ITAT deletes addition for Share Application Money from Kolkata based companies

ITO Vs Sharda Shree Agriculture & Developers Pvt. Ltd. (ITAT Raipur)

ITO vs. Sharda Shree Agriculture & Properties Pvt. Ltd. ITA NO.84/RPR/2017 (Date of Order : 05.08.2022) relating to addition on account of Share Application Money from two Kolkata based companies. Entire Addition was deleted

In our considered view, as the failure on the part of the A.O to call for the requisite information by issuing notices/letters u/s. 133(6) of the Act to the aforesaid investor companies well within a reasonable time had resulted to the delay in furnishing of the requisite reply by them, therefore, the same by no means can be attributed either to the assessee or to the investor companies. Be that as it may, it is a matter of fact borne from the record that the requisite details as were called for by the AO vide his notices/letters issue under Sec. 133(6) had been furnished by the investor companies and the same are found available on the assessment record. Before us the ld. DR had not rebutted the aforesaid factual position, i.e, furnishing of the requisite details by the investor companies pursuant to the queries that were raised by the AO vide notices/letters issued under Sec. 133(6) of the Act. Apart from that, we find that though the assessee in the course of the proceedings before the CIT(Appeals) had furnished substantial documentary evidences to support the authenticity of its claim of having received share application money from the aforesaid investor companies, i.e. M/s. Neel Kamal Vanijya Pvt. Ltd and M/s Chandrika Vanijya Pvt. Ltd., viz. copies of the share application forms, audited financial statements, copies of the bank statement, confirmations of the share applicants, copies of the resolution of board of directors etc. which though were forwarded by the CIT(Appeals) to the A.O with a direction to furnish his remand report, but the A.O had failed to rebut much the less dislodge the claim of the assessee of having received genuine share application money from the aforesaid share subscribers.

In our considered view, as both the aforementioned investor companies had placed on record supporting documentary evidences which duly substantiated their identity and creditworthiness, as well as the genuineness of the transaction in question, which had neither been rebutted by the A.O in the course of the original assessment proceedings; nor in the remand proceedings, therefore, the department without dislodging the primary onus that was duly discharged by the assessee could not have drawn adverse inferences as regards the transactions in question. Apart from that, we find substantial force in the claim of the Ld. AR that now when the A.O i.e. ITO, Ward-11(1), Kolkata while framing the assessment of one of the investor company, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. had accepted the share capital of Rs.11.67 crore that was received by it in A.Y.2009-10 against which it had allotted 233470 shares, and thereafter it had not raised any fresh capital upto the date of subscription of the shares of the assessee company, therefore, it could safely be concluded that the source of availability of funds with the said investor company was not only proved to hilt, but in fact the same had also been accepted by the department. We, thus, in terms of our aforesaid observations concur with the view of the CIT(Appeals) that now when the source of the share application money of Rs.1,10,50,000/- received by the assessee company from one of the investor, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. is proved beyond doubt and had not been rebutted by the A.O, therefore, there was no justification on his part in drawing adverse inferences qua the said transaction.

As regards the share application money of Rs.1,33,50,000/- that was received by the assessee company from the other investor company, viz. Chandrika Vanijya Pvt. Ltd., we find that though the documentary evidences substantiating the identity, creditworthiness and genuineness of the transaction in question that were filed by the assessee were confronted by the CIT(Appeals) to the A.O with a direction to file a remand report,, however, the A.O in the said case too had failed to rebut the documents as were available before him. Apart from that, the fact that the aforesaid share application money had been refunded by the assessee company in two tranches had also been lost sight of by the A.O while drawing adverse inferences as regards the authenticity of the transaction in question.

