9911796707
TMI Blog2018 (7) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... oard, corrugated board, printing, absorbent and writing paper. It is a sister concern of M/s Krishna Tissues P Ltd (in short KTPL) which is engaged in the business of manufacturing of coated diplex paper board. During the year under review, the assessee had received total equity share capital with share premium of Rs. 1,25,00,000/- with a premium of Rs. 90 per share from the following shareholders :- a) RBM Impex Pvt Ltd b) Extreme Tie-Up Pvt Ltd c) Mahamaya Tie-Up Pvt Ltd d) Winson Vanijya Pvt Ltd e) Uphar Vanijya Pvt Ltd f) Kamna Housing Pvt Ltd 3.1. During the course of assessment proceedings, the ld AO called for examination of various details and documents with supporting evidences and one such issue of examination was with regard to receipt of share capital and share premium received during the year by the assessee. The assessee submitted all the details regarding the receipt of share capital with premium before the ld AO by submitting the names and addresses of the shareholders, their balance sheets, their income tax return acknowledgements and their bank statements. The ld AO did not find anything adverse on those details and documents filed by the assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 29.35 per share before fresh issue of subject share capital, future prospects of doing business in big way without need to service debt liability by way of interest payments, credibility of present management who was running a biggest plant of manufacturing of duplex paper board in eastern India and close control of investor companies over affairs and funds of the assessee after their investment in shares of assessee company, the same being a private limited company. The assessee reiterated the submissions made before the ld AO and also furnished the following details before the ld CITA :- a) Bank statements for the year ended 31.3.2012 of share applicant companies. b) Final accounts for year ended 31.3.2012 of share applicant companies. c) Income tax return acknowledgements of share applicant companies for Asst Year 2012-13. d) Master Data of concerned share applicant companies as per website of Ministry of Corporate Affairs (MCA) which shows particulars of their directors and also shows that all of these companies are active. e) The copies of Form No. 18 filed by those share applicant companies for situation of their respective registered offices. f) PAN and addre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bogus share capital / bogus share premium , bogus unsecured loans. The assessee explained before the ld CITA that this was made by the ld AO based on the proceedings in the case of group company of M/s Krishna Tissues P Ltd (in short KTPL) wherein survey u/s 133A of the Act was conducted on 29.7.2015 and post survey operations, statement was recorded u/s 131 of the Act by DDIT (Inv.) of the following directors of companies from which the Krishna Tissues group raised share capital :- Name of the Director Statement Statement Name of the related companies Taken on Retracted on in which person is a director Brij Mohan Nangalia 17.8.2015 18.8.2015 RBM Impex Pvt Ltd Extreme Tie-Up Pvt Ltd Jaswant Kumar Nangalia 14.9.2015 16.9.2015 RBM Impex Pvt Ltd Extreme Tie-Up Pvt Ltd Rajesh Kumar Singhania 16.9.2015 18.9.2015 Mahamaya Tie-Up Pvt Ltd Sanjay Bajoria 14.08.2015 16.8.2015 Uphar Vanijya Pvt Ltd 3.5. The assessee submitted that the ld AO placed reliance on the statements recorded from the directors of M/s Krishna Tissues P Ltd by the DDIT (Inv.) pursuant to survey conducted in their business premises on 29.7.2015 wherein they had initially stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17.12.2011 Extreme Tie Up Pvt. Ltd. 20000 858630 IDBI Bank 2,000,000 AACCE0207G 01.02.2012 20000 19.12.2011 Uphar Vanijya 10000 743755 Allahabad Bank 1,000,000 AABCU2424J 01.02.2012 10000 Pvt. Ltd. 06.01.2012 Kamna Housing Pvt. Ltd. 10000 734883 Allahabad Bank 1,000,000 AAECK4606K 01.02.2012 10000 07.01.2012 Kamna Housing Pvt. Ltd. 5000 734885 Allahabad Bank 500,000 AAECK4606K 01.02.2012 5000 07.01.2012 Kamna Housing Pvt. Ltd. 10000 734884 Allahabad Bank 1,000,000 AAECK4606K 01.02.2012 10000 09.01.2012 Winson Vanijya Pvt. Ltd. 5000 735089 Allahabad Bank 500,000 AABCW0316P 01.02.2012 5000 09.01.2012 Mahamaya Tie-up Pvt. Ltd. 20000 227257 IDBI Bank 2,000,000 AAFCM6647R 01.02.2012 20000 06.03.2012 R.B.M Impex Pvt. Ltd. 25000 584062 Punjab National Bank 2,500,000 AADCR6857Q 13.03.2012 25000 125000 12,500,000 125000 4.1. We have gone through the statements recorded from Shri Brij Mohan Nangalia, Shri Rajesh Kumar Singhania, Shri Sanjay Kumar Bajoria and Shri Jaswant Nangalia wherein initially they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicants as on 31.3.2012 extracted from their respective balance sheets which shows that their net worth is several times more than the amount invested by them in the shares of the assessee company duly proving their capacity to invest in shares with premium in the assessee company. h) Details of directorships held in various companies by the directors of share applicant companies. 