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2022 (1) TMI 727 - AT - Income TaxAddition u/s 68 - Bogus share transactions - onus to prove - absence of any adequate enquiry made by the Revenue - HELD THAT - There must be more than the bare suspicion to support the assessment. Mere suspicion cannot take place of evidence, neither on the basis of procedural lapse on addition of share capital is sought to be justified. When the basic evidences are on record, as provided by the assessee to the Revenue mere failure of the creditor to appear cannot be the basis for making addition. In fact, the assessee has discharged its onus to prove credit-worthiness of the share holders and genuineness of the transaction by providing the documents and/or information to the AO. The documents filed in support of identity and credit-worthiness of the share holders and genuineness of the transactions being the balance sheet, bank statement, audited accounts, and the affidavit of the companies provided share premium were not doubted as non-genuine. The Ld. AO accepted genuineness of the share capital to the extent of its par value, it can be concluded that the Ld. AO was satisfied with three ingredients required to be proved under Section 68 of the Act. In fact, the addition even thereafter is not sustainable in the absence of any adequate enquiry made by the Revenue. As relying on decision of the ITAT, Kolkata Bench in the case of ITO Vs. Savera Towers P.Ltd., 2019 (1) TMI 1328 - ITAT KOLKATA wherein it was observed that all the share subscribers are duly assessed to income tax and the transaction with the assessee company are duly routed through banking channels and are duly reflected in their respective audited balance sheets, as were placed on record. Once the receipt of share capital has been accepted as genuine within the purview of section 68 of the Act, there is no reason for the ld.AO to doubt the share premium component received from the very same shareholders as bogus. This fact is identical to that of the fact available with us. At the cost of repetition, we would like to mention that addition under section 68 cannot be justified in the absence of any inquiry done by the ld.AO by exercising powers conferred under the statutory provisions as already observed by us hereinabove. Thus, in the absence of proper inquiry made by the ld.AO, impugned addition cannot be sustained and the same is hereby deleted. The ground of appeal filed by the assessee is allowed.
Issues Involved:
1. Addition under Section 68 of the Income Tax Act. 2. Deemed addition under Section 56(2)(viib) of the Income Tax Act. 3. Genuineness and creditworthiness of share transactions. Issue-wise Detailed Analysis: 1. Addition under Section 68 of the Income Tax Act: The primary issue was the addition of ?11,77,50,000/- under Section 68 of the Income Tax Act, 1961, which was made by the Assessing Officer (AO) and confirmed by the Commissioner of Income Tax (Appeals) [CIT(A)]. The AO concluded that the share premium received by the assessee-company was excessive and deemed it as bogus, treating the companies providing the share premium as non-existent paper companies. The AO based this on the financial performance of the companies and their inability to prove the creditworthiness and genuineness of the transactions. Despite the assessee providing various documents such as ITRs, bank statements, and confirmation letters, the AO was not satisfied and added the amount under Section 68. 2. Deemed Addition under Section 56(2)(viib) of the Income Tax Act: Although the AO discussed Section 56(2)(viib) in detail, no addition was made under this section. The AO computed the fair market value of the shares and noted that the excessive share premium was liable to be added to the income under Section 56(2)(viib). However, the addition was ultimately made under Section 68, and penalty proceedings under Section 271(1)(c) were initiated for furnishing inaccurate particulars of income. 3. Genuineness and Creditworthiness of Share Transactions: The assessee argued that the identity of the shareholders was proven, and transactions were conducted through banking channels. The assessee provided several judicial precedents to support their case, asserting that once the identity of the investors is established, the burden shifts to the revenue to prove that the investments were not genuine. The CIT(A) confirmed the addition, stating that the assessee failed to prove the identity, creditworthiness of the shareholders, and genuineness of the transactions. Tribunal's Observations and Judgment: The Tribunal noted that the assessee had provided all necessary documents to prove the identity and creditworthiness of the shareholders and the genuineness of the transactions. The AO had issued notices under Section 133(6), and six out of seven companies responded with requisite documents. The Tribunal found that the AO's conclusions were based on surmises and conjectures without adequate inquiry or investigation. The CIT(A) also failed to show any inquiry conducted to establish that the shareholder companies were non-existent. The Tribunal emphasized that an addition made without proper investigation and based only on suspicion cannot be sustained. The Tribunal referred to various judgments, including those of the Supreme Court and High Courts, which held that mere suspicion cannot replace evidence, and the burden shifts to the revenue once the assessee provides basic evidence. The Tribunal concluded that the AO did not conduct any inquiry to prove that the companies providing the share premium were bogus. Conclusion: The Tribunal allowed the appeal of the assessee, deleting the addition made under Section 68. The Tribunal held that the assessee had discharged its onus by providing necessary documents, and the AO failed to conduct a proper inquiry to substantiate the addition. The appeal was allowed, and the addition of ?11,77,50,000/- was deleted. Order Pronouncement: The order was pronounced in the court on 17th November 2021 at Ahmedabad.
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