2019 (2) TMI 513 - AT - Income Tax

Unexplained cash credit addition u/s 68 - share application money - explanation to nature and source of credit found in assessee s books - Held that - In this case on hand, the assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the share applicants, thereafter the onus shifted to AO to disprove the documents furnished by assessee cannot be brushed aside by the AO to draw adverse view cannot be countenanced. In the absence of any investigation, much less gathering of evidence by the Assessing Officer, we hold that an addition cannot be sustained merely based on inferences drawn by circumstance. Applying the propositions laid down in these case laws to the facts of this case, we are inclined to uphold the order of the Ld. Commissioner of Income Tax (Appeals) Section 68 of the Act provides that if any sum found credited in the year in respect of which the assessee fails to explain the nature and source shall be assessed as its undisclosed income. In the facts of the present case, both the nature & source of the share application received was fully explained by the assessee. The assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the share applicants. The PAN details, bank account statements, audited financial statements and Income Tax acknowledgments were placed on AO s record. Accordingly all the three conditions as required u/s. 68 of the Act i.e. the identity, creditworthiness and genuineness of the transaction was placed before the AO and the onus shifted to AO to disprove the materials placed before him. Without doing so, the addition made by the AO is based on conjectures and surmises cannot be justified. No addition was warranted under Section 68 - Decided in favour of assessee

Summary

Issues Involved:
1. Non-issuance of notice under Section 143(2) of the Income-tax Act, 1961.
2. Jurisdictional validity of the notice issued by ITO, Ward-38(1), Kolkata.
3. Addition of share application money under Section 68 of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Non-issuance of Notice under Section 143(2):
The assessee contended that no notice under Section 143(2) of the Income-tax Act, 1961 was issued by the ITO, Ward-5(1), Kolkata, who framed the assessment order. The notice was issued by ITO, Ward-38(1), Kolkata, which was without jurisdiction. The assessment order framed without issuing a notice under Section 143(2) by the appropriate authority was argued to be null and void. The Tribunal noted that the assessment records needed to be examined to resolve this issue, but the assessee had a strong case on merits as decided by the CIT(A).

2. Jurisdictional Validity of the Notice:
The notice under Section 143(2) was issued by ITO, Ward-38(1), Kolkata, who did not have jurisdiction over the assessee. The case was later transferred to ITO, Ward-5(1), Kolkata, who issued a notice under Section 142(1) after the time limit for issuing a notice under Section 143(2) had elapsed. The Tribunal observed that the transfer of jurisdiction was not communicated to the assessee, and no notice under Section 127 of the Act was received by the assessee. The Tribunal emphasized the need to examine the assessment records to determine the validity of the notice issued.

3. Addition of Share Application Money under Section 68:
The AO added the entire share application money of ?2.92 crores under Section 68 of the Act, doubting the genuineness of the transaction. The CIT(A) deleted the addition, and the Revenue appealed against this decision. The Tribunal analyzed the evidence provided by the assessee, including income tax returns, certificates of incorporation, audited accounts, share application forms, bank statements, and confirmations from the share subscribers.

The Tribunal referred to various judicial precedents, including the Supreme Court and High Court rulings, which emphasized that the onus of proving the identity, creditworthiness, and genuineness of the transactions lies with the assessee. Once the assessee discharges this onus, the burden shifts to the AO to disprove the evidence provided. The Tribunal noted that the AO failed to conduct proper inquiries and relied on mere assumptions. The Tribunal upheld the CIT(A)'s decision, stating that the assessee had successfully discharged its onus, and the AO's addition was based on conjectures and surmises.

Conclusion:
The Tribunal dismissed the Revenue's appeal and upheld the CIT(A)'s decision to delete the addition made under Section 68 of the Act. The Tribunal emphasized the importance of proper issuance and jurisdiction of notices under Section 143(2) and the need for the AO to conduct thorough inquiries before making additions under Section 68. The assessee's cross-objection was dismissed as it was supportive in nature.