2024 (11) TMI 704 - HC - Income Tax

Addition made u/s 68 - ITAT deleted addition - Appellant department would strenuously contend that on examination of the documents which were produced by the share subscribing companies, it is evidently clear that none of those companies had any creditworthiness to invest in the shares of the assessee company, that too, at a high premium. HELD THAT - Unfortunately, examination of the factual position as sought for cannot be done in an appeal filed u/s 260A of the Income Tax Act and it is the duty of the Assessing Officer to have done such an exercise. Tribunal on facts found that all the share subscribing companies have responded to the notices issued u/s 138(6) of the Act and made their submissions and produced documents. Therefore, it is the duty on the Assessing Officer to deal with those documents, point out any discrepancies and then make the addition. However, the Assessing Officer failed to do so and the CIT(A) also committed same error. Therefore, we find the Tribunal was well justified in allowing the assessee s appeal and in doing so, the learned Tribunal has also taken note of various decisions of this Court and recorded its reasons for allowing the appeal.

Summary

Issues:
1. Whether the Income Tax Appellate Tribunal was justified in setting aside the addition made under Section 68 of the Income Tax Act, 1961.

Analysis:
The High Court of Calcutta heard an appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 against an order passed by the Income Tax Appellate Tribunal. The revenue raised substantial questions of law regarding the deletion of additional amounts made by the Assessing Officer towards unexplained share capital and share premium under Section 68 of the Act. The main issue was whether the Tribunal was correct in setting aside the addition. The Tribunal found that all share subscriber companies had filed their income tax returns, responded to notices, and provided documents. The Assessing Officer had not pointed out any deficiencies in the documents provided by the companies. The Tribunal noted that the burden was on the Assessing Officer to further investigate, which was not done. The Tribunal also considered the creditworthiness of the subscriber companies and found that they had substantial funds and explained the source of their investment. The department did not contest these facts. However, the revenue contended that the companies lacked creditworthiness, but the Court held that such examination was the Assessing Officer's duty, which was not fulfilled. The Court upheld the Tribunal's decision, stating that the Tribunal had properly considered the evidence and relevant legal principles, finding no grounds to interfere with the order.

The Court dismissed the appeal and the stay application, affirming the Tribunal's decision. The judgment emphasized that the Assessing Officer failed to conduct a proper examination of the documents provided by the share subscriber companies and did not point out any discrepancies, leading to the deletion of the additional amounts. The Court held that the Tribunal's decision was well-founded and in line with legal precedents, concluding that there was no justification to overturn the Tribunal's order.