2023 (9) TMI 945 - AT - Income Tax

Addition u/s 68 - AO treated the call money received by the assessee towards share capital and share premium from two investor companies to be unexplained cash credit - primary onus of establishing the identity and creditworthiness of the creditors as well as the genuineness of the transactions proved or not? - HELD THAT - Once the issue was examined in the year of initial investment and allotment of share by the Assessing Officer and the transaction was found to be genuine, a part of the very same transaction cannot be questioned and held to be non-genuine in the subsequent assessment year, when there is no change in the factual position. Thus, in our view the AO could not have taken an adverse view with regard to call money received in the impugned assessment year. Therefore, in our opinion, the addition made by AO in the impugned assessment year is unsustainable Even, otherwise also, the assessee has a strong case on merits as well. On going through the detailed factual analysis made FAA after verifying the documentary evidences, it is observed that the assessee has discharged its primary onus of establishing the identity and creditworthiness of the creditors as well as the genuineness of the transactions. Not only the assessee had furnished the confirmations of the investing companies supported by bank statements but all other relevant documents such as audited Balance Sheets, Income-tax returns etc. were filed. On going through the audited financial statements of the investing companies, FAA has given a factual finding that both the investors had sufficient funds available with them to make the investments in the shares of the assessee company. He has further found that the source from which the investing companies received the funds to invest in the assessee company also stood explained. The documentary evidences furnished by the assessee, not only prove the source from which the assessee received the investment but the source from where the investing companies generated the funds to invest in the assessee company. From the detailed factual analysis recorded by the First Appellate Authority as well as the facts and evidences available on record, we find, the assessee has, indeed, proved the identity and creditworthiness of the investing company as well as the genuineness of transactions. Revenue has failed to bring any contrary material on record to challenge the factual finding of Learned First Appellate Authority. Thus, in such scenario, the findings recorded by FAA cannot be disturbed. We are inclined to uphold the decision of Learned First Appellate Authority by dismissing the grounds raised.

Summary

Issues:
The appeal filed by the Revenue challenges the deletion of addition under Section 68 of the Act amounting to Rs. 5,95,87,500/- made by the Assessing Officer for the Assessment Year 2016-17.

Issue 1: Addition under Section 68 of the Act

The Assessing Officer added Rs. 5,95,87,500/- as unexplained cash credit under Section 68 of the Act due to doubts about the creditworthiness of the investing companies. The CIT(A) found that the assessee had established the identity, creditworthiness, and genuineness of the transactions. The CIT(A) observed that the Assessing Officer had previously accepted the investments as genuine in the initial year, and thus, the addition was deleted.

Issue 2: Sustainability of the addition under Section 68

The Tribunal noted that the investing companies had previously invested in share capital and share premium, which were accepted as genuine by the Assessing Officer in a prior assessment year. The Tribunal held that the call money received in the impugned assessment year could not be treated as unexplained cash credit. The addition made by the Assessing Officer was deemed unsustainable based on the factual continuity of the transactions.

Issue 3: Merits of the case

The Tribunal further examined the merits of the case and found that the assessee had adequately proven the identity and creditworthiness of the investing companies, along with the genuineness of the transactions. The documentary evidence provided, including audited financial statements and bank statements, supported the legitimacy of the investments. The Tribunal upheld the decision of the CIT(A) based on the detailed factual analysis and the lack of contrary evidence presented by the Revenue.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the decision of the CIT(A) to delete the addition under Section 68 of the Act. The Tribunal emphasized the continuity of the genuine transactions and the assessee's fulfillment of the necessary requirements to establish the legitimacy of the investments.