Be that as it may, we are of the considered view that now when the assessee company on the basis of substantial documentary evidences had proved to the hilt the identity and creditworthiness of the investor companies, as well as the genuineness of the respective transactions in question, which had not been dislodged by the A.O, as there is no whisper by him either in the course of the assessment proceedings or in the remand proceedings, therefore, the onus that was shifted upon him to disprove the claim of the assessee had remained undischarged. Accordingly, finding no infirmity in the view arrived at by the CIT(Appeals) who had rightly vacated the addition of Rs.2,44,00,000/- that was received by the assessee company as share application money from the aforementioned two investors company, we uphold the same.

FULL TEXT OF THE ORDER OF ITAT RAIPUR

The present appeal filed by the department is directed against the order passed by the CIT(Appeals)-II, Raipur, dated 20.02.2017, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income-tax Act, 1961 (in short ‘the Act’) dated 31.03.2015 for assessment year 2012-13. Before us the Revenue has assailed the impugned order on the following grounds of appeal:

“1. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.2,70,00,000/- made by the AO u/s 68 of the Act.”

2. “Whether on points of law and on facts & circumstances of the case the Ld. CIT(A) was justified in deleting the addition of Rs.1,33,50,000/- received from ChandikaVanijya Pvt. Ltd. by ignoring the facts as brought on record by the AO that the assessee company failed to prove the identity, genuineness and creditworthiness of the investor company as per the parameters of the legal provisions u/s 68 of the Act?”

3. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,33,50,000/- pertaining to M/s Chandika Vanijya Pvt. Ltd. made by the AO on account of unexplained cash credits u/s 68 of the Act, stating that the part of the amount was refunded during the instant assessment year and the rest of the amount was refunded in the A.Y. 2015­16, thereby giving a finding which is beyond the jurisdictions of the legal parameters as mandated in Section 68 of the Act.?”

4. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.1,10,50,000/- received from Neel Kamal Vanijya Pvt. Ltd. during the year by ignoring the facts as brought out by the—A0 on record, that the assessee company failed to prove the identity, genuineness and creditworthiness of the investor company as per the legal parameters u/s 68 of the Act?”

5. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs. 1,10,50,000/- from Neel Kamal Vanijya Pvt. Ltd. by stating that the same transaction was accepted by the jurisdictional AO of the investor company (i.e. M/s Neel Kamal Vanijya Pvt. Ltd.), whereas during the assessment proceedings before the AO, the assessee company failed to prove the authenticity, genuineness and creditworthiness of the investor company.? “

6. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in accepting fresh evidence produced by the assessee i.e. the finding of the AO having jurisdiction over the case of M/s Neel Kamal Vanijya Pvt. Ltd., Kolkata, without allowing the AO of the assessee company at Raipur, proper opportunity to examine the same, thereby violating the provisions on law under Ruje 46A of the I.T. Rules.?

7. “Whether on points of law and on facts circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.26,00,000/- by ignoring the facts as brought out on record by the AO that the assessee company had not submitted any details and documentary evidences regarding share application money received from close relatives and directors whose identity, creditworthiness and genuineness of transaction could be justified in view of the legal provisions u/s 68 of the Act.?”

8. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in ignoring the established judicial precedent that the principle of res-judicata is not applicable to proceedings under the Income Tax Act, while giving adverse findings in the case of additions against the transactions of the assessee with the entities such as M/s ChandikaVanijya Pvt. Ltd. and M/s Neel Kamal Vanijya Pvt. Ltd.? “

9. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred by giving a finding which is contrary to the ratio of the judgment of the Hon’ble High Court of Calcutta in the of M/s Rajmandir Estate Pvt. Ltd. Vs Pr. CIT Kolkata-III, Kolkata (G.A. No. 509/2016 with I.T.A. No. 113/2016 dated 13.05.2016)? “

10. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred by giving a finding which is contrary to the ratio of the decisions of ITAT, Kolkata ’13’ Bench in the case of M/s SubhlakshmiVanijya (P) Ltd. Vs CIT-1, Kolkata in ITA No. 1104/Ko1/2014 and other cases dated 30.07.2015.?”

11. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred by giving finding which is contrary to the ratio of the decision of Hon’ble ITAT, Kolkata Bench in the case of M/s Bisakha Sales (P) Ltd. Vs CIT-II, Kolkata [ITA No. 1493/Kolkata/2013]? “

12. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified by giving a finding which is contrary to the evidence on record, as the Ld. CIT(A) has accepted the identity, creditworthiness of the entities investing in the share capital and share premiums of the assessee company as genuine, a finding which is factually incorrect, thereby rendering the decision, which is perverse.? “

13. “Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in giving a decision in favour of the assessee and against the revenue though there is no nexus between the conclusion of fact and primary fact upon which without conclusion is based.? “

14. “The order if Ld. CIT(A) is erroneous both in law and on facts.”

15. “Any other ground that may be adduced at the time of hearing.”

2. Succinctly stated, the assessee company which is engaged in the business of trading of rice husk a/w. deriving of income from various other streams, viz. rental receipts, profit on sale of immovable properties, purchase/sale of shares and interest income, had filed its return of income for A.Y. 2012-13 on 30.03.2013, declaring an income of Rs.3,83,753/-. Subsequently, the case of the assessee was selected for scrutiny assessment u/s.143(2) of the Act. Assessment was, thereafter, framed by the A.O vide his order passed u/s.143(3), dated 31.03.2015 determining the income of the assessee company at Rs.3,66,46,250/- after, inter alia, making the following additions:

3. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals). Before the CIT(Appeals), it was the claim of the assessee that in order to substantiate the authenticity of its claim of having received the share application money it had though filed with the A.O supporting documentary evidences, viz. copies of return of income a/w. computation of income, audited financial statements, details of bank accounts a/w. complete details of the share applicants but the same were summarily brushed aside by him. Adverting to the observations of the A.O that two share applicant companies to whom notices/letters were issued u/s.133(6) of the Act for verifying the authenticity of the assessee’s claim of having received share application money from them, had failed to furnish the requisite information/documents, it was submitted by the assessee that as the said notices were dispatched by the A.O at the fag end of the assessment proceedings i.e on 28.03.2015 and were received by the said respective companies which were based in Kolkata on 3^rd April, 2015 i.e. after the assessment order was passed by the AO under Sec. 143(3), dated 31.03.2015, therefore, it was for the said reason that the replies of the aforesaid companies could not be filed in the course of the assessment proceedings. It was the claim of the assessee that both the investor companies on receiving the notices/letters u/s. 133(6) of the Act on 03^rdApril, 2015, had without involving any loss of time furnished the requisite details with the A.O, i.e, both by way of an e-mail dated 4^th April, 2015 as well as a reply that was dispatched through speed post on 6th April, 2015.

4. Rebutting the observations of the A.O that the aforesaid investor companies in pursuance to the commission issued u/s.131(1)(d) of the Act were not found at their respective addresses, it was the claim of the assessee that no such commission was ever issued to ascertain the existence of the aforesaid applicant companies and the aforesaid claim of the A.O was absolutely baseless and had no legs to stand upon. In order to buttress its aforesaid claim of having received the share application money from the aforesaid investors the assessee had in the course of the appellate proceeding filed with the CIT(Appeals) documentary evidences in support thereof, viz. notarized affidavits of the investors companies and copies of the share application forms, audited financial statements, copies of the bank statements, confirmations of the share applicants, copies of the resolution passed in the meeting of the board of directors of the investor companies. Also, the assessee had filed before the CIT(Appeals) copies of the e-mails which were sent to the A.O a/w. letters that were dispatched though speed post. Considering the aforesaid documentary evidence the CIT(Appeals) called for a remand report from the A.O.

