PER M. BALAGANESH (A.M):
This appeal in ITA No.2890/Mum/2017 for A.Y.2012-13 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-9, Mumbai in appeal No.CIT(A)-9/Cir.4/93/2015-16 dated 27/01/2017 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3)of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 21/03/2015 by the ld. Income Tax Officer-4(3)(1), Mumbai (hereinafter referred to as ld. AO).
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2. The only issue to be decided in this appeal of the revenue is as to whether the ld CITA was justified in deleting the addition made on account of receipt of share application money in the sum of Rs 4 crores in the facts and circumstances of the case.
3. We have heard the rival submissions and perused the materials available on record. We find that the assessee is a private limited company engaged in the business of wholesale trading of textile fabrics. During the year under consideration the assessee had received share application money of Rs 4,00,00,000/- from the following shareholders as under:-
Aadhar Ventures (I) Ltd - Rs 10,00,000
Speciality Papers Ltd - Rs 1,90,00,000
Twenty First Century (I) Ltd - Rs 2,00,00,000
---------------------- Rs 4,00,00,000
3.1. We find that the ld AO had relied on the information received from the Investigation wing and alleged that the said companies are controlled and operated by Shri Shirish C Shah who has indulged in providing accommodation entries through the said entities without entering into actual transactions. The ld AO therefore asked the assessee to justify the share application money received during the year under consideration together with its premium and show caused as to how the assessee satisfies the three necessary ingredients of section 68 of the Act. In response thereto, the assessee submitted that -(a) M/s Aadhar Ventures
(I) Ltd had invested a sum of Rs 10 lakhs in assessee company as against issuance of 12500 fully paid up equity shares at face value of Re.1 and premium of Rs 79 per share;
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(b) M/s Speciality Papers Limited had invested a sum of Rs.1.90 crores in assessee as against issuance of 237500 partly paid up equity shares at face value of Re.1 and premium of Rs.79 per share ; and (c ) M/s Twenty First Century (India) Ltd. had invested a sum of Rs.2 croresin assessee company as against issuance of 250000 equity shares at face value of Re.1 and premium of Rs.79 per share.
3.2. We find that the assessee in order to prove the three necessary ingredients of section 68 of the Act viz. identity of the shareholders, genuineness of transactions and creditworthiness of the shareholders, had submitted the following documents :-
Aadhar Ventures India Ltd
a) Audited Balance Sheet of Aadhar Ventures (I) Ltd for the year ended 31.3.2012 with previous figures reflected thereon. From the perusal of the Balance Sheet, we find that the said shareholder company is having sufficient share capital of Rs 22.57 crores which is several times more than the amount invested in the assessee company. Apart from that, the said investor company had derived revenue from operations of Rs 171.90 crores during the year ended 31.3.2012. All these facts collectively go to prove that the said investor company is having sufficient creditworthiness to make investment in share capital and premium in the assessee company to the extent of Rs 10 lakhs.
b) PAN details of Aadhar Ventures (I) Ltd clearly proving the identity of the investor company.
c) Copy of share application form filled by Aadhar Ventures (I) Ltd clearly proving the genuineness of the transaction that they had approached the assessee company in the routine manner.
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d) Copy of Board Resolution passed in the Board of Directors meeting of Aadhar Ventures (I) Ltd for making investment in the shares of assessee company herein.
e) Copy of Bank Statements of Aadhar Ventures (I) Ltd for the relevant period clearly highlighting the investment transaction with the assessee company together with the immediate source of credit in the hands of the investor company. This clearly proves the creditworthiness of the investor company. Since the transactions were routed through the regular banking channels, it also proves the genuineness of the transactions.
f) Confirmation from Aadhar Ventures (I) Ltd for having made investment in shares of assessee company together with the payment details and its mode , thereby proving the genuineness of the transactions. The said confirmation duly contained the address of the investor company together with its PAN.
g) Copy of acknowledgement of filing of return of income for the Asst Years 2011-12 and 2012-13 of Aadhar Ventures (I) Ltd. This proves the identity of the investor company.
h) Copy of Certificate issued by the Registrar of Companies (ROC) for effecting the name change of the investor company from Prraneta Industries Ltd to Aadhar Ventures India Ltd.
