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TMI Blog2021 (5) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... apply his mind to the facts of the case before recording reasons for reopening of the assessment. Even the Sanctioning Authority has not applied his mind to the conclusion drawn by the A.O. based on specific material on record which clearly reveal that reasons recorded by the A.O. are wrong, incorrect and based on no evidence. It is, therefore, clear case of non-application of mind by the A.O. at the time of recording reasons for reopening of the assessment. Addition u/s 68 - Non-production before the A.O. would not be a ground to make the addition against the assessee. Since the initial onus to prove genuine credits received by assessee from the Investor Companies have been duly discharged by the assessee and no material have been produced by the A.O. to rebut the documentary evidences filed by the assessee, therefore, there were no reason for the authorities below to make any addition against the assessee. Originally assessee company was incorporated on 27.02.2003 and the financial year ended on 31.03.2003 relevant to assessment year 2003-2004 under appeal. It is difficult to believe that during a period of about one month assessee would have earned such a huge unaccou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for copy of the reasons recorded under section 148 of the I.T. Act which have been supplied. The A.O. asked the assessee to give details of the shareholders from whom share application was received during assessment year under appeal. The assessee submitted before A.O. that it has received share capital/premium money totalling to ₹ 98 lakhs from 14 parties mentioned at Pages 1 and 2 of the assessment order. The assessee furnished share application form, affidavit, copy of the return of income and copy of the bank account of all the share applicants. However, the summons issued under section 131 of the I.T. Act returned un-served. The assessee was asked to produce the Principal Officers of the share applicants, however, assessee failed to produce the same. The A.O, therefore, made addition of ₹ 98 lakhs under section 68 of the I.T. Act, 1961. The A.O. also made addition of ₹ 1,96,000/- on account of commission paid by assessee @ 2%. The A.O. completed the assessment under section 144/147 of the I.T. Act, 1961, Dated 30.12.2010. 3.1. The assessee challenged the reopening of the assessment as well as additions on merit before the Ld. CIT(A), however, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt that assessee does not want to proceed with this appeal. The appeal of assessee was accordingly dismissed as withdrawn vide Order Dated 09.04.2021. Copy of the Judgment is placed on record by the Learned Counsel for the Assessee. 4.4. In the background of the above facts, Learned Representatives of both the parties submitted that the appeal of the assessee may be decided on merits barring the issue of jurisdiction of the A.O. which has already been decided by the Hon ble Delhi High Court. 4.5. Considering the above facts, it is clear that the issues which are to be decided now are mainly two i.e., (1) Challenge to the re-assessment proceedings under section 147/148 of the I.T. Act and (2) Addition of ₹ 98 lakhs under section 68 of the I.T. Act with addition of ₹ 1.96 lakhs on account of Commission. We proceed to decide both the issues as under : ISSUE No.1 - [Challenge to re-assessment proceedings under section 147/148 of the I.T. Act, 1961] : 5. The assessee raised several grounds before the Ld. CIT(A) to challenge the reopening of the assessment under section 148 of the I.T. Act. The assessee submitted that notice4 issued under section 148 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 12.3.03, 21.3.03, 22.3.03. Name of account holder of entry giving account. K.R. Fincap P. Ltd., Transpan Financial Services, Shriniwas Leasing Finance, Basant Agency P. Ltd., Changia Steels P. Ltd., Chintpurni Credits, Division Trading P. Ltd., Right Choice Const. P. Ltd., Sekhawati Finance P. Ltd., Ganga Infin P. Ltd., Nishant Finvest P. Ltd., Sober Associates P. Ltd., Sparrow Marketing P. Ltd., Particular Manage Finlease P. Ltd., Bank of entry given bank Account No. entry giving account. SBBJ, SBP 26422, 24625, 24657, 24645, 50104, 50058, 50105, 50124, 50111, 50122, 50080, 60061, 50083, 50050 I have therefore reason to believe that an amount of ₹ 1,47,000/- has escaped assessment within the meaning of section 147 of the Income Tax Act, 1961. Since 4 years have since been elapsed, the facts are submitted for your kind perusal and approval of the Addl./Jt. CIT, Range-8, New Delhi as per section 151(2) of the Income Tax Act, 1961 for issuance of notice u/s. 148 of the Income Tax Act. Sd/- J.S. Nagar, Income Tax Officer, Ward 8 (1), N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons recorded for reopening of the assessment. The A.O. received information from Investigation Wing that assessee has received entry of ₹ 1,47,00,000/-, therefore, A.O. recorded correct facts in the reasons for reopening of the assessment. 7. We have considered the rival submissions as well as taken into consideration written submissions filed by assessee and considered the material available on record. It is well settled law that validity of the reopening of the assessment is to be determined with reference to the reasons recorded for reopening of the assessment. Learned Counsel for the Assessee filed copy of the reasons recorded for reopening of the assessment at Page-18 of PB-1 which is reproduced above. The Hon ble Punjab Haryana High Court in the case of CIT vs., Atlas Cycle Industries [1989] 180 ITR 319 held as under : Held, (i) that the Tribunal was right in cancelling the reassessment as both the grounds on which the reassessment notice was issued were not found to exist, and, therefore, the Income-tax Officer did not get jurisdiction to make the reassessment. 