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2022 (2) TMI 1390 - AT - Income TaxAddition u/s 68 - unexplained share capital and share premium assessee company could not establish the genuineness of transaction - manadation of recording satisfaction - scope of amendment - CIT(A) deleted the addition - HELD THAT - We note that with effect from assessment year 2013-14 section 68 has been amended to provide that if a closely held company fails to explain the source of share capital share premium or share application money received by it to the satisfaction of the A.O. the same shall be deemed to be the income of the company u/s 68 of the Act. The said amendment has been held to be prospective and not retrospective in Gagandeep Infrastructure Private Limited 2017 (3) TMI 1263 - BOMBAY HIGH COURT . In a recent decision of Hindusthan Tea Trading Co. Ltd.. 2003 (3) TMI 53 - CALCUTTA HIGH COURT it was held that the power of the assessing officer u/s 68 is not an absolute one. It is subject to his satisfaction where an explanation is offered. The power is absolute where the assessee offers no explanation. The satisfaction with regard to the explanation is in effect an in-built safeguard in section 68 protecting the interest of the assessee. It provides for an opportunity to the assessee to explain the nature and source of the fund. Once it is explained it is incumbent on the assessing officer to consider the same and form an opinion whether the explanation is satisfactory or not. We are of the view that in assessee s case the three ingredients of the Section 68 are satisfied to a reasonable extent by the assessee. That being so we decline to interfere in the order of ld CIT(A) his order on this issue is hereby upheld and grounds of appeal raised by the Revenue is dismissed.
Issues Involved:
1. Deletion of addition made on account of unexplained share capital and share premium. 2. Establishment of the identity, genuineness, and creditworthiness of investors. Issue-wise Detailed Analysis: 1. Deletion of Addition Made on Account of Unexplained Share Capital and Share Premium: The Revenue challenged the deletion of Rs. 9,49,88,000/- added by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, as unexplained cash credits. The AO argued that the assessee failed to establish the genuineness of the transactions and the identity of the investors. The AO issued notices under Section 133(6) to the investors, receiving mixed responses. The AO concluded that the assessee could not satisfactorily explain the source of funds, treating the amounts as unexplained cash credits. 2. Establishment of the Identity, Genuineness, and Creditworthiness of Investors: The assessee provided extensive documentation to prove the identity, creditworthiness, and genuineness of the transactions, including ITRs, bank statements, audited financial statements, and confirmations from investors. The investors were family members of the company's director, Alpesh Bodra, and included both resident and non-resident Indians. The CIT(A) found that the AO's assessment was based on a general discussion about shell companies and money laundering, which did not apply to the assessee's case. The share application money was received from individuals, not shell companies. The CIT(A) noted that the AO did not examine the details filed by the assessee and wrongly concluded that the companies involved were not carrying out proper activities. The CIT(A) observed that the assessee had submitted sufficient evidence to prove the three ingredients of Section 68: identity, creditworthiness, and genuineness. The CIT(A) also noted that the AO had issued notices under Section 133(6) to the investors, and three resident Indian investors had complied with these notices. For the non-resident investors, the CIT(A) found that the AO had obtained bank statements showing substantial credits in US dollars, which were transferred to the assessee and other entities. The CIT(A) concluded that the AO did not specify any irregularities or violations and did not clearly spell out any adverse inference. The CIT(A) relied on judicial precedents, including the decisions of the Hon'ble High Courts of Gujarat and Punjab & Haryana, which held that once an NRI's identity is proved and amounts are received through banking channels, the requirements of Section 68 are fulfilled. For the resident Indian investors, the CIT(A) found that the AO did not provide any reasoned findings based on the examination of financial statements. The CIT(A) concluded that the identity, creditworthiness, and genuineness of these investors were established by the details filed. Conclusion: The Tribunal upheld the CIT(A)'s order, concluding that the assessee had satisfactorily proved the identity, creditworthiness, and genuineness of the transactions. The Tribunal emphasized that the AO's power under Section 68 is not absolute and must consider the explanation provided by the assessee. As the assessee had provided sufficient evidence, the Tribunal dismissed the Revenue's appeal and upheld the CIT(A)'s order. Order Pronounced: The appeal of the Revenue was dismissed, and the order was pronounced on 09/02/2022 by placing the result on the notice board.
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