Income Tax Appellate Tribunal - Hyderabad
Jeevan Polymers (P) Limited , Hyderabad vs Dy. Commissioner Of Income Tax , ... on 25 June, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD 'B' BENCH : Hyderabad
(Through Video Conference)
Before Shri S.S. GODARA, Judicial Member
and
Shri L.P. SAHU, Accountant Member
ITA No. 93/Hyd./2020
Assessment Year: 2014-15
M/s Jeevan Polymers (P) Ltd., vs. Dy.CIT, Circle 2(1)
Hyderabad Hyderabad
[PAN: AABCJ2053J]
(Appellant) (Respondent)
For Appellant: Sri A. V. Raghuram, AR
For Respondent : Sri R. Mujumdar, DR
Date of Hearing : 13/05/2021
Date of Pronouncement : 25/06/2021
ORDER
PER S.S. GODARA, J.M.
This assessee's appeal for A.Y. 2014-15 arises against the CIT(A)-2 Hyderabad's order dated 01.11.2019 passed in case no.10246/2016-17 involving proceedings u/s 143(3) of the Income Tax Act, 1961 [for short 'the Act'].
Heard both the parties. Case file perused.
2. The assessee's sole substantive grievance raised in the instant appeal challenges correctness of both lower authorities' action treating its share capital of Rs.2,79,99,850/- involving M/s Twinkle Commonsales Pvt. Ltd., as ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd. unexplained cash credits u/s 68 of the Act. The CIT(A)'s detailed discussion affirming Assessing officer's action to this effect reads as under.
"During the course of scrutiny proceedings it was noticed that the appellant has received Share capital for Rs.4,00,43,925/- during the year. The appellant was asked to furnish return of income and bank statement and also confirmation letter along with the sources of the parties who have invested in share capital during the year. In response, the appellant furnished details of share capital received from various parties.
On perusal of submissions filed regarding share capital, it was seen that an amount of Rs.2,79,99,850/- was received from M/s Twinkle Commosales Pvt Ltd, a Kolkata based company. On perusal of annual report of M/s Twinkle Commosales Pvt Ltd, it was noticed that the share applicant had a so called source of a security premium of Rs. 4,71,24,000/- and the same was applied in the investment of Rs. 4,76,10,000/- . The above thus was a shell company having investments and there was no business apparatus in the company as there were no transactions but for the investments made through dubious security premium. It was also seen in the bank statement of the share applicant that it received funds from parties M/s Narmoda Vintrade Pvt Ltd, M/s Jyotsna Vaijya Pvt Ltd and M/s Anubhav Vintrade Pvt Ltd which were transferred immediately to the appellant leaving the balance in the bank statement of an insignificant amount as in the most cases of entry operators, who immediately give a cheque entry by depositing cash in various accounts using web of transactions or by liquidating other entry or using the available balances in the other entities floated for the same purpose and transfer the same in a short period oi time to the recipient which was the appellant in the present case.
The AO had asked the appellant to furnish rerum of income, profit and loss account, balance sheet, bank statement and confirmation letters of parties M/s Narmoda Vintrade Pvt Ltd. , M/s Jyotsna Vaijya Pvt. Ltd and M/s Anubhav Vintrade Pvt Ltd. However, the appellant could not furnish the same. The AO had also issued notice u/s 133(6) to M/s Twinkle Commonsales Pvt Ltd asking for return of income, Profit & Loss a/c, Balance sheet and bank statement of above 3 parties.. The notice got served but there was no response. Thus, the appellant has even failed to discharge the primary requirement of the identity of the share applicant itself.2 ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd.
As the appellant has failed to discharge the onus of explaining the source of source in case of share application money, the AO completed the assessment by treating the amount of Rs.2,79,99,850/- as unexplained income of the appellant u/s 68 of Income Tax act.
Even during the course of appellate proceedings, the appellant furnished only details pertaining to M/s Twinkle Commosales Pvt Ltd which were already furnished during assessment proceedings. The appellant could not furnish any other evidences to prove the creditworthiness of the investor or the identity, genuineness and creditworthiness of the transaction.