7.1. The Hon ble Delhi High Court in the case of Pr. CIT vs., SNG Developers Ltd., [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case for reopening of the assessment was erroneous and without application of mind especially since the Assessing Officer had not examined the return filed, which would have revealed that the assessee had filed regular returns, had sufficient opening balance in his account and the withdrawals therefrom substantiated the donation made. Therefore, the reopening of the assessment was unsustainable in law and the notice issued under section 147 of the Act was to be quashed. 7.3. The Hon ble Bombay High Court in the case of Siemens Information Systems Ltd., vs., ACIT Others [2007] 293 ITR 548 (Bom.) held as under : The petitioner had several EOU/STP units engaged in the business of export of software. In response to the notice for reopening the assessment for the assessment year 1999-2000, the petitioner, objecting to the issuance of the notice, stated that the reasons furnished by the authority had quoted the provisions of section 10A as amended by the Finance Act, 2000, with effect from the assessment year 2001-02 and as such could not have been made applicable to the assessment year 1999-2000 and the notice had been issued under the mistaken belief about the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reproduced in the preceding paragraph. It is the submission of the learned counsel for the assessee that there is complete non application of mind of the AO while recording the reasons and he has not verified the facts properly and the reopening was made on the basis of report of the investigation wing. Further the deposits in the bank accounts are fully explained and therefore no addition is called for. 9. I find force in the above arguments advanced by the learned counsel for the assessee. A perusal of the notice issued under section 148 shows that the notice has been issued in a very casual manner, Clause 3 of the notice reads as under :- Notice under section 148 of the Income Tax Act, 1961. 3. This notice is being issued after obtaining the necessary satisfaction of the commissioner of Income Tax /the Central Board of Direct Taxes. 10. Similarly, a perusal of the bank account maintained with Vijaya Bank account no. 004427, copy of which has been placed at page no. 25 and 26 of the paper book, shows that an amount of ₹ 2,50,000/- was by way of clearing of Cheque No.719443 and not cash deposit. If the same is excluded from the total depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even did not verify the name of the assessee. Thus, the A.O. recorded incorrect and wrong reasons for reopening of the assessment and did not apply his mind to the facts of the case before recording reasons for reopening of the assessment. Even the Sanctioning Authority has not applied his mind to the conclusion drawn by the A.O. based on specific material on record which clearly reveal that reasons recorded by the A.O. are wrong, incorrect and based on no evidence. It is, therefore, clear case of non-application of mind by the A.O. at the time of recording reasons for reopening of the assessment. We also rely upon following decisions in support of our conclusion. 7.6. In the case of Pr. CIT vs., RMG Polyvinyl (I) Ltd., [2017] 396 ITR 5 (Del.) the Hon ble Delhi High Court held as under : Where information was received from investigation wing that assessee was beneficiary of accommodation entries but no further inquiry was undertaken by Assessing Officer, said information could not be said to be tangible material per se and, thus, reassessment on said basis was not justified. 7.7. In the case of Pr. CIT vs., Meenakshi Overseas (P) Ltd., 395 ITR 677 (Del.), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been considered by the authorities below in proper perspective. Learned Counsel for the Assessee has furnished a chart in the written submissions to show that all the documentary evidences mentioned above along with the balance-sheet of the Investors have been filed before the authorities below and copies of the same are filed in the paper book as well. The details would also show net worth of the Investors which were far more than the amount invested in assessee company. He has submitted that since it was the initial year of the assessee and assessee is incorporated on 27.02.2003 only i.e., at the end of the financial year, therefore, assessee would not have earned the amount of ₹ 98 lakhs as unaccounted income. Therefore, on this reason only the addition is liable to be deleted. He has submitted that the A.O. issued summons under section 131 of the I.T. Act after lapse of 7 to 8 years and also directed the assessee to produce the Principal Officers of the share applicants after gap of 7 to 8 years, therefore, assessee was not in a position to produce the Principal Officers of the Investors. The assessee has made a request to the A.O. to issue summons under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the Orders of the authorities below and submitted that assessee failed to produce Directors of the Investor Companies before A.O, therefore, addition have been rightly made and confirmed by the Ld. CIT(A). 