2012 (8) TMI 1025 - AT - Income Tax

Addition on account of share application money - Held that - Unable to sustain the finding of CIT(A) that the share application money has to be accepted as explained satisfactorily even if there is material to show that the transaction was not genuine and only an accommodation entry. As find that the assessee had raised disputes before CIT(A) regarding the statement of Shri Mahajan referred to by AO in assessment year and had also filed additional evidence in the form of affidavit of Shri Mahajan retracting from the statement. The assessee submitted before CIT(A) that AO had not made it clear as to in which case Shri Mahajan had given statement as he was director in several companies. It was also not clear whether copy of bank accounts shown to Shri Mahajan belonged to assessee or not. The assessee had requested for admission of additional evidence in the form of affidavit. CIT(A) has not considered these submissions as well as additional evidences as he proceeded to decide the case only on the legal ground that no addition can be made even if share applicants were bogus with which as held earlier we do not agree. In our view, these aspects are required to be examined at the level of CIT(A).

Issues Involved:
1. Addition of Rs. 6,15,50,000/- as share application money.
2. Legitimacy of the share application money transactions.
3. Burden of proof on the assessee to explain cash credits.
4. Examination of the statements and evidence provided by the assessee.

Detailed Analysis of the Judgment:

1. Addition of Rs. 6,15,50,000/- as Share Application Money:
The primary issue in this case revolves around the addition of Rs. 6,15,50,000/- made by the Assessing Officer (AO) on account of share application money. The AO noted that the assessee received share application money from three companies at a high premium of Rs. 990/- per share, which raised suspicions about the genuineness of the transactions.

2. Legitimacy of the Share Application Money Transactions:
During the reassessment proceedings, the AO observed that the assessee was involved in providing accommodation entries of share capital, share premium, and unsecured loans. The AO referred to statements under section 131, which indicated that the directors of the assessee company were not aware of the bank transactions and were merely nominal directors. The AO concluded that the share application money was sourced from cash deposits and accommodation entries through entry operators, thus treating it as unexplained income under section 68 of the Income Tax Act.

3. Burden of Proof on the Assessee to Explain Cash Credits:
The AO emphasized that the burden of proof lies on the assessee to satisfactorily explain the cash credits in their books of accounts. The AO cited several judicial precedents, including the judgments of the Hon'ble High Court of Calcutta in CIT vs. Korlay Trading Company and United Commercial & Industrial Co. (P) Ltd., which held that merely proving the identity of creditors and the fact that payments were made by cheque was not sufficient to establish the genuineness of the transactions. The AO also referred to the judgment of the Hon'ble Supreme Court in Sumati Dayal vs. CIT, which supported the view that the genuineness of the transactions must be established beyond doubt.

4. Examination of the Statements and Evidence Provided by the Assessee:
The assessee contested the AO's decision, arguing that the share application money was received through banking channels and that the identity and creditworthiness of the share applicants were established through confirmations, PAN numbers, audited balance sheets, and income tax return acknowledgments. The CIT(A) initially accepted the assessee's arguments, directing the AO to delete the addition. However, the Revenue appealed, arguing that even if the identity of the creditors is established, the transaction must still be genuine.

The Tribunal noted that the CIT(A) had not adequately considered the AO's findings and the additional evidence provided by the assessee, such as the affidavit retracting the statement of the director. The Tribunal emphasized that the genuineness of the transactions must be thoroughly examined, considering the surrounding circumstances and the material on record.

Conclusion:
The Tribunal set aside the order of the CIT(A) and restored the matter for fresh examination, directing the CIT(A) to consider the admissibility of the additional evidence and the statements made under section 131 in light of judicial pronouncements. The appeal by the Revenue was allowed for statistical purposes, and the case was remanded for further investigation to ensure a comprehensive and fair assessment.

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