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2022 (10) TMI 984 - AT - Income TaxAddition u/s 68 - unexplained cash credit in respect of share capital and share premium received by the assessee during the year - HELD THAT - Both the authorities have reached and based their conclusions to make addition on the fact that the directors of the subscribing companies were not produced before the AO which in no way could not be the basis for making addition as the assessee has filed all the necessary documents before the authorities below proving the identities, creditworthiness of the investors and genuineness of the transactions. The case of the assessee is squarely covered by the decisions of Crystal Networks Pvt. Ltd 2010 (7) TMI 841 - KOLKATA HIGH COURT wherein it has held that where all the evidences were filed by the assesse proving the identity and creditworthiness of the loan transactions , the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors. As the assessee has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but neither AO nor ld CIT(A) commented on these evidences filed by the assessee. Considering these facts in the light of ratio laid down in the decisions as discussed above , we set aside the order of Ld. CIT(A) and direct the AO to delete the addition. Appeal of the assessee is allowed.
Issues Involved:
1. Confirmation of addition of Rs. 5,38,00,000/- under Section 68 of the Income Tax Act on account of unexplained cash credit in respect of share capital and share premium received by the assessee during the year. Detailed Analysis: Issue 1: Confirmation of Addition of Rs. 5,38,00,000/- under Section 68 of the Income Tax Act Facts and Proceedings: The assessee filed a return declaring a loss of Rs. 6,22,65,652/-. During scrutiny, the Assessing Officer (AO) noted that the assessee issued share capital at a premium to seven share subscribers/investors. Despite some documents being furnished, neither the directors of the assessee nor those of the investor companies appeared to prove the genuineness of the transactions. The AO, influenced by information from the DDIT (Inv), concluded that the assessee failed to prove the genuineness of the transactions and the identity and creditworthiness of the investors. Consequently, the AO added the entire amount to the income of the assessee under Section 68 as unexplained cash credit. Appellate Proceedings: The Commissioner of Income Tax (Appeals) [CIT(A)] dismissed the appeal, affirming the AO's order on the grounds that the assessee failed to establish the genuineness of the transactions and the creditworthiness of the shareholders. Arguments by the Assessee: The assessee contended that both authorities below passed the order without proper examination of evidence. The assessee had filed all necessary details and evidence, including the identity and creditworthiness of the investors and the genuineness of the transactions. The assessee argued that the authorities did not issue any notice under Section 131 to the share subscribing companies. The assessee also highlighted that all seven share applicants responded to notices issued under Section 133(6), furnishing requisite details and sworn affidavits confirming their investments. The assessee further argued that the AO did not point out any defects in the documents furnished by the share applicants and that the AO's addition was based on the non-appearance of shareholders, which is not a valid ground for such an addition. Arguments by the Department: The Department argued that the assessee received accommodation entries from companies controlled by a person engaged in providing such entries. The Department emphasized that the directors of the subscribing companies were not produced for verification. Tribunal's Findings: The Tribunal noted that the assessee provided all necessary documents during the assessment proceedings, including ITRs, audited financial statements, bank statements, and details of investments. The Tribunal observed that the AO did not issue summons under Section 131 to the directors of the investor companies and made the addition solely based on the non-production of directors. The Tribunal found that the assessee proved the source and source of source of the investments, which was not required for the assessment year in question. The Tribunal also noted that the survey conducted on the director of one of the investor companies was not brought to the notice of the assessee during the assessment proceedings. The Tribunal referred to several judicial precedents, including the Hon'ble Supreme Court's decision in the case of Andaman Timber Industries, which emphasized the necessity of allowing cross-examination before using a statement against the assessee. The Tribunal also cited the Hon'ble Calcutta High Court's decision in Crystal Networks Pvt. Ltd. vs. CIT, which held that non-appearance of witnesses pursuant to summons is not significant if the assessee has provided sufficient documentary evidence. Conclusion: The Tribunal concluded that the authorities below erred in making the addition solely based on the non-appearance of directors, despite the assessee providing all necessary documentary evidence. The Tribunal set aside the order of the CIT(A) and directed the AO to delete the addition of Rs. 5,38,00,000/-. Final Order: The appeal of the assessee was allowed, and the addition made by the AO was directed to be deleted. The order was pronounced in the open court on 21st October, 2022.
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