Unsigned Mauritius Financials Sink Section 68 Defence – ITAT Restores ₹6.30 Crore Share Premium Addition

ACIT Vs Indure Private Limited (ITAT Delhi)

Unsigned Mauritius Financials Sink Section 68 Defence – ITAT Restores ₹6.30 Crore Share Premium Addition

The Delhi ITAT restored an addition of ₹6.30 crore made u/s 68 in respect of share capital and premium received by The Indure Private Limited from Mauritius-based investor Energen Infra (Mauritius) Ltd., holding that the assessee failed to discharge the primary onus of proving identity, creditworthiness and genuineness of the transaction. The AO had observed that the financial statements of the Mauritius entity were merely plain unsigned papers without notes, annexures, auditor seal, company seal or even the name of the signatory director. Despite being specifically asked to furnish proper authenticated financials, the assessee failed to provide complete documents during assessment proceedings.

Rejecting the assessee’s defence that the inward remittance had already been approved by RBI, the Tribunal held that FEMA/RBI compliance and section 68 requirements operate in completely different fields. The ITAT observed that RBI approval by itself does not establish compliance with section 68 of the Income-tax Act. Stressing that financial statements without signatures, seals or authentication cannot inspire confidence as valid evidence, the Tribunal remarked that affixing names, stamps and signatures on financial statements is a universally accepted accounting practice. Since the assessee failed to furnish credible supporting material to establish the investor’s financial capacity and genuineness of the transaction, the ITAT reversed the CIT(A)’s relief and upheld the AO’s addition u/s 68.

FULL TEXT OF THE ORDER OF ITAT DELHI

This appeal filed by the Revenue is against order dated 18.06.2024 of National Faceless Appeal Centre/learned Commissioner of Income Tax(Appeals), New Delhi, [hereinafter referred to as ‘ld. CIT(A)] arising out of assessment order dated 19.04.2021 passed under section 143(3) read with section 144B of the Income Tax Act, 1961 pertaining to Assessment Year 2018­19. The word ‘Act’ herein this order would mean Income Tax Act, 1961.

2. The Revenue has raised following grounds of appeal:-

1 Whether, on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition on account of Share capital with premium received from M/s Energen Infra(Mauritius) Ltd treated as unexplained cash credit u/s 68 amounting to Rs. 6,30,09,585/-.

3. The only issue raised by the appellant revenue in this case is regarding the deletion of addition of Rs.6,30,09,585/- under Section 68 of the Act by the ld. First Appellate Authority. The ld. DR Smt. Ankush Kalra, took us through the brief factual matrix of the case. It was submitted that in this case, the assessee had filed its Return of Income on 31.10.2018 declaring income of Rs.1,42,65,240/-. During the course of the assessment proceedings, perusal of financials of the assessee revealed that there was an increase in the share capital of the assessee. Upon being queried, the assessee had informed that during the year under consideration, it had issued 19,181 shares at the rate of Rs.3195 per share to one M/s Energen Infra (Mauritius) Ltd. , which is a company registered in the republic of Mauritius. The assessee had explained that it had approvals of all the statutory authority like RBI, etc to get this share allotment. The ld. AO noted that the financials of M/s Energen Infra (Mauritius) Ltd. for the year ended 31^st December, 2017 and 31^st December, 2018, were plain paper without any notes annexures, company seal or auditor seal or even the name of the director who had signed them. The ld. AO further queried the assessee to file correct and complete financials but his yearnings fell on deaf ears and remained uncompiled. The ld. AO therefore made the impugned additions invoking provisions of section 68 of the Act. It was postulated that the assessee had failed to satisfy him under section 68 qua the said credits on account of share subscription money appearing in its accounts. The ld. CIT(A), however, accepted the assessee’s plea regarding the correctness of the above documents and deleted the addition made by the AO.

4. Sr. DR, Ms. Kalra, vehemently argued alluding towards the same set off incorrect and incomplete documents. It was argued that the said documents cannot be deemed as fulfilling the requirement of section 68 and hence the relief accorded was excessive and erroneous.