The AO had made efforts to investigate the creditworthiness of the investors and the identity, genuineness and creditworthiness of the transaction. The AO had asked the appellant to furnish return of income, profit & loss account, balance sheet, bank statement and confirmation letters of parties M/s Narmada Vintrade P Ltd M/s Jyotsna Vaijya P Ltd and M/s Anubhav Vintrade P Ltd. The same information was also called for from the investor viz., M/s Twinkle Commonsales P Ltd vide notice u/s 133(6). However, there was no response from the appellant as well as the investor, viz., M/s Twinkle Commonsales P Ltd.. thereby rendering the confirmation procured by the appellant as non-admissible as there is no corroboration by the share applicant directly and considering that such a huge amount is not known and stands unsubstantiated It is a primary case of accommodation entry as a person investing such a huge amount in the company for the first time for a minority holding of only 11% Any investor of such a huge amount would form active participation in the affairs of the company and in the present case the appellant is not even able to provide basic details properly.
It is also seen that the financials of the investor company did not reflect genuine business activity and the income of the investor company does not commensurate the investments made, The FY 2012-13 shows no income and an expenditure of Rs.11,550/- and FY 2013-14 has a meagre income of Rs,24,550/- and expenditure of Rs.25,130/-, The financials itself state that the share applicant does not have a business apparatus and also the appellant does not have a history of distributing dividends in these years, The share applicants, balance sheet by using other applicants, are all facade created by infusing unaccounted cash at various levels in the banking systems or using this platform of entities to transfer profit and losses through movement of capital. Therefore, the 3 ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd. creditworthiness of the so called investor cannot be called as established and was a mere vehicle for tax evasion through accommodation entries.
The contention of the appellant that the genuineness of transactions was proved by the fact mat money was received through banking channels cannot be accepted. Payment through banking channels cannot in all cases tantamount to satisfactory discharge of onus. The bank statement of the investor company does not reflect any genuine business activity except for mere rotation of money among various concerns. Even the worst of the tax evader would use a banking channel as a first line of defense and the banking channel was only a safeguard plea mechanism for bonafide transactions. In this case. there is substantial evidence of how the banking channels have been used to create a web of transactions to evade taxes. Therefore, the plea of usage of banking channels is of no relevance in the case of the appellant.
The following decisions would be relevant in the case of the appellant which are of Hon'ble Apex court and the Hon'ble Delhi High Court:
In the case of Pr.CIT (Central) Vs. NRA Iron & Steel Pvt Ltd. wherein the Hon'ble Supreme Court has held that: "11. The principles which emerge where sums of money are credited as Share Capital/Premium are:
i. The qssessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus.
ii. The Assessing Officer is duty bound to investigate the credit- worthiness of the creditor/subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name - lenders.
iii if the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act."4 ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd.
CIT Vs Nipun Builders & Developers (P.) Ltd (30 taxmann.com 292, 214 Taxman 429,350 ITR 407,256 CTR 34) where Hon'ble Delhi High Court held that where assessee failed to prove identity and capacity of subscriber companies to pay share application money, amount so received was liable to be taxed under section 68.
CIT Vs Nova Promoters & Finlease (P) Ltd (18 taxmann.com 217, 206 Taxman 207, 342 ITR 169, 252 CTR 187) where Honble Delhi High Court held that: amount received by assessee from accommodation entry providers in garb of share application money, was to be added to its taxable income under section 68.
CIT Vs Empire Builtech (P,) Ltd (366 ITR 110) where Hon 'ble Delhi High Court held that u/ s 68 it is not sufficient for assessee to me-ely disclose address and identities of shareholders; it has to show genuineness of such individuals or entities.
CIT vs. Empire Builtch (P) Ltd.. (366 ITR 110) where Hon'ble Delhi High Court held that u/s 68 it is not sufficient for assessee to merely disclose address and identities of shareholders, it has to show genuinenss of such individuals or entities.
CIT v. N.R. Portfolio (P.) Ltd.[2014] 42 taxmann.com 339 where Hon'ble Delhi High Court held that the credit-worthiness or genuineness of a transaction regarding share application money depends on whether the two parties are related or known to each other or mode by which parties approached each other, whether the transaction is entered into through written documentation to protect investment, whether the investor was an angel investor, the quantum of money invested, credit-worthiness of 'he recipient, object arid purpose for which payment/investment was made, etc. The incorporation of a company, and payment by banking channel, etc. cannot in all cases tantamount to satisfactory discharge of onus.