5. Ostensibly, the A.O in his remand report had accepted the documentary evidences which were filed by the assessee before him. The solitary objection of the AO was that now when the assessee despite sufficient opportunity had failed to substantiate the authenticity of its claim of having received the share application money from the aforesaid two investor companies, therefore, there was no justification in allowing it do the same for the very first time before the appellate forum. It was further the claim of the A.O that as in the course of enquiries that were conducted by issuing commission u/s. 131(1)(d) of the Act, neither of the two companies were found available at their respective addresses, thus, the said fact irrefutably evidenced that the assessee had raised an ingenuine claim of having received share application money from them. Also, the A.O annexed a list of Kolkata based companies as regards which commission u/s. 131(1)(d) of the Act was issued for conducting enquiries.

6. After having given a thoughtful consideration to the issue in hand, i.e, claim of the assesee of having received share application money and share premium from the aforesaid investors, the CIT(Appeals) was of the view that in so far the aforesaid two investors companies, viz. (i). M/s. Chandika Vanijiya Pvt. Ltd.; and (ii).Neel Kamal Vanjiya Pvt. Ltd. were concerned, both of them had duly replied to the queries that were raised by the AO. It was observed by the CIT(Appeals) that the fact that both the aforesaid investor companies had filed their replies with the A.O was evidenced on a perusal of the assessment records wherein copies of e-mails addressed to him with respect to the queries so raised were found lying available on record. Adverting to the share premium amounting to Rs.92,62,500/- that was added by the AO u/s.68 of the Act, the CIT(Appeals) found favor with the claim of the assessee that as the aforesaid amounts were the opening balances that and had been received by way of cheques in the period relevant to A.Y.2010-11, therefore, the same could not have been added as an unexplained cash credit u/s.68 of the Act during the year under consideration. As regards the amount of Rs.26 lac that was received by the assessee company as share application money from its directors and their close relatives, it was observed by the CIT(Appeals) that the assessee had duly evidenced their identity, creditworthiness and genuineness by placing on record copies of their returns of income, bank statements etc. It was further observed by the CIT(Appeals) that though the assessee company had returned the entire amount of share application money of Rs.26 lac to the aforesaid investors, i.e., the directors/relatives and, but the AO had remained oblivion of the said material fact. On the basis of his aforesaid observations the CIT(Appeals) vacated the addition of Rs.26 lac that was made by the A.O u/s.68 of the Act.

7. Adverting to the addition of Rs.2,44,00,000/- that was claimed by the assessee to have been received as share application money and share premium from the aforementioned two investor companies, viz. (i) M/s. Neel Kamal Vanijya Pvt. Ltd.: Rs.1,10,50,000/-; and (ii) M/s. Chandrika Vanijya Pvt. Ltd. : Rs.1,33,50,000/-, it was observed by the CIT(Appeals) that though the assessee in the course of the assessment proceedings had placed on record supporting documentary evidences to substantiate its claim of having received share application money/premium from the said investors companies, however, the same was not considered by the A.O while framing the assessment. As regards the share application money amounting to Rs.1,10,50,000/- that was received by the assessee company from M/s. Neel Kamal Vanijya Pvt. Ltd., it was observed by the CIT(Appeals) that the said investor company had way back in A.Y.2009-10 raised share capital of Rs.11.67 crores by allotting 233470 shares. It was observed by the CIT(Appeals) that the assessment in the case of the aforesaid investor company, viz. M/s. Neel Kamal Vanijya Pvt. Ltd, was thereafter, framed by the ITO, Ward-11(1), Kolkata and its claim of having raised the share capital was accepted by him vide his order passed u/s.143(3), dated 13.12.2011. Concurring with the claim of the assessee that now when the source of the funds available with the aforesaid investor, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. was accepted by the A.O while framing the assessment in its case and no fresh capital had thereafter been raised by the said investor company upto the date of subscription of the shares of the assessee company, therefore, no adverse inferences could have been drawn qua the share application money that was received by the assessee company from the said investor company i.e. M/s. Neel Kamal Vanijya Pvt. Ltd.

