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2018 (10) TMI 2055 - AT - Income TaxShare application money received u/s 68 - genuineness of transactions not proved - burden of proof - AO examined the bank statements of both the parties and noticed that they have entered into transactions amongst their group concerns only - CIT(A) deleted addition - HELD THAT - In the instant case the notices issued by the AO u/s 133(6) of the Act have been responded by both the share applicants. Both the parties have furnished all the details that were called for by the assessing officer. The details so furnished by them proved their identity and creditworthiness and also the genuineness of transactions. However the assessing officer did not examine them at all nor did he carry out any further enquiry to disprove those documents. AO has collected the relevant details to prove the three ingredients directly from the share applicants. He could not found fault with those documents. Instead he has placed reliance on the statement given by Shri Shirish Chandrakant Shah that too without confronting the said statement with the assessee. AO has not disproved the contention of the assessee that Shirish Chandrakant Shah is not a director or employee of the share applicant companies and further the assessee was not aware of such a person. AO has also not shown that the above said person has implicated the transactions entered between these two share applicant companies and the assessee. The fact that both the share applicant companies are listed companies having huge share capital was ignored by the assessing officer. The financial statements furnished by these two companies to prove their credit worthiness have also been ignored by the AO. Hence in our view AO was not justified in placing full reliance on the general statement given by Shirish Chandrakant Shah. We are of the view that the CIT(A) was justified in deleting the impugned addition as the assessee has discharged the onus placed upon it u/s 68 of the Act. Assessee appeal Allowed.
The core legal questions considered by the Tribunal in this appeal relate to the applicability of Section 68 of the Income Tax Act concerning share application money received by the assessee company. Specifically, the issues are:
(a) Whether the assessee has discharged the initial burden of proving the identity of the share applicants; (b) Whether the assessee has proved the creditworthiness of the share applicants; (c) Whether the genuineness of the share application money transactions has been established; (d) Whether the assessing officer was justified in making an addition under Section 68 based on the investigation report and statements attributed to Shri Shirish Chandrakant Shah; (e) Whether the assessing officer was entitled to rely on statements not confronted with the assessee; (f) The extent of the department's burden to disprove the assessee's evidence once the initial burden under Section 68 is discharged; (g) The applicability and interpretation of precedents concerning the burden of proof and the nature of evidence required under Section 68 for the assessment year 2012-13 (prior to the proviso inserted w.e.f. AY 2013-14). Issue-wise Detailed Analysis 1. Burden of Proof under Section 68: Identity, Creditworthiness and Genuineness The relevant legal framework is Section 68 of the Income Tax Act, which requires the assessee to explain the nature and source of any unexplained cash credits, including share application money. The Supreme Court in CIT vs. Lovely Exports (P) Ltd. established that the assessee must prove three essential ingredients: (a) identity of the shareholder, (b) creditworthiness of the shareholder, and (c) genuineness of the transaction. The Tribunal noted that the share application money of Rs. 370 lakhs was received from two public limited companies listed on stock exchanges, namely M/s Speciality Papers Ltd and M/s Sanguine Media Ltd. Both companies responded to notices issued under Section 133(6) by furnishing bank statements, audited financial statements, PAN details, share certificates, and affidavits confirming the payments. The assessing officer did not find fault with these documents. The assessing officer, however, relied on an investigation report and a statement attributed to Shri Shirish Chandrakant Shah, who allegedly manages these companies and admitted that they provide only accommodation entries. The AO concluded that the share applicants were mere paper companies and that the creditworthiness and genuineness were not proved. The Tribunal, upholding the CIT(A)'s findings, emphasized that the assessee had discharged the initial burden by producing credible documentary evidence and that the AO failed to disprove these documents. The AO's reliance on the statement of Shri Shirish Chandrakant Shah was held to be misplaced, especially as the statement was not confronted with the assessee, violating principles of natural justice. Precedents from the Delhi High Court in Oasis Hospitalities P Ltd and the Bombay High Court in Creative World Telefilms Ltd were relied upon to underscore that once the assessee discharges the initial burden, the AO must have cogent reasons and material to discredit the documents and cannot act on mere suspicion. 