2010 (11) TMI 838 - AT - Income Tax

Addition - Unexplained investments - addition u/s 68 - On the basis of mere credit entry, it cannot be accepted as interred as to who has given this amount - assessee has filed most of the details in respect of each and every share applicants. In some cases assessee filed new confirmatory Emails, since long time had elapsed and parties were away, out of India. Lower authorities have given lot of preference to the requirement of filing of new evidence ignoring that at the relevant time assessee had filed documents to discharge its onus. - Held that - it is settled law that the assessee need not to prove the source of source - assessee has duly discharged its onus viewed from any angle and the addition u/s 68 is not justified in this case - Decided in favour of the assessee

Issues Involved:
1. Addition of Rs.1,43,37,219/- as unexplained investment in share capital.
2. Compliance with the directions of the ITAT for verification of evidence.
3. Burden of proof on the assessee regarding share application money.
4. Validity of evidence provided by the assessee.
5. Applicability of legal precedents on the burden of proof and unexplained investments.

Detailed Analysis:

1. Addition of Rs.1,43,37,219/- as unexplained investment in share capital:
The assessee, a telecom consultancy and technology products company, contested the addition of Rs.1,43,37,219/- as unexplained investment in share capital. The initial assessment was completed ex parte under section 144, leading to this addition. The CIT(A) partially deleted the addition but upheld Rs.46,88,000/-. The ITAT remanded the matter to the AO for fresh examination of evidence provided by the assessee.

2. Compliance with the directions of the ITAT for verification of evidence:
The ITAT had directed the AO to examine the evidence adduced by the assessee before the CIT(A) and make a fresh decision. The AO issued notices and requested additional documents beyond what was previously submitted. The assessee expressed difficulty in providing further documents due to the lapse of time and changes in company management. The AO proceeded with the assessment without considering the previously submitted evidence, leading to the confirmation of the addition by the CIT(A).

3. Burden of proof on the assessee regarding share application money:
The assessee argued that it had discharged its burden by providing sufficient evidence to establish the identity, genuineness, and creditworthiness of the share applicants. The legal precedents cited, including the Supreme Court's decision in Lovely Exports and the Delhi High Court's ruling in Dwarkadhish Investment, emphasized that once the assessee provides basic details such as PAN and confirms the genuineness of the transactions, the onus shifts to the revenue to disprove the evidence.

4. Validity of evidence provided by the assessee:
The assessee had provided various documents, including confirmations, PAN details, share application forms, and bank statements, to establish the genuineness of the share application money. The AO and CIT(A) overlooked these documents and insisted on additional evidence, which was deemed unreasonable given the circumstances. The ITAT noted that the AO should have confined his examination to the material already on record as per the ITAT's directions.

5. Applicability of legal precedents on the burden of proof and unexplained investments:
The ITAT referenced several legal precedents, including the Supreme Court's ruling in Lovely Exports and the Delhi High Court's judgments in Dwarkadhish Investment, Victor Electodes, and Winstral Petrochemicals. These cases established that the assessee's burden is limited to proving the identity of the share applicants and the genuineness of the transactions. The revenue must then investigate further if necessary. The ITAT concluded that the assessee had met its burden of proof and that the addition of Rs.1,43,37,219/- as unexplained investment was unjustified.

Conclusion:
The ITAT allowed the assessee's appeal, holding that the assessee had provided sufficient evidence to establish the genuineness of the share application money. The addition of Rs.1,43,37,219/- was deleted, and the appeal was decided in favor of the assessee. The judgment emphasized the importance of adhering to legal precedents and the proper allocation of the burden of proof in cases involving unexplained investments.

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