2024 (8) TMI 1533 - AT - Income Tax

Addition u/s 68 - addition made towards share capital and share premium - HELD THAT - AO has not bothered to discuss or point out any defect or deficiency in the documents furnished by the assessee of the share subscribing companies. These evidences furnished have been neither controverted by the AO during the assessment proceedings nor anything substantive brought on record to justify the addition made by him. Ld. AO has simply added the amount of share capital and share premium on the ground that assessee has not produced its directors. Thus going by the records placed by the assessee of all the share subscribing companies it can be safely held that the assessee has discharged its initial burden and the burden shifted on the Ld. AO to enquire further into the matter which he failed to do so. It is also noted from their audited financial statement and chart extracted above that all the investing companies have sufficient own funds available with them to make investment in the assessee. From the perusal of the paper book and the documents placed therein it is vivid that all the share applicants are (i) income tax assessees (ii) they are filing their income tax returns (iii) share application form and allotment letter is available on record (iv) share application money was made by account payee cheques (v) details of the bank accounts belonging to share applicants and their bank statements (vi) in none of the transactions there are any deposit of cash before issuing cheques to the assessee (vii) all the share applicants are having substantial creditworthiness represented by their capital and reserves (viii) details relating to source of source also placed on record by the subscribers. We find that assessee has discharged its onus to prove the identity and creditworthiness of the share subscribing companies and the genuineness of the transactions towards sum received during the impugned year. Accordingly we set aside the order of the ld. CIT (A) and delete the addition made towards share capital and share premium u/s. 68. Accordingly grounds taken by the assessee in this respect are allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this appeal were:

• Whether the Tax Recovery Officer (TRO) had the jurisdiction to act as an Assessing Officer (AO) and whether the assessment order passed by TRO-4 was valid.
• Whether the assessee could challenge the jurisdiction under Section 124(3)(a) of the Income Tax Act, 1961, when the TRO allegedly lacked jurisdiction.
• Whether the addition of share capital and premium issued to various share applicants was justified on the grounds of non-production of documents and lack of creditworthiness and genuineness of transactions.
• Whether the directors of the share applicants needed to be produced to establish the genuineness of the transactions.
• Whether the high share premium charged could be a ground for making additions.

2. ISSUE-WISE DETAILED ANALYSIS

Jurisdiction of TRO as AO

• Relevant legal framework and precedents: The jurisdictional issue was raised under Section 124(3)(a) of the Income Tax Act, which requires challenges to jurisdiction to be made within a specified period.
• Court's interpretation and reasoning: The Tribunal noted that the jurisdictional challenge was not timely raised by the assessee, and thus, the plea was rejected by the CIT (A).
• Key evidence and findings: The assessee's claim that the TRO lacked jurisdiction was dismissed as the challenge was not made within the statutory time frame.
• Conclusions: The Tribunal did not adjudicate on the jurisdictional issue, considering it an academic exercise since the appeal was allowed on substantive grounds.

Addition of Share Capital and Premium

• Relevant legal framework and precedents: Section 68 of the Income Tax Act deals with unexplained cash credits, requiring the assessee to prove the identity, creditworthiness, and genuineness of the transactions.
• Court's interpretation and reasoning: The Tribunal emphasized that the AO failed to point out discrepancies in the evidence provided by the assessee and did not pursue further inquiries to disprove the material.
• Key evidence and findings: The assessee provided extensive documentation, including the identity of shareholders, PAN details, bank statements, and financial statements, to establish the genuineness of the transactions.
• Application of law to facts: The Tribunal found that the assessee had discharged its onus by providing sufficient evidence, and the burden shifted to the AO, who failed to conduct further inquiries.
• Treatment of competing arguments: The Tribunal considered the Department's argument that the transactions were layered to appear genuine but found no substantive evidence to support this claim.
• Conclusions: The Tribunal deleted the addition made under Section 68, finding that the assessee had adequately demonstrated the identity, creditworthiness, and genuineness of the transactions.

3. SIGNIFICANT HOLDINGS

• Core principles established: The Tribunal reiterated the principle that once the assessee provides sufficient evidence of the genuineness of transactions, the burden shifts to the Revenue to disprove the evidence. Mere non-appearance of directors does not justify additions under Section 68.
• Final determinations on each issue: The Tribunal allowed the appeal, setting aside the addition of share capital and premium, and did not adjudicate on the jurisdictional issue, considering it an academic exercise.
• Verbatim quotes of crucial legal reasoning: The Tribunal cited the decision of the Hon'ble Bombay High Court in the case of PCIT v. Paradise Inland Shipping Pvt. Ltd., emphasizing that the burden shifts to the Revenue once the assessee provides documentary evidence.