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2024 (1) TMI 56
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.... the facts and circumstance of the case and on the points of the law Ld. CIT(A) was justified in deleting the addition of Rs. 5,07,50,000/- made by the AO while genuineness of the transaction and credit worthiness of the investor company was not proved? 3. Whether on the facts and circumstance of the case and on the points of the law Ld. CIT(A) was justified in deleting the addition or Rs. 5,07,50,000/- made by the AO while genuineness of source of source of share application money/premium was not proved as mandated in section 68 of the Act? 4. Whether on the facts and circumstance of the case and on the points of the law Ld. CIT(A) was justified in deleting the addition of Rs. 5,07,50,000/- made by the AO relying upon the decision in cases which are distinguishable in facts from the case of the assessee? 5. Whether on the facts and circumstance of the case and on the points of the law Ld. CIT(A) was justified in deleting the addition of Rs. 5,07,50,000/- made by the AO without duly considering the Remand Report submitted by the AO? 6. Whether the Ld. CIT(A) has erred in law in drawing a conclusion which cannot be drawn by any reasonable person o....
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....fications, therefore, has observed that the assessee company failed to explain source of the subscriber companies as envisaged in the first proviso of section 68 of the Act, which is applicable w.e.f. AY 2013-14. The issue pertaining to receipt of bogus share capital from the briefcase companies have been discussed at length by the Ld. AO, wherein it is observed that the financial statement of the share applicant companies and computation of income and return of income were examined and it is found that there is no genuineness in transaction, but it is clear that the share application money received by the assessee company is nothing but circulation of its own money through Kolkata base brief case companies in the garb of share application. Ld. AO also noted that the creditworthiness of two share application companies is also doubtful. With such remarks, Ld. AO had finally completed assessment by adding Rs. 5,07,50,000/- in the assessed income of the assessee, treating the receipt of share capital as bogus / unexplained cash credit / income within the provisions of section 68 read with 1st proviso to section 68 of the Act. Aggrieved by the impugned order of Ld. AO, assessee preferr....
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....onus cast upon the assessee as per the provision of section 68 have been duly discharged and the additions made by the Ld. AO are rightly vacated by the Ld. CIT(A). the observations of Ld CIT(A) are extracted here under for completeness of facts: 6.2.3 Decision :- I have carefully considered the submission put forth & the documents furnished on behalf of the appellant, perused the facts of the case and the observation of the AO both in the impugned assessment order, remand report & rejoinder thereon and other material evidences brought on record and these grounds of appeal relating to the addition of Rs. 4,13,41,500/- made on account of unexplained share application money and premium received are decided as under:- 1. Admittance of Additional evidences - The assessee has filed the bank statement of M/S Overtop Vanijya Pvt Ltd and Swarna Mahal Commodities Pvt. Ltd. as additional evidences to explain the source of the share application money given by Third Eye Vanijya Pvt Ltd. This additional evidence were forwarded to the AO vide this office letter F. No. CIT(A)/BSP/ Remand Report/ 17-18 dated 20.02.2018. In the para 7 of the remand report dated 08.03.2018....
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....ompany. The assessee company has also filed copy of bank statement, ITR, Registration of Certificate, audited accounts etc of the firm / companies to whom the share applicant company has sold its old investment. (iv) During the assessment proceeding, the AO has issued notice under section 133(6) to M/S Third Eye Vinimay Pvt and M/S Moon Shine Mercantile Pvt Ltd Bilaspur both these notices were served. The AO, passing the assessment order or submitting the remand report, has not disputed the correctness of the submission of the assessee that no fresh capital was received by the share applicant company namely M/S Third Eye Vinimay Pvt Ltd and M/S Moon Shine Mercantile Pvt Ltd, during the previous year relevant to assessment year 2014-15. (v) As regard the source of investment of Rs. 5,07,50,000/- in the assessee company by share applicant M/S Third Eye Vinimay Pvt Ltd and M/S Moon Shine Mercantile Pvt Ltd , the assessee and share applicant company submitted that the investment by these companies made in earlier assessment year, were sold during the previous year relevant to assessment year 2014-15 and sale proceeds of these old investment was invested by the share a....
