2018 (4) TMI 379 - AT - Income Tax

Addition u/s 68 - Held that - There exists material to implicate the assessee in a collusive arrangement with person who are self-confessed accommodation entry providers. In the present case, there is no such material to implicate the assessee and as such this judgment nowhere supports the case of the Revenue. In view of the above facts and our findings, we hold that the assessee has fully discharged its onus under Section 68 and accordingly direct the AO to delete the addition.

Issues Involved:
1. Legality of the addition of ?86,00,000/- on account of share application money.
2. Validity of the rejection of the explanation and evidences provided by the assessee to prove the identity, creditworthiness, and genuineness of the shareholders.
3. Justification for the adverse inference drawn by the AO due to non-receipt of replies from shareholders.
4. Evaluation of the CIT(A)'s reliance on certain judgments to confirm the addition.

Issue-wise Detailed Analysis:

1. Legality of the Addition of ?86,00,000/- on Account of Share Application Money:
The primary issue in this appeal is the addition of ?86,00,000/- made by the AO, which was confirmed by the CIT(A), relating to the share capital received from four shareholders. The assessee had raised a total share capital of ?3,26,00,000/- from 19 shareholders during the year and provided detailed information about each shareholder. Despite the submission of comprehensive details and supporting evidence, the AO added ?86,00,000/- to the assessee's income, citing non-receipt of replies from four shareholders.

2. Validity of the Rejection of Explanation and Evidence Provided by the Assessee:
The assessee submitted complete details including names, addresses, PANs, confirmations, bank statements, share application forms, income tax returns, and audited balance sheets for each shareholder. The AO conducted an independent enquiry and issued notices under Section 133(6) to all shareholders. The AO received replies from 15 shareholders but claimed not to have received replies from four shareholders, leading to the addition of ?86,00,000/-. The assessee argued that the AO's allegation of non-receipt of replies was incorrect and presented evidence of replies from the four shareholders.

3. Justification for the Adverse Inference Drawn by the AO:
The AO's adverse inference was solely based on the alleged non-receipt of replies from four shareholders. However, the assessee provided evidence that replies were indeed submitted. The Tribunal noted that the AO did not point out any other adverse material or discrepancies in the evidence provided. The Tribunal emphasized that non-receipt of replies alone cannot justify an adverse inference against the assessee, especially when notices were served, and no adverse material was found.

4. Evaluation of the CIT(A)'s Reliance on Certain Judgments:
The CIT(A) confirmed the addition, citing judgments such as McDowell & Company Ltd. vs. CTO and CIT vs. Durga Prasad More. However, the Tribunal found these judgments inapplicable as there was no allegation of accommodation entries or adverse statements from entry operators regarding the share capital received. The Tribunal referred to various judgments, including CIT vs. Lovely Exports Pvt. Ltd. and CIT vs. Orissa Corporation Pvt. Ltd., which supported the assessee's case. The Tribunal concluded that the CIT(A)'s reliance on these judgments was misplaced and that the addition was based on surmises and doubts without substantial evidence.

Conclusion:
The Tribunal held that the assessee had discharged its onus under Section 68 by providing sufficient evidence to establish the identity, creditworthiness, and genuineness of the shareholders. The AO's adverse inference based on non-receipt of replies was unjustified, and the CIT(A)'s confirmation of the addition was based on incorrect reliance on certain judgments. The Tribunal directed the AO to delete the addition of ?86,00,000/- and allowed the appeal in favor of the assessee.

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