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2020 (12) TMI 768 - AT - Income TaxUnexplained cash credit u/s. 68 - addition in respect of the Share Capital and Share Premium - Identity of the Investor, Creditworthiness of the investor AND Genuineness of the transactions proved or not? - HELD THAT - The assessee has furnished the address, PAN, Certificate of incorporation, MOA AOA of the subscribers who subscribe the shares. To prove the credit-worthiness the assessee has given the certificate source of fund, Balance sheet, Profit Loss Account and Return of income of share applicants. The investor companies have positive net worth and only invested 1.6% and 1.2% of their net worth. The assessee submitted Form of application of shares, Photocopy of the cheque receipt towards the share application, photo copy of the bank deposit slip reflecting the deposit of the above cheque, extract of Bank Statement of all subscribers duly highlighting the entries of share money and premium money given by them to the appellant company along with copy of board resolution, resolving the decision of investment into appellant company. To prove the genuineness of the transaction the assessee produced the confirmation, bank statement, financial of the lender. Nothing came into noticed that the transaction were found bogus. Retracted statement of Shri Rajesh Agarwal was not liable to be relied upon the unless corroborated by the sufficient evidence on record. Moreover no opportunity of being heard was given to the assessee - As relying on M/S. BINI BUILDERS PVT. LTD. VERSUS DCIT-CENTRAL RANGE-7 (3) , MUMBAI 2020 (3) TMI 595 - ITAT MUMBAI issue decided in favour of assessee.
Issues Involved:
1. Reopening of the case under Section 148. 2. Assessment order passed under Section 143(3). 3. Addition of Share Capital and Share Premium as unexplained cash credit under Section 68. 4. Non-permission of partly business loss. 5. Initiation of penalty proceedings under Section 274 read with Section 271(1)(c). 6. Fresh calculations of interest under Sections 234A, 234B, and 234C. Detailed Analysis: Issue Nos. 1 & 2: These issues pertain to the reopening of the case under Section 148 and the assessment order passed under Section 143(3). The assessee did not press these issues, and therefore, they were decided in favor of the revenue. Issue No. 3: The primary contention here was the addition of ?50,00,000 as unexplained cash credit under Section 68. The assessee argued that the case was similar to its sister concern, M/s. Bini Builders Pvt. Ltd., where the ITAT had ruled in favor of the assessee. The ITAT reviewed the documentary evidence provided by the assessee, including share application forms, bank statements, financial statements, and other relevant documents. The tribunal found that the assessee had successfully discharged the onus of proving the identity, creditworthiness, and genuineness of the transactions. The tribunal noted that the sole basis for the addition was a retracted statement, which lacked corroborative evidence. The tribunal relied on several judicial precedents, including CIT Vs. Lovely Exports Pvt. Ltd. and PCIT Vs. Himachal Fibers Ltd., to conclude that the addition under Section 68 was not justified. Consequently, the tribunal set aside the CIT(A)'s finding on this issue and decided in favor of the assessee. Issue No. 4: This issue concerned the non-permission of partly business loss. The assessee did not press this issue, and it was decided in favor of the revenue. Issue No. 5: This issue pertained to the initiation of penalty proceedings under Section 274 read with Section 271(1)(c). The assessee did not press this issue, and it was decided in favor of the revenue. Issue No. 6: This issue involved fresh calculations of interest under Sections 234A, 234B, and 234C. The tribunal noted that this issue was consequential in nature and did not require specific adjudication. ITA No. 626/M/2019: The facts of this case were similar to ITA No. 625/M/2019, with different figures. The tribunal applied the same findings as in ITA No. 625/M/2019 and partly allowed the claim of the assessee. Conclusion: The appeals filed by the assessee were partly allowed. The tribunal ruled in favor of the assessee on the issue of unexplained cash credit under Section 68, while the other issues were decided in favor of the revenue or deemed consequential. The order was pronounced in the open court on 04/12/2020.
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