9911796707
TMI Blog2025 (3) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined the material available before him, yet, recorded findings without rendering any reasons in support thereof. This itself would render such findings perverse requiring hierarchical appellate authorities to scrutinise such findings. Both the Appellate Authorities have concurrently found that the shareholders, who were the investors in the relevant years were existing shareholders of the assessee and thus, not doubting their identities. The creditworthiness was tested on the anvil of some such shareholders having huge exempt income in their individual capacities to offer such investments. In fact it was found to be beyond doubt that such shareholders had sufficiency of funds available which satisfactorily explained the source. The appellate authorities had also taken into consideration the past transactions of the shareholders which were duly disclosed to the AO. Having rendered reasons on the triple test envisaged in section 68 of the Act by the CIT (A) and learned ITAT, we are not persuaded to interfere with such findings. The submissions of the revenue are unmerited. We also find that the ITAT had relied upon the judgement of this Court in CIT vs. Divine Leasing & Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT (A). Challenging the said impugned judgement of the learned ITAT, the appellant/revenue has preferred the present appeal. 5. Mr. Sanjay Kumar learned Senior Standing Counsel for the revenue at the outset contends that both the learned ITAT as well as the CIT (A) have not appreciated the facts in their correct perspective and have committed an error of fact leading to wrong application of law and resulting in the impugned judgement. He states that the present appeal involves the following substantial questions of law: A. Whether on facts and circumstances of the case and in law, is learned ITAT correct in holding that the onus of the assessee is discharged under section 68 of the Act when some of the notice under section 133 (6) of the Act remained un-complied? B. Whether on facts and circumstances of the case and in law, is learned ITAT correct in holding that the creditworthiness, genuineness and identity of the shareholders is proved just because they are existing shareholders? C. Whether on facts and circumstances of the case and in law, is learned ITAT correct in holding that the creditworthiness, genuineness and identity of the shareholders is proved even wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g credited and debited throughout the year. No satisfactory explanation was offered by the shareholder thereby leading to the conclusion of doubt on the genuineness of the source. 9. In order to buttress his submission that the AO had not only considered the relevant material before him, but also applied his mind, learned counsel referred to the order dated 31.03.2022 passed by the AO. The relevant paragraphs read thus: "5.3 From the perusal of this reply, it was observed that during the year under consideration Assessee company had issued 32,66,250 number of shares having face value of Rs. 10 at premium of Rs. 150 each resulting in to increase in share capital of Rs. 3,26,62,500/- and security premium of Rs. 48,99,37,500/- totalling Rs. 52,26,00,000/-. These shares are issued to four allottees, details of them are as under: S.No. Name of Allottee No. of Shares issued Amount received including 1. Dinesh Gupta HUF 13,51,250 21,62,00,000 2. Nimit Builders Private Limited 8,21,250 13,14,00,000 3. Ram Kumar Gupta HUF 3,18,750 5,10,00,000 4. Verma Developers Private Limited 7,75,000 12,40,00,000 Total 52,26,00,000 5.4 Further in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r showing details of share capital * Affidavit from shareholder regarding payment made by HUF * Bank statement of shareholder regarding verification of payment * Ledger Confirmation of HUF duly singed * Return and ITR of shareholder for A.Y 2016-17 From the perusal of above documents, it was observed that assessee company has submitted documents to prove the identity, creditworthiness and genuineness of transactions. All the documents are taken on records and not found satisfactory. Further, it was observed from above documents that genuineness of transaction and creditworthiness regarding payment of such huge amount was not verified, hence further notice u/s 142 (1) of the I.T. Act, 1961 was issued for proving the creditworthiness and source of payment of Rs. 21,62,00,000/-. In response of said notice, Assessee company has provided the detailed working of source of payment of Rs. 21,62,00,000/- by making a sheet showing the date wise source of payments made by Dinesh Gupta HUF to Assessee Company for purchase of shares. Further, a notice u/s 133 (6) of Income Tax Act,1961 was issued to Dinesh Gupta HUF requiring him to submit documents related to his transaction done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re appreciated by the learned ITAT. According to him, the AO's order was bereft of any reasons and was actually cryptic. He states that the CIT (A) in fact examined the entire issue on the anvil of the tests laid down for invocation of section 68 of the Act. He states that these findings were reiterated by the learned ITAT in its impugned judgement. It is his contention that these are concurrent findings of fact which cannot and ought not to be interfered with by this Court. 12. Learned senior counsel contends that the three tests viz., the creditworthiness; the identity of the creditor; and genuineness of transactions are fully satisfied in the present case. He refers to various paragraphs of the impugned judgement to submit that the learned ITAT had examined the details of source of payments made to the assessee company by the shareholders. He also urged that the ITAT also took into consideration that the investors were existing shareholders of the assessee and therefore, identity was neither questionable nor doubtful. The fact that the assessee had also placed the past transactions with the same shareholders before the AO was also considered by the learned ITAT. 13. So far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-appreciate such findings all over again, nor is it the scope of section 260A of the Act, wherein Courts are only to examine and consider only "substantial questions of law". 