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2023 (1) TMI 38 - AT - Income TaxAddition u/s 68 - share capital received from 8 companies - CIT-A deleted the addition - HELD THAT - CIT (A) while deleting the addition did not examine the shareholders of the assessee company, nor examined the directors of the assessee company, even did not inquired the assessee questions about companies operated by Mr. Dilip C Mehta and several statements. Therefore ld. CIT (A) did not consider any of the reasons of the ld. AO for which addition is made. He merely swayed by the written submission of the assessee and deleted the addition. The ld. CIT (A) even did not find it proper to question the assessee about its activities and justification of share premium to show the genuineness of the share capital. As the assessee is a private limited company, how it came in to connect with those all 8 companies for subscribing to the shares of the assessee company which does not have income generation, was not at all inquired by the ld. CIT (A). Ld. CIT (A) further failed to visualize a situation with perspective of genuineness that 8 non-descript companies investing Rs 10 Cr, having common address, in share capital of a private limited company at huge premium of Rs 180 per share and the assessee company does not have any knowledge about the whereabouts of such a valued investor in that company. Thus, the order of the learned CIT A, is not sustainable in law in deleting the above addition. In view of this, we reverse the order of the learned and CIT A and confirm the order of the learned assessing officer. - Decided against assessee.
Issues Involved:
1. Deletion of addition made under Section 68 of the Income Tax Act, 1961 for unexplained share capital and premium. 2. Onus of proving the genuineness of the transaction and creditworthiness of the investor parties. 3. Compliance with procedural requirements, including the production of witnesses and documentary evidence. Issue-wise Detailed Analysis: 1. Deletion of Addition Made Under Section 68 of the Income Tax Act, 1961: The appeal was filed by the Income Tax Officer (ITO) against the order of the Commissioner of Income Tax (Appeals) [CIT(A)] which deleted the addition of Rs. 10 Crores made under Section 68 for unexplained share capital and premium. The CIT(A) had concluded that the assessee had satisfactorily explained the identity, genuineness, and creditworthiness of the investor companies. The CIT(A) relied on various judicial pronouncements and the documents submitted by the assessee, including PAN details, income tax returns, audited annual reports, and bank statements of the investor companies. 2. Onus of Proving the Genuineness of the Transaction and Creditworthiness of the Investor Parties: The Assessing Officer (AO) argued that the assessee failed to discharge its onus to prove the genuineness of the transaction and the creditworthiness of the investor parties. The AO issued notices under Section 133(6) to all shareholders, but these returned unserved. The assessee did not provide new addresses for the shareholders but sent confirmations by post. The AO relied on the statement of Mr. Dilip C Mehta, who admitted to providing accommodation entries, and noted discrepancies in the addresses and meager income of the investor companies. The AO made the addition under Section 68 due to the failure of the assessee to produce witnesses and provide satisfactory explanations. 3. Compliance with Procedural Requirements: The CIT(A) deleted the addition, stating that the assessee had provided sufficient documentary evidence and that the AO should have conducted further investigations if there were doubts. The CIT(A) mentioned that the initial burden of proof was on the assessee, which was discharged by submitting relevant documents. However, the AO contended that the CIT(A) incorrectly placed the burden of further investigation on the AO, despite the assessee's failure to produce shareholders or directors for examination. Tribunal's Findings: The Tribunal carefully considered the contentions of the Departmental Representative (DR) and the orders of the lower authorities. It noted that the assessee failed to provide correct addresses and produce shareholders or directors for examination. The Tribunal found that the CIT(A) wrongly concluded that the notices under Section 133(6) were complied with and failed to address the AO's arguments regarding the non-existence of the companies at the provided addresses. The Tribunal held that the CIT(A) did not properly consider the findings of the survey, the statements of Mr. Dilip C Mehta, and the lack of credible evidence to support the genuineness of the transactions. The Tribunal referenced the Supreme Court's decision in the case of NRA Iron & Steel Pvt. Ltd., where similar facts led to the confirmation of the addition under Section 68. It concluded that the CIT(A) did not adequately examine the shareholders, directors, or the nature of the share premium and failed to inquire about the assessee's connections with the investor companies. The Tribunal reversed the order of the CIT(A) and confirmed the AO's addition under Section 68. Conclusion: The appeal of the ITO was allowed, and the order of the CIT(A) was reversed, confirming the addition of Rs. 10 Crores under Section 68 of the Income Tax Act, 1961. The Tribunal emphasized the importance of proving the identity, creditworthiness, and genuineness of the transactions and the procedural compliance required from the assessee.
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