No section 68 addition if sister concern/group companies proves creditworthiness

BST Infratech Ltd. Vs DCIT (ITAT Kolkata)

The case of BST Infratech Ltd. Vs DCIT heard by the ITAT Kolkata revolves around the addition of Rs.14,63,00,000 under Section 68 of the Income Tax Act. The appeal was filed by BST Infratech Ltd. against the order of the Commissioner of Income Tax (Appeals)-11, Kolkata.

Background and Grounds of Appeal

BST Infratech Ltd. challenged the addition of Rs.14,63,00,000 made by the Assessing Officer (AO) and confirmed by the CIT(A). The amount represented share capital and share premium received from various share applicants. The assessee contended that all necessary documents proving the identity and creditworthiness of the share applicants and the genuineness of the transactions were provided. The share applicants were assessed to income tax, and the funds were received through proper banking channels.

Assessment Proceedings

During the assessment proceedings, the AO noted the receipt of share capital and share premium from private limited companies. Despite the documents provided by BST Infratech Ltd., the AO added the entire amount as unexplained income under Section 68, citing insufficient proof of identity and creditworthiness of the share subscribers.

First Appeal

The CIT(A) upheld the AO’s addition, although it acknowledged the lack of detailed discussion in the AO’s order regarding the evidence furnished by the assessee. The CIT(A) pointed out that the AO had not mentioned any specific deficiencies in the documents provided.

Key Arguments by the Assessee

1. Identity and Creditworthiness: BST Infratech Ltd. argued that the AO failed to appreciate the detailed documents proving the identity and creditworthiness of the share applicants. The directors of the share applicant companies were also produced for examination, but the AO refused to record their statements.

2. Compliance and Net Worth: The assessee highlighted that all share applicant companies were compliant with income tax and ROC regulations. The companies had substantial net worth, as demonstrated by their financial statements and other supporting documents.

3. Genuineness of Transactions: The share capital and premium were raised from group companies, which had sufficient net worth to make such investments. The transactions were conducted through proper banking channels, adding to their genuineness.

Findings of the Tribunal

The ITAT observed that the AO’s order was cryptic and lacked a detailed examination of the evidence provided by BST Infratech Ltd. The Tribunal noted that the AO had not identified any specific defects in the documents submitted by the assessee. Furthermore, the CIT(A) had also recognized the inadequacies in the AO’s assessment process but still confirmed the addition without sufficient justification.

The Tribunal emphasized the importance of a thorough examination of the evidence before making any additions under Section 68. It found that the AO had acted with a biased approach and had not provided a fair assessment of the documents and explanations given by the assessee.

Conclusion

The ITAT concluded that the addition of Rs.14,63,00,000 under Section 68 was unjustified. It directed the AO to delete the addition, thereby providing relief to BST Infratech Ltd. This case highlights the necessity for tax authorities to conduct a detailed and unbiased examination of evidence before making additions under Section 68. The ruling reinforces the importance of due process and fair assessment in tax proceedings.

FULL TEXT OF THE ORDER OF ITAT KOLKATA

The present appeal has been preferred by the assessee against the order dated 28.11.2019 of the Commissioner of Income Tax (Appeals)-11, Kolkata (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). The assessee in this appeal has taken the following grounds of appeal:

“1. That the Ld. CIT(A) was wrong in confirming the addition of a sum of Rs.14,63,00,000/- u/s 68 of the Act being the share capital & share premium money received during the year from the share applicants without appreciating the fact that the details and documents provided to him were fully examined. Further, all the share applicants are assessed to income tax and the entire share application money was received though proper banking channels. Thus, addition made by Ld. A.O and confirmed by Ld. CIT(A) is unjustified and needs to be deleted.

2. That the assessee craves leave to add, alter, amend or withdraw any ground or grounds of appeal before or at the time of hearing.”

2. The brief facts of the case are that that Assessing Officer( in short AO) during the assessment proceedings noted from the accounts of the assessee that the assessee during the year had shown receipt of share capital including share premium of Rs.14,63,00,000/- from different private limited companies. On being asked to explain in this respect, the assessee furnished the required documents to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction. However, the Assessing Officer treated the said share capital and share premium as unexplained income of the assessee and made the impugned addition of u/s 68 of the Income Tax Act.