18. Having said that, we would refer and reproduce the relevant paragraphs of the impugned judgement in order to satisfy our conscience that the foundational facts leading to such findings of fact were indeed available with both the Appellate Authorities since the revenue contends that question (B) is a substantial question of law. In the said examination, it would be apposite to extract para 7, 8, 10 and 11 of the impugned judgement dated 14.05.2024 hereunder: "7. Let us now proceed to examine various details furnished by the assessee in respect of each of the investors. These details are enclosed as under:- Dinesh Gupta (HUF) - Pages 771 to 775 of Paper Book Nimit Builders Pvt Ltd - Pages 906 to 908 of Paper Book Ramkumar Gupta (HUF) - Pages 945 to 946 of Paper Book Ramkumar Gupta (HUF) - Pages 947 to 971 of Paper Book Verma Developers Pvt Ltd - Pages 579 to 770 of Paper Book 8. It is pertinent to note that some of the individual investors had huge exempt income in their hands which itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 14.10.2015 79,00,000.00 14.10.2015 46,66,337.54 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801-852 14.10.2015 25,00,000.00 SALE OF UNLISTED SHARES CONFIRMATION OF ACCOUNT AT PAGE NO. 853 Total 79,00,000.00 71,66,337.54 6. 16.10.2015 1,60,00,000.00 16.10.2015 62,00,000.00 SALE OF UNLISTED SHARES CONFIRMATION OF ACCOUNT AT PAGE NO. 853 16.10.2015 95,00,000.00 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801-852 16.10.2015 22,39,417.31 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801-852 Total 1,60,00,000.00 1,79,39,417.31 7. 19.10.2015 2,13,00,000.00 16.10.2015 30,00,000.00 SALE OF UNLISTED SHARES CONFIRMATION OF ACCOUNT AT PAGE NO. 853 17.10.2015 60,00,000.00 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801-852 17.10.2015 2,98,052.00 DIVIDEND RECEIVED BANK STATEMENT AT PAGE NO. 776 TO 791 17.10.2015 29,03,554.00 DIVIDEND RECEIVED BANK STATEMENT AT PAGE NO. 776 TO 791 19.10.2015 72,00,000.00 SALE OF UNLISTED SHARES CONFIRMATION OF ACCOUNT AT PAGE NO. 853 Total 2,13,00,000.00 1,94,01,606.00 8. 26.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EST PVT LTD CONFIRMATION OF ACCOUNT AT PAGE NO.794 19 03.02.2016 1,20,00,000.00 02.02.2016 16,30,000.00 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801 TO 852 02.02.2016 54,00,000.00 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO. 801 TO 852 02.02.2016 48,00,000.00 SALE OF LISTED SHARES BROKERS CONTRACT NOTE AT PAGE NO.801 TO 852 Total 1,20,00,000.00 1,18,30,000.00 TOTAL 21,62,00,000.00 22,19,66,890.39 NIMIT BUILDERS PRVIATE LIMITED Details of immediate source of payment made to assessee company during the AY 2016-17 S.No. AMOUNT PAID IMMEDIATE SOURCE OF AMOUNT PAID REMARKS DOCUMENTARY EVIDENCES AT PAGE NO.909 to 944 DATE AMOUNT DATE AMOUNT 1 24.09.2015 6,57,00,000.00 24.09.2015 6,04,00,000.00 REFUND OF ADVANCES GIVEN IN EARLIER YEARS AND DURING THE YEARS TO M/S RISHI INFRATECH PVT LTD BALANCE SHEET OF M/S NIMIT BUILDERS PVT LTD HIGHLIGHTING REDUCTION IN LOANS & ADVANCES FROM 66 CRORES TO 31 CRORES AT THE START OF YEAR TO AT THE END OF THE YEAR AT PAGE NO. 909 24.09.2015 53,00,000.00 REFUND OF LOAN GIVEN DUR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 971 2 30.09.2015 45,00,000.00 30.09.2015 5,00,000.00 SALE OF UNLISTED SHARES TO M/S SAP COMPUSOFT PVT LTD 66,00,000.00 01.10.2015 43,00,000.00 23,00,000.00 Total 66,00,000.00 66,00,000.00 4 03.10.2015 50,00,000.00 03.10.2015 50,00,000.00 SALE OF UNLISTED SHARES TO M/S SAP COMPUSOFT PVT LTD 5 06.10.2015 52,00,000.00 06.10.2015 51,82,500.00 SALE OF UNLISTED SHARES TO M/S SAP COMPUSOFT PVT LTD 6 20.01.2016 90,00,000.00 20.01.2016 51,82,500.00 SALE OF UNLISTED SHARES TO MRAL SECURITIES PVT LTD 7 21.01.2016 86,00,000.00 21.01.2016 86,66,300.00 SALE OF UNLISTED SHARES TO MRAL SECURITIES PVT LTD 8 01.02.2016 79,00,000.00 01.02.2016 79,00,000.00 REFUND OF LOAN FROM M/S BDR FINVEST PVT LTD GIVEN ON 31.12.2015 COPY OF BANK STATEMENT AT PAGE NO. 947-950 TOTAL 5,10,00,000.00 5,54,48,800.00 VERMA DEVELOPERS PRIVATE LIMITED Details of immediate source of payments made to assessee company during the AY 2016-17 S.No. AMOUNT PAID IMMEDIATE SOURCE OF AMOUNT PAID REMARKS DOCUMENTARY EVIDENCES AT PAGE NO. 580 to 770 DATE AMOUN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to be contrary to record available. The learned ITAT has satisfied itself, albeit, after a thorough examination of material available on record that the assessee had successfully discharged the burden cast upon it under the mandate of section 68 of the Act, and unequivocally concluded that the assessee has complied completely with the conditions of triple test. 19. The aforesaid paragraphs demonstrate the re-examination and re-appreciation of facts/material and record by the two Appellate Authorities which propel us not to interfere with such findings. Suffice it to state that though the AO appears to have examined the material available before him, yet, recorded findings without rendering any reasons in support thereof. This itself would render such findings perverse requiring hierarchical appellate authorities to scrutinise such findings. Both the Appellate Authorities have concurrently found that the shareholders, who were the investors in the relevant years were existing shareholders of the assessee and thus, not doubting their identities. The creditworthiness was tested on the anvil of some such shareholders having huge exempt income in their individual capacities to offe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
