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2020 (1) TMI 776 - AT - Income TaxAdditions u/s 68 - sums received from the shareholders as share capital and share premium - Discharge of initial onus - HELD THAT - Net worth of the share applicant companies, only net worth of three companies is not available, namely, Kokila Exports, M/s Madsan Agencies P. Ltd and M/s Sudharshan Casting P Ltd. However, we find that the directors of these companies, namely, Shri Ajit Singh for Kokila Exports and Shri Vinay Kumar Shah for Madsan Agencies and Sudharshan Casting appeared before the directors in compliance to summons u/s 131 of the Act. We are of the considered view that the assessee has prima facie discharged the initial onus cast upon it successfully. Thus the assessee has successfully discharged the initial onus cast upon it by provisions of section 68 - Decided in favour of assessee.
Issues Involved:
1. Additions under Section 68 of the Income Tax Act, 1961. 2. Verification of share capital and share premium received from shareholders. 3. Creditworthiness of the investor companies. 4. Examination of documentary evidence and statements from directors. 5. Non-appearance of directors and non-service of notices. 6. Application of legal precedents and distinguishing facts from previous cases. Issue-wise Detailed Analysis: 1. Additions under Section 68 of the Income Tax Act, 1961: The primary issue was the addition of ?2.30 crores for AY 2009-10 and ?5.15 crores for AY 2010-11 under Section 68 of the Income Tax Act, 1961. The Assessing Officer (AO) added these amounts, suspecting that the sums received from shareholders as share capital and share premium were not genuine. 2. Verification of Share Capital and Share Premium: During the scrutiny assessment, the AO found that the assessee had raised significant share capital from various companies. The AO issued a questionnaire and requested confirmations, bank statements, ITRs, and balance sheets from the investor companies. Despite the submissions, the AO was not satisfied as the confirmations were not on the ledger accounts of the assessee in the books of the investor companies. 3. Creditworthiness of the Investor Companies: The AO analyzed the returned income of the investor companies and found them negligible, questioning their ability to invest such large amounts. Further, a report from the Investigation Wing indicated that many of these companies were non-existent and served as accommodation entry providers. 4. Examination of Documentary Evidence and Statements from Directors: The assessee provided extensive documentation, including bank statements, income tax returns, audited balance sheets, and resolutions from the investor companies. The AO was influenced by the statement of a dummy director, Shri Sampat Sharma, who admitted he had no knowledge of the share transactions. However, the Tribunal noted that the AO did not lift the corporate veil to identify the ultimate beneficiary of the transactions. 5. Non-appearance of Directors and Non-service of Notices: The AO noted that notices under Section 133(6) were not served, and not all directors attended the proceedings. The assessee argued that two directors were produced for verification, but the AO did not specify further dates for others. The Tribunal found that the AO did not make sufficient efforts to verify the directors' attendance. 6. Application of Legal Precedents and Distinguishing Facts from Previous Cases: The Tribunal referred to the Supreme Court's decision in the case of Lovely Exports Pvt Ltd, which held that if the identity of the shareholders is established, the burden shifts to the revenue to prove otherwise. The Tribunal distinguished the present case from NRA Iron and Steel, where the assessee failed to explain the net worth of the share applicants. Here, the assessee provided substantial evidence of the net worth and creditworthiness of the investor companies. Conclusion: The Tribunal concluded that the assessee had successfully discharged the initial burden under Section 68 by providing sufficient evidence of the identity and creditworthiness of the investor companies. The AO's reliance on suspicion and the statement of a dummy director without further investigation was insufficient to justify the additions. Consequently, the appeals were allowed, and the additions were deleted.
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