5. The ld. Counsel for the assessee reiterated the same set of argument taken before the Ld. First Appellate Authority submitting that as the RBI has approved its transaction of inward remittances qua the share application money, no blame of incomplete compliance can be placed upon its shoulders.

6. We have heard the rival submissions in the light of material placed on record. The principal issue under consideration is appropriateness of invocation of section 68 of the Act by the ld. AO so as to make the impugned addition of Rs.6,30,09,585/-. At this stage, we deem it necessary to reproduce the exact statutory prescription as available in section 68 of the Act.

“68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year :

Provided that where the sum so credited consists of loan or borrowing or any such amount, by whatever name called, any explanation offered by such assessee shall be deemed to be not satisfactory, unless,—

Provided further that where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless—

Provided also that nothing contained in the first proviso or second proviso shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of section 10.”

7. A perusal of the above shows that an assessee is required to explain the AO, the troika conditions prescribed in section 68 vis of identity of the lender, his creditworthiness and the genuineness of the transaction. It is trite law as repeatedly and unanimously laid down by the Hon’ble High Courts and the Hon’ble Apex Court, that the primary onus of fulfilling conditions of section 68, before the Revenue Authorities, rests upon the taxpayer. It is an undisputed fact of this case that the ld. AO had noted from the financials of M/s Energen Infra (Mauritius) Ltd. for the year ended 31^st December, 2017 and 31^st December, 2018, that the assessee had submitted details of the company on a plain paper without any notes annexures, company seal or auditor seal or even the name of the director who had signed them. It is also borne from records that the ld. AO further queried the assessee to file correct and complete financials but his yearnings fell on deaf ears and remained uncompiled. Thus, the appellant cannot save himself from the blame of not providing details to AO as per provisions of section 68 of the Act. The invocation of the same and the corresponding addition therefore cannot be faulted upon.

8. We have considered the arguments of the Ld. AR of the assessee that because the RBI had approved the inward remittances on the same set of documents, the Revenue cannot take a different view. His arguments of correctness of the decision of Ld. CIT(A) on the said facts has also been considered. We have noted that the inward remittance rules of the RBI and the provisions of section 68 of the Income Tax Act, do not fall under the same set of laws and rules. This being so because the purpose of the two set of rules is different. At the outset, it is not known whether the RBI had approved inward remittances of shares considering the same set of documents produced before the ld. AO or on the basis of some other documents. No arguments have been adduced to allude that same set of documents were given to R.B.I. Notwithstanding the same, merely because the RBI had approved inward remittances considering a particular set of documents would not constitute compliance to provisions of section 68. Within the meaning of section 68 of the Act, a taxpayer is required to unequivocally prove the identity of the lender, his creditworthiness and the genuineness of the transaction. It is settled principle of law that a document produced as evidence by a respondent must be demonstrative of enough merit so as to deem its acceptance as a valid piece of evidence. We have perused the unsigned incomplete financials produced by the appellant assessee before the AO, which were rejected by him and have noted that the same do not exude the confidence to the reader of valid evidence. Writing of names of Directors, placing of seals and stamps on financials like balance sheet, profit & loss Account, trading account, etc. is an accepted accounting practice which is prevalent across the globe. Consequently, the absence of any name, or stamp or seal on the financials under consideration raises a valid suspicion about its validity. The inability of the appellant assessee to have produce any supplementary evidences to support its case further adds credence to the presumption of the same being valid piece of evidences. In the present case, the appellant had miserably failed to comply with the provisions and hence no blame can be placed upon the shoulder of the Ld. AO. Accordingly, we are of the considered view that order of ld. CIT(A) is not based upon correct understanding and interpretation of the facts of the case. We therefore set-aside the order of the Ld. CIT(A) and sustain the addition made by the ld. AO. The ground of appeal raised by the appellant Revenue is allowed.

9. In the result, the appeal of the Revenue is allowed.

Order pronounced in the open court on 15^th May, 2026.