2015 (1) TMI 647 - AT - Income Tax

Unexplained share capital introduced - CIT(A) deleted part addition made u/s 68 - Held that - Merit in the arguments of assessee that after a period 7 years it was not possible to procure bank statements of earlier periods from the share applicants. We are of the view that the issue has rightly been considered by the ld. CIT(A) on the material available on record. Rebuttal of ld. AO in terms of Section 68 has to be effective and meaningful and not to call on the assesse to comply with difficult and nearly impossible compliance. Thus assessee has discharged its initial onus in terms of Section 68 of the Act which has not been effectively rebutted by ld. AO in meaningful terms.Therefore, the additions were rightly deleted by the ld. CIT(A). Apropos addition retained by the ld. CIT(A) in respect of M/s. A.K. Fabrics (P) Ltd., M/s. B.P. Buildtech (P) Ltd. and M/s. B.P. Infotech (P) Ltd same evidence has been filed by the assesse. Ld. CIT(A) has drawn an adverse inference from the fact that in his view these applicant companies were given PAN subsequently and their paid up share capital is low. Following our order on revenue appeal, we are of the view that earlier confirmations, transactions being through banking channels, Company share record, ROC record etc. cumulatively demonstrate that the assessee had discharged its initial onus in terms of decision of Hon ble Rajasthan High Court in Barkha Synthetics 2005 (8) TMI 67 - RAJASTHAN High Court , Delhi High Court in the case of CIT vs. Dwarkadhish Investment (P) Ltd. (2010 (8) TMI 23 - DELHI HIGH COURT). Thus no addition can be made in respect of these three applicants also. - Decided in favor of assessee.

Issues Involved:
1. Deletion of addition under Section 68 for unexplained share capital.
2. Deletion of addition for unexplained cash credits.
3. Validity of Section 144 read with Section 153A assessment.
4. Additions made not based on incriminating material found during the search.
5. Denial of adjournments and framing of assessment under Section 144.
6. Merits of the additions on share application money.

Detailed Analysis:

1. Deletion of Addition under Section 68 for Unexplained Share Capital:
The Revenue contended that the CIT(A) erred in deleting the addition of Rs. 1,05,00,000 out of Rs. 1,15,00,000 made on account of unexplained share capital introduced in the names of various companies. The assessee argued that the CIT(A) was incorrect in confirming additions for share application money deposited by certain companies due to the absence of PANs at the time of assessment. The Tribunal noted that the assessee had provided substantial evidence, including contemporaneous confirmations, IT records, and ROC records, proving the identity and genuineness of transactions. The CIT(A) had deleted the addition except for amounts from M/s. A.K. Fabrics (P) Ltd., M/s. B.P. Buildtech (P) Ltd., and M/s. B.P. Infotech (P) Ltd., due to their inadequate creditworthiness and lack of PANs at the relevant time. The Tribunal upheld the CIT(A)'s deletion of Rs. 1,05,00,000 but also deleted the remaining Rs. 10,00,000, noting that the initial burden under Section 68 was discharged by the assessee.

2. Deletion of Addition for Unexplained Cash Credits:
The Revenue argued that the CIT(A) erred in deleting the addition of Rs. 14,01,765 on account of unexplained cash credits. The Tribunal observed that the CIT(A) had deleted the addition based on the assessee's submission that no incriminating material was found during the search. The Tribunal upheld the CIT(A)'s decision, noting that the AO had not provided sufficient details or supporting evidence for the addition.

3. Validity of Section 144 Read with Section 153A Assessment:
The assessee challenged the validity of the assessment framed under Section 144 read with Section 153A, arguing that no incriminating material was found during the search. The Tribunal noted that the original return for AY 2003-04 was processed under Section 143(1), which does not amount to an assessment. The DR contended that the AO has plenary powers to reassess the entire income under Section 153A, irrespective of whether any incriminating material was found. The Tribunal, however, sided with the assessee, citing various judicial pronouncements that no addition can be made in a search assessment unless supported by incriminating material found during the search.

4. Additions Made Not Based on Incriminating Material Found During the Search:
The assessee argued that the additions were not based on any incriminating material found during the search. The Tribunal agreed, noting that the AO had ignored the substantial evidence provided by the assessee and had made the additions based on hypothetical assumptions. The Tribunal emphasized that the initial burden under Section 68 was discharged by the assessee and that the AO's rebuttal was not effective or meaningful.

5. Denial of Adjournments and Framing of Assessment Under Section 144:
The assessee contended that the AO had denied adjournments and framed the assessment under Section 144, leading to the best judgment assessment. The Tribunal noted that the CIT(A) had admitted additional evidence and forwarded it to the AO for a remand report, which was duly filed. The Tribunal found that the CIT(A) had granted substantial relief to the assessee and that the denial of adjournments did not materially affect the outcome.

6. Merits of the Additions on Share Application Money:
The Tribunal examined the merits of the additions on share application money and found that the assessee had provided substantial evidence to prove the identity, genuineness, and creditworthiness of the share applicants. The Tribunal noted that the AO had ignored this evidence and had made the additions based on the absence of fresh confirmations and bank statements after a gap of seven years. The Tribunal held that the assessee had discharged its initial onus under Section 68 and that the AO's rebuttal was not effective. Consequently, the Tribunal upheld the CIT(A)'s deletion of the additions.

Conclusion:
The Tribunal dismissed the Revenue's appeal and allowed the assessee's cross-objection, thereby deleting the entire addition in respect of share application money on merits. The order was pronounced in the open court on 19-12-2014.

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