2021 (1) TMI 728 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - as per revenue large amount of share premium gives rise to suspicion on the genuineness (identity) of the shareholders i.e. they are bogus - HELD THAT - Assessee has given all the necessary details required for establishment of identity creditworthiness and genuineness under extant provisions of section 68 of the IT Act. The onus cast upon the assessee stands discharged. The addition by invoking amended provisions of section 68 of the Act which are not applicable for the assessment year is not sustainable. The decisions relied upon by the Revenue are not applicable on the facts of this case. Hence in our considered opinion the addition under section 68 is not sustainable. Hence we set aside the orders of authorities below and delete the addition - Decided in favour of assessee.

Issues Involved:
1. Re-opening and Re-assessment
2. Invalid Proceedings
3. Addition on account of Cash Credits under Section 68 of ? 1,40,00,000/-

Issue-wise Detailed Analysis:

I. Re-opening and Re-assessment:

The assessee contested the re-opening of the completed assessment, arguing that it was done without a valid reason to believe that income had escaped assessment and without proper application of mind. The re-opening was based on information from the ADIT (Inv.), Unit 7(4). The assessee argued that the CIT(A) did not have any information nor applied their mind to the alleged information, violating provisions of law and natural justice. The assessee prayed for the re-opening and consequent re-assessment to be held as bad-in-law and the re-assessment order to be quashed.

II. Invalid Proceedings:

The assessee argued that the reassessment proceedings were invalid as they were initiated in the names of amalgamating companies that had ceased to exist due to amalgamation with the appellant. The amalgamation was effective from 20.03.2015 under a High Court order dated 04.04.2014, much before the date of recording reasons and issue of notice u/s. 148 dated 31.03.2016. The assessee claimed that these proceedings were in gross violation of the law and natural justice, and the defects could not be cured. The assessee prayed for the order to be held without jurisdiction and bad in law, and to be quashed.

III. Addition on account of Cash Credits under Section 68 of ? 1,40,00,000/-:

The CIT(A) upheld the AO's addition of ? 1,40,00,000/- under Section 68, based on unsubstantiated allegations without proper inquiry. The assessee argued that the amounts received towards share capital were genuine and fully substantiated. The assessee provided extensive documentation to establish the identity, creditworthiness, and genuineness of the transactions, including details of share capital received, ledger accounts, ROC filings, board resolutions, confirmations from shareholders, bank statements, and audited financials. The assessee contended that the amended provisions of Section 68, applicable from 01.04.2013, were applied retrospectively, which was incorrect.

Judgment Analysis:

1. Re-opening and Re-assessment:

The Tribunal noted that the re-opening was based on information from a search action on Shri Vipul Vidur Bhatt, an entry operator. The re-opening was done in the names of non-existent companies due to amalgamation, rendering the assessment a nullity as per the Supreme Court decision in Maruti Suzuki India Ltd. The Tribunal found that the assessee had provided all necessary details to establish the identity, creditworthiness, and genuineness of the transactions.

2. Invalid Proceedings:

The Tribunal agreed with the assessee that the reassessment proceedings were invalid as they were initiated in the names of non-existent amalgamating companies. The Tribunal referred to the Supreme Court decision in Maruti Suzuki India Ltd., which held that assessments pursuant to notices on non-existent companies are nullities.

3. Addition on account of Cash Credits under Section 68 of ? 1,40,00,000/-:

The Tribunal found that the assessee had discharged its onus by providing extensive documentation to establish the identity, creditworthiness, and genuineness of the transactions. The Tribunal noted that the amended provisions of Section 68 were not applicable retrospectively as per the Bombay High Court decision in Gagandeep Infrastructure Pvt. Ltd. The Tribunal also highlighted that the AO's reliance on the statement of the entry operator, which was retracted, and the lack of independent inquiry, rendered the addition unsustainable. The Tribunal referred to several case laws, including CIT Vs. Orchid Industries Pvt. Ltd. and CIT Vs. Apeak Infotech, which supported the assessee's case.

Conclusion:

The Tribunal set aside the orders of the authorities below and deleted the addition of ? 1,40,00,000/- under Section 68. The Tribunal's decision applied mutatis mutandis to the assessment year 2010-11. The Tribunal did not engage in the adjudication of jurisdictional challenges and validity of re-opening after four years, as the addition on merits was already deleted. The appeals by the assessee were partly allowed.

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