Tribhuvan Dealtrade Pvt. Ltd v. The Income Tax Officer Ward 9 (I) Kolkata

OD-5 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION ORIGINAL SIDE ITAT/280/2023IA NO: GA/1/2023, GA/2/2023 TRIBHUVAN DEALTRADE PVT. LTD.VSTHE INCOME TAX OFFICER WARD 9 (I) KOLKATA BEFORE :THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 19[th] January, 2024. Appearance : Mr. Kapil Goel, Adv.Mr. Sandeep Goel, Adv.Mr. Kushagra Shah, Adv.…for appellant.Ms. Smita Das De, Adv.Mr. Prithu Dudheria, Adv.…for respondent. The Court :- Heard learned Counsel on either side. It appears there is a delay of 31 days in filing the appeal. We are satisfiedwith the reasons assigned in the affidavit filed in support of the condonation ofdelay petition and found sufficient cause has been shown for not preferring theappeal within the period of limitation. Accordingly, the petition for condonation of delay stands allowed. This appeal by the assessee under Section 260A of the Income Tax Act,1961 (the Act) is directed against the order dated 16.12.2023 passed by theIncome Tax Appellate Tribunal A Bench, Kolkata (the Tribunal) in ITA No. 783/Kol/2019 for the assessment year 2012-13. The assessee has raised thefollowing substantial questions of law for consideration:- (a)Whether the Hon’ble Tribunal erred in allowing the addition ofRs.25,04,00,000/- made by the Assessing Officer under section 68 ofthe Income Tax Act, 1961 when the Assessee Company had fulfilledthe tenets of proving the identity, genuineness and creditworthiness ofthe transactions and when the only factor that played against theAssessee Company while determining the genuineness andcreditworthiness of the transactions were the nature of business of theinvestor share applicants which themselves being investmentcompanies were surviving on interest income and were raising theircapital to make investment in shares and securities ? (b)Whether the Hon’ble Tribunal has failed to take into consideration thatsuch investing share applicants were also assessee to the Revenue andif their individual accounts were not doubted then such investmentsmade by them in another company could not be doubted as dubiousor bogus or rather not creditworthy ?such investing share applicants were also assessee to the Revenue andif their individual accounts were not doubted then such investmentsmade by them in another company could not be doubted as dubiousor bogus or rather not creditworthy ? (c)Whether the Hon’ble Tribunal has proceeded to uphold the orderpassed by the Assessing Officer only on the premise that the Directorsof the Assessee Company did not present themselves to identify thegenuineness of issuing share capital with huge share premium ?passed by the Assessing Officer only on the premise that the Directorsof the Assessee Company did not present themselves to identify thegenuineness of issuing share capital with huge share premium ?We have heard learned Counsel on either side. The assessing officer while completing the assessment under Section143(3) of the Act by order dated 13.3.2015 held that a sum of Rs.25,04,00,000/-shown as share capital raised in the books of the assessee to be considered as undisclosed income and added back under Section 68 of the Act to be declaredas total income for the assessment year under consideration. The assessing officer while completing the assessment under Section143(3) of the Act by order dated 13.3.2015 held that a sum of Rs.25,04,00,000/-shown as share capital raised in the books of the assessee to be considered as undisclosed income and added back under Section 68 of the Act to be declaredas total income for the assessment year under consideration. Aggrieved by such order the assessee preferred appeal before theCommissioner of Income Tax, Appeals (11), Kolkata (CITA). The CITA by orderdated 30.1.2019 by an elaborate and well reasoned order dismissed the appealand confirmed the addition. Aggrieved by the same the assessee preferred theappeal before the Tribunal. We have carefully perused the order passed by thelearned Tribunal and found that the learned Tribunal firstly examined thecorrectness of the reasons recorded by the CITA and aggrieved by the same notstopping with that the learned Tribunal has undertaken to examine the factualposition namely the financials of the share applicants companies and found thatthe assessee company had no foundation to attract a huge premium ofRs.9,990/- of equity shares of face value of Rs.10/- each and held that there isno genuineness in the transaction and the transaction of receiving share capitaland share premium are in the nature of accommodation / bogus entries. On being satisfied with the documents placed before the Tribunal, theTribunal agreed with the finding recorded by the CITA. Thereafter, the Tribunalalso pointed out that so far as the creditworthiness of the share applicants isconcerned, the Tribunal noted that there is a common pattern that any of suchcompanies of which the income is very meager and in comparison of suchincome in the present as well as in the past period do not carry a weight and isbeyond human probability to venture for a huge investment in the assesseecompany which itself has poor financials. Thus, the Tribunal on re-appreciatingthe factual position affirmed the order passed by the CITA. Thus, we find there is no question of law much less substantial questionof law arises for consideration in this appeal. Accordingly, the appeal fails and the same stands dismissed. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) Pkd/GH.