2024 (11) TMI 894 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - non proving in identity, creditworthiness, and genuineness of the share premium received by the assessee - HELD THAT - Hon ble Supreme Court in the case of CIT vs. Kamdhenu Steel Alloys Ltd. 2012 (9) TMI 950 - SC ORDER held that mere non-appearance of director cannot be held to be justified in treating the share premium and share capital as unexplained income if sufficient documentary evidences are provided. In the present case of the assessee, the shareholders were scrutinised u/s 143(3)/147 of the Act, further detailed evidences were submitted to establish genuineness of the transactions. In this regard, we rely on the decision of Lovely Exports (P) Ltd. 2008 (1) TMI 575 - SC ORDER wherein, it was held that once company proves the existence and authenticity of shareholders, it had discharged its burden u/s 68 of the Act. We find merit in the contention of the ld. AR. That the premium is matter of business prerogative as held in the Coordinate Mumbai Bench of the Tribunal in the case of M/s Greek Infra Ltd. 2013 (12) TMI 949 - ITAT MUMBAI and in the case of Trident Shelters Pvt. Ltd. 2014 (1) TMI 1224 - ITAT HYDERABAD That revenue cannot question the quantum of share premium in the absence of evidence of collusion or mala fide intent. We hold that the addition made by the AO as unexplained cash credit u/s 68 of the Act is unsustainable since the assessee has sufficiently established the identity, creditworthiness and genuineness of the transaction relating to the share capital received during the relevant financial year. We, therefore, direct the Assessing Officer to delete the addition u/s 68 - Appeal of the assessee is allowed.

Issues Involved:

1. Legitimacy of the addition made by the Assessing Officer under Section 68 of the Income Tax Act for unexplained cash credit.
2. Evaluation of the identity, creditworthiness, and genuineness of the share premium received by the assessee.
3. Examination of the procedural conduct of the Assessing Officer and the CIT(A) in handling the evidences and submissions provided by the assessee.
4. Applicability of judicial precedents in assessing the share premium and the burden of proof.

Detailed Analysis:

1. Legitimacy of the Addition under Section 68:

The primary issue in this case was the addition of Rs. 2,62,00,000/- made by the Assessing Officer to the income of the assessee under Section 68 of the Income Tax Act, which pertains to unexplained cash credits. The Assessing Officer questioned the genuineness of the share capital received by the assessee and deemed the responses from the share-subscribers as insufficient, leading to the addition. However, the Tribunal found that the assessee had provided substantial documentary evidence to establish the identity, creditworthiness, and genuineness of the transactions. The Tribunal emphasized that the addition was unsustainable as the assessee had sufficiently discharged its burden of proof.

2. Evaluation of Identity, Creditworthiness, and Genuineness:

The assessee contended that it had provided detailed evidence to establish the identity, creditworthiness, and genuineness of the shareholders. The evidence included income tax returns, bank statements, and other financial documents. The Tribunal noted that the Assessing Officer did not point out any discrepancies or insufficiencies in the evidences provided by the assessee. The Tribunal also highlighted that the non-appearance of the directors of the subscriber companies could not solely justify the addition, especially when the requisite details and evidences were duly submitted.

3. Procedural Conduct of the Assessing Officer and CIT(A):

The Tribunal criticized the Assessing Officer for not conducting an independent inquiry to verify the genuineness of the transactions despite the assessee providing all necessary documents. Furthermore, the Tribunal observed that the CIT(A) failed to consider the material facts and evidences presented by the assessee, thereby upholding the addition in a mechanical manner. The Tribunal described the order of the CIT(A) as non-speaking and unsustainable in law, indicating a lack of proper examination and application of mind.

4. Applicability of Judicial Precedents:

The Tribunal referred to several judicial precedents to support its decision. It cited the decision of the Hon'ble Bombay High Court in the case of PCIT, Panji vs. Paradise Inland Shipping Pvt. Ltd., which held that once an assessee produces documentary evidence to establish the existence of subscriber companies, the burden shifts to the revenue to prove otherwise. The Tribunal also relied on the decision of the Hon'ble Supreme Court in the case of CIT vs. Lovely Exports (P) Ltd., which stated that once a company proves the existence and authenticity of shareholders, it discharges its burden under Section 68. The Tribunal concluded that the assessee had met the requirements to establish the genuineness of the share capital received, and the addition made by the Assessing Officer was unwarranted.

In conclusion, the Tribunal allowed the appeal of the assessee, directing the Assessing Officer to delete the addition of Rs. 2,62,00,000/- under Section 68 of the Act. The Tribunal's decision was based on the comprehensive evaluation of the evidences provided by the assessee and the application of relevant judicial precedents.

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