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2012 (11) TMI 311 - AT - Income TaxUnexplained Investment u/s 68 Share Application Money Following the decision of court in case of CIT vs. Oasis Hospitalities Pvt. Ltd., and Others 2011 (1) TMI 194 - DELHI HIGH COURT Furnishing of an affidavit by itself is not necessary proof to conclude that the transaction is genuine. It is well settled principle of law that to prove a credit entry in the books the assessee to establish three ingredients which (1) identity of investors (2) their creditworthiness and (3) genuineness of transaction - initial burden lies on the assessee to prove the genuineness of the transaction. In the present case, there is doubt regarding the identity of the share applicants and no material has been brought on record like balance-sheet or bank statements of the share applicants to show that they had capability to make investments in the shares. In the aforesaid factual background, sine the revenue authorities have not properly examined these aspects - restore the matter back to the AO who shall conduct such enquiry to find out as to whether the three companies which have invested in shares of the assessee really existed or not. If on enquiry, it is found that the companies did exist when they made investment and investment made by them are genuine,then no addition can be made u/s 68 of the Act. The AO may exercise his power to make enquiries with the concerned Registrar of companies to find out the real status of share applicants and after gathering all information, the AO shall complete the assessment after affording a reasonable opportunity of being heard to the assessee - In the result, the appeal filed by the Revenue is treated as allowed for statistical purpose.
Issues Involved:
1. Deletion of an amount of Rs. 86 lakhs added under Section 68 of the Income Tax Act. Issue-wise Detailed Analysis: 1. Deletion of an amount of Rs. 86 lakhs added under Section 68 of the Income Tax Act: The appeal by the Revenue challenges the deletion of Rs. 86 lakhs added under Section 68 of the Income Tax Act by the Assessing Officer (AO). The AO had found that the assessee introduced share application money from three companies: Marudhar Vinimay Pvt. Ltd. (Rs. 25,00,000), Comet Tieup Pvt. Ltd. (Rs. 15,00,000), and Whiteline Commercial Pvt. Ltd. (Rs. 46,00,000), totaling Rs. 86,00,000. The AO required the assessee to prove the genuineness of the share application money. The assessee could only provide articles of association of the companies and failed to produce other evidence. Letters sent by the AO to the investor companies returned unserved with the remark "no such company, hence unserved." The assessee later submitted confirmation letters from the investors, but the addresses matched those on the unserved letters. The AO noted that the confirmation letters lacked explanations regarding the source of investment and found discrepancies in the cheque deposits. The AO concluded that the investment was not genuine and added Rs. 86 lakhs as unexplained investment under Section 68. The assessee appealed to the CIT (A), providing additional documents, including confirmation letters, PAN numbers, income-tax details, and affidavits from the investor companies. The CIT (A) called for a remand report from the AO, who maintained his stance that the investments were not genuine. The CIT (A) concluded that the identity and PAN numbers of the investors were sufficient to establish the genuineness of the investments, and thus, no addition could be made under Section 68. The CIT (A) suggested that any doubts about the bonafides of the investments should be addressed by considering additions in the hands of the investors, not the assessee. The Revenue argued that the unserved letters created suspicion about the investments, and the assessee failed to prove the creditworthiness of the investors. The affidavits provided by the investors were also questioned for their validity. The Revenue cited the Delhi High Court's decision in CIT vs. Oasis Hospitals Pvt. Limited, emphasizing that the assessee must establish the identity, creditworthiness, and genuineness of the transactions. The assessee countered that the investors had confirmed their investments through banking channels and provided necessary documents, including affidavits and share certificates. The assessee also clarified that the cheques in question were deposited in a different bank and adjusted against a loan. The Tribunal observed that the affidavits and confirmation letters had inconsistencies and lacked proper notarization. The Tribunal noted that the AO had not been provided with sufficient evidence to establish the creditworthiness of the investors. The Tribunal emphasized that the initial burden of proving the genuineness of the transaction lies with the assessee, and the three ingredients (identity, creditworthiness, and genuineness) were not properly established. The Tribunal found that the CIT (A) had not adequately addressed these issues and decided to restore the matter to the AO for further enquiry. The AO was directed to verify the existence and genuineness of the investor companies and their capability to invest. The AO was also instructed to make enquiries with the Registrar of Companies and complete the assessment after providing the assessee a reasonable opportunity to be heard. Conclusion: The Tribunal allowed the Revenue's appeal for statistical purposes, directing the AO to conduct a thorough enquiry to determine the genuineness of the share application money and the existence of the investor companies. The AO must gather all relevant information and reassess the case, ensuring the assessee is given a fair opportunity to present their case.
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