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Smart Summary

Factual and Procedural Background

The Assessing Officer disbelieved the genuineness of share subscriptions received from the assessee’s directors, promoters, and the public. The Commissioner (Appeals) initially remanded the matter for a fresh enquiry because the earlier investigation had been conducted hastily. On remand, the assessee disclosed income-tax file numbers and evidence of payment by cheque for most subscriptions, but provided only a subscriber list for the public issue. The Commissioner (Appeals) directed further investigation concerning shares worth Rs. 3,80,000 and disallowed Rs. 19,88,750 under section 68 of the Income-tax Act, 1961. [1]

The Tribunal held that amounts paid by cheque could not be disallowed. The High Court considered the resulting legal questions on reference. [1][2]

Legal Issues Presented

  1. Whether share subscriptions could be treated as unexplained cash credits under section 68 despite payment by cheque, where the assessee had not established the subscribers’ identity, creditworthiness, and the genuineness of the transactions. [3][4]
  2. Whether the dismissal of the special leave petition in Steller Investment Ltd.’s case created binding law under article 141 of the Constitution. [5][6]

Arguments of the Parties

Arguments Relied on by Mr. Deb

  • Mr. Deb relied on CIT v. Steller Investment Ltd., Commissioner Of Income-Tax, N. Delhi… v. Sophia Finance Ltd…., and Sumati Dayal v. Commissioner Of Income Tax, Bangalore, to contend that the income-tax authorities could apply section 68 in such circumstances. [7]
  • He contended that the dismissal of the special leave petition in Steller Investment Ltd.’s case was not binding on High Courts under article 141 because the Supreme Court had not considered the legal ratio or discussed the issue on its merits. [5]
  • He also relied on Commissioner Of Income-Tax v. Korlay Trading Co. Ltd. for the proposition that merely furnishing income-tax file numbers was insufficient. [4]

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hindusthan Tea Trading Co. Ltd. v. CIT, [2003] 263 ITR 289 (Cal) Burden on the assessee and the duties of the Assessing Officer in applying section 68. The Court applied the principles discussed in that decision to hold that the assessee had to establish identity, creditworthiness, and genuineness. [7][4][2]
CIT v. Steller Investment Ltd., [2001] 251 ITR 263 (SC); Steller Investment Ltd.’s case, [1991] 192 ITR 287 (Delhi) Whether dismissal of an SLP concerning a factual decision creates binding law under article 141. The Court held that the nonspeaking dismissal of the SLP, without consideration of the merits, had no binding effect under article 141. [5][6]
Commissioner Of Income-Tax, N. Delhi… v. Sophia Finance Ltd…., [1994] 205 ITR 98 (Delhi) The legal position concerning section 68 and share subscriptions. The Court treated the Full Bench decision as valid and not per incuriam, rejecting the contrary effect attributed to Steller Investment Ltd. [7][6]
Sumati Dayal v. Commissioner Of Income Tax, Bangalore, [1995] 214 ITR 801, 804 (SC) Authority relied upon in support of applying section 68. It was among the decisions relied upon by Mr. Deb; the Court’s operative reasoning focused on the statutory requirements and the investigation of genuineness. [7]
Municipal Corporation Of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 : AIR 1989 SC 38 A nonspeaking order dismissing an SLP does not lay down binding law under article 141. The Court relied on it to support its conclusion regarding the limited effect of the SLP dismissal in Steller Investment Ltd. [6]
Gangadharan v. Janardhana Malian, (1996) 9 SCC 53 : AIR 1996 SC 2127 The effect of dismissal of an SLP without entering into the merits. The decision was cited as authority for holding that such dismissal is not binding under article 141. [6]
Director of Settlements v. M.R Apparao, (2002) 4 SCC 638 The limits of article 141 where the Supreme Court has not decided the merits. The Court relied on it in concluding that the SLP dismissal in Steller Investment Ltd. did not declare binding law. [6]
Commissioner Of Income-Tax v. Korlay Trading Co. Ltd., [1998] 232 ITR 820 (Cal) Merely furnishing income-tax file numbers is insufficient; the Assessing Officer must investigate the relevant materials. The Court applied this principle to uphold further investigation concerning the shares worth Rs. 3,80,000. [4]
CIT v. Bharat Engineering and Construction Co., [1972] 83 ITR 187 Authority relied upon by the Tribunal in treating the share capital as not constituting cash credits. The High Court rejected the Tribunal’s reasoning as contrary to the settled section 68 principles. [8][2]

Court's Reasoning and Analysis

The Court held that, when section 68 is invoked, the assessee must establish the identity of the subscribers, their creditworthiness, and the genuineness of the transactions. If these elements are established, section 68 does not apply; otherwise, it does. The Assessing Officer may investigate the real nature of the transaction by lifting the corporate veil. [3]

