2018 (1) TMI 188 - AT - Income Tax

Addition u/s 68 - burden of proof - creditworthiness and genuineness of the transaction - Held that - The word identity means the condition or fact of a person or thing being that specified unique person or thing. The identification of the person would include the place of work, the staff, the fact that it was actually carrying on business and recognition of the said company in the eyes of public. Merely producing certificate of incorporation, PAN number or assessment particulars did not establish the identity of the person. PAN numbers are allotted on the basis of applications without actual de facto verification of the identity or ascertaining active nature of business activity. The actual and true identity of the person or a company was the business undertaken by them. Further, these documents have their limitation and cannot be relied upon blindly when there are surrounding circumstances to show that the subscriber was a paper company and not a genuine investor. The assessee company being a private limited company, the burden of proof is clearly on higher pedestal as compared to public limited companies which it has failed to discharge in the instant case as we have discussed above in terms of creditworthiness and genuineness of the transaction and till such time, initial burden is not satisfied, the burden cannot be said to have been shifted on the Revenue to conduct further enquiries. Accordingly, we hereby affirm the action of the ld. CIT(A) in sustaining the addition of ₹ 93.30 crores in the hands of the assessee company u/s 68 of the Act. In the result, ground no. 1-3 are dismissed.

Summary

Issues Involved:
1. Addition of ?96,30,000 under Section 68 of the Income Tax Act related to share application money received from two individuals.
2. Creditworthiness and genuineness of the transactions.
3. Initiation of penalty proceedings under Section 271D.
4. Non-compliance during assessment proceedings due to financial crises and disputes with bankers.

Detailed Analysis:

1. Addition of ?96,30,000 under Section 68 of the Income Tax Act:
The primary issue revolves around the addition of ?96,30,000 made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, which pertains to the share application money received by the assessee company from two individuals: Shri Janardhan Sharma (?30,00,000) and Shri Jagjit Singh (?66,30,000).

2. Creditworthiness and Genuineness of Transactions:
- Shri Janardhan Sharma:
- The assessee claimed that the share application money was received from Shri Janardhan Sharma, a contractor in Delhi, in cash. The AO observed that the balance-sheet of Shri Janardhan Sharma's proprietary concern, M/s K.K. Construction Company, did not specifically endorse any investment in the assessee company. The AO found no evidence in the bank statements to support the payment of ?30,00,000 to the assessee. The AO also questioned the use of the cash credit limit for investment purposes, which is generally for business exigencies. The AO concluded that the share application money remained unproven due to the lack of evidence of creditworthiness and genuineness.
- The CIT(A) upheld the AO's findings, noting the absence of a valid reason for cash payments and the lack of a nexus between the funds drawn from the bank account and the investments made in the assessee company. The Tribunal agreed with the CIT(A), emphasizing the failure to demonstrate the genuineness of the transaction and the inability to discharge the initial onus under Section 68.

- Shri Jagjit Singh:
- The assessee claimed to have received ?66,30,000 from Shri Jagjit Singh, a British citizen, through his NRI account and relatives. The AO found that the financial statements of Shri Jagjit Singh's company, Quick Forex Transfer Limited, did not support his creditworthiness. The AO also noted the lack of evidence regarding his wife's income, which was claimed to support family creditworthiness. The AO concluded that the share application money remained unproven due to the lack of evidence of creditworthiness and genuineness.
- The CIT(A) upheld the AO's findings, noting the disparity between Shri Jagjit Singh's income and the investment made. The Tribunal agreed with the CIT(A), emphasizing the failure to demonstrate the genuineness of the transaction and the inability to discharge the initial onus under Section 68.

3. Initiation of Penalty Proceedings under Section 271D:
- The assessee challenged the initiation of penalty proceedings under Section 271D. However, no contentions were raised before the Tribunal by the assessee's representative. The Tribunal noted that the impugned order pertained to quantum additions and that the assessee could challenge any action taken under Section 271D separately.

4. Non-compliance During Assessment Proceedings:
- The assessee argued that non-compliance during the assessment proceedings was due to financial crises and disputes with bankers. However, the Tribunal did not find this argument sufficient to overturn the findings of the lower authorities.

Conclusion:
The Tribunal dismissed the appeal of the assessee, affirming the addition of ?96,30,000 under Section 68 of the Income Tax Act. The Tribunal upheld the findings of the lower authorities regarding the lack of evidence of creditworthiness and genuineness of the transactions. The initiation of penalty proceedings under Section 271D was not adjudicated upon, and the general ground raised by the assessee was not separately addressed. The judgment emphasizes the importance of providing credible and verifiable evidence to discharge the initial onus under Section 68, especially in cases involving private limited companies.