2018 (12) TMI 575 - AT - Income Tax

Revision u/s 263 - addition u/s 68 - genuineness of the share capital received by the assessee from the Mauritian company - Held that - We agree with the assessee, that the credit standing in the name of the investor who is a non resident, the onus to explain the source of the source did not lay with the assessee, as per section 68. AO on being satisfied with the genuineness of the transaction, being carried out through banking channels, was not required to inquire into the source of the source and therefore the inquiry could not be said to be inadequate on this count. We hold that the satisfaction of the AO regarding the genuineness of the share capital received by the assessee from the Mauritian company was reasonable considering the documents filed and more importantly considering the fact that on the basis of identical documentation the I.T.A.T. had held identical transaction to be genuine in the case of a company which the assessee company was subsequently was amalgamated with. CIT has not pointed out why any further enquiry was required to be made. It is not a case where any infirmity has been pointed out in the documents submitted by the assessee or for that matter, the huge share premium has not been justified. If that be the case then of course, the satisfaction of the Assessing Officer could not said to be reasonable and definitely in such a case the enquiry of the AO would have been clearly deficient. That exactly is the fact and situation in which the Hon ble Apex Court and various other courts have upheld the order passed u/s 263 of the Pr. CIT in various cases cited by the Revenue before us. But in the present case, the identity, the genuineness and even the share premium received has been established and justified. No reason remains for doubting the transaction. CIT has rested his case for more inquiry in the matter, merely on the basis of suspicion that the transaction may be tainted. This we hold, cannot be the basis for holding the enquiry conducted by the AO as insufficient and the order consequently passed as erroneous for the purpose of assuming jurisdiction u/s 263 of the Act. - Decided in favour of assessee.

Issues Involved:

1. Legitimacy of the order passed under Section 263 of the Income Tax Act, 1961.
2. Adequacy of the Assessing Officer's (AO) inquiry into the share premium received by the assessee.
3. Application of Explanation 2 to Section 263 of the Act.
4. Requirement to explain the source of the source of investment by a non-resident company.

Issue-wise Detailed Analysis:

1. Legitimacy of the order passed under Section 263 of the Income Tax Act, 1961:

The appeal was filed against the order passed by the Principal Commissioner of Income Tax (Pr.CIT) under Section 263 of the Income Tax Act, 1961, which deemed the assessment order dated 05.05.2015 as erroneous and prejudicial to the interest of the Revenue. The Pr.CIT's contention was that the AO failed to make proper inquiries regarding the share capital and share premium received from a Mauritian company, Pacatolus SPV5.

2. Adequacy of the Assessing Officer's (AO) inquiry into the share premium received by the assessee:

The AO conducted inquiries and obtained various documents from the assessee, including the name and address of the investor, mode of receipt of share capital and share premium, Form No. 2 filed with ROC, share certificates, FIRC issued by HSBC Mumbai, FCGPR submitted to RBI, certificate of incorporation of the investor company, and Tax Residency Certificate issued by Mauritius revenue authority. Despite these submissions, the Pr.CIT held that the AO did not verify the credibility of the investor company or its existence at the provided address. The Tribunal noted that the AO had conducted adequate inquiries and that the documents provided sufficiently established the genuineness of the transaction.

3. Application of Explanation 2 to Section 263 of the Act:

The Pr.CIT invoked Explanation 2 to Section 263, deeming the assessment order erroneous and prejudicial to the interest of the Revenue due to inadequate inquiries. However, the Tribunal found that the AO had conducted necessary inquiries and that the Pr.CIT had not conducted any further inquiries to establish that the AO's order was unsustainable. The Tribunal referenced case laws, including Narayan Tatu Rane vs Income Tax Officer, which held that Explanation 2 does not override the requirement for the Pr.CIT to conduct inquiries before deeming an order erroneous.

4. Requirement to explain the source of the source of investment by a non-resident company:

The Tribunal noted that as per the amended provisions of Section 68, the assessee was not required to explain the source of the source of investment received from a non-resident company. The AO's satisfaction with the genuineness of the transaction, based on banking channels and other documentation, was deemed reasonable. The Tribunal held that the Pr.CIT's suspicion of the transaction being tainted was not a sufficient basis for holding the AO's inquiry as inadequate.

Conclusion:

The Tribunal set aside the order of the Pr.CIT, holding that the AO had conducted adequate inquiries and that the documents provided by the assessee sufficiently established the genuineness of the share capital received. The appeal of the assessee was allowed.

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