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2015 (12) TMI 1526 - AT - Income TaxAddition on unexplained share capital - discharge of onus laid down under section 68 - Held that - During the course of search, no incriminating documents were found. Therefore, no notice can be issued U/s 153A read with Section 143(3) of the Act because no proceeding was pending before the Assessing Officer, which has abated for issue of notice on the date of initiation of search. Thus, on technical ground, the assessee s appeal succeeds and order passed U/s 153A read with Section 143(3) of the Act is held void ab initio. On facts also, the assessee has produced before the Assessing Officer copy of share application, confirmation of the cash creditors, copy of PAN, copy of Board resolution, copy of Director s report, auditor s report, copy of balance sheet, copy of P&L account, copy of bank account in all the cases to prove the identity, genuineness and creditworthiness of the cash creditors. The ld Assessing Officer made addition on the basis of investigation conducted by the ITO, Investigation Wing, Kolkata but the ld Assessing Officer of the assessee has not clarified what inquiry had been conducted and what evidences collected which goes against the assessee. The notice U/s 131 issued by the ITO, Investigation Wing, Kolkata were served in case of Vidya Agencies Pvt. Ltd. and Shivarpan Mercantiles Pvt. Ltd., but compliance could not be made on the given date because concerned officer was on leave. In case of Middleton Goods Pvt. Ltd. and Lactrodryer Marketing Pvt. Ltd., notices were served on the assessee and in compliance to the notice, the party submitted all the documents in the IT office - Decided in favour of assessee
Issues Involved:
1. Addition of Rs. 60,00,000/- on account of unexplained share capital under Section 68 of the Income Tax Act. 2. Validity of assessment proceedings under Section 153A read with Section 143(3) of the Income Tax Act. 3. Compliance with identity, genuineness, and creditworthiness of the share applicants. 4. Procedural fairness in the assessment process, including the provision of investigation reports to the assessee. Issue-wise Detailed Analysis: 1. Addition of Rs. 60,00,000/- on account of unexplained share capital under Section 68 of the Income Tax Act: The assessee contested the addition of Rs. 60,00,000/- made by the Assessing Officer (AO) on the grounds of unexplained share capital. The AO had issued a detailed questionnaire under Section 142(1) and observed that the assessee obtained share capital from various companies. The AO asked the assessee to produce these shareholders for examination, which the assessee failed to do. The AO made a reference to the Investigation Wing, Kolkata, and based on their report, concluded that the share capital received was accommodation entries. The assessee argued that it had submitted sufficient documents to prove the genuineness, creditworthiness, and identity of the shareholders, including share applications, board resolutions, bank statements, and balance sheets. The CIT(A) upheld the AO's addition, emphasizing that the assessee failed to produce the principal officers of the shareholding companies and that the documents submitted were insufficient to prove the genuineness of the transactions. 2. Validity of assessment proceedings under Section 153A read with Section 143(3) of the Income Tax Act: The assessee argued that the assessment proceedings under Section 153A were void ab initio as no incriminating documents were found during the search. The original return was filed under Section 139(1) and was not selected for scrutiny within the prescribed time. The assessee relied on various judicial pronouncements, including the Hon'ble Rajasthan High Court's decision in Jai Steel (India) Vs. ACIT, to argue that in the absence of incriminating material, the assessment under Section 153A was not valid. The Tribunal agreed with the assessee, holding that since no incriminating documents were found during the search, the notice under Section 153A read with Section 143(3) was not justified, and the assessment was void ab initio. 3. Compliance with identity, genuineness, and creditworthiness of the share applicants: The assessee provided extensive documentation to prove the identity, genuineness, and creditworthiness of the share applicants, including share applications, confirmations, PAN details, board resolutions, bank statements, and balance sheets. The AO and CIT(A) questioned the genuineness of the transactions, noting that the companies involved appeared to be entry providers and that the share premiums paid were not justified by the financial condition of the assessee. The Tribunal found that the assessee had discharged its onus by providing the necessary documentation and that the AO had not provided sufficient evidence to discredit these documents. The Tribunal also noted that the AO had not provided the inquiry report from the Investigation Wing to the assessee, which was a procedural lapse. 4. Procedural fairness in the assessment process, including the provision of investigation reports to the assessee: The assessee argued that the AO did not provide the inquiry report from the Investigation Wing, Kolkata, which was a violation of procedural fairness. The Tribunal agreed, noting that the AO had not clarified what inquiries were conducted and what evidence was collected against the assessee. The Tribunal emphasized that the assessee should have been given an opportunity to rebut the evidence collected by the department. The Tribunal also noted that the AO had a short time to complete the assessment after receiving the inquiry report, which further compromised the procedural fairness of the assessment process. Conclusion: The Tribunal allowed the appeal of the assessee, holding that the assessment under Section 153A read with Section 143(3) was void ab initio due to the absence of incriminating documents found during the search. The Tribunal also found that the assessee had discharged its onus of proving the identity, genuineness, and creditworthiness of the share applicants and that the AO had not provided sufficient evidence to discredit the documents submitted by the assessee. The Tribunal emphasized the importance of procedural fairness, noting that the AO had not provided the inquiry report to the assessee and had a short time to complete the assessment.
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