In first appeal, the Ld.CIT(A) confirmed the additions so made by the AO.

3. We have heard the rival contentions and gone through the record. At the outset, the Ld. AR of the assessee has brought our attention to the impugned assessment order dated 12.03.2015 to submit that the same is a small cryptic order. We note that there is absolute no discussion made by the AO in respect of the details and evidences furnished by the assessee to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction. The AO without pointing out any defect, discrepancy in the evidences furnished by the assessee, straightway added the entire share application money into the income of the assessee u/s 68 of the Income Tax Act holding the same as unexplained cash credit.

The ld. AR has also brought our attention to the relevant paras of the impugned order of the CIT(A) to demonstrate that even the ld. CIT(A) in para 6.1 of the impugned order has categorically mentioned, “in a cryptic and unclear statement, the ld. AO has stated that the appellant had furnished ‘some details’ without mentioning which detail was furnished and which were not.” The ld. CIT(A) has also pointed out that though the AO has mentioned that the assessee did not produce any of the director of the shareholder companies for examination, however, the said fact has been refuted by the ld. AR stating that all the details as required by the AO were submitted before him and that even the directors were also produced before him but the ld. AO refused to record their statement, and, with a biased mind, passed the impugned assessment order.

Further, the ld. CIT(A) in para no. 8 of the impugned order has observed that since the ld. AO had not brought any relevant fact on record, therefore, he himself proceeded to undertake the fact-finding exercise. He, accordingly, asked the assessee to furnish the details of the directors of the assessee company, the names of companies in which they are substantially interested, the details of companies/entities who have invested in the assessee company, their returns of income, financial statement along with copies of memorandum of association, bank account statements of the accounts from which the cheques were issued for investment in the assessee company and the basis, formula or method which was followed in ascertaining the value of the shares and deciding the rate at which premium was to be issued. The ld. CIT(A) examined the details furnished by the assessee, however, concluded as under:

“(a) They have no or nominal assets in real terms. Assets in the form of investments have been created through a circular rotation of money as is evidenced by the bank accounts of the investors. This has already been discussed above.

(b) The assets consist of cash and cash equivalents,

(c) There actually is no or insignificant business being conducted by its investors. They do not have income (or have negligible income from business operations),

(d) The returns filed by them are mostly of loss or of insignificant proportions being below the taxable limits.

(e) The bank accounts are used only for rotating money and for issuing account payee cheques to impart an appearance of genuineness to the transactions.”

4. The ld. counsel for the assessee explained before us that the assessee company has issued 29,26,000 no. of shares of Rs.10/- each at a share premium of Rs.40/- per share amounting to Rs.14,63,00,000/-. The ld. Counsel, further submitted that all the shareholders companies were group companies of the assessee. That in every group, there was one or two flagship companies and so was the case of the assessee. Further, that the relatives of Mr. Gopal Kumar Agarwal, the director of Assessee company, were also directors in the share applicant companies. The nature of relationship has been explained in the table below:

4.1. The Ld. Counsel, further, took us through the written submissions filed before the ld. CIT(A), details of the appellant company which included its audited financial statement, income tax return, bank statement and the documents of investor companies placed in the paper-book. He submitted that the share applicants were having sufficient net owned funds for making investments in the assessee company. The details of the net owned funds of the applicants and the investments made by them were explained as under:

4.2 The Ld. Counsel, therefore, submitted that the share applicants were having sufficient owned funds and substantial net worth with them and small portion out of that was invested in the assessee company and hence their creditworthiness cannot be doubted at all. Further, the details of the group companies who have invested in the assessee company has been furnished as under:

“a) Gainwell Textrade Pvt. Ltd.- This company was incorporated on 08.03.2007 and was having company identification number U51109WB2007PTC114011. This company duly filed its return of income before ITO Ward 1(1), Kolkata and was having PAN AACCG7981P. This company was having a paid up capital with free reserves and surplus of Rs.18,87,05,097/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. The company is an Active Compliant and has made a regularcompliances as evident from the master details available at the Ministry of Corporate Affairs website. Companies Balance Sheet along with the return filing Acknowledgment as on the current date is also enclosed for the kind perusal of your honours.