10. We have considered the rival submissions and perused the material on record. It is not in dispute that assessee filed all the documentary evidences before the authorities below in respect of explaining the genuine share application money received from the Investor Companies. The assessee filed copies of the Share Application Forms, Affidavits, Board Resolution, Confirmations, Copy of Income Tax Returns, Balance-Sheet and Profit Loss A/c, Bank Statements, Certificates of Incorporation, PAN and Jurisdiction of the A.O. in respect of the Share Applicant Companies. Copies of the same are also filed in the PB. All the Investors have confirmed making investment in assessee company. The bank statements of the Investors shows that they are having sufficient balances with them to make investment in assessee company. All are assessed to tax and are Incorporated Companies. Their balance-sheets shows that they have net worth to make investment in assessee company. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. Since the initial onus to prove genuine credits received by assessee from the Investor Companies have been duly discharged by the assessee and no material have been produced by the A.O. to rebut the documentary evidences filed by the assessee, therefore, there were no reason for the authorities below to make any addition against the assessee. In support of our contention, we rely upon the following decisions. 10.2. Decision of Hon ble jurisdictional High Court in the case of CIT vs. Kamdhenu Steel and Alloys Ltd., Ors. 361 ITR 220 (Del.) in which it was held as under : Once adequate evidence/material is given, which would prima facie discharge the burden of the assessee in proving the identity of shareholders, genuineness of the transaction and creditworthiness of the shareholders, thereafter in case such evidence is to be discarded or it is proved that it has created evidence, the Revenue is supposed to make thorough probe before it could nail the assessee and fasten the assessee with such a liability under s.68; AO failed to carry his suspicion to logical conclusion by further investigation and therefore addition under s.68 was not sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hospital Ltd., (2013) 356 ITR 65, in which it was held as under : Dismissing the appeals, that if the assessee had received subscriptions to the public or rights issue through banking channels and furnished complete details of the shareholders, no addition could be made under section 68 of the Income-tax Act, 1961, in the absence of any positive material or evidence to indicate that the shareholders were benamidars or fictitious persons or that any part of the share capital represented the company's own income from undisclosed sources. It was nobody's case that the non-resident Indian company was a bogus or non-existent company or that the amount subscribed by the company by way of share subscription was in fact the money of the assessee. The assessee had established the identity of the investor who had provided the share subscription and that the transaction was genuine. Though the assessee's contention was that the creditworthiness of the creditor was also established, in this case, the establishment of the identity of the investor alone was to be seen. Thus, the addition was rightly deleted. CIT v. Lovely Exports P. Ltd. [2009] 319ITR (St.) 5 (SC) applied. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the deletion of addition was justified. 10.9. Decision of Hon ble jurisdictional High Court in the case of CIT vs. Winstral Petrochemicals P. Ltd., 330 ITR 603, in which it was held as under : Dismissing the appeal, that it had not been disputed that the share application money was received by the assessee-company by way of account payee cheques, through normal banking channels. Admittedly, copies of application for allotment of shares were also provided to the Assessing Officer. Since the applicant companies were duly incorporated, were issued PAN cards and had bank accounts from which money was transferred to the assessee by way of account payee cheques, they could not be said to be non-existent, even if they, after submitting the share applications had changed their addresses or had stopped functioning. Therefore, the Commissioner (Appeals) and the Tribunal were justified in holding that the genuineness of the transactions had been duly established by the assessee. 10.10. Decision of Hon ble jurisdictional High Court in the case of CIT vs. Value Capital Services Pvt. Ltd., (2008) 307 ITR 334 (Del.) (HC), in which it was held as under : Dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -construction company, commenced its business in May, 1943. In its accounts there were several cash credit entries in the first year of its business totalling ₹ 2,50,000. Though the explanation regarding the cash credit entries was found to be false, the Appellate Tribunal held that these cash credits could not represent the income or profits of the assessee as they were all made very soon after the company commenced its activities : Held, that the inference drawn from the facts proved was a question of fact and the Tribunal s finding on that question was final. A construction company took time to earn profits and it could not have earned a huge profit within a few days after the commencement of its business. Hence, it was reasonable to assume that the cash credit entries represented capital receipts though for one reason or another the assessee had not come out with the true story as regards the source of the receipts. Decision of Allahabad High Court affirmed. 10.13. Considering the facts of the case in the light of material on record, it is clear that assessee produced sufficient documentary evidences before A.O. to prove ingredients of Section 68 of the I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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