The Court concluded that the Supreme Court’s nonspeaking dismissal of the SLP in Steller Investment Ltd. was based on facts and did not constitute binding law under article 141. Consequently, the Full Bench decision in Sophia Finance Ltd., which had overruled Steller Investment Ltd., was not rendered per incuriam. [6]

For the shares worth Rs. 3,80,000, further investigation was properly directed because the relevant materials required examination. For the remaining Rs. 19,88,750, the assessee had produced only a list of subscribers and had not established their identity, creditworthiness, or the genuineness of the transactions. Payment by cheque did not prevent the Assessing Officer from conducting that enquiry. [4]

The Tribunal’s view that cheque payments could not be disallowed was therefore contrary to the applicable legal principles. [4][2]

Holding and Implications

Reference answered in favour of the Revenue on question No. 1 and against the assessee on question No. 2. The reference was accordingly disposed of. [2][9]

The direct effect was that the Tribunal’s approach to the share subscriptions was rejected, and the section 68 enquiry and consequences remained applicable where the assessee failed to prove the subscribers’ identity, creditworthiness, and transaction genuineness. The opinion did not state broader implications or set out a new rule beyond applying the settled principles described above. [3][4][2]

    Commissioner Of Income-Tax v. Ruby Traders And Exporters Ltd.

    D.K Seth, J.:— In this case, the Assessing Officer has disbelieved the genuineness of the subscription received by the assessee from its directors and promoters as well as from the public. On appeal, the Commissioner (Appeals) had found that proper investigation was not made in respect thereof. Therefore, the matter was remanded to the Assessing Officer for enquiring the matter afresh on the ground that the earlier enquiry was made in hot haste. On remand, in the course of the enquiry, opportunity was given to the assessee. It was found that the income-tax file numbers of the promoters and directors were disclosed and all those payments were made by cheques except a sum of Rs. 20,000 subscribed in cash by one Amamath Gupta, who is not an income-tax assessee. The rest Rs. 19,88,750 was subscribed by the general public. Despite successive opportunity being given, nothing was disclosed [about the identity of the subscribers except furnishing a list of subscribers. Therefore, on appeal, the Commissioner (Appeals) had again remanded the case in respect of shares worth Rs. 3,80,000 for investigation of the income-tax files for ascertaining their creditworthiness and genuineness of the transaction. Whereas the Commissioner (Appeals) had disallowed Rs. 19,88,750 under section 68 of the Income-tax Act, 1961 (“the Act”), on the basis of the finding of facts arrived at by him relying on the materials produced. On appeal, the Tribunal had held that since these were paid by cheques, therefore, this could not have been disallowed. The learned Tribunal had also observed that this was the position in law.

    2. An identical question was involved in Hindusthan Tea Trading Co. Ltd. v. CIT, [2003] 263 ITR 289 (Cal) (Income-tax Reference No. 20 of 1996, disposed of on March 11 and 12, 2003, by this Bench). All these questions as to the extent of the burden lying on the assessee and its extent of discharge and the duties and the responsibilities of the Assessing Officer were discussed in detail. Various case laws were also discussed. In the course of argument in this case, Mr. Deb had relied on various decisions, namely, CIT v. Steller Investment Ltd., [2001] 251 ITR 263 (SC); Commissioner Of Income-Tax, N. Delhi… v. Sophia Finance Ltd…., [1994] 205 ITR 98 (Sumati Dayal v. Commissioner Of Income Tax, Bangalore., [1995] 214 ITR 801, 804 (SC). Relying on these decisions, he contended that in such a case, the income-tax authority had every right to apply section 68 of the Income-tax Act.

    3. In our view, when section 68 is resorted to, it is incumbent on the assessee to prove and establish the identity of the subscribers, their creditworthiness and the genuineness of the transaction. Once materials to prove these ingredients are produced, it is for the Assessing Officer to find out as to whether on these materials the assessee was able to establish the ingredients mentioned above. If the finding is in the affirmative, in that event, section 68 cannot be attracted. If the finding is in the negative, then section 68 is definitely applicable. It is now a settled proposition of law that the Assessing Officer can lift the veil and enquire into the real nature of the transaction and enter into those questions. The finding that is arrived at may be a finding of fact, which may be a pure question of fact. It might be a question of inference drawn from the finding of fact, which is a question of law. These are dependent on the facts of each case. Therefore, we are required to examine the facts of this case in order to apply the ratio decidendi in this case as contended by Mr. Deb.

