2021 (3) TMI 51 - AT - Income Tax

Addition u/s 68 - unexplained share application money - AO has made the addition on the basis that despite sending notices/summons, none of the directors of the assessee company nor the directors of the share subscribing companies appeared before him, therefore he made an addition - HELD THAT - There was no sum of money/cash was involved in the transaction of allotment of shares to M/s SKJ Coke Industries Ltd. Therefore provisions of section 68 of the Act unexplained cash credit is not attracted as held by Hon ble Madras High Court in M/s V R Global Energy Pvt. Ltd. vs. ITO 2018 (8) TMI 866 - MADRAS HIGH COURT AND JATIA INVESTMENT CO 1992 (8) TMI 16 - CALCUTTA HIGH COURT . So, looking from any angle addition u/s 68 was not factually or legally sustainable and so in the facts and circumstances as discussed above the addition was not warranted. Therefore, we do not find any infirmity in the order of Ld. CIT(A) and therefore we confirm the order of Ld. CIT(A) and do not find any merit in the revenue appeal, so, the grounds of appeal raised by the revenue are dismissed.

Issues Involved:
1. Deletion of addition under Section 68 of the Income Tax Act, 1961 on account of unexplained share application money.
2. Examination of identity, creditworthiness, and genuineness of the share subscribers.
3. Applicability of Section 68 to transactions involving barter/exchange.

Detailed Analysis:

1. Deletion of Addition under Section 68 of the Income Tax Act, 1961:
The primary issue raised by the Revenue was the deletion of an addition of ?50.30 crores made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961, on account of unexplained share application money received during the FY 2011-12. The AO had issued summons to the directors of the assessee company and the share subscribing companies to verify their identity, creditworthiness, and the genuineness of the transactions. However, the AO noted that despite repeated summons, neither the directors of the assessee company nor the directors of the share subscribing companies appeared before him. Consequently, the AO concluded that the assessee failed to substantiate the identity, creditworthiness, and genuineness of the share subscription transaction, leading to the addition of ?50.30 crores.

2. Examination of Identity, Creditworthiness, and Genuineness of the Share Subscribers:
Upon appeal, the Ld. CIT(A) called for remand reports from the AO to verify the authenticity of the documents submitted by the assessee. The remand reports confirmed that the promoters/directors of the assessee company had appeared before the AO and submitted necessary documents, including Aadhar cards, PAN cards, ITRs, balance sheets, and ledgers showing investment in shares. The Ld. CIT(A) found that the identity, creditworthiness, and genuineness of the transactions could not be disputed based on the evidence provided. The Ld. CIT(A) noted that the share subscribing company, M/s SKJ Coke Industries Ltd., had made substantial investments in the assessee company and these investments were reflected in the audited balance sheets and were assessed under Section 143(3) of the Act for AY 2012-13. The AO had not made any adverse comments about the investment made by SKJ Coke Industries Ltd.

3. Applicability of Section 68 to Transactions Involving Barter/Exchange:
The Ld. CIT(A) observed that the transactions involved the transfer of stake in M/s Jupiter Cement Industries by M/s SKJ Coke Industries Ltd. to the assessee company in lieu of shares, which constituted a barter/exchange transaction. It was held that Section 68 would not apply to such transactions. This conclusion was supported by the decision of the Hon'ble Madras High Court in the case of M/s V R Global Energy Pvt. Ltd. vs. ITO, where it was held that Section 68 does not apply to transactions where there is no actual cash involved, and the allotment of shares is in settlement of pre-existing liabilities.

Conclusion:
The Ld. CIT(A) concluded that the AO had not brought any substantial evidence to support the addition under Section 68. The identity, creditworthiness, and genuineness of the share subscribers were established through the documents submitted during the assessment and remand proceedings. The transactions were found to be genuine and within the framework of the law. Consequently, the addition of ?50.30 crores was deleted. The Tribunal upheld the Ld. CIT(A)'s decision, dismissing the revenue's appeal and confirming that the addition under Section 68 was not warranted.

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