2021 (2) TMI 182 - AT - Income Tax

Revision u/s 263 - Addition u/s 68 - HELD THAT - CIT(A) in his order was wrong in presuming that the AO had passed his order u/s 143(3) of the Act as a consequence to the order passed u/s 263 of the Act by the Pr. CIT. This is not a case where the Pr. CIT has passed any order u/s 263 of the Act. This wrong presumption in our view influenced the decision of the ld. CIT(A). There are five shareholders in this case. The documents and evidences that were filed by the assessee in support of the transaction are given at page 2 of the AO s order. Copies of the same are fled before us by way of a paper book. The identity of the investor companies stand proved. As far as the justification for the question of share premium is concerned, the assessee has furnished a share valuation certificate. The AO has not pointed out any infirmities or errors in this share valuation certificate. He has not rejected any of the documents filed by the assessee. Thus the share premium charged is justified in this case. The assessments of the share subscriber companies have been completed by the Income Tax Department u/s 143(3) of the Act. When the assessments of the share applicant companies are completed u/s 143(3) of the Act, the identity of the shareholder companies cannot be doubted. When the share applicant companies who have invested in the share capital of the assessee company, and when their respective assessments are completed u/s 143(3) of the Act, no addition can be made in the hands of the assessee company u/s 68 - See M/S. C.P RE-ROLLERS LTD. VERSUS D.C.I.T, CIR-1, DURGAPUR 2019 (4) TMI 557 - ITAT KOLKATA We hold that the assessee in this case has proved the identity and creditworthiness of the share applicant companies and the genuineness of the transaction. The Revenue has not brought out any contrary evidence on record. Under these circumstances, we delete the addition made u/s 68 of the Act and allow the appeal of the assessee.

Issues Involved:
1. Validity of the addition of ?1,25,00,000/- to the assessee's income under Section 68 of the Income Tax Act, 1961.
2. Compliance with principles of natural justice during the assessment process.
3. Evaluation of identity and creditworthiness of the share applicant companies and the genuineness of the transaction.

Issue-wise Detailed Analysis:

1. Validity of the Addition of ?1,25,00,000/-:
The assessee filed its return of income declaring ?62,736/-, but the Assessing Officer (AO) completed the assessment under Section 143(3) of the Income Tax Act, 1961, determining the total income at ?1,25,62,740/- by making an addition of ?1,25,00,000/- for share capital received at a premium. The AO's addition was based on the failure of the assessee to produce the principal officers and directors of the investor companies to verify the identity and creditworthiness of the shareholders and the genuineness of the transaction. Despite the assessee providing various documents supporting the genuineness of the share capital received, the AO rejected these submissions.

2. Compliance with Principles of Natural Justice:
The assessee argued that it had furnished all required documents and that the summons issued by the AO provided only two days' notice for attendance, which was insufficient for the directors to appear. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's order, but the Tribunal noted that there was a violation of principles of natural justice as sufficient time was not granted to the assessee. Consequently, the Departmental Representative suggested that the appeal be restored to the file of the AO for fresh adjudication, ensuring compliance with the principles of natural justice.

3. Evaluation of Identity and Creditworthiness of the Share Applicant Companies and the Genuineness of the Transaction:
The Tribunal observed that the CIT(A) wrongly presumed that the AO's order was a consequence of an order passed under Section 263 by the Principal Commissioner of Income Tax (Pr. CIT), which influenced the decision. The Tribunal found that the identity of the investor companies was proven through various documents, including share application forms, bank statements, and audited accounts. The creditworthiness of the share applicant companies was evident from their financials, showing substantial investible funds relative to the amounts invested in the assessee company.

Regarding the share premium, the assessee furnished a share valuation certificate, and the AO did not identify any errors in this certificate. Additionally, the assessments of the share subscriber companies were completed under Section 143(3) of the Act, confirming their identity and creditworthiness. The Tribunal cited several case laws supporting that when the assessments of share applicant companies are completed under Section 143(3), their identity and creditworthiness cannot be doubted, and no addition can be made in the assessee company's hands under Section 68.

The Tribunal referenced similar cases where additions under Section 68 were deleted due to the genuineness of the transactions being established through documentary evidence and compliance with legal requirements. In conclusion, the Tribunal held that the assessee had proven the identity and creditworthiness of the share applicant companies and the genuineness of the transaction. The Revenue did not provide any contrary evidence. Therefore, the addition made under Section 68 was deleted, and the appeal of the assessee was allowed.

Conclusion:
The Tribunal allowed the appeal of the assessee, deleting the addition of ?1,25,00,000/- made under Section 68 of the Income Tax Act, 1961, and emphasized the importance of compliance with principles of natural justice and proper evaluation of documentary evidence supporting the identity, creditworthiness, and genuineness of the transactions.

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