Income Tax Appellate Tribunal - Kolkata
Ito, Ward-10(2), Kolkata vs M/S R.K. Shelters Pvt. Ltd., Kolkata on 17 September, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA 'A' BENCH, KOLKATA
{VIRTUAL COURT HEARING}
(Before Shri Aby T. Varkey, Hon'ble Judicial Member & Shri Manish Borad, Hon'ble Accountant Member)
ITA No. 42/Kol/2021
Assessment Year: 2015-16
Income Tax Officer, Ward-10(2), Kolkata.............................................Appellant
Vs.
M/s. R.K. Shelters Pvt. Ltd.................................................................Respondent
18/3, Lotus Park
Baghajatin
Kolkata - 700 047
[PAN : AAFCR 2834 K]
Appearances by:
Shri S.M. Surana, Advocate, appeared on behalf of the assessee.
Shri Supriyo Pal, Addl. CIT, D/R, appearing on behalf of the Revenue.
Date of concluding the hearing : September 8th, 2021
Date of pronouncing the order : September 17th,2021
ORDER
Per Manish Borad, AM :-
This appeal filed by the revenue is directed against the order of the Learned Commissioner of Income Tax (Appeals) - 24, Kolkata, (hereinafter the 'ld. CIT(A)'), dt. 24/09/2020, passed u/s 250 of the Income Tax Act, 1961 (the 'Act').
There is a delay of 18 days in filing of this appeal by the assessee. The assessee has filed a condonation petition. On perusal of the same, we are convinced that the assessee was prevented by sufficient cause from filing of the appeal in time. Hence, we condone the delay and admit this appeal of the assessee.
2. Brief facts of the case as spelled out in the records are that the assessee is a Private Limited Company engaged in the business of property building and development. e-Return for the Assessment Year 2015-16 was filed on 12/09/2015 declaring loss of Rs. 12.00.522/-. The case was selected for scrutiny through CASS followed by service of notice u/s 143(2) & 142(1) of the Act. The reasons for selection for scrutiny was, large share premium received during the year (verify applicability of Section 56(2)(viib)). The ld. Assessing Officer called for various details most of which were filed. On examining, the share premium account the ld. Assessing Officer observed that there is an increase of Rs.2 Crores/- during the year. He further observed that this sum of Rs.2 Crores/- was received from M/s. Hitasu Construction Pvt. Ltd., 2 ITA No. 42/Kol/2021 Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
towards the pending call money. Though the assessee filed the details to prove the identity and creditworthiness of the subscriber company and also its creditworthiness to invest the alleged sum, they were not found satisfactory by the Assessing Officer Officer. He treated the said sum received by the assessee towards share capital and share premium from M/s. Hitasu Construction Pvt. Ltd. as unexplained cash credit u/s 68 of the Act and assessed the income at Rs.1,87,99,480/-.
2.1. Aggrieved the assessee preferr preferred ed an appeal before the ld. CIT(A) and succeeded as the ld. CIT(A) was satisfied with the existence of subscriber companies,, its creditworthiness and genuineness of the transaction and in order to arrive at this finding, the ld. CIT(A) also referred to the assessment of the subscriber company framed u/s 143(3) of the Act dt. 09/06/2017 for the same year.
Now, the revenue is in appeal before the Tribunal.
3. The ld. D/R vehemently argued supporting the finding of the Assessing Officer and alleged that the amount received from M/s. Hitasu Construction Pvt. Ltd., were in the nature of accommodation entry received by the assessee to evade the tax.
4. Per Contra the he ld. Counsel for the assessee referred to the following written submission:-
"The assessee during the year received call money of Rs. 2 crores on issue of 4 lakh shares to M/s Hitasu Construction P Ltd. in earlier year i.e. in A Y 2014-15.
