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2019 (3) TMI 471 - AT - Income TaxUnexplained cash credit u/s 68 - share capital and share premium received by the assessee - high premium charged by the assessee - HELD THAT - AO had lost sight of the fact that high premium charged by the assessee cannot be a ground for making the addition, because what section 68 of the Act, pre-supposes to charge to the Income Tax, is the sum found to be credited in the books of the asseseee if, (i) the nature and source of the same is not explained by the assessee, (ii) the explanation offered by the assessee is not found satisfactory by the AO. From the records, we observed that assessee had duly proved the above ingredients. Moreover, in the present case, the share premium was paid by two parties but the addition was made only in respect of one concern. Thus it can be concluded that AO had accepted the receipt of share premium in case of other concern. Assessee has discharged its onus by adequately disclosing the transaction in its books of accounts, filing statutory forms as regards allotment of shares, providing name, address and PAN of the shareholders, etc. the assessee has sufficiently discharged the onus cast upon it for the purpose of section 68 of the Act and no addition can be made on this account. CIT(A) had passed a detailed order while relying upon various judgments cited by the parties and also considering the principles laid down in the case of Lovely Exports Pvt. Ltd. 2008 (1) TMI 575 - SUPREME COURT OF INDIA and moreover, no new facts have been brought on record before us in order to controvert or rebut the findings so recorded by CIT (A). Therefore, there are no reasons for us to interfere into or deviate from - Decided in favour of assessee.
Issues Involved:
1. Deletion of ?3 crore as unexplained cash credit. 2. Onus of proving creditworthiness and genuineness of the transaction. 3. Procedure followed by CIT(A) in deleting the addition. Issue-wise Detailed Analysis: 1. Deletion of ?3 crore as unexplained cash credit: The revenue challenged the deletion of ?3 crore as unexplained cash credit related to share capital and share premium received from M/s BEPL, arguing that BEPL was not creditworthy. The assessee contended that BEPL had substantial investments and provided all necessary documents to prove its creditworthiness. The CIT(A) noted that BEPL had share capital and reserves of ?35.30 crores and made investments in various companies amounting to ?42.85 crores, including the investment in the assessee company. The Tribunal upheld the CIT(A)'s decision, stating that the identity, creditworthiness, and genuineness of the transaction were established, and any doubts regarding BEPL's funds should be addressed in BEPL's assessment, not the assessee's. 2. Onus of proving creditworthiness and genuineness of the transaction: The revenue argued that the assessee failed to prove the creditworthiness and genuineness of the transaction as the Principal Officer of BEPL was not produced. The assessee provided BEPL's audited accounts, bank statements, and other relevant documents. The CIT(A) found that the assessee had discharged its onus by providing sufficient evidence, and the burden shifted to the AO to prove that the amount received was the assessee's income. The Tribunal agreed, emphasizing that the AO did not issue a summons to BEPL under section 131 or call for further details, and the transaction was confirmed through banking channels. 3. Procedure followed by CIT(A) in deleting the addition: The revenue contended that the CIT(A) did not conduct an inquiry as required under section 250 before deciding the issue. The CIT(A) evaluated the evidence and found that the AO's conclusion about BEPL's creditworthiness was based on insufficient grounds. The Tribunal supported the CIT(A)'s approach, highlighting that the AO accepted the share premium received from another concern, SBPL, under similar circumstances, indicating inconsistency in the AO's treatment of identical transactions. Conclusion: The Tribunal upheld the CIT(A)'s decision to delete the addition of ?3 crore as unexplained cash credit, confirming that the assessee had proved the identity, creditworthiness, and genuineness of the transaction. The Tribunal dismissed the revenue's appeal and the assessee's cross-objection, finding no reason to interfere with the CIT(A)'s well-reasoned and judicious findings. Order Pronounced: The order was pronounced in the open court on 1st March, 2019.
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