2017 (11) TMI 1635 - HC - Income Tax

Additions u/s 68 - unexplained share application money - ITAT deleted the additions - revenue contended that the share applications alongwith premium were merely accommodation entries and the identity, genuineness and creditworthiness of the applicants was not proved. - Additions u/s 69B - commission payment made for obtaining accommodation entry - Held that - Now the issue is squarely covered by the decision of Supreme Court in case of Lovely Exports (P) Ltd., 2008 (1) TMI 575 - SUPREME COURT OF INDIA - No additions - Decided against the revenue.

Summary

Issues:
Appeal against Tribunal's order dismissing department's appeal - Addition of unexplained share application money under section 68 - Addition of commission payment under section 69B.

Analysis:
The appellant challenged the Tribunal's decision dismissing the department's appeal regarding the addition of unexplained share application money and commission payment. The questions of law framed by the Court pertained to the justification of deleting the additions. The issue of unexplained share application money was addressed in light of the Supreme Court's decision in Lovely Exports (P) Ltd., emphasizing the department's ability to re-open individual assessments if share application money is received from alleged bogus shareholders. The Court also considered precedents like CIT vs. M/s Hotel Gaudavan Pvt. Ltd. and PCIT vs. Shubh Mines Pvt. Ltd., highlighting the importance of establishing the source of funds and genuineness of transactions.

Furthermore, the Court referred to the case of CIT vs. Supertech Diamond Tools Pvt. Ltd., stressing the need for the opportunity to confront and cross-examine individuals related to investing companies. The Court emphasized that the burden to explain the source of investment lies with the assessee, and the appellate authorities must consider all relevant evidence before making a decision. The judgment in Commissioner of Income Tax Vs. Orissa Corporation (P) Ltd. was cited to illustrate the importance of verifying the creditworthiness of alleged creditors before making additions based on unexplained funds.

Moreover, the Court cited the case of CIT Vs. Shree Barkha Synthetics Ltd., where it was held that if the existence and identity of investors are established, and their investment is confirmed, the initial burden of proof shifts to the department. Ultimately, the Court concluded that the appellant had provided satisfactory evidence to support the source of funds and the genuineness of transactions, leading to a decision in favor of the assessee against the department. Consequently, the appeal was dismissed based on the findings and legal precedents discussed during the proceedings.