2010 (5) TMI 869 - AT - Income Tax

Bogus Share application money - genuineness of transaction not proved - onus to prove on assessee or revenue - HELD THAT - Since the assessee has discharged its onus by proving the identity of subscribers and even otherwise had any suspicion still remained in his mind nothing prevented him to initiate action as per the provisions of the Act. The existence of subscribers to share application is not in doubt as the assessee duly furnished their names. Age address date of filing the application number of shares for which respective applications were made amount given and the source of income of the applicant. There is no justification for making the impugned addition because once the existence of the investor/share subscribers is proved onus shifts on the revenue to establish that either the share applicants are bogus or the impugned money belongs to the assessee company itself. Once the confirmation letters are filed no addition can be made on account of share application money in the hands of the company. Our view finds support from the decision in Shri Barkha Synthetics Limited v. ACIT. 2005 (8) TMI 67 - RAJASTHAN HIGH COURT The case like CIT v. GP International Limited 2009 (12) TMI 33 - PUNJAB AND HARYANA HIGH COURT CIT v. Steller Investment Limited 1991 (4) TMI 100 - DELHI HIGH COURT supports the case of the assessee. charging of interest u/s 234B - HELD THAT - We have found that no specific section has been mentioned for charging of interest and merely it has been mentioned that charge interest if any as per law. Since the issue of share application has been decided in favour of the assessee and the addition made u/s 68 has been deleted therefore charging of interest is consequential in nature meaning thereby that it is not leviable/chargeable. In view of these facts and judicial pronouncements both these appeals of the assessee are allowed. Finally the appeals of the assessee are allowed.

Summary

Issues Involved:
1. Legality and factual correctness of the order passed by the Commissioner of Income Tax (Appeals) [CIT(A)].
2. Addition of Rs. 1,59,000/- and Rs. 15,31,200/- as bogus share application money under Section 68 of the Income Tax Act.
3. Charging of interest under Section 234B of the Income Tax Act.

Detailed Analysis:

Issue 1: Legality and Factual Correctness of the CIT(A) Order
The appellants contested that the CIT(A)'s order was "bad in law as well as on the facts," claiming incorrect interpretation of law and misapprehension of facts. However, this ground was deemed general in nature and required no deliberation from the Tribunal.

Issue 2: Addition of Rs. 1,59,000/- and Rs. 15,31,200/- as Bogus Share Application Money
The core issue was the addition of Rs. 1,59,000/- and Rs. 15,31,200/- as bogus share application money under Section 68. The assessee argued that they had filed due replies to the Assessing Officer's (A.O.) queries, including confirmation letters and affidavits from the share subscribers containing details like name, age, address, amount, and source of income. Despite this, the A.O. made the addition, suspecting the share application money to be bogus without cross-examining the subscribers or disproving the affidavits.

The Tribunal noted that the assessee had proven the identity and source of the subscribers through affidavits, which were not found to be false. The affidavits were considered authentic as they were sworn before a Magistrate or Notary Public. The A.O. did not cross-examine the deponents, making the affidavits unchallengeable as per the Supreme Court's decision in *Mehta Parikh & Company v. CIT; 30 ITR 181 (SC)*.

The Tribunal also referred to several judicial precedents, including:
- *CIT v. Lovely Exports; 216 CTR 195 (SC)*, which stated that share application money from alleged bogus shareholders cannot be regarded as undisclosed income of the company.
- *CIT v. Divine Leasing & Finance Limited; 299 ITR 268 (Del)*, which emphasized the A.O.'s duty to investigate the creditworthiness of shareholders.

The Tribunal concluded that the assessee had discharged its onus by proving the identity and source of the subscribers. Consequently, the addition under Section 68 was unjustified, and the appeals were allowed.

Issue 3: Charging of Interest under Section 234B
The issue of charging interest under Section 234B was argued to be consequential. Since the addition under Section 68 was deleted, the charging of interest became irrelevant and was not leviable.

Conclusion
The Tribunal allowed both appeals, concluding that:
- The affidavits submitted by the assessee were unchallengeable.
- The identity and source of the share subscribers were proven.
- The addition under Section 68 was unjustified.
- The charging of interest under Section 234B was consequential and not applicable.

The order was pronounced in open Court on 10th May, 2010.