    4. Mr. Deb has also contended that the decision in Stellar Investment Ltd.'s case, [1991] 192 ITR 287 (Delhi), the SLP against which was dismissed by the Supreme Court, is not a decision binding upon the High Courts under article 141 of the Constitution of India. Since, according to him, the Supreme Court had not applied its mind to the ratio and had not discussed the question involved having regard to the law.

    5. Having regard to the order dismissing the SLP, we find that it was purely on a question of fact the Supreme Court did not interfere. That such a decision has no binding effect under article 141 of the Constitution would be apparent from the decisions in Municipal Corporation Of Delhi v. Gurnam Kaur ., (1989) 1 SCC 101 : AIR 1989 SC 38 (para 11); Gangadharan v. Janardhana Malian, (1996) 9 SCC 53 : AIR 1996 SC 2127 (para. 9); Director of Settlements v. M.R Apparao, (2002) 4 SCC 638, (para. 7), relied upon by Mr. Deb. In these decisions, it was held that the decision by the apex court dismissing the SLP without entering into the merits of the case would not be binding under article 141. If the SLP is dismissed by a nonspeaking order, it does not lay down any law. Article 141 is not applicable on a statement of fact and matters other than law. We have already found that the dismissal of the SLP by the Supreme Court in Steller Investment Ltd.'s case, [2001] 251 ITR 263, has no binding effect under article 141 and as such the Full Bench decision in Sophia Finance Ltd.'s case, [1994] 205 ITR 98 (Delhi), overruling Stellar Investment Ltd.'s case, [1991] 192 ITR 287 (Delhi) is not a judgment per incuriam.

    6. Therefore, having regard to the decision in law and the decision cited, the question remains open to be decided according to the settled principle of law. Mr. Deb has also relied on a decision in Commissioner Of Income-Tax v. Korlay Trading Co. Ltd., [1998] 232 ITR 820 (Cal). In the said decision, it was held that mere furnishing of income-tax file numbers are not sufficient. In fact, once these materials have been produced, it is incumbent on the Assessing Officer to enquire into the same. In this case, in respect of shares worth Rs. 3,80,000, direction was rightly given to undertake investigation in order to establish the creditworthiness of the subscriber and genuineness of the transaction. But in respect of the rest of the shares worth Rs. 19,88,750 except disclosing the list of subscribers nothing has been produced before the authority either for establishing the identity of the subscribers or for proving their creditworthiness and the genuineness of the transaction. Even if such payments are made through bank and by cheques still then in view of the settled proposition of law, the Assessing Officer can enquire into the same and it is the assessee who has to satisfy the Assessing Officer about the genuineness of the same in the manner as discussed above and in Hindusthan Tea Trading Co. Ltd.'s case, [2003] 263 ITR 289 (Cal). On failure to do so, section 68 would visit the assessee with all its consequences. The finding of the learned Tribunal does not seem to be supported by law. On the other hand, it is wholly contrary to the settled principle of law. We may beneficially refer to the observation made by the learned Tribunal in order to emphasize the drawback in the said finding in clear terms.

    “After examining the facts, the contents from the paper book, the relevant evidence regarding the collection of share capital from the general public, the provisions of section 68 of the Income-tax Act, 1961, and the case law cited on behalf of the appellant-company firstly we are unable to hold that the collection of share capital can be treated as cash credits. Secondly, it is beyond doubt that the appellant has collected the share capital from the public issue and accounted for the same. We are unable to accept that the promoters and directors invested their own money in the names of others. In view of the judgment of the Supreme Court in CIT v. Bharat Engineering and Construction Co.'s case, [1972] 83 ITR 187 and the decision of the Bombay Bench of the Tribunal reported in 38 ITD 555 and the Delhi Bench of the Tribunal in 24 ITD 504 we are not inclined to agree with the view held by the Assessing Officer as well as by the Commissioner of Income-tax (Appeals) in this respect. These entire evidence and the case law lead us to arrive at a conclusion that the share capital collected by the appellant-company cannot be treated as cash credits under section 68 of the Income-tax Act and no addition or disallowance of the same can be made.”

    7. Having regard to the proposition of law as discussed by us in (Hindusthan Tea Trading Co. Ltd.'s case, [2003] 263 ITR 289 (Cal) Income-tax Reference No. 20 of 1996) and the facts and circumstances as discussed hereinbefore, the reasons given by the learned Tribunal appear to be contrary to the settled principles of law. As such we are unable to persuade ourselves to agree with the same. We, therefore, answer question No. 1 in the affirmative in favour of the Revenue and question No. 2 in the negative against the assessee.

    8. The reference is hereby thus disposed of. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.

    R.N Sinha, J.:— I agree.

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    Commissioner Of Income-Tax v. Ruby Traders And Exporters Ltd.
    (Mar 12, 2003)