8. In so far assessee’s claim of having received share application money of Rs.1,33,50,000/- from M/s. Chandrika Vanijya Pvt. Ltd. was concerned, it was observed by the CIT(Appeals) that the assessee company had refunded the entire amount of money in two tranches, viz. (i) Rs.38,50,000/- was refunded during the period relevant to A.Y.2012-13; and (ii) the balance amount of Rs.95 lac was refunded in the period relevant to A.Y.2015-16. It was, thus, observed by the CIT(Appeals) that the AO was in error in drawing adverse inferences in the hands of the assessee by loosing sight of the aforesaid material fact.

9. Accordingly, on the basis ofhis aforesaid observations the CIT(Appeals) vacated the addition of Rs.2,44,00,000/- that was made by the A.O as regards the share application money that was claimed to have been received from the aforesaid two investors companies.

10. The Revenue being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. Before us the department has challenged the deletion of the addition of Rs.2,70,00,000/- (supra) by the CIT(Appeals), viz. (i) receipt of share application money from two investor companies: Rs. 2,44,00,000/-; and (ii) receipt of share application money from directors and their relatives: Rs.26 lakhs.

11. Ostensibly, it transpires, that there were twofold reasons that had primarily weighed with the AO for drawing adverse inferences as regards the share application money/premium received by the assessee company from the aforesaid investor companies, viz. (i). that the notices issued u/s.133(6) of the Act were not complied with by the investor companies; and (ii). that the commission issued u/s.131(1)(d) of the Act had revealed that neither of the aforesaid companies were available at their respective addresses. As observed by us hereinabove, it is a matter of fact borne from record that notices/letters u/s.133(6) of the Act were issued by the A.O to the aforementioned two investors companies, viz. (i) M/s.Neel Kamal Vanijya Pvt. Ltd.; and (ii) M/s Chandrika Vanijya Pvt. Ltd. on 26.03.2015 and were dispatched through speed post only on 28.03.2015, as a result whereof the same were received by the aforesaid companies only as on 03.04.2015. Our aforesaid observation is duly fortified by the endorsements of the postal department to which our attention was drawn by the Ld. AR at the time of hearing of appeal, Page 175 & 176 of APB & Page178-179 of APB. Also, we find that after having received the aforesaid notices both the said companies had vide their respective letters dated 04.04.2015 which were forwarded to the A.O through e-mail and speed post, had furnished complete details as were called for by him.

12. In our considered view, as the failure on the part of the A.O to call for the requisite information by issuing notices/letters u/s. 133(6) of the Act to the aforesaid investor companies well within a reasonable time had resulted to the delay in furnishing of the requisite reply by them, therefore, the same by no means can be attributed either to the assessee or to the investor companies. Be that as it may, it is a matter of fact borne from the record that the requisite details as were called for by the AO vide his notices/letters issue under Sec. 133(6) had been furnished by the investor companies and the same are found available on the assessment record. Before us the ld. DR had not rebutted the aforesaid factual position, i.e, furnishing of the requisite details by the investor companies pursuant to the queries that were raised by the AO vide notices/letters issued under Sec. 133(6) of the Act. Apart from that, we find that though the assessee in the course of the proceedings before the CIT(Appeals) had furnished substantial documentary evidences to support the authenticity of its claim of having received share application money from the aforesaid investor companies, i.e. M/s. Neel Kamal Vanijya Pvt. Ltd and M/s Chandrika Vanijya Pvt. Ltd., viz. copies of the share application forms, audited financial statements, copies of the bank statement, confirmations of the share applicants, copies of the resolution of board of directors etc. which though were forwarded by the CIT(Appeals) to the A.O with a direction to furnish his remand report, but the A.O had failed to rebut much the less dislodge the claim of the assessee of having received genuine share application money from the aforesaid share subscribers.

