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2023 (2) TMI 506 - AT - Income TaxAddition u/s 68 - share capital and share premium, treated as undisclosed cash credit - assessee failed to prove the genuineness of transaction and creditworthiness of the subscribers - non appearance of Director of the subscriber company before AO - CIT-A deleted addition - HELD THAT - Assessee having discharged its initial burden casted upon him to furnish the evidences to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, it shifted on the Ld. AO to examine the evidences furnished and even make independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidences furnished by the assessee by confronting with the same to the assessee. In view of this, the aforesaid decision of the Hon'ble Supreme Court in the case of PCIT vs. NRA Iron and Steel Pvt. Ltd. 2019 (3) TMI 323 - SUPREME COURT in our humble view, is not applicable to the facts and circumstances of the case in hand. As we find that assessee has discharged its onus to prove the identity and creditworthiness of the share subscribing companies and the genuineness of the transactions. Accordingly, considering these facts and in the light of the judicial precedents referred above, we find no reason to interfere with the fact-based findings given by the Ld. CIT(A) and uphold his decision to delete the addition made by the Ld. AO towards share capital and share premium u/s. 68 of the Act. Accordingly, grounds taken by the revenue in this respect are dismissed.
Issues Involved:
1. Whether the addition of Rs. 21,08,00,000/- as undisclosed cash credit under Section 68 of the Income-tax Act, 1961 was justified. 2. Whether the assessee satisfactorily proved the genuineness of the transactions and the creditworthiness of the share subscribers. 3. Whether the Assessing Officer (AO) complied with the directions given under Section 263 of the Act. Issue-wise Detailed Analysis: 1. Addition of Rs. 21,08,00,000/- as Undisclosed Cash Credit under Section 68: The primary issue was the addition made by the AO of Rs. 21,08,00,000/- towards share capital and share premium, treated as undisclosed cash credit under Section 68 of the Act. The AO made this addition on the grounds that the assessee failed to prove the genuineness of the transaction and the creditworthiness of the subscribers, despite the assessee providing extensive documentation, including share application forms, allotment advice, audited financial statements, and bank statements. The AO insisted on personal appearances of the directors, which did not occur, leading to the addition. 2. Proof of Genuineness and Creditworthiness: The assessee had submitted all relevant documents, including ITR acknowledgments, audited financial statements, and bank statements of both the assessee and the share applicant companies. The share applicant companies had directly replied to the notices issued under Section 133(6) of the Act, confirming the transactions. The CIT(A) reviewed these documents and found that the assessee had duly complied with the requirements, demonstrating the identity, creditworthiness, and genuineness of the transactions. The CIT(A) noted that the AO did not point out any discrepancies in the documents provided and had ignored the replies received from the share applicant companies. 3. Compliance with Directions under Section 263: The CIT-III, Kolkata, had set aside the initial assessment under Section 143(3)/147, directing the AO to conduct a thorough examination of the share capital's genuineness and source, including examining the directors and the circumstances necessitating any change in directorship. The AO, however, did not adhere to these directions adequately. The AO's addition was based on the non-appearance of directors rather than substantive discrepancies in the documentary evidence provided. Tribunal's Findings: The Tribunal upheld the CIT(A)'s decision, noting that the AO failed to conduct an independent inquiry or point out specific defects in the evidence provided by the assessee and the share applicant companies. The Tribunal emphasized that the burden of proof had shifted to the AO once the assessee had provided sufficient documentation. The Tribunal also referenced several judicial precedents, including decisions from the Hon'ble Supreme Court and various High Courts, which supported the assessee's position that mere non-appearance of directors cannot justify an addition under Section 68 if adequate documentary evidence is provided. Conclusion: The appeal by the revenue was dismissed, with the Tribunal affirming that the assessee had satisfactorily discharged its burden of proof regarding the identity, creditworthiness, and genuineness of the share subscribers, and that the AO had not complied with the directions under Section 263 to conduct a thorough and independent inquiry. The addition of Rs. 21,08,00,000/- as undisclosed cash credit under Section 68 was thus deleted.
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