2010 (11) TMI 628 - AT - Income Tax

Addition - Commission from undisclosed sources - Unexplained cash u/s 68 - Held that - CIT(A) relied on the decision in CIT vs. Lovely Exports, 2008 -TMI - 76942 - SUPREME COURT OF INDIA , wherein it has been held to the effect that where the assessee has discharged its onus u/s 68 of the Act, even if the creditor companies are found to be bogus addition, if any, can only be made in the hands of those creditors and not in the hands of the assessee - Decided in favour of assessee. Share application money in the form of stock from different entities - It is seen that the assessee had taken over the business of three concerns - Before the AO, the assessee had furnished full details of the stocks taken over - The income-tax assessment particulars of the concerns, whose businesses were taken over, were also furnished - Besides, the assessee had filed details of person-wise stock, as available on the records of the Income-tax Department in the cases of these concerns - In fact, the taking over process did not involve any presumption of any undisclosed or unaccounted income - The directors of the concerns had contributed their stocks to the assessee company as share capital - The assessee had duly established the identity and creditworthiness of the persons, as well as the genuineness of the transactions - The details filed included the names, addresses, firms, PAN, copies of income-tax return, copies of cheques received, copies of PandL A/c and copy of balance-sheet showing the closing stock of the three proprietary business - That being so, the AO was unable to show as to how the stock/cheques received remained unexplained - Decided against the revenue.

Summary

Issues Involved:
1. Deletion of addition of Rs.3,99,00,000 made under Section 68 of the Income Tax Act on account of induction of fresh share capital and Rs.2,00,000 on account of commission paid from undisclosed sources.
2. Deletion of addition of Rs.1,36,21,250 received as share application money in the form of stock from different entities.

Detailed Analysis:

1. Deletion of Addition of Rs.3,99,00,000 and Rs.2,00,000:

The department's appeal contested the deletion of an addition of Rs.3,99,00,000 made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, citing the induction of fresh share capital and Rs.2,00,000 concerning commission from undisclosed sources. The AO's assessment was based on information from the Investigation Wing that the assessee company received bogus accommodation entries from various entry operators after giving an equivalent amount of cash plus commission at 0.5%. The AO relied on the statement of Shri Mahesh Garg, a director in several companies providing such entries, who deposed that these companies were not engaged in any actual business other than providing accommodation entries.

During the assessment proceedings, the assessee provided all necessary details, including names, addresses, income tax particulars, bank particulars, and confirmations, along with the company's master details from the Ministry of Company Affairs. Despite this, the AO added Rs.3,99,00,000 to the assessee's total income under Section 68, observing that the explanation regarding the source was unsatisfactory. Additionally, Rs.2,00,000 was added towards commission allegedly paid in cash for obtaining these entries.

The Commissioner of Income Tax (Appeals) [CIT(A)] deleted the addition, noting that the assessee had discharged its onus of proving the identity and creditworthiness of its creditors and the genuineness of the transactions by filing all relevant evidence. The CIT(A) observed that the AO had not confronted the assessee with the statement of Mahesh Garg, nor had the AO independently examined him. The CIT(A) also noted that the statement of Mahesh Garg was recorded much before the incorporation of the assessee company and the transactions involved, making it irrelevant for the addition in question. The CIT(A) relied on the decision in 'CIT vs. Lovely Exports,' which held that if the assessee has discharged its onus under Section 68, any addition can only be made in the hands of the creditors, not the assessee.

The Tribunal upheld the CIT(A)'s decision, finding no merit in the department's appeal. The Tribunal noted that the AO's reliance on the statement of Mahesh Garg and the Investigation Wing's report was misplaced, as there was no independent evidence against the assessee. The Tribunal emphasized that the assessee had provided all necessary details and documents to substantiate its claim, and the AO had failed to bring any contrary evidence on record.

2. Deletion of Addition of Rs.1,36,21,250:

The second issue pertained to the deletion of an addition of Rs.1,36,21,250 received by the assessee company as share application money in the form of stock from different entities. The AO added this amount to the assessee's income, alleging that the assessee failed to prove the identity and creditworthiness of the applicants and the genuineness of the transactions. The AO noted that the assessee did not provide complete inventory or supporting bills representing the purchase of items taken in the stock.

The CIT(A) deleted the addition, observing that the assessee had taken over the business of three proprietary concerns and had provided full details of the stocks taken over, including income-tax assessment particulars of the concerns. The CIT(A) noted that the directors of the concerns had contributed their stocks to the assessee company as share capital, and the assessee had established the identity and creditworthiness of the persons, as well as the genuineness of the transactions. The AO had not brought any material on record to support the allegation that the assessee company had paid cash to the alleged entry providers for receipt of the amounts.

The Tribunal upheld the CIT(A)'s decision, finding no merit in the department's appeal. The Tribunal noted that the assessee had provided all necessary details and documents to substantiate its claim, and the AO had failed to bring any contrary evidence on record. The Tribunal emphasized that the taking over process did not involve any presumption of undisclosed or unaccounted income, and the assessee had duly discharged its onus of proving the identity and creditworthiness of the creditors and the genuineness of the transactions.

Conclusion:

The Tribunal dismissed the department's appeal, upholding the CIT(A)'s decision to delete the additions made by the AO. The Tribunal emphasized that the assessee had provided all necessary details and documents to substantiate its claims, and the AO had failed to bring any contrary evidence on record. The Tribunal relied on the principles laid down in 'CIT vs. Lovely Exports' and other relevant case laws to conclude that the additions were not justified.