13. In our considered view, as both the aforementioned investor companies had placed on record supporting documentary evidences which duly substantiated their identity and creditworthiness, as well as the genuineness of the transaction in question, which had neither been rebutted by the A.O in the course of the original assessment proceedings; nor in the remand proceedings, therefore, the department without dislodging the primary onus that was duly discharged by the assessee could not have drawn adverse inferences as regards the transactions in question. Apart from that, we find substantial force in the claim of the Ld. AR that now when the A.O i.e. ITO, Ward-11(1), Kolkata while framing the assessment of one of the investor company, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. had accepted the share capital of Rs.11.67 crore that was received by it in A.Y.2009-10 against which it had allotted 233470 shares, and thereafter it had not raised any fresh capital upto the date of subscription of the shares of the assessee company, therefore, it could safely be concluded that the source of availability of funds with the said investor company was not only proved to hilt, but in fact the same had also been accepted by the department. We, thus, in terms of our aforesaid observations concur with the view of the CIT(Appeals) that now when the source of the share application money of Rs.1,10,50,000/- received by the assessee company from one of the investor, viz. M/s. Neel Kamal Vanijya Pvt. Ltd. is proved beyond doubt and had not been rebutted by the A.O, therefore, there was no justification on his part in drawing adverse inferences qua the said transaction.

14. As regards the share application money of Rs.1,33,50,000/- that was received by the assessee company from the other investor company, viz. Chandrika Vanijya Pvt. Ltd., we find that though the documentary evidences substantiating the identity, creditworthiness and genuineness of the transaction in question that were filed by the assessee were confronted by the CIT(Appeals) to the A.O with a direction to file a remand report,, however, the A.O in the said case too had failed to rebut the documents as were available before him. Apart from that, the fact that the aforesaid share application money had been refunded by the assessee company in two tranches had also been lost sight of by the A.O while drawing adverse inferences as regards the authenticity of the transaction in question.

15. Be that as it may, we are of the considered view that now when the assessee company on the basis of substantial documentary evidences had proved to the hilt the identity and creditworthiness of the investor companies, as well as the genuineness of the respective transactions in question, which had not been dislodged by the A.O, as there is no whisper by him either in the course of the assessment proceedings or in the remand proceedings, therefore, the onus that was shifted upon him to disprove the claim of the assessee had remained undischarged. Accordingly, finding no infirmity in the view arrived at by the CIT(Appeals) who had rightly vacated the addition of Rs.2,44,00,000/- that was received by the assessee company as share application money from the aforementioned two investors company, we uphold the same.

16. Adverting to the amount of Rs.26 lac that was received by the assessee company from the directors and their close relatives, we find that as stated by the Ld. AR, and rightly so, the A.O while framing the assessment had though not made any verification qua the said investors, but had summarily without giving any cogent reason drawn adverse inferences as regards the same.

17. Be that as it may, we find that though the assessee in the course of the proceedings before the CIT(Appeals) had placed on record copies of the returns of income a/w. computation of income, bank details etc. to substantiate its claim of having received share application money from the aforementioned eight parties i.e. directors of the assessee company and their close relatives, however, the A.O in his remand report had failed to place on record any material which would dislodge the authenticity of the said documents. In the backdrop of the aforesaid facts, we are of the considered view that as the assessee had discharged the primary onus that was cast upon it as regards proving the identity, creditworthiness and genuineness of the transaction of having received share application money from the aforesaid eight parties i.e directors of the assessee company and their close relatives/friends, which the AO had absolutely failed to dislodge by placing on record any such material which would prove to the contrary, therefore, the adverse inferences so drawn by him as regards the authenticity of the transactions in question cannot be sustained and is liable to be vacated. We, thus, in terms of our aforesaid observations finding no infirmity in the view taken by the CIT (Appeals) who had rightly vacated the addition of Rs.26 lakhs, uphold the same to the said extent.

18. In the result, appeal filed by the Revenue is dismissed in terms of our aforesaid observations.

Order pronounced in the open court on 05t^h day of August, 2022.