2024 (7) TMI 575 - AT - Income Tax

Addition u/s 68 - sum received towards share premium as undisclosed income - assessee contended that the assessee company is an entry operator and not engaged in any actual business - HELD THAT - No reason to interfere with the finding of the ld. CIT(A) deleting the addition u/s 68 of the Act and treating the assessee as an entry provider working for earning commission income. Accordingly, the sole effective grounds raised by the revenue is dismissed. Quantum of percentage of commission income - We agree with the contention of the ld. Counsel for the assessee that the percentage of estimation @ 0.75% as determined by the ld. CIT(A) is on a higher side as compared to the judicial decisions referred by assessee. Considering the fact that during the course of appellate proceedings before ld. CIT(A), assessee vide note sheet entry dated 13/03/2019 having conceded to the application of a net profit rate of 0.50%, we deem it appropriate to restrict the same to 0.50%. We, therefore, sustain the addition by applying a net profit rate of 0.5% on total amount of share capital and share premium of Rs. 40 Crore as against 0.75% applied by the ld. CIT(A). Accordingly, the ground raised by the assessee in the cross-objection is partly allowed.

Issues Involved:
1. Justification of the addition of Rs. 38.40 Crore as undisclosed income.
2. Application of net profit rate on the total amount of share capital and share premium.
3. Compliance and genuineness of the assessee company.
4. Determination of appropriate percentage for net profit estimation.

Detailed Analysis:

1. Justification of the Addition of Rs. 38.40 Crore as Undisclosed Income:
The revenue argued that the addition of Rs. 38.40 Crore as undisclosed income was justified since the assessee company had received this amount through share premium, which was not substantiated. The Assessing Officer (AO) concluded that the assessee company was a shell company based on an Inspector's report indicating the company's address was bogus. The AO accepted the share capital of Rs. 1.60 Crore but added the share premium of Rs. 38.40 Crore as undisclosed income under Section 68 of the Income Tax Act, 1961.

2. Application of Net Profit Rate on the Total Amount of Share Capital and Share Premium:
The CIT(A) directed the AO to apply a net profit rate of 0.75% on the total amount of Rs. 40 Crore, comprising both share capital and share premium. This decision was based on judicial precedents and the peculiar facts of the case, which indicated that the assessee company was a paper/shell company. The CIT(A) considered various judgments from the ITAT and other courts, which established that accommodation entry operators typically earned net profits ranging from 0.25% to 1%.

3. Compliance and Genuineness of the Assessee Company:
The CIT(A) and the Tribunal both found that the assessee company was a shell company, not engaged in any actual business activities. This conclusion was supported by the non-existence of the company at the given address and the lack of compliance with notices and inquiries. The Tribunal referred to the Supreme Court judgment in the case of NRA Iron & Steel Pvt. Ltd., where similar findings were made about the assessee company's non-existence and dubious transactions.

4. Determination of Appropriate Percentage for Net Profit Estimation:
The CIT(A) initially applied a 0.75% net profit rate, considering the assessee's concession during appellate proceedings that a net profit of 0.50% was reasonable. The Tribunal, however, noted that judicial precedents suggested a lower rate and agreed to reduce the net profit rate to 0.50%. This decision was based on the absence of contrary material from the revenue and the established practice of applying lower net profit rates for accommodation entry operators.

Conclusion:
The Tribunal upheld the CIT(A)'s finding that the assessee company was a shell company and agreed to apply a net profit rate of 0.50% on the total amount of Rs. 40 Crore, comprising share capital and share premium. The revenue's appeal was dismissed, and the assessee's cross-objection was partly allowed, resulting in a reduced net profit rate for the estimation of income. The judgment emphasized the importance of substantiating share premium receipts and the consistent application of judicial precedents in determining net profit rates for accommodation entry operators.

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