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2012 (8) TMI 813 - HC - Income TaxAddition on undisclosed income - Penalty u/s 271(i)(c) - ITAT deleted the addition - Held that - On issuing summons to the share applicants only 9 could be served and on examining bank accounts of the share applicants from which the share application amounts were subscribed it was noticed a regularity a pattern in the methodology of infusing cash into the accounts and within a short while afterwards withdrawing sums to pay for the shares. The PAN/GIR numbers of the share applicants furnished by the assessee were not found to be correct upon verification from the concerned Income Tax officers of the ward(s) in question. The assessee was given opportunity to produce the share applicants principal officers but did not do so. The share applicants addresses too were incorrect - thus additions are warranted to be made on account of share application moneys not found to be genuine - against assessee.
Issues Involved:
1. Whether the ITAT erred in deleting the addition of Rs. 25 Lakhs made by the AO by treating the alleged investment of shareholders as income from undisclosed sources. 2. Whether the ITAT was correct in deleting the penalty of Rs. 44 Lakhs imposed by the AO under Section 271 (i) (c) of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Deletion of Addition of Rs. 25 Lakhs by ITAT The assessee company filed its return declaring an income of Rs. 10,986/-. The Revenue received information that the assessee accepted share capital from companies providing bogus entries. The AO called for information under Section 142 (1) and found that the assessee increased its share capital by Rs. 95 Lakhs, issuing 9500 shares at a premium of Rs. 900/- each. The AO noted that the nature of the assessee's business did not justify such a premium and that the share applicants were unknown to the assessee. Summons issued to the shareholders were either unacknowledged or accepted by proxies. The AO concluded that the identity and creditworthiness of the shareholders were not proven, leading to the addition of Rs. 95 Lakhs under Section 68. The CIT (Appeals) upheld the AO's order, emphasizing that the onus of proving the credits lay with the assessee, which it failed to discharge. The CIT (Appeals) noted that the identity of the shareholders remained unproven and that most shareholders were not traceable at the provided addresses. The ITAT, however, accepted the assessee's contentions and allowed the appeal, leading to the present appeal by the Revenue. 2. Deletion of Penalty of Rs. 44 Lakhs under Section 271 (i) (c) The AO imposed a penalty of Rs. 44 Lakhs under Section 271 (i) (c) for concealment of income. The ITAT deleted this penalty, which was contested by the Revenue. The AO and CIT (Appeals) had relied on the lack of credible evidence from the assessee to prove the genuineness of the transactions and the identity of the shareholders. Court's Analysis and Judgment: The Court analyzed the approach taken by the AO and CIT (Appeals), noting that the AO had gone to great lengths to verify the genuineness of the transactions. Summons were issued, bank accounts were scrutinized, and a pattern of cash infusion and withdrawal was observed. The PAN/GIR numbers provided were incorrect, and the addresses were found to be false. The AO's detailed investigation led to the conclusion that the transactions were not genuine. The Court referred to the Supreme Court's judgment in CIT v. Lovely Exports P. Ltd., which outlined the correct approach for assessing share application money under Section 68. The Supreme Court emphasized that the Department could proceed against the shareholders if their identities were provided. The Court also referred to the principles laid out in Divine Leasing, which required the assessee to prove the identity, genuineness, and creditworthiness of the shareholders. The Court found that the AO's findings were based on substantial evidence and that the ITAT's decision was based on a superficial understanding of the law. The ITAT failed to appreciate the exhaustive investigation conducted by the AO and the CIT (Appeals). Conclusion: The Court answered the questions of law in favor of the Revenue, restoring the AO's orders. The appeals were allowed, and the additions and penalties imposed by the AO were upheld. This judgment underscores the importance of thorough verification in cases of alleged bogus share application money and the onus on the assessee to prove the genuineness of such transactions.
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