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....part of it is disallowed. Assessee took an appeal to the Tribunal and explained that forums below had overlooked the record placed before them which showed that credits given to the assessee company were duly declared by the creditors in the new returns. Upon this Tribunal concluded that the investment in the assessee-firm was duly explained and no addition is called for in the hands of the assessee and deleted the addition. Revenue sought reference which was rejected. Hence, this application. 3. It becomes clear that Tribunal had accepted the explanation of assessee which showed that credit given was duly declared by the creditors in the new return, and therefore, deletion of addition was on the basis of the satisfaction reached by the Tribunal and on appreciation of material before it. The matter accordingly does not give rise to any question of law warranting dismissal of this application which is accordingly dismissed. (ix) Considering the above factual and legal position, I am the view that the assessee company has discharged its onus in respect of identity, capacity, genuineness, and source of investment of M/s Third Eye Vinimay Pvt Ltd and M/S Moon Shine Me....
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....for which taxes were paid by the assessee under the Vivad se Vishwas scheme in AY 2012-13 therefore, those funds should not be treated as not explained or from unknown sources. To establish this fact, Ld. AR of the assessee has submitted before us a 3 years summary chart of Balance Sheet of the Third Eye Vinimay Pvt Ltd. for AY 2012-13 and 2014-15, the same is extracted as under: 10. Referring to the aforesaid summary statement of the Balance sheet of the Third eye Vinimay Pvt. Ltd., Ld. AR submitted that the entire share capital and share premium receipt of the Third Eye Vinimay Pvt. Ltd. in the AY 2012-13 amounting to Rs. 65,86,600/- and Rs. 12,11,63,400/- respectively, in aggregate Rs. 12,77,50,000/-, which was disallowed by the Assessing Officer in the scrutiny assessment order u/s 143(3) dated 25.03.2015, but the same was conceded by the share applicant i.e., Third Eye Vinimay Pvt. Ltd., thus has preferred an appeal before the CIT(A), however while the matter was sub-judice before the Ld. CIT(A), the assessee preferred to opt for the scheme announce by CBDT under the Vivad se Vishwas Act, 2020, accordingly, the entire amount was offered under Vivad se Vishwas Scheme (VSVS),....
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....ns of the Ld. AR that in the case of the first share applicant, i.e., M/s Third Eye Vinimay Pvt. Ltd. (TEVPL), the share applicant has duly surrendered its income by adopting to pay taxes under the Vivad Se Vishwas Scheme therefore, the amount received by the assessee company from TEVPL for Rs. 4,84,50,000/- cannot be treated as unexplained amount since the taxes pertaining to the source of such funds have already been offered and settled by the share applicant, when such addition was made in the case of share applicant by the Jurisdictional AO. The same funds which are already taxed in the hands of share applicant cannot be treated as unexplained income in the hands of assessee and to be taxed, if it is directed to do so, the same will be equal to double taxation. Under such facts and circumstances, since it is explicitly proved that the amount so received by the assessee company from M/s TEVPL was already taxed in the hands of investor company, the same has an explained source, thus, it can be safely held that the impugned amount is duly explained, thus, out of the scope of provisions of section 68. The conditions of the Ld AR, backed by the facts in the form of financials of the....
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.... sustaining the part addition made by Ld. AO, but, vacated by Ld. CIT(A), our aforesaid decision shall be mutatis mutandis applicable in the CO No. 08/RPR/2018 which is in support of the order of Ld. CIT(A). Accordingly, the CO filed by the assessee stands partly allowed. 18. In the result, appeal filed by the department in ITA no. 93/RPR/2018 and CO filed by the assessee bearing CO No. 08/RPR/2018 are partly allowed, in terms of our aforesaid observations. Order pronounced in the open court on 29/11/2023. ============= Document 1 PAN: AADCT9393F Acknowledgement Number: 978275820311220 FORM-3 [See rule 3] FORM FOR CERTIFICATE UNDER SUB-SECTION (1) OF SECTION 5 OF THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (3 of 2020) THE DIRECT TAX VIVAD SE VISHWAS RULES, 2020 PART A General Information Whereas Mr./Mrs./M/S THIRDEYE VINIMAY PRIVATE LIMITED (hereinafter referred to as the declarant) having PAN/ TAN AADCT9393F Aadhaar No. has filed a declaration under section 4 of the Act; Now, therefore, in exercise of the powers conferred by sub-section (1) of section 5 of the Act and after consideration of relevant material, the following amounts are here....
