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2021 (3) TMI 1058 - AT - Income TaxAddition u/s 68 - acquiring shares of certain companies from certain shareholders without paying any cash consideration - HELD THAT - Provisions of section 68 are not applicable in a case of acquiring shares of certain companies from certain shareholders without paying any cash consideration and, instead, considerations were settled through issuance of shares to the respective parties. In other words, provisions of section 68 of the Act does not apply to cases of purchase of shares and allotment of shares when the purchase and allotment are under a barter system. In this view of the matter, we do not find any infirmity in the order of the CIT(A) in deleting the addition of ₹ 6,75,00,000 /- (wrongly typed in the grounds as ₹ 6,76,00,000/-). Therefore, the ground of appeal No.1 raised by the Revenue is dismissed. Addition u/s 68 on the ground that the same is shown in the name of M/s Wamil Clothing Pvt. Ltd. and the summons issued u/s 131 was received back unserved - As order of the AO is very cryptic on this issue and the ld.CIT(A) has not at all given any finding on this issue. Considering the totality of the facts and in the interest of justice, we deem it proper to restore the issue to the file of the AO with a direction to give one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law. We hold and direct accordingly. The second ground raised by the Revenue is accordingly allowed for statistical purposes.
Issues Involved:
1. Applicability of Section 68 of the Income Tax Act, 1961 to share capital and premium received. 2. Addition of unexplained credits in the books of the assessee. 3. Evaluation of evidence and documents provided by the assessee. 4. Legal interpretation of "cash credit" under Section 68. Issue-wise Detailed Analysis: 1. Applicability of Section 68 of the Income Tax Act, 1961 to Share Capital and Premium Received: The primary issue was whether the provisions of Section 68 of the Income Tax Act, 1961, which deals with unexplained cash credits, were applicable to the share capital and premium received by the assessee. The AO made an addition of ?6,76,00,000/- under Section 68, questioning the genuineness of the transactions and the creditworthiness of the investor companies. However, the CIT(A) and ITAT found that the transactions were mere book entries involving the swapping of shares and did not involve any cash inflow or outflow. The ITAT upheld the CIT(A)'s decision, referencing several judicial precedents which established that Section 68 applies to actual cash credits and not to transactions involving the exchange of shares without cash consideration. 2. Addition of Unexplained Credits in the Books of the Assessee: The AO also made an addition of ?8,50,000/- as unexplained credits in the name of M/s Wamil Clothing Pvt. Ltd., as the summons issued under Section 131 were returned unserved. The ITAT noted that the AO's order was cryptic and lacked detailed reasoning. Consequently, the ITAT remanded this issue back to the AO for a fresh examination, directing the AO to provide the assessee with a final opportunity to substantiate its case. 3. Evaluation of Evidence and Documents Provided by the Assessee: The assessee provided various documents, including confirmations, affidavits of directors, acknowledgments of ITRs, balance sheets, and P&L accounts of the investor companies. However, the AO was not satisfied and issued summons for further verification, which were not complied with by the assessee. Despite this, the CIT(A) and ITAT found that the transactions were only on paper and did not result in any actual cash inflow or outflow. The ITAT emphasized that the assessee had adequately demonstrated the identity of the shareholders and the genuineness of the transactions, referencing multiple case laws where similar circumstances were adjudicated in favor of the assessee. 4. Legal Interpretation of "Cash Credit" under Section 68: The ITAT extensively discussed the legal interpretation of "cash credit" under Section 68. It referenced the Supreme Court's decision in the case of H.H. Sri Rama Verma vs. CIT, which clarified that the term "any sum" in Section 68 refers to actual money brought into the account books by way of cash, cheque, or draft. The ITAT concluded that since the transactions in question involved the swapping of shares and not actual cash credits, Section 68 was not applicable. This interpretation was supported by several other judicial precedents, including decisions from the Kolkata and Madras High Courts. Conclusion: The ITAT upheld the CIT(A)'s decision to delete the addition of ?6,75,00,000/- made under Section 68, finding no infirmity in the CIT(A)'s reasoning. However, it remanded the issue of the ?8,50,000/- addition back to the AO for further examination. The ITAT's decision was based on a thorough analysis of the facts, evidence, and relevant case laws, emphasizing that Section 68 applies to actual cash credits and not to transactions involving the exchange of shares without cash consideration.
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