2015 (12) TMI 1185 - HC - Income Tax

Addition under Section 68 - ITAT deleted the addition - Held that - ITAT was fully justified in coming to the conclusion that there exists no evidence to establish that there was any re-routing of the money collected by the Respondent-Companies. None of the shareholders denied having contributed to their share capital. The Revenue has not been able to show why the decision of the Supreme Court in CIT v. Lovely Exports (P) Ltd. (2008 (1) TMI 575 - SUPREME COURT OF INDIA ) does not apply to the facts and circumstances of the case. The Court accordingly concludes that in the present appeals the Revenue has not been able to show that the impugned decision of the ITAT in its analysis of the facts or application of the law governing Section 68 of the Act suffers from any legal infirmity. - Decided in favour of assessee.

Issues Involved:
1. Whether the ITAT erred in deleting the addition under Section 68 of the Income Tax Act.
2. Validity of the search and the assessment of the identity, genuineness, and creditworthiness of the shareholders.
3. Allegations of 'on-money' transactions and routing of unaccounted money.
4. Contradictions in the Revenue's stance and the evidence provided by the Assessees.
5. Application of judicial precedents and the interpretation of Section 68 of the Income Tax Act.

Detailed Analysis:

Issue 1: ITAT's Deletion of Addition under Section 68
The Revenue's appeals questioned whether the ITAT erred in deleting the addition under Section 68 of the Income Tax Act. The ITAT had allowed the appeals of the Assessees by holding that the Revenue failed to prove that the investments were not genuine. The ITAT found that the Assessees had discharged their primary onus of proving the identity, genuineness, and creditworthiness of the shareholders.

Issue 2: Validity of Search and Assessment of Shareholders
A search was conducted on the SVP Group of Companies, and the Revenue alleged that the Group received share capital from companies acting as 'conduit channels' for converting black money into white. The AO noted that many companies were not found at their given addresses, and some individuals denied the existence of these companies. However, the ITAT found that the Revenue could not deny the factual position that only 11 of the 20 companies in Table I had been searched, and the directors of 18 companies were examined and found to have duly recorded share capital in their books. The ITAT concluded that there was no justification for drawing an adverse inference.

Issue 3: Allegations of 'On-Money' Transactions
The Revenue alleged that the SVP Group charged 'on-money' on sales, which was not accounted for in their regular books and was routed back as share application money or unsecured loans. The ITAT found no material to support the Revenue's case that 'on-money' collected in cash was routed back into the SVP Group companies. The ITAT also noted that the subsequent sale of shares at a reduced price was not germane to the question of the genuineness of the share capital amount received by the Assessees.

Issue 4: Contradictions in the Revenue's Stance
The Revenue's stance was contradictory. On one hand, it treated the cash credit in the Assessees' books as 'undisclosed income,' while on the other, it suggested that this money belonged to other entities. The ITAT noted that in the assessment proceedings of the investor companies, the sums invested were sought to be added as income of those companies, but these additions were deleted by the CIT (A), who held that the additions should be made in the hands of the beneficiaries. The Revenue's appeals in the ITAT insisted on sustaining these additions, showing inconsistency in their position.

Issue 5: Judicial Precedents and Interpretation of Section 68
The ITAT distinguished the case from CIT v. Nova Promoters and Finlease (P) Ltd. and found that the Assessees had provided sufficient evidence to discharge their burden under Section 68 of the Act. The ITAT relied on the Supreme Court's decision in CIT v. Lovely Exports (P) Ltd., where it was held that the identity of shareholders and the genuineness of the transactions had been established. The ITAT concluded that the Revenue had not produced material to substantiate its case and that the Assessees had satisfactorily explained the source of the money received.

Conclusion:
The High Court upheld the ITAT's decision, finding no legal infirmity in its analysis of the facts or application of the law governing Section 68. The Court dismissed the Revenue's appeals, concluding that no substantial question of law arose for consideration. The Assessees had successfully demonstrated the identity, genuineness, and creditworthiness of their shareholders, and the Revenue failed to provide contrary evidence. The appeals were dismissed with no orders as to costs.

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