2014 The shareholder paid Rs. 2 crores in earlier year i.e. in A Y 2014 2014-15 15 (Noted by AO in assessment order vide page 4) towards share application money, the shares were allotted as partly paid up shares in the earlier year itself (accepted in scrutiny assessment u/s 143(3) and further allotment and call money was paid by the shareholder during the year. The AO has added back the said call money on the ground that the creditworthiness of the subscriber wa was s not established vide last para of the assessment order. The AO also observed that the inspector could not trace out the party at the given address. However, notice u/s 133(6) was duly served on the creditor on the same address vide paper book page 1 and reply filed vide paper book page 2-3.3 ITA No. 42/Kol/2021
Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
It is submitted that notice u/s 131 was duly served on the director of the shareholder company vide paper book page 28, the director of the shareholder company appeared and his statement was recorded.
The identity creditworthiness itworthiness and genuineness of the transaction cannot be doubted and disputed since the AO himself has accepted the application money contributed by the shareholder in A Y 2014 2014-15 15 in an assessment completed u/s 143(3) vide paper book page 57-59, 59, balance s sheet heet page 50 and copy of ledger account at page 3. The shareholder company had capital and reserves and surplus of Rs. 12,84,89,223/ 12,84,89,223/- as on 1.4.2014 vide paper book page 11. Not only that their creditworthiness and source cannot be doubted since the shareh shareholder older was also assessed to tax u/s 143(3) for the same very year vide paper book page 29.
The issue is fully covered by the judgments in the case of Shah Tracom P Ltd. in MA 01/Kol/2021 in ITA NO. 1857/K/2019 vide para 7 wherein a number of judgments have been relied on and further the case of Happy Structure Pvt Ltd.in ITA No. 1977/K/2016 para 47 decided on 22.7.2019 (copies enclosed). It may be added that even otherwise a call money due from a shareholder is a debt due from shareholder and hence it cannot be treated as cash credit since the call money was paid by the debtor. Reference is invited to the judgment of Madras High Court in the case of official Receiver, High Court vs Ar. Rm. Ramanathan Chettiar And ... 32 Comp Cases 381 Mad."
Subsequently, the e ld. Counsel for the assessee also took us through the paper book running from page 1 to 59 and also placed reliance on the following judicial pronouncement:
pronouncement:-
ITO, Ward--12(2), 12(2), Kolkata vs. M/s. Happy Structure Pvt. Ltd. in ITA No. 1977/Kol/2016; order dt. 22nd May, 2019 M/s. Shah Tracom Pvt. Ltd. vs. ITO in M.A. No. 01/Kol/2021 in ITA No. 1857/Kol/2019; order dt. 25/ 25/02/2021 4.1. The ld. Counsel for the assessee, also stated that the assessment of the assessee company was carried out u/s 143(3) of the Act for the preceding Assessment Year. The alleged sum received from M/s. Hitasu Construction Pvt. Ltd., was the final payment towards share capital and share premiu premium received in the preceding year and is the remaining amount towards the shares allotted in preceding year but part of the sum was received during the 4 ITA No. 42/Kol/2021 Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
year. He further stated that there is no adverse finding of the revenue authorities against the subscribe subscriberr companies in the preceding year and the share hare capital and share premium received from subscriber company has been accepted to be genuine.
5. We have heard rival contentions and perused the records placed before us and carefully gone through the decisions relied upon by the assessee. Though the revenue has raised ten (10) grounds of appeal, Ground Nos. 1 to 9 are only giving rise to the sole is issue sue arising out of the findings of the ld. CIT(A) of deleting the addition of unexplained cash credit u/s 68 of the Act of Rs.2 Crores.
6. We find that the company, namely, M/s. Hitasu Construction Pvt. Ltd., applied for four lakhs equity shares of face va value lue of Rs.10 with a share premium of Rs.170/-.. The price per share of Rs.180/ Rs.180/-,, was payable in the following manner:-
Rs. 50/- as share appliation Rs. 12.50/- payable on share allotment & first call Rs.25/- on second call Rs.12.50/- on third call Rs.80/- as last and final call The shares were allotted to M/s. Hitasu Construction Pvt. Ltd., during financial year 2013-14 14 and a sum of Rs.2 Crores was received during the year under appeal.. During the year under appeal, this sum of Rs.2 Crores was received in four installments ments of Rs.50 Lakhs/ Lakhs/- each. We further find that the assessee has filed complete details with name, address address,, PAN Nos. of the subscriber companies, copy of Form Form-2 2 filed with the registrar of companies, copy of income tax return, audited financial statements and bank statement.
