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2020 (4) TMI 90 - AT - Income TaxAddition u/s 68 on account of Share Application - onus to prove - HELD THAT - In the present case the shareholder directors were existing and have also responded and participated in the reassessment proceedings initiated against them. They have admitted to them having invested in Share Capital of the assessee Company. Neither the AO of assessee company nor the AO of the Directors have alleged that the source of Share Capital was from assessee Company. None of them have doubted the FIRC s submitted by the assessee and the directors. The Assessee has filed all relevant evidences proving the identities and the credit worthiness of the Directors which also have not been doubted by the AO. AO has not appreciated that the return of income filed by the Directors will only include incomes from sources in India considering that their residential status is that of a Non-resident . Moreover, the CA certificate filed has also been rejected by the AO on whimsical grounds without bringing on record facts to objectively disbelieve the same. We also note that the ratio laid down by the Hon ble Apex Court in NRA s case (supra) on the contrary supports the case of assessee. In the present case, undisputedly, the enquiry conducted by the AO has not unearthed anything negative so as to disbelieve the evidences furnished by the assessee in support of genuineness, identity and credit worthiness of the shareholders directors. Under the circumstances, we are of the considered view that the order of the Ld CIT (A) is correct and needs no interference. Accordingly we dismiss the grounds raised by revenue by upholding the order of Ld CIT (A). - Decided against revenue.
Issues Involved:
1. Addition under Section 68 of the Income Tax Act regarding unexplained Share Application Money. 2. Creditworthiness and identity of the Directors who provided the Share Application Money. 3. Genuineness of the foreign remittances received by the assessee company. Issue-wise Detailed Analysis: 1. Addition under Section 68 of the Income Tax Act regarding unexplained Share Application Money: The Assessing Officer (AO) assessed the total income of the assessee company at ?38,34,11,034/- after making an addition of ?38,33,03,071/- under Section 68 of the Income Tax Act, 1961, on account of Share Application Money received from its Directors. The AO concluded that the assessee had not proved the creditworthiness of the Directors and treated the share application money as income under Section 68, citing various judicial pronouncements. 2. Creditworthiness and identity of the Directors who provided the Share Application Money: During the assessment proceedings, the assessee provided confirmations from the Directors, bank details, confirmation letters, copies of their Income Tax Returns, and copies of their passports. Despite these submissions, the AO doubted the creditworthiness of the Directors based on their income tax returns, which showed relatively low incomes compared to the amounts remitted. The AO held that the assessee failed to prove the creditworthiness of the Directors. 3. Genuineness of the foreign remittances received by the assessee company: The AO noted that the share application money was received through foreign remittances, but doubted the genuineness of these transactions. The AO observed that the remittances were received from abroad and were credited to the assessee's bank account. However, the AO did not conduct any independent inquiry to disbelieve the evidences submitted by the assessee. Appellate Findings: The Commissioner of Income Tax (Appeals) [CIT (A)] found merit in the submissions made by the assessee and directed the deletion of the addition. The CIT (A) observed that the identity of the shareholders was not in doubt as they were Income Tax payees and the AO had already passed on the information of the investment made by the shareholders to their respective AOs. The CIT (A) also noted that the addition was made on substantive basis in the hands of the shareholders, indicating the AO's uncertainty. The CIT (A) relied on various judicial pronouncements, including the decisions of the Supreme Court and the Delhi High Court, which held that if the identity of the shareholders is proved, the addition should be made in the hands of the shareholders and not the assessee company. Tribunal's Decision: The Income Tax Appellate Tribunal (ITAT) upheld the order of the CIT (A) and dismissed the appeal filed by the Revenue. The ITAT noted that the AO did not doubt the genuineness of the Foreign Inward Remittance Certificates (FIRCs) and that the share capital was remitted through a mode recognized by the Reserve Bank of India (RBI). The ITAT also observed that the AO did not conduct any independent inquiry to disbelieve the evidences submitted by the assessee. The ITAT found that the judgment of the Supreme Court in the case of NRA Iron & Steel Pvt. Ltd. was distinguishable on facts and supported the case of the assessee. The ITAT concluded that the AO had not unearthed anything negative to disbelieve the evidences furnished by the assessee and upheld the order of the CIT (A). Conclusion: The appeal of the Revenue was dismissed, and the addition made under Section 68 of the Income Tax Act was deleted. The ITAT held that the assessee had provided sufficient evidence to prove the identity, genuineness, and creditworthiness of the Directors who provided the share application money. The ITAT also emphasized the need for the AO to conduct an independent inquiry before making an addition under Section 68.
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