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2018 (10) TMI 1087 - AT - Income TaxReopening of assessment - non recording of reasons properly - addition u/s 68 - reopening beyond four years from the end of relevant assessment year - Held that - In the instant case there are no enquiries which have been confronted to the assessee despite specific request and as such, there is no material which could enable the learned Assessing Officer to form an opinion that income of assessee has escaped assessment so as to allege that share capital represented accommodation entries. Infact in the case of Pratibha Finvest (P) Ltd. v. ITO 2012 (12) TMI 575 - DELHI HIGH COURT assessee has not even requested for reasons recorded during the course of assessment proceedings; and therefore, the facts of the case of assessee are totally distinguishable. Lastly, so far as the judgment in the case of Raymond Woolen Mills Ltd. vs. ITO 1997 (12) TMI 12 - SUPREME COURT held that correctness of material is not a thing which can be considered at the stage of assumption of jurisdiction under section 147 of the Act. There is no dispute to the aforesaid proposition and however on the facts of the case, there is no tangible material and therefore, action u/s. 148 of the Act is invalid. Thus the notice issued u/s 148 of the Act was held invalid and therefore, I confirm the action of the Ld. CIT(A) in treating the assessment order passed u/s. 147 r.w.s. 143(3) of the Act as ab-initio-void and reject the ground raised by the revenue. Even on merits, it is noted that the issue is squarely covered by order of the Tribunal in the case of ACIT vs. M/s. Kapis Impex Pvt. Ltd. 2018 (3) TMI 1607 - ITAT DELHI - no enquiries whatsoever have been made by the Assessing Officer by deputing Inspector or directing the assessee to produce shareholders. All what has happened is that summons under section 133(6) of the Act which was complied with by one shareholder and in the other case summon stood served. The conclusion of the learned CIT(A) to delete the addition by holding that once shareholders do exist, have their own independent identity, source of income, maintain books of accounts, carry on their business and earn income from investments not only in assessee but also shares of other companies, then the inevitable conclusion is that they are not paper companies is upheld and the addition in dispute is deleted. - Decided in favour of assessee
Issues Involved:
1. Assumption of jurisdiction under Section 147 of the Income Tax Act. 2. Deletion of addition of ?40,00,000/- under Section 68 of the Income Tax Act. 3. Onus under Section 68 to prove identity, creditworthiness, and genuineness of transactions. 4. Validity of the CIT(A)’s order on both legal and factual grounds. Issue-wise Detailed Analysis: 1. Assumption of Jurisdiction under Section 147: The Revenue contended that the jurisdiction under Section 147 was properly assumed based on credible and specific information from the investigation wing indicating that the assessee had received bogus share capital from paper entities. The Assessing Officer (AO) recorded reasons and obtained necessary approval from the competent authority before reopening the case under Section 148. However, the CIT(A) held that the assumption of jurisdiction was improper due to the lack of incriminating material and that the AO did not independently verify the information, merely accepting it mechanically. The Tribunal upheld the CIT(A)’s decision, citing various judgments, including Pr. CIT v. G&G Pharma India (P) Ltd. and Sarthak Securities Co. (P) Ltd. v. ITO, which emphasize the necessity of the AO applying their mind to the material before forming a belief that income had escaped assessment. 2. Deletion of Addition of ?40,00,000/- under Section 68: The Revenue argued that the CIT(A) erred in deleting the addition of ?40,00,000/- made by the AO on account of unexplained cash credit under Section 68. The AO had added this amount, alleging that the assessee failed to prove the creditworthiness and genuineness of the parties. The CIT(A) found that the assessee had provided substantial documentary evidence, including confirmations, financial statements, and bank statements, to establish the identity and creditworthiness of the shareholders. The Tribunal agreed with the CIT(A), noting that the AO did not conduct any inquiry into the documentary evidence provided by the assessee and relied on statements not confronted to the assessee, which could not be used against them without cross-examination. 3. Onus under Section 68: The Revenue claimed that the assessee failed to discharge the onus under Section 68 to prove the identity, creditworthiness, and genuineness of the transactions. The CIT(A) concluded that the assessee had provided sufficient evidence to discharge this onus, including confirmations from the shareholders, bank statements, and financial documents. The Tribunal supported this conclusion, emphasizing that the AO did not make any independent inquiries to rebut the evidence provided by the assessee. The Tribunal referenced the Supreme Court’s decision in CIT v. Lovely Exports (P) Ltd., which held that if the share capital money is received from alleged bogus shareholders whose names are provided to the AO, the Department is free to reopen their individual assessments but cannot treat it as undisclosed income of the assessee company. 4. Validity of the CIT(A)’s Order: The Revenue contended that the CIT(A)’s order was erroneous and not tenable in law and on facts. The Tribunal, however, upheld the CIT(A)’s order, finding no factual inaccuracies and agreeing with the CIT(A)’s reasoning that the AO did not apply their mind independently and mechanically accepted the information from the investigation wing. The Tribunal also noted that the CIT(A) correctly held that the AO’s assumption of jurisdiction was invalid and that the assessment order was ab-initio void. The Tribunal dismissed the Revenue’s appeal, affirming the CIT(A)’s deletion of the addition and the invalidation of the reopening of the assessment. Conclusion: The Tribunal dismissed the Revenue’s appeal, upholding the CIT(A)’s order that invalidated the reopening of the assessment under Section 147 and deleted the addition of ?40,00,000/- under Section 68. The Tribunal emphasized the necessity of the AO applying their mind to the material before forming a belief that income had escaped assessment and found that the assessee had sufficiently discharged the onus to prove the identity, creditworthiness, and genuineness of the transactions.
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