It is also an admitted fact that when the Assessing Officer issued summons u/s 131 of the Act to the subscriber companies, the director of subscriber company appeared in compliance of summons and accepted to the said transactions. We further find that the ld. CIT(A) has dealt with the facts of the case and has also given cognizance to the a assessment ssessment of the assessee company framed for the preceding Assessment Year 2014 2014-15 15 during which, the shares were originally allotted to the subscriber company M/s. Hitasu 5 ITA No. 42/Kol/2021 Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
Construction Pvt. Ltd.. The relevant findings of the ld. CIT(A) is reproduced below:-
"5.1 5.1 I have considered the assessment order and the submissions of the A/R and documents submitted by the appellant along with the case laws relied upon, perused the facts of the case. I find that appellant had received share application from M/s Hitashu Constructions Private Limited who had applied for 4,00,000/- shares of Rs 10/- each at a premium of Rs 170/-. The lender company had paid a sum of Rs 2,00,00,000/ 2,00,00,000/- @ 12.50/- on share allotment, Rs 25/-25/ on first call and 12.50 on second call. It has been stated that in support of its claim, the had tiled before the A.O. the following documents to discharge its onus to prove the identity and creditworthiness of the subscriber and genuineness of the transactions.
i) Name, address and PAN of the share subscriber
ii) Copy of form No. 2 filed with the ROC
iii) Copy of 1TR acknowledgement, financial Statement and bank statement highlighting the source.
iv) Produced books of accounts 5.2. I have carefully perused the assessment order p passed assed u/s 143(3), It is not disputed that during the assessment proceeding, the A.O. issued notice u/s 133(6) to Subscriber on 23.08.2017 which was unserved, further the A.O. was issued notice u/s 133(6) to subscriber on 20.09.2017 which was served and reply ly received from the subscriber on 23.10.2017 who duly confirmed the transaction and A.O. was verified and he kept into his assessment record.
5.3. Further, the A.O. issued summons u/s 131 to the subscriber company. The director of subscriber company appe appeared ared in compliance of summons.
5.4. It is seen from the financial statement of the share subscriber company that it has revenue from operations in the A.Y. 2015 2015-16 16 of Rs 85, 59, 748/-
748/ and in the A.Y. 2014-1515 Rs 52,75,217/ 52,75,217/-. I find that the assessment of the subscriber company for the A.Y. 2015 2015-16 16 has been completed u/s 143(3) of the Income Tax Act, 1961 by the jurisdictional A.O. via order dated 09.06.2017, the assessment order is reproduced hereunder;
6 ITA No. 42/Kol/2021Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
5.5. It is observed from the assessment order that the AO has relied upon the reports of the Inspector that the M/s. Hitasu Constructions Private Limited does not have authenticity/existence at 1, Crooked Lane, Kolkata - 700069 5.6. Further, the A.O., has observed that the share subscriber company is paper company and it has no financial capacity to provide such loan on share capital. He also noticed that the amounts that were provided as share capital were deposited in bank account o off the said party which was subsequently transferred to the assessee company on the same day, the surrounding circumstances indicate that the share transactions is a sham arrangement where the assessee company is routing its own unaccounted money through pa paper entities.
7 ITA No. 42/Kol/2021Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
5.7 From the above, it emerges that;
i) The Notice issued u/s 133(6) was duly served through registered speed post, which is independent body and party has also filed their reply.
ii) The notice u/s 13: was duly served and party appeared in person to confirm the transaction.
iii) The assessment u/s 143(3) has been made on the subscriber company by the Jurisdictional A.O and not found any adverse finding.
iv) The AO did not find any documents which prove that the assessee is involved in scam transaction.
5.8 Further, the Honble Supreme court in the case of Omar Salav Mohamed Sait reported in 1959, 37 FI R 151 (SC) has held that " No addition can be made on the basis of surmises, suspicion and conjectures". Further, in the case of Umacharan Shah & Bros Vs. CIT 37 ITR 371 it has been held that Suspicion however strong cannot take th the e place of evidence. In the case of Lalchand Bhagat Ambica Ram Vs. (II 1959 37 ITR 288 (SC) it has been held that assessment could not be based on background of suspicion and in absence of any evidence to support the same.