4.3. It is not in dispute that after collection of all these documents, the ld AO also sought to cross verify the same from the shareholder companies by issuing notice u/s 133(6) of the Act independently behind the back of the assessee. All these notices u/s 133(6) of the Act were duly responded by the share applicant companies along with their various documents to prove their identity, their creditworthiness and genuineness of transactions, wherein they had duly confirmed that they had indeed invested in the assessee company with premium. All these documents are enclosed in pages 129 to 211 of the Paper Book filed before us. We find that one of the directors of the assessee company had duly responded to the summons issued u/s 131 of the Act before the ld AO. He had given proper explanations before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d come up before this tribunal in the case of KTPL and this tribunal in ITA No. 2215/Kol/2017 dated 1.12.2017 had decided the issue in favour of the assessee. Moreover, we find that the statements recorded by the DDIT(Inv.) from the directors of the share subscribing companies had lost its evidentiary value in as much as the ld AO had recorded further statement from the very same directors during the course of assessment proceedings. Hence the ld AO ought not to have placed any reliance on the statements recorded by DDIT(Inv.) which is not supported by any other corroborative evidences. 4.5. Hence we find that the main reliance placed by the ld AO on the statements recorded from directors in the case of KTPL had been already addressed by this tribunal in the case of KTPL vide order dated 1.12.2017. Hence the reliance placed on those statements which stood retracted later and properly explained cannot be used as an evidence in the scrutiny proceedings of the assessee company before us and no adverse inference could be drawn on the assessee company. We would like to place reliance on the decision of the Hon'ble Apex Court in the case of Vinod Solanki vs Union of India reported in (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was in the knowledge of the revenue that the said creditors were the income-tax assessees. Their index number was in the file of the revenue. The revenue, apart from issuing notices under section 131 at the instance of the assessee, did not pursue the matter further. The revenue did not examine the source of income of the said alleged creditors to find out whether they were credit-worthy or were such who could advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do any further. In the premises, if the Tribunal came to the conclusion that the assessee has discharged the burden that lay on him then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion is based on some evidence on which a conclusion could be arrived at, no question of law as such arises. 4.7. We find that all the questions that were relevant for the assessment has already been asked by the ld AO from Shri Jaswant Kumar Nangalia and Shri Brij Mohan Nangalia during the course of assessment proceedings of KTPL, a group company of assessee company. In the said statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from two directors of the assessee company in the course of proceedings of group company i.e. KTPL. These statements were subsequently retracted and the same were taken due cognizance by this tribunal while disposing off the appeal in the case of KTPL for Asst Year 2014-15 in ITA No. 2215/Kol/2017 dated 1.12.2017. 4.9. In view of the aforesaid peculiar facts and peculiar documents relating thereto and respectfully following the various judicial precedents relied upon hereinabove, we have no hesitation in holding that all the three ingredients of section 68 of the Act were duly satisfied in the instant case. We hold that the authorities below erred in making an addition u/s 68 of the Act towards share capital and share premium in these peculiar facts and circumstances of the case. Since the addition made towards share capital and share premium is directed to be deleted on these peculiar facts, the other legal issues raised by the assessee in its grounds are not required to be adjudicated and we refrain to give our opinion on the same and those issues are left open. Accordingly, the grounds raised by the assessee are allowed. 5. In the result, the appeal of the assessee is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