Twenty First Century India Limited
a) Copy of PAN Card proving the identity of the investor company.
b) Copy of share application form filled by Twenty First Century India Ltd clearly proving the genuineness of the transaction that they had approached the assessee company in the routine manner.
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c) Copy of Board Resolution passed in the Board of Directors meeting of Twenty First Century India Ltd for making investment in the shares of assessee company herein.
d) Copy of acknowledgement of filing of return of income for the Asst Year 2012-13 of Twenty First Century India Ltd. This proves the identity of the investor company.
e) Copy of Bank Statements of Twenty First Century India Ltd for the relevant period clearly highlighting the investment transaction with the assessee company together with the immediate source of credit in the hands of the investor company. This clearly proves the creditworthiness of the investor company. Since the transactions were routed through the regular banking channels, it also proves the genuineness of the transactions.
f) Audited Balance Sheet of Twenty First Century India Ltd for the year ended 31.3.2012 with previous figures reflected thereon. From the perusal of the Balance Sheet, we find that the said shareholder company is having sufficient share capital of Rs 67.86 crores which is several times more than the amount invested in the assessee company. This proves the fact that the said investor company is having sufficient creditworthiness to make investment in share capital and premium in the assessee company to the extent of Rs 2 crores.
Speciality Papers Limited
a) Copy of PAN Card proving the identity of the investor company.
b) Copy of share application form filled by Twenty First Century India Ltd clearly proving the genuineness of the transaction that they had approached the assessee company in the routine manner.
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c) Copy of Board Resolution passed in the Board of Directors meeting of Twenty First Century India Ltd for making investment in the shares of assessee company herein.
d) Copy of acknowledgement of filing of return of income for the Asst Years 2011-12 and 2012-13 of Speciality Papers Limited. This proves the identity of the investor company.
e) Copy of Bank Statements of Speciality Papers Limited for the relevant period clearly highlighting the investment transaction with the assessee company together with the immediate source of credit in the hands of the investor company. This clearly proves the creditworthiness of the investor company. Since the transactions were routed through the regular banking channels, it also proves the genuineness of the transactions.
f) Audited Balance Sheet of Speciality Papers Limited for the year ended 31.3.2012 with previous figures reflected thereon. From the perusal of the Balance Sheet, we find that the said shareholder company is having sufficient share capital of Rs 156.16 crores which is several times more than the amount invested in the assessee company. It had earned revenue from operations during the year under consideration to the tune of Rs 35.83 crores. This proves the fact that the said investor company is having sufficient creditworthiness to make investment in share capital and premium in the assessee company to the extent of Rs 1.90 crores.
3.3. By filing the aforesaid details, the assessee had duly discharged the initial onus cast on it in terms of section 68 of the Act by duly proving the three necessary ingredients of section 68 of the Act. Further, we find that the ld AO sought to verify the veracity of the aforesaid documents by issuing notices u/s 133(6) of the Act to the aforesaid investor companies, by seeking for various details, which were duly responded directly by those investor companies before the ld AO. In addition thereto, the ld AO
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even issued summons u/s 131 of the Act to those parties calling for certain details, which were also directly responded by the parties before the ld AO. We find that the investor companies, in response to the summons issued u/s 131 of the Act had not appeared in person before the ld AO, but had duly filed the necessary documents that were called for by the ld AO. Since the parties failed to appear in person before the ld AO, he proceeded to doubt the genuineness of the share application money by treating the same as unexplained and made addition of Rs.4,00,00,000/- u/s 68 of the Act merely relying on the statement of Shri Shirish C Shah recorded under section 132(4) of the Act during the course of search operation of Shri Shirish C Shah.
3.4. We find that the ld CITA after considering the documentary evidences and submissions filed by the assessee and also considering the facts and circumstances of the case as detailed hereinabove , deleted the addition of Rs.4,00,00,000/- made by the ld AO on account of share application money u/s 68 of the Act. We find that the ld CITA had categorically observed that the assessee had duly provided all the evidences and documents to substantiate the identity of the shareholders, creditworthiness of the shareholders and genuineness of the transactions. This finding of the ld CITA had not been controverted by the revenue before us.
