2017 (7) TMI 613 - HC - Income Tax

Addition u/s 68 - discharge of onus - parties to whom the share certificates were issued and who had paid the share money had not appeared before the Assessing Officer and the summons could not be served on the addresses given as they were not traced - Held that - Tribunal has considered that the Assessee has produced on record the documents to establish the genuineness of the party such as PAN of all the creditors along with the confirmation, their bank statements showing payment of share application money. It was also observed by the Tribunal that the Assessee has also produced the entire record regarding issuance of shares i.e. allotment of shares to these parties, their share application forms, allotment letters and share certificates, so also the books of account. The balance sheet and profit and loss account of these persons discloses that these persons had sufficient funds in their accounts for investing in the shares of the Assessee. In view of these voluminous documentary evidence, only because those persons had not appeared before the Assessing Officer would not negate the case of the Assessee. The judgment in case of Gagandeep Infrastructure (P.) Ltd. (2017 (3) TMI 1263 - BOMBAY HIGH COURT ) would be applicable in the facts and circumstances of the present case. Decided against revenue.

Issues:
1. Addition of income under Section 68 of the Income Tax Act based on non-traceability of creditors.
2. Tribunal's reliance on documentary evidence produced by the Assessee.
3. Failure of the Assessee to produce creditors before the Assessing Officer.
4. Discharge of onus by the Assessee regarding identity of creditors, creditworthiness, and genuineness of transactions.

Analysis:

1. The primary issue in this case revolves around the addition of income under Section 68 of the Income Tax Act due to the non-traceability of creditors to whom share certificates were issued. The Assessing Officer added a significant amount as income based on the inability to serve summons to these creditors at the addresses provided. However, the Tribunal considered the documentary evidence provided by the Assessee, including PAN of creditors, bank statements, allotment letters, and share certificates, to establish the genuineness of the transactions. The Tribunal emphasized that the availability of substantial documentary evidence outweighed the non-appearance of creditors before the Assessing Officer.

2. The second issue concerns the Tribunal's reliance on the documentary evidence produced by the Assessee. The Assessee's counsel argued that the Tribunal's decision was solely based on the availability of documents without considering the relevant circumstances and facts. However, the Tribunal justified its decision by highlighting the comprehensive nature of the documentary evidence presented by the Assessee, which included proof of funds in creditors' accounts and records of share allotment.

3. Another crucial aspect of the case was the failure of the Assessee to produce the creditors before the Assessing Officer, despite agreeing to do so during remand proceedings. The non-appearance of these parties raised concerns regarding the authenticity of the transactions. However, the Tribunal deemed the extensive documentary evidence provided by the Assessee as sufficient to establish the legitimacy of the transactions, thereby mitigating the impact of creditors' non-appearance.

4. Lastly, the issue of whether the Assessee discharged its onus regarding the identity of creditors, their creditworthiness, and the genuineness of transactions was pivotal in the judgment. The Assessee contended that it had fulfilled its obligations by presenting PAN details, bank statements, and other relevant records to substantiate the transactions. The Assessee's reliance on legal precedents and judgments further supported its position that the documentary evidence presented was adequate to prove the legitimacy of the transactions.

In conclusion, the High Court of Bombay dismissed the appeal, ruling that no substantial question of law arose based on the comprehensive documentary evidence provided by the Assessee, which effectively countered the non-appearance of creditors before the Assessing Officer. The judgment underscored the significance of thorough documentation in establishing the genuineness of transactions, even in the absence of direct creditor verification.

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