2018 (4) TMI 329 - AT - Income Tax

Revision u/s 263 - Addition u/s 68 - addition towards share application money - Held that - It is not in dispute that the entire transactions of share application money were the subject matter of verification in the re-assessment proceedings by the ld AO, wherein the shareholders had duly responded to notice u/s 133(6) by confirming the fact of making investments in the assessee company. The shareholders had also duly furnished their income tax assessment particulars. Pursuant to directions of the ld CIT u/s 263 of the Act, AO was mandated to make direct verifications about the genuineness of the transactions and creditworthiness of the shareholders by making necessary specific enquiries as listed out supra. CIT had specifically directed the ld AO to make enquiries directly from the shareholders and not through the assessee. Hence non-appearance of the assessee or its directors before the ld AO intentionally or unintentionally does not make any relevance here. AO admittedly did not resort to make enquiries in the manner stated by the ld CIT u/s 263 of the Act in spite of the fact that all the necessary details were very much available before him. CIT had directed the ld AO to investigate into multiple layers of the investment in shares made by respective shareholders and identify the ultimate person holding controlling interest including the change in shareholding, directorship etc and then take the entire matter to its logical conclusion to bring out the facts on record. From the perusal of the assessment order, we find that this has not been done by the ld AO. Remand the matter back to the file of the ld AO for de novo assessment and to decide the matter as mandated by the ld CIT in section 263 order, after giving sufficient opportunity of being heard to the assessee.

Issues Involved:

1. Justification of the addition made under Section 68 of the Income Tax Act towards share application money.
2. Compliance with the directions passed in the order under Section 263 of the Income Tax Act.
3. Opportunity to produce additional evidence and documents.
4. Charging of interest under Sections 234A/B/C/D of the Income Tax Act.

Detailed Analysis:

1. Justification of the Addition Made Under Section 68:

The primary issue in this appeal is whether the Commissioner of Income Tax (Appeals) was justified in upholding the addition of ?32,71,45,000/- made under Section 68 of the Income Tax Act towards share application money. The assessee, an investment company, had its return of income for the Assessment Year 2008-09 initially processed under Section 143(1) and later reassessed under Sections 147/143(3). The reassessment was subjected to revision proceedings under Section 263 by the Commissioner of Income Tax (CIT) due to inadequate inquiry into the genuineness and source of the share capital and the identity and creditworthiness of the shareholders. The Assessing Officer (AO) issued notices under Sections 142(1) and 133(6) to verify these details, but many notices were returned undelivered, and no replies were received from others. Consequently, the AO added the entire share application money as unexplained cash credit under Section 68, which was upheld by the Commissioner of Income Tax (Appeals).

2. Compliance with Directions Under Section 263:

The assessee argued that the AO did not adhere to the specific guidelines provided by the CIT in the Section 263 order, which mandated independent inquiries from the shareholders. The AO's failure to follow these directions led to treating the share application money as non-genuine. The assessee cited the Supreme Court's decision in Tin Box Company vs. CIT, emphasizing the necessity of providing a proper opportunity of being heard before making an assessment. The Department Representative (DR) countered that the assessee was aware of the revisional order and should have provided all evidence to substantiate the identity, genuineness, and creditworthiness of the share subscribers.

3. Opportunity to Produce Additional Evidence:

The assessee contended that it was not permitted to produce relevant documents and evidence during the hearing before the Commissioner of Income Tax (Appeals), resulting in a bad appellate order for lack of opportunity and proper hearing. The tribunal noted that similar cases had upheld the CIT's revisional jurisdiction under Section 263, and the shareholders had responded during the original reassessment proceedings. The AO's adverse inference due to non-appearance of the assessee's directors led to a best judgment assessment under Section 144, and the Commissioner of Income Tax (Appeals) also passed an ex parte order.

4. Charging of Interest Under Sections 234A/B/C/D:

The issue of charging interest under Sections 234A/B/C/D was deemed consequential and did not require specific adjudication.

Conclusion:

The tribunal found that the AO did not follow the CIT's directions under Section 263 to conduct independent inquiries and verify the genuineness and creditworthiness of the shareholders. Citing the Delhi High Court's decision in CIT vs. Jansampark Advertising & Marketing Pvt Ltd, the tribunal emphasized the need for a detailed inquiry. Consequently, the tribunal remanded the matter back to the AO for a de novo assessment, adhering to the CIT's guidelines and providing the assessee with a proper opportunity of being heard. The appeal was allowed for statistical purposes.

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