant queries which were duly replied by the assesse as well. The assesse also submitted the computation as to how the assesse derived the amount of the premium which was also admitted by the Ld. CIT in para 3 pg 4 of the Impugned Order. In addition, thereto, the assesse also submitted a report of the expert dated 10.10.2015 under Rule 11UA which are at page Nos. 46-58 of the paper book which fully justified charging premium @ Rs. 50 per share. Hence, the AO was fully justified in not applying in S. 56(2)(viib). There appears no valid basis to compute excessive value of Rs. 1.73 per share which is not supported by any expert report but mere suspicion. In other words, it was nothing but a substitution of opinion by the Ld. Pr.CIT. Therefore, on this aspect also the subjected assessment order could not be covered u/s 263 as it was neither ....