2017 (5) TMI 1107 - HC - Income Tax

Addition u/s 68 - genuineness of the transaction and the credit worthiness of the foreign investor - Held that - The assessee had furnished all relevant data before the AO and the CIT(A), which, however, were not inquired into by the AO. Instead he obdurately adhered to his first impression and/or initial understanding that the entire transaction was neither creditworthy nor genuine. The assessee relied upon the documents to prove that the monies had been received through banking channels from its principal and other related companies; it had submitted the FIPB Approval authorizing the assessee company to raise capital upto ₹ 600 crores, copy of certificates of incorporation of share holders, copy of bank statement and the confirmation given by the remitters towards remittance of share capital etc. This was all that the assessee could have furnished in the circumstances. It could not be expected to prove the negative that the monies received by it were suspicious or not genuine infusion of capital etc. The assessee had discharged its burden of proof in terms of the settled dicta in Divine Leasing (2006 (11) TMI 121 - DELHI HIGH COURT ). It is only logical to expect that if the AO was not convinced about the genuineness of the said documents, he would have inquired into their veracity from the bank(s) to ascertain the truth of the assessee s claims. Having not done so, he was not justified in disregarding the assessee s contentions that the infusion of monies into its accounts was legitimate. Consequently, the AO was not justified in making additions of the various sums under Section 68 - Decided in favour of assessee.

Issues Involved:
1. Genuineness of the transaction and creditworthiness of the foreign investor under Section 68 of the Income Tax Act.
2. Admissibility and consideration of additional evidence by the Commissioner of Income Tax (Appeals) [CIT(A)].
3. Commencement of business and disallowance of expenditure.
4. Verification of unsecured loans and interest disallowance.

Issue-wise Detailed Analysis:

1. Genuineness of the Transaction and Creditworthiness of the Foreign Investor:
The Tribunal had to determine whether the assessee established the genuineness of the transaction and the creditworthiness of the foreign investor. The assessee, a subsidiary of M/s Russian Technology Centre Holding Ltd. (RTCHL), received various amounts towards share capital and unsecured loans from RTCHL and M/s Protex Trading Company Ltd. The AO made additions under Section 68 of the Act, questioning the genuineness and creditworthiness of these transactions. The Tribunal noted that the assessee provided substantial documentation, including FIPB approvals, certificates of incorporation, bank statements, and confirmations from the remitters. The Tribunal concluded that the primary burden cast on the assessee was duly discharged, and the transactions were through banking channels, thus establishing their genuineness and creditworthiness. The Tribunal relied on the Supreme Court's judgment in Lovely Exports and other precedents, emphasizing that the assessee had provided sufficient evidence to prove the legitimacy of the share application money.

2. Admissibility and Consideration of Additional Evidence by CIT(A):
The CIT(A) initially disallowed the additional documents submitted by the assessee, relying on the Gujarat High Court decision in N.B. Surti Family Trust Vs. CIT. However, the Tribunal found that the CIT(A) had, in fact, given a finding on the merits of the additional evidence, indicating that it had been considered. The Tribunal held that the assessee was prevented by sufficient cause from filing the additional documents earlier and that the CIT(A) should have admitted them under Rule 46A. The Tribunal allowed the admission of the additional evidence, noting that the CIT(A) had already commented on its merits.

3. Commencement of Business and Disallowance of Expenditure:
For AYs 2002-03 and 2003-04, the Tribunal upheld the disallowance of expenditure, as the assessee had not yet obtained registration as a vendor by the Ministry of Defence and had not commenced its business. However, for AY 2005-06, the Tribunal found that the assessee had obtained registration and participated in tenders, indicating that the business was set up. Consequently, the expenditure incurred in AY 2005-06 was allowed as revenue expenditure, following precedents from the Delhi High Court.

4. Verification of Unsecured Loans and Interest Disallowance:
The AO had added ?5 lakhs as unexplained unsecured loans received from M/s Claridges SEZ Pvt. Ltd. (CSEZ), citing a lack of bank statements. The Tribunal noted that CSEZ was also searched on the same date, and the seized records were with the department. The Tribunal remitted the issue back to the AO to verify the bank statements from the seized records and provide the assessee an opportunity to submit necessary evidence. Regarding the disallowance of interest of ?7,54,797, the Tribunal found that the lower authorities had not provided details of the disallowed interest payments. The issue was set aside to the AO for fresh consideration, taking into account the Tribunal's conclusions on the applicability of Section 68 and the commencement of business.

Conclusion:
The Tribunal's decision to delete the additions made by the AO was affirmed by the High Court, which found no fault in the Tribunal's conclusions. The High Court emphasized that the assessee had furnished all relevant data and documents, and the AO had not conducted further inquiries to disprove the genuineness of the transactions. The appeals were dismissed, and the questions of law were answered in favor of the assessee.

← Previous Next →