As the appellant has failed to establish the identity, genuineness & creditworthiness of the share applicant as already elaborated in the factual and legal discussion above, the action of AO in treating the share application money as unexplained credit u/s 68 of the Act is upheld and accordingly the ground no.2 is dismissed.5 ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd.
The ground no.3 pertaining to CASS reason, it is very clear that AR was aware of the reasons and complied with the same, these are flimsy grounds taken by the appellant to escape the evasion caught by the department and the ground stands dismissed.
In ground no.4, the appellant contended that the onus u/s 68 is discharged once the PAN of investor is provided, as held by the Supreme Court. and if the investor does not respond the required details could have been gathered through official sources and no addition should have been made on the ground of not getting response from the investor. In the instant case. It cannot be held that the addition was made not just on the ground that identity was not established or there was no response from the Investor. Even considering the details filed by the appellant in respect of the investor company, it is seen that the Financials of the investor company did not reflect genuine business activity and the income of the investor company does not commensurate the investments made. Therefore, the genuine-ness of the transaction and creditworthiness at the investor company was no established. As staled earlier, the Hon'ble Apex court in a very recent judgement in the case of NRA Iron and Steel Pvt Ltd (SLP 29855 of 2018) held that the assessee company is under a legal obligation to prove the source of receipt of share capital and/or premium to the satisfaction of the assessing officer Mere filing of primary evidence of investors does not discharge the onus cast on the assessee company by virtue of section 68 of the Income-tax Act, 1961 ('the Act').
In view of the above discussion and the decision of the hon'ble Supreme Court, the ground no.4 is dismissed."
2.1. Learned AR invited our attention to assessee's detailed paper book running into 102 pages inter alia containing its submissions before the CIT(A), return along with computation, annual report and audit report; confirmation letter and bank statement(s) from M/s Twinkle Commonsales Pvt. Ltd. dated 12.8.2016, letters, returns, annual accounts and confirmation of source of investments, hon'ble apex court's decision in M/s Orissa Corporation (P) Ltd.
Dt. 19.3.1986 159 ITR 76 (SC) and CIT vs M/s Five Vision Promoters Pvt Ltd. and others dt 27.11.2015 380 ITR 289 (Del.) that it is deemed to have specified all the three ingredients of identity, genuineness and creditworthiness of impugned share application money.
6 ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd.2.2. Ld.DR has strongly supported the impugned addition made in both lower proceedings.
3. We have given our thoughtful consideration against and in support of the impugned addition. Suffice to say, it has come on record that the assessee has filed the documentary evidence pertaining to investor(s) along with confirmation letters claiming to have discharged its onus to satisfy genuineness, credit worthiness of the impugned share capital money It fails to dispute that the legislation has introduced 1st proviso to sec.68 of the Act vide Finance Act, 2012 w.e.f. 1.4.2013 that such a taxpayer must also prove source of source as well (clause "a") which has remained totally uncomplied with. We make it clear that we are in AY. 2013-14 whereas case law cited before us pertains to AY 1962-63 and upto 2009-10 only.
3.1. Mr. Raghu Ram's further arguments in light of the foregoing detailed evidence hardly inspires any confidence. Hon'ble apex court's judgement in NRA Iron and Steel Corporation Ltd., (supra) has made it clear that mere filing of documents does not absolve an assessee to prove genuineness and creditworthiness of its investor(s) parties. We thus express our complete agreement with the learned CIT(A)'s detailed findings affirming impugned unexplained cash credits addition The assessee fails in its sole substantive ground.
This assessee's appeal is dismissed.
Order pronounced in Open Court on 25/06/2021.
Sd/- Sd/-
(L.P. SAHU) (S.S. GODARA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 25th June, 2021
*gmv
7
ITA No. 93/Hyd/2020 AY : 2014-15 Jeevan Polymers (P) Ltd., Hyd.
Copy of Order forwarded to:
1. M/s Jeevan Polymers (P) Ltd., 12/C, C.I.E., Gandhinagar, Balanagar, Hyderabad
2. Dy.CIT, Circle 2(1), Hyderabad
3. ACIT, Range 2, Hyderabad 4 CIT(A)-2, Hyderabad 5 Pr.CIT-2, Hyderabad .
6 D.R. ITAT Hyderabad 7 Guard File 8