2007 (5) TMI 263 - AT - Income Tax

Addition u/s 68 - unexplained share capital and share application money - Onus to prove - identity and creditworthiness of the creditors as well as genuineness - HELD THAT - Ld. CIT(A) in our view, rightly concluded that parties were existent parties and payments were made by banking channels. Despite the sufficient opportunities provided to the Assessing Officer by the Ld. CIT(A), no adverse material has been brought on the record. As already noted that onus on assessee in the case of share capital by public issue is lighter one and therefore such onus would stand discharged if identity of the share applicant is established. In the present case, the same is established beyond doubt. No doubt, the Assessing Officer could bring adverse material on record by making his enquiries but nothing adverse to assessee has been brought on record in respect of 108 share applicants. Thus, it is held that onus on assessee stand discharged . Consequently, the Ld. CIT(A) was justified in deleting the addition. Addition sustained by the Ld. CIT(A) - In the present case, the onus was on assessee to prove the genuineness of transaction. The confirmation was filed by the assessee. The Assessing Officer issued the summons in response to which the alleged persons, Hament Kumar, denied to have made any investment in such public issue. This fact was admittedly confronted to the assessee. At that stage, the assessee never sought the cross-examination of Mr. Hament Kumar. Thus, assessee accepted the denial made by Hament Kumar. On these facts, it cannot be said that assessee could discharge its onus. Accordingly, it is held that Ld. CIT(A) rightly confirmed the addition. Regarding Laxman Dass Bhatia, we find that assessee had submitted before the Ld. CIT(A) that his address was changed and, therefore, he could not be found from that address. The Ld. CIT(A) asked the Assessing Officer to issue summons at the correct address. It appears that notice was sent at the correct address. However, in the remand report, there is no adverse material in respect of Laxman Dass Bhatia. The confirmation and income-tax return acknowledgements are placed on record. Mere non-compliance of notice/summon would not lead to the inference that onus has not been discharged as held by the Apex Court in the case of Orissa Corporation 1986 (3) TMI 3 - SUPREME COURT . Therefore, we are of the view that the sum in the case of Laxman Dass Bhatia cannot be assessed u/s 68. Accordingly, the order of Ld. CIT(A) is modified to that extent and consequently, the addition is restricted. In the result, appeal of the Revenue is dismissed while the appeal of the assessee is partly allowed.

Issues Involved:
1. Addition of Rs. 1,90,10,000 under section 68 of the Income-tax Act, 1961, on account of unexplained share capital and share application money.
2. Appeal by the assessee against the addition of Rs. 3,85,000 sustained by the CIT(A).
3. Appeal by the Revenue against the deletion of Rs. 1,86,25,000 by the CIT(A).

Issue-wise Detailed Analysis:

1. Addition of Rs. 1,90,10,000 under section 68 of the Income-tax Act, 1961:
The assessee, a limited company, declared a loss of Rs. 2,240 for the assessment year 1999-2000. During the assessment, the Assessing Officer (AO) noted that the company raised a share capital of Rs. 1,78,60,000 and share application money of Rs. 11,50,000. The AO found that the identity of the shareholders was not established and thus added Rs. 1,90,10,000 under section 68 as unexplained income. The reasons included similarities in the language and typing of confirmations, lack of folds on confirmation papers, and non-response or denial of investment by some parties.

2. Appeal by the Assessee Against the Addition of Rs. 3,85,000 Sustained by the CIT(A):
The CIT(A) confirmed the addition of Rs. 3,85,000 for three shareholders: Geeta Jain, Hament Kumar, and Laxman Dass Bhatia. The assessee argued that there was a mistake in the shareholder's name (Geeta Jain should be Geeta Arora), and no opportunity was given to cross-examine Hament Kumar. For Laxman Dass Bhatia, the address had changed. The CIT(A) directed the AO to issue summons at the new address, but the AO still issued it in the old name and address.

3. Appeal by the Revenue Against the Deletion of Rs. 1,86,25,000 by the CIT(A):
The CIT(A) deleted the addition of Rs. 1,86,25,000 after considering that the assessee had provided confirmations, bank accounts, and income-tax return acknowledgements for the shareholders, except for the three mentioned above. The AO failed to bring any adverse material despite multiple opportunities. The Revenue argued that the confirmations were prepared from the same computer, some shareholders issued cheques from the same bank, and some returns were filed in March 2001, indicating manipulation.

Tribunal's Findings:

On the Addition of Rs. 1,90,10,000:
The Tribunal noted that the case law, including the Full Bench judgment of the Hon'ble Delhi High Court in Sophia Finance Ltd., allows the AO to make inquiries regarding the nature and source of the sum credited in the books of the assessee. The Tribunal emphasized that the degree of onus depends on the facts of each case. For public issues, the onus is lighter, and the identity of the shareholders is usually sufficient.

On the Appeal by the Assessee:
The Tribunal found that the confirmation for Geeta Jain was unsigned, and thus, the addition was rightly confirmed. For Hament Kumar, the denial of investment was confronted to the assessee, who did not seek cross-examination, thus the addition was justified. However, for Laxman Dass Bhatia, since the address was changed and the AO did not bring any adverse material, the addition was not justified.

On the Appeal by the Revenue:
The Tribunal upheld the CIT(A)'s deletion of Rs. 1,86,25,000, noting that the identity of the shareholders was established, and the AO failed to bring any adverse evidence despite multiple opportunities. The Tribunal rejected the AO's observations about the language of confirmations and the use of the same bank, as there was no evidence of bogus accounts or benami transactions.

Conclusion:
The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal, modifying the addition to Rs. 2,90,000. The order was pronounced on May 18, 2007.

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