2022 (8) TMI 744 - AT - Income Tax

Assessment u/s 153A - no justification of issuing share of Rs.10 as such huge share premium - Assessee objection was that out of share capital and share premium has been shown without any incriminating material - absence of incriminating material, on the basis of which the additions have been made - HELD THAT - We find that no such ground was taken before the Assessing Officer. It is clearly emanating from the orders of the authorities below that plethora of documents which were incriminating in nature were found during the search including that of the bogus entry operator. Hence, the claim that no incriminating material was found devoid of any merit when the AO was confronting the assessee, he never pointed any such aspect and only after considerable lapse of time, he had an afterthought and made plea before the Ld. CIT(A). The Ld. CIT(A) rightly and cogently rebutted the assessee s plea. Hence, in our considered opinion, the plea that the addition was made dehors incriminating material is devoid of merit. Addition u/s 68 - Undoubtedly money routed through bogus companies operated by entry operators. No discussion about the details of the financial aspects is available on record nor the financials of the assessee company command share premium. As usually bogus entry operator use circuitatious route of laundering unaccounted money in the garb of share capital and share premium. This is one of the classic such case, the complete absence or non-existence of the parties at the address given is a clinching testimony that these were bogus transactions. In this view of the matter, in our considered opinion, there is no infirmity in the orders of the authorities below and hence we uphold the same. Decided against assessee.

Issues Involved:
1. Legitimacy of addition under Section 153A without incriminating material.
2. Authority of the Assessing Officer under Section 153A to disturb regular assessment items without adverse material.
3. Validity of addition of share capital and share premium amounting to Rs. 3,50,00,000.
4. Discharge of onus under Section 68 by the assessee.
5. Confrontation of material gathered and inquiries conducted by the Assessing Officer.
6. Rejection of assessment order of share applicants and other materials produced by the assessee.

Detailed Analysis:

1. Legitimacy of Addition under Section 153A without Incriminating Material:
The assessee argued that the addition under Section 153A was made without any incriminating material found during the search. However, the Tribunal noted that no such ground was taken before the Assessing Officer initially. It was evident from the records that numerous documents incriminating in nature were found during the search, including those related to bogus entry operators. The Tribunal concluded that the plea of absence of incriminating material was devoid of merit.

2. Authority of the Assessing Officer under Section 153A:
The assessee contended that the Assessing Officer was not empowered under Section 153A to disturb items of regular assessment without adverse material found during the search. The Ld. CIT(A) held that the Assessing Officer is not restricted to only utilize incriminating material collected during the search operation. The Assessing Officer had used crucial documents found and seized during the search in determining the total income of the assessee, validating the impugned order.

3. Validity of Addition of Share Capital and Share Premium:
The Assessing Officer noted that the assessee had introduced fresh capital without justification for the huge share premium. The shares were issued to various parties, none of which were verifiable at the provided addresses. The assessee failed to produce complete information or any representative from the investing companies. The Tribunal upheld the addition of Rs. 3,50,00,000 as unexplained cash credits under Section 68, noting that the transactions were through bogus companies operated by entry operators.

4. Discharge of Onus under Section 68:
The assessee claimed to have discharged the onus under Section 68 by providing documents like PAN, certificate of incorporation, annual returns, audited accounts, and bank particulars. However, the Tribunal observed that the mere submission of documents was insufficient. The assessee failed to produce the directors of the investing companies for verification, and the companies were not traceable at the provided addresses. The Tribunal emphasized that the onus shifts back to the assessee if the information becomes unverifiable, which the assessee failed to discharge.

5. Confrontation of Material Gathered and Inquiries Conducted:
The assessee argued that the material gathered and inquiries conducted at their back were not properly confronted by the Assessing Officer. The Tribunal found that the Assessing Officer had confronted the assessee with the incriminating material and the assessee did not raise this issue during the assessment proceedings. The Tribunal concluded that the Assessing Officer had validly utilized the information obtained during the search.

6. Rejection of Assessment Order of Share Applicants:
The assessee contended that the assessment orders of the share applicants and other materials produced were capriciously rejected. The Tribunal noted that the Assessing Officer had valid reasons to reject the documents provided by the assessee as the investing companies were found to be non-existent or paper companies. The Tribunal upheld the rejection of the assessment order of the share applicants, affirming the addition made by the Assessing Officer.

Conclusion:
The Tribunal dismissed the appeal of the assessee, upholding the addition of Rs. 3,50,00,000 under Section 68 as unexplained cash credits. The Tribunal found no merit in the assessee's arguments regarding the absence of incriminating material, the authority of the Assessing Officer under Section 153A, the discharge of onus under Section 68, and the rejection of the assessment order of share applicants.

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