5.9 Further, Honble Bombay High Court in the case of PCIT Vs Ami Industries in ITA No. 1231 of 2017 dated 29.01.2020 has held vide para 21 that where the assessee had furnished PAN, copies of IT returns of creditors as well as copy of bank accounts of the creditors in which the share application lication money was deposited, it discharged its onus to prove the identity and creditworthiness of the creditor and genuineness of the transactions. In para 22 of the said order it has also distinguished uished the judgement of the Hon' Hon'ble Supreme Court in the case of NRA Iron and Steel Pvt Ltd by holding that the A.O in that case held that the subscribers lacked creditworthiness. The appellant has cited various other in support of its written submissions made.
5.10 Further, Hon'ble Delhi H High Court in the case of Commissioner of o Income Tax Vs. Anshika Consultants Private Limited in IT A No. 467 of 2014 it has been held that wherein the AO had relied on the inquiry of the inspector that the concerned companies were not found existing on the given addresses. On the other hand, the crucial fact is missed missedthat that these companies are regularly doing the business and tile their tax returns on regular basis. The taxes are paid by them on the income so earned by them. I he Principal Officers from the companies mpanies attended before the ADIT, Investigation in Kolkata and submitted that the investment in the appellant company has been made from the realisation of sale of earlier investments held by the companies.
5.11 In view of the above, the addition made by the Assessing Officer cannot be sustained which has been made on the basis of non genineness of the authenticity / existence of subscriber company & creditworthiness, of M/s Hitasu Constructions Private Limited which stands washed out by the order passed by Jurisdictional A.O. of the subscriber company via order dated 09.06.2017 u/s 143(3) of the Income lax Act, 1961. Therefore, the addition of Rs 2,00,00,000/- is accordingly directed to be deleted.
5.12 Ground No. 3 and 4 are general in nature and no nee needs ds to adjudication."
adjudication.
8. From perusal of the above finding and documents placed before us, we find that the assessee has successfully proved the identity and creditworthiness of the subscriber companies and genuineness of the transactions of having receive received the pending sum towards the share capital 8 ITA No. 42/Kol/2021 Assessment Year: 2015-16 M/s. R.K. Shelters Pvt. Ltd.
and share premium which is part rt of the total transaction of the shares allotted in the preceding year year. We also find that the financials statements of the assessee for the preceding year stands duly examined by the revenue authorities while scrutinizing the records of the assessee u/s 143(3) of the Act and further the order of the ld. CIT(A) needs to be confirmed for the reason that the Director of the subscriber company ha hass appeared before the Assessing Officer and accepted the transaction and the assessment of the subscriber company i.e., M/s. Hitasu Construction Pvt. Ltd., is framed u/s 143(3) of the Act for the very same year i.e., Assessment Year 2015 2015-16 and no adverse view with regard to the alleged transaction has been taken by the revenue authorities. Thus, under these facts and circumstances, we find no infirmity in the findings of the ld. CIT(A) and the same deserves to be confirmed.
9. In the result, appeal of the revenue is dismissed.
Kolkata, the 17th day of September,, 2021.
20 Sd/- Sd/-
[Aby T. Varkey] [Manish Borad]
Judicial Member Accountant Member
Dated: 17.09.2021
{SC SPS}
Copy of the order forwarded to:
1. M/s. R.K. Shelters Pvt. Ltd
18/3, Lotus Park
Baghajatin
Kolkata - 700 047
2. Income Tax Officer, Ward
Ward-10(2), Kolkata
3. CIT(A)-
4. CIT- ,
5. CIT(DR), Kolkata Benches, Kolkata.
True copy
By order
Assistant Registrar/DDO
Registrar
ITAT, Kolkata Benches
9
ITA No. 42/Kol/2021
Assessment Year: 2015-16
M/s. R.K. Shelters Pvt. Ltd.