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.... 0000001 05/04/2019 15/01/2016 Refund reduced in assessment as per part E(IV) of Form 1 Balance amount payable/refundable after adjusting amount already paid On or before 31.03.2021 After 31.03.2021 Remarks 41417988 45562837 "The declarant is hereby directed to make the payment of sum payable, if any, as per Balance amount payable/refundable after adjusting amount already paid as per the form." In case of non-payment of amount payable as per the form, then the declaration under Form-1 shall be treated as void and shall be deemed never to have been made. Certificate No. Place: KOLKATA Date: 31/12/2020 978275820311220 Name of the Designated Authority: ATHIKHO OBOU MAO Designation of designated authority: PCIT, Kolkata-5 Note-Submission of DTVSV Form 4 online in e-Filing portal is mandatorily required. बैंक ऑफ़ बड़ौदा Bank of Baroda axpayers counterfoil D Taxpayers Counterfoil - CHALLAN NO./ITNS 280 PAN AADCT9393F Received from (Name) THIXXXXE VINIMAY PRIVATE LIMITED kolkata WB 700001 4,14,17,988.00 INR 4,14,17,988.00 Address ....
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....ress e-Filing Any Andre Income Tax Department, Gow Government of India Date of e-Filing 25-Oct-2021 THIRDEYE VINIMAY PRIVATE LIMITED AADCT9393F 103AGARPARA NORTH STATION RO, KOLKATA, BY LANE AGARPARA,.." Form No. : Form 4DTVSV Form Description Assessment Year Financial Year Quarter Filing Type Capacity Verified By Intimation of Payment under Sub-Section (2) of Section 5 of The Direct Tax Vivad Se Vishwas Act, 2020 (3 Of 2020) The Direct Tax Vivad Se Vishwas Rules, 2020. This form is in compliance with rule 5 : 2012-13 : Original director AMAPC0033D (This is a computer generated Acknowledgement Receipt and needs no signature) PAN AADCT9393 Acknowledgement Number: 634764651270522 FORM-6 (See rule 7] ORDER FOR FULL AND FINAL SETTLEMENT OF TAX ARREAR UNDER SECTION (2) READ WITH SECTION 6 OF THE DIRECT TAX VIVAD BE VISHWAS ACT, 2020 (3 of 2020) THE DIRECT TAX VIVAD SE VISHWAS RULES, 2020 PartA-General Information Whereas THRDEYE VINIMAY PRIVATE LIMITED having RANTAN AADCT9393F Aadhaar No. (hereinafter referred to as the declarant) had made a declaration under section 4 of th....
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....erm Borrowings b Other Current Liabilities Total 51,00,000 5,000 13,27,51.207 II. Assets b 2 Non Current Assets Non Current Investments - Apex Tradelink Pvt. Ltd. - Lifetime Mercantile Pvt. Ltd. -Linkpoint Merchandise Pvt. Ltd. - Passion Sales Pvt.Ltd - Ratio Vincom Pvt. Ltd. -Smoothly Vintrade Pvt. Ltd - Timely Merchants Pvt. Ltd. -Titanio Distributors Pvt. Ltd. Truthful Tradecom Pvt. Ltd. Vision Commerce Pvt. Ltd. -Madrid Traders Pvt. Ltd. Other Non Current Assets Current Assets Short Term Loans & Advances -Jayem Holding Pvt. Ltd. -R R Energy Ltd. - Bilaspur Infrastructure Pvt. Ltd. 30,00,000 70,000 11,00,000 1,47,00,000 20,00,000 7,31,50,000 50,00,000 2,85,50,000 b -Madrid Traders Pvt. Ltd. -Share Application Given Cash & Cash Equivalents Other Current Investments Total 2,08,70,000 25,800 10,67,00,000 51,29,607 25,800 13,27,51,207 Amount Amount 65,86,600 65,86,600 12,11,63,400 -32,615 12,11,30,785 40,85,000 13,17,65,023 96,00,000 97,00,000 94,00,000 41,24,500 13,18,41,88S 70,00,000 ec.eus ....