3.5. We find that the notices issued u/s 133(6) and summons u/s 131 of the Act issued by the ld AO to the investor companies were duly served and responded directly before the ld AO by filing the necessary information and documents. No adverse inference was even sought to be drawn by the ld AO on the documentary evidences furnished either by the assessee or by the investor companies directly to him. Hence, merely
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because the parties don't appear in person before the ld AO, no adverse inference could be drawn on the assessee. In case if the parties don't appear in person in response to summons issued u/s 131 of the Act, the ld AO is at liberty to proceed against those parties in the manner known to law. That does not give him an automatic route to draw an adverse inference on the transactions carried out by the assessee. Moreover, in the instant case, the ld AO had chosen to remain silent by not resorting to taking any action against the defaulters who had not responded to summons. Hence, assessee cannot be faulted on the same. In these peculiar facts and circumstances of the case, we hold that the assessee had duly discharged its onus cast in terms of section 68 of the Act by proving the three necessary ingredients thereon. We also find that the ld AO had not brought any material to hold that the receipt of share application monies from the investor companies were not genuine and were merely accommodation entries only. We find that the investor companies are widely held public limited companies wherein financial institutions / clearing houses are shareholders, apart from the promoters holding. It is highly improbable to conclude that the financial institutions / clearing houses etc would resort to making investment in equity shares in the company which is only engaged in providing accommodation entries. Hence the observations of the ld AO could be safely concluded as factually erroneous. We find that the investor companies had filed confirmation of the fact of having made investment in share capital and share premium of the assessee company. We are unable to persuade ourselves to accept to the contentions of the ld AO by merely placing reliance on the statement recorded u/s 132(4) of the Act from Shri Shirish C Shah during the course of his search and seizure operation, for framing the addition u/s 68 of the Act in the hands of the assessee company herein. We find that the investor companies on their side had duly
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submitted that they are not controlled and operated by Shri Shirish C Shah and the decision to invest in share capital with premium of the assessee company was taken by their respective Directors and not by Shri Shirish C Shah. It was also pointed out that from the audited financial statements of the investor companies, no where the name of Shri Shirish C Shah appears. More so, when the ld AO in order to investigate the transactions, had issued notices u/s 133(6) of the Act and summons u/s 131 of the Act, which were duly responded directly by the investor companies before him. In any case, no opportunity of cross examination of Shri Shirish C Shah was even provided to the assessee by the ld AO. It is the primary duty on the part of the ld AO to provide cross examination of parties, in case, if he desires to place reliance on any statement against the assessee, in order to controvert the same. Admittedly, Shri Shirish C Shah becomes the witness of the department as it is the ld AO who is placing reliance on the statement given by him during his search proceedings.
3.6. We find that the ld DR merely reiterated the observations of the ld AO that the directors of investor companies did not appear in person before him in response to the summons issued u/s 131 of the Act to them, eventhough the relevant details called for in the summons, were duly provided by them. Only this fact of non-appearance of those directors of investor companies in person, had drawn the ld AO to treat the receipt of share application monies as accommodation entries and thereby making addition u/s 68 of the Act in the hands of the assessee company (i.e recipient company). In view of the aforesaid observations, these arguments of the ld DR would not come to the rescue of the revenue. Accordingly, we hold that the ld CITA had rightly deleted the addition made u/s 68 of the Act in the hands of the assessee company,
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on which we do not find any infirmity. The ground raised by the revenue is dismissed.
4. In the result, the appeal of the revenue is dismissed.
Order pronounced on 13/08/2021 by way of proper mentioning in the notice board.
Sd/- Sd/-
(VIKAS AWASTHY) (M.BALAGANESH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai; Dated 13/08/2021 KARUNA, sr.ps
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
4. CIT
5. DR, ITAT, Mumbai
6. Guard file. //True Copy//
BY ORDER,
(Asstt. Registrar)
ITAT, Mumbai