b) Lucky Tradelink Pvt. Ltd. – This company was incorporated on 30.09.2008 and was having company identification number U51909WB2008PTC129811. This company duly filed its return of income before ITO Ward 11(2), Kolkata and was having PAN AABCL5331R. This company was having a paid up capital with free reserves and surplus of Rs.5,52,71,797/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. The company is an Active Compliant and has made a regular compliance as evident from the master details available at the Ministry of Corporate Affairs website. Companies Balance Sheet along with the return filing Acknowledgment as on the current date is also enclosed for the kind perusal of your honours.

c) Pawapuri Mercantile Pvt. Ltd.-This company was incorporated on 21.01.1994 and was having company identification number U51909WB1994PTC061532. This company duly filed its return of income before ITO Ward 1(2), Kolkata and was having PAN AABCP5142N. This company was having a paid up capital with free reserves and surplus of Rs.18,24,24,141/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. The company is a Active Compliant and has made a regular compliances as evident from the master details available at the Ministry of Corporate Affairs website. Companies Balance Sheet along with the return filing Acknowledgment as on the current date is also enclosed for the kind perusal of your honours.

d) HIL Engineering Pvt. Ltd.-This company was incorporated on 21.08.1991 and was having company identification number U65921WB1991PTC052785. This company duly filed its return of income before ITO Ward 5(4), Kolkata and was having PAN AAACH6729E. This company was having a paid up capital with free reserves and surplus of Rs.20,65,33,137/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. The company is an Active Compliant and has made a regular compliances as evident from the master details available at the Ministry of Corporate Affairs website. Companies Balance Sheet along with the return filing Acknowledgment as on the current date is also enclosed for the kind perusal of your honours.

e) Mubarak Cosmetics Pvt. Ltd.-This company was incorporated on 19.01.1995 and was having company identification number U51909WB1995PTC067638. This company duly filed its return of income before ITO Ward 4(2), Kolkata and was having PAN AACCM2670F. This company was having a paid up capital with free reserves and surplus of Rs.17,51,35,634/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. The company is a Active Compliant and has made a regular compliances as evident from the master details available at the Ministry of Corporate Affairs website. Companies Balance Sheet along with the return filing Acknowledgment as on the current date is also enclosed for the kind perusal of your honours.”

4.3 The Ld. Counsel, therefore, submitted that from above details it was clearly evident that the companies were active companies making full compliances of both ROC and Income Tax. The Ld. Counsel further submitted that to prove the identity and creditworthiness of the transactions, the following details were furnished before the lower authorities: “

4.4 The Ld. Counsel has further submitted that the justification for raising the share capital and share premium from group companies was also furnished before the lower authorities, which is given as under:

“1.4 Before entering into the merits of the case and travelling through the discussion to prove the identity and creditworthiness of the investors as well as genuineness of the transactions, it is pertinent to understand that why at all such huge capital was required by the assessee at the impugned point of time and also how such huge capital was used by the assessee company for its business?

1.4.1 The answer to above questions was itself available in the financial statement of the assessee which the AO did not take pain to see. At the relevant point of time the assessee was expanding its business. There were huge additions to plant & machinery, buildings, etc. In the impugned year the increase in fixed assets was Rs.14,37,89,571/-. Also, the business of the assessee has increased remarkably in the year concerned. The revenue from operations (Net) has increased by Rs. 102,00,99,789( (i.e 73%) in comparison to the previous year. Therefore, the business activities have also increased considerably. For the purpose of expansion, funds are required to carry on the business activities. Therefore, the assessee raised funds from various means, increment in share capital from associates being one of them. Consequent to sales there has also been huge increase in the expenses incurred by the assessee in achieving such huge turnover. The increase in expenses was Rs. 102,17,48,258/- as compared to last year. If we travel through the other side of balance sheet, then your honors will address that the stock and debtors have increased by Rs. 11,01,72,814/- and Rs 29,44,11,286/-. From the above it apparent that a considerable part of funds was blocked in stock and debtors. Therefore, the assessee was in need of funds that could be channelized into its operation activities as well as in assets expansion. The assessee utilised the funds so raised (including the impugned amount of share application money of Rs. 14,63,00,000/-) for the production purpose, for acquisition of fixed assets, for repayment of loans and other activities concerned with day to day operation of the business.