2. Reliance on Investigation Statements and Natural Justice The AO heavily relied on the statement of Shri Shirish Chandrakant Shah obtained by the investigation wing, which was not shared with the assessee for rebuttal. The Tribunal reiterated the settled legal principle that documents or statements not confronted with the assessee cannot be used to discredit the assessee's evidence. This failure to provide the assessee an opportunity to rebut the statement vitiated the AO's findings. Further, the statement was general in nature and did not specifically implicate the transactions between the share applicants and the assessee. The Tribunal noted that the AO did not establish any direct link between the statement and the impugned transactions. 3. Examination of the Share Applicants' Financial Status and Transactions The share applicants are public limited companies with substantial share capital (Rs. 156 crores and Rs. 104 crores respectively) and have filed income tax returns regularly, paying taxes on declared income. Their financial statements and bank statements showed that the funds for share application money were received through banking channels and were not cash transactions. The AO's observation that funds came from other group companies was insufficient to disprove creditworthiness or genuineness. The Tribunal noted that the AO did not carry out further investigations or summon the share applicants for examination, which would have been necessary to disprove the documents. 4. Applicability of Case Laws and Legal Precedents The Tribunal relied on several precedents including:
The Tribunal distinguished the facts of the present case from cases where the share applicants were not traceable or did not have PANs, emphasizing that here the share applicants were traceable, responded to notices, and furnished credible evidence. 5. Application of Law to Facts and Treatment of Competing Arguments The AO's argument was based on suspicion arising from the investigation report and the statement of Shri Shirish Chandrakant Shah. However, the Tribunal found that suspicion alone cannot substitute for evidence. The assessee produced substantial documentary evidence and affidavits, which were not disproved by the AO. The AO's failure to confront the assessee with adverse statements and to conduct further inquiry or examination of the share applicants was a significant procedural lapse. The Tribunal held that such lapses undermine the AO's conclusion. The revenue's reliance on the investigation report and statement was also undermined by the fact that the AO did not establish any direct link between the statement and the impugned transactions. 6. Conclusion on Each Issue (a) The assessee proved the identity of the share applicants by furnishing PAN, bank details, and other documents; (b) The creditworthiness was established by audited financials, tax returns, and banking transactions of the share applicants; (c) The genuineness of the transactions was established by the fact that payments were made through banking channels and were recorded in the books of both parties; (d) The AO's reliance on unshared investigation statements violated principles of natural justice and was insufficient to disprove the assessee's evidence; (e) The AO failed to discharge the burden of disproving the assessee's claim after the initial burden was discharged; (f) The proviso to Section 68 requiring source of funds to be proved was not applicable to AY 2012-13; (g) The addition of Rs. 370 lakhs under Section 68 was not justified and was rightly deleted by the CIT(A) and upheld by the Tribunal. Significant Holdings The Tribunal preserved the following crucial legal reasoning verbatim from the CIT(A)'s order: "The onus cast upon the assessee under Section 68 of the Act; is to satisfy the department about the true identity of an investor, its creditworthiness and genuineness of a transaction was explained by the Supreme Court in CIT Vs. Lovely Exports (P) Ltd., 216 CTR 295. The objective of Section 68 is to avoid inclusion of amount which are suspect. Therefore, the emphasis is on all the three aspects, identity, creditworthiness and genuineness of the transaction which is proved by the assessee beyond doubt." Further, the Tribunal noted: "It is a well settled proposition of law that the documents/statements, which were not confronted with the assessee, could not have been relied upon by the assessing officer." "The AO did not find fault with any of the documents furnished by these parties. Only in respect of transactions found in the bank statements of these share applicant companies, the AO has commented that the funds have come from other companies belonging to the same group. Ultimately, the AO has placed reliance on the statement given by Shri Shirish Chandrakant Shah and held that the assessee has failed to prove the three main ingredients." "The AO has not disproved the contention of the assessee that Shirish Chandrakant Shah is not a director or employee of the share applicant companies and further the assessee was not aware of such a person. The AO has also not shown that the above said person, has implicated the transactions entered between these two share applicant companies and the assessee." "The AO has not carried out any further enquiry to disprove those documents." "The assessing officer was not justified in placing full reliance on the general statement given by Shirish Chandrakant Shah." Core principles established include:
Accordingly, the Tribunal upheld the deletion of the addition of Rs. 370 lakhs under Section 68 and dismissed the revenue's appeal.
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