1.4.2 Therefore, the facts emerging from the above analysis are that the assessee is a manufacturing company having a genuine and renowned client base. In order to have a strong capital base and for business expansion, the capital of the company needs to be increased so that it can create a sound impression among the investors, who are well known & close associates of the assessee, about the soundness of its creditworthiness and bright future prospect. The assessee raised its capital by allotting the shares to its group companies. On careful examination of balance sheet of the assessee your honors will address the fact that the assessee is using mixed pool funding system i.e, both owned capital and borrowed capital are used by the assessee. In the instant case, the assessee has also borrowed short term loans for utilization in its business in addition to the issue of shares for raising capital. Therefore, issue of shares and raising capital from body corporate is just a way of funding its business activities and it should not be seen in isolation.”

5. After considering the above details, which have also been reproduced in the impugned order of the CIT(A), we note that the Assessee has proved the identity of the share subscribers. The share applicants are the Group companies of the assessee company and they are body corporate, registered with the ROC and they were available at the given address. The share applicants have furnished copy of PAN and are registered with ROC having CIN. All the data’s of such companies are available with Income Tax Department & ROC. They are also assessed to Income Tax regularly. In respect of genuineness of the transaction the ld. Counsel has established that the share application money was received through proper banking channels; the share holders had sufficient fund for the purpose of investment & the investments are reflected in their books of account and Bank accounts of the shareholders confirmed the transactions. All are share holders are regularly assessed to Income Tax.

So far as the need for share subscription money and the reason for the group companies to invest in the assessee company is concerned, in this regard it has been explained by the assessee that the assessee is a manufacturing company having turnover of more than Rs. 241 Crores and huge net worth. The assessee is mainly engaged in steel industry so the future prospect is great. Also the business of the assessee is heavily expanding in terms of both turnover and asset. That the assessee was in need of funds as the assessee was expanding its operations. The facts of the case itself suggest that during the impugned point of time there was heavy increase in fixed assets also the turnover increased by 73%. To expand the business assessee needed the funds, which were generated through issue of fresh shares. Further, that the reason to invest also included strategic relation and are made by the associate / group companies, having directors directly related to the assessee company’s directors.

We further find force in the contention of the Ld. AR that even the Assessing Officer or the CIT(A) has not brought on record any evidence to show that it was the assessee’s own fund that was brought back in the form of share application money. The Ld. CIT(A), himself, has pointed out that the assessment order of the AO was cryptic and that no exercise was done by the AO to examine the records of the case.

Even the Ld. CIT(A), who has, himself, done the exercise of examining the documents has not pointed any doubt or discrepancy with regard to the identity of the investors. The only contention that has been raised by the CIT(A) in the impugned order is that the investor companies have low income. Assets in the form of investments have been created through rotation of money in between the group companies and that the assets mainly consist of cash and cash equivalents. The above contentions raised by the CIT(A), in our view, are not enough to prove that any unaccounted money of the assessee has been introduced in the assessee company, warranting addition under section 68 of the Income Tax Act. Even after making elaborate exercise of examining the documents, the Ld. CIT(A) could not point out any rebuttal to the above evidences furnished by the assessee to prove the identity, creditworthiness of the share subscribers and genuineness of the transaction. The hon’ble Jurisdictional Calcutta High Court, in the case of PCIT vs. Anmol Stainless (P.) Ltd. (2022) 138 taxmann.com 535 (Calcutta HC) has held that that where it has been sufficiently established that share applicants had substantial creditworthiness and investments had been made by assessee’s own sister concern/group companies having mostly common directors and thus, establishing creditworthiness and genuinity of investments, additions under section 68 had been rightly been deleted.

In view of the discussions made above, we do not find justification on the part of lower authorities in making/confirming the impugned additions, the same are accordingly ordered to be deleted.

In the result, the appeal of the assessee is, hereby, allowed.

Kolkata, the 30^th November, 2022.