{"id":257287,"date":"2002-08-02T00:00:00","date_gmt":"2002-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sky-high-properties-pvt-ltd-vs-income-tax-officer-on-2-august-2002"},"modified":"2015-10-25T19:11:26","modified_gmt":"2015-10-25T13:41:26","slug":"sky-high-properties-pvt-ltd-vs-income-tax-officer-on-2-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sky-high-properties-pvt-ltd-vs-income-tax-officer-on-2-august-2002","title":{"rendered":"Sky High Properties Pvt. Ltd. vs Income-Tax Officer on 2 August, 2002"},"content":{"rendered":"
Income Tax Appellate Tribunal – Delhi<\/div>\n
Sky High Properties Pvt. Ltd. vs Income-Tax Officer on 2 August, 2002<\/div>\n
Equivalent citations: 2002 258 ITR 98 Delhi<\/div>\n
Bench: K Prasad, R Bahadur<\/div>\n

ORDER<\/p>\n

Keshaw Prasad, (Accountant Member) <\/p>\n

1. The appeal has been directed by the assessee against the order of the Commissioner of Income-tax (Appeals), dated February 1, 2002, pertaining to the assessment year 1998-99. Though various grounds of appeal have been raised, all the grounds relate to the addition of Rs. 10 lakhs made by the Assessing Officer under Section 68<\/a> of the Income-tax Act, 1961, representing share capital of Rs. 2,00,000 each received from five shareholders.\n<\/p>\n

2.
\nBriefly, the facts of the case are that the assessee is a company which deals in real estates and its development. During the year, the assessee has received the share capital of Rs. 10 lakhs at Rs. 2 lakhs each received from five shareholders. In order to verify the genuineness of the transaction\/the Assessing Officer issued notices under Section 133(6)<\/a> to the shareholders. Though these notices were duly served, there was no response from any of them. In the absence of any response from the shareholders, the Assessing Officer treated the sum of Rs. 10 lakhs received by the assessee as unexplained and added the same to the income of the assessee under Section 68<\/a> of the Act.\n<\/p>\n

3. On appeal, it was contended before the Commissioner of Income-tax (Appeals) that a sum of Rs. 2 lakhs each was received as capital from the following parties :\n<\/p>\n

SI. No.<\/p>\n

Name<\/p>\n

Amount (Rs.)<\/p>\n

1.<\/p>\n

Hanumandas
\n Hariprasad, Prop. Hariprasad Sanjeev Kumar (HUF)<\/p>\n

2,00,000<\/p>\n

2.<\/p>\n

Anant
\n Hi-Tech Pvt. Ltd.\n<\/p>\n

2,00,000<\/p>\n

3.<\/p>\n

Raghav
\n Hi-Tech Pvt. Lid.\n<\/p>\n

2,00,000<\/p>\n

4.<\/p>\n

By-pass
\n Properties Pvt. Ltd.\n<\/p>\n

2,00,000<\/p>\n

5.<\/p>\n

Kanchan
\n Enterprises Pvt. Ltd.\n<\/p>\n

2,00,000<\/p>\n

4. All the subscribers were identifiable. Four of these were limited companies registered with the Registrar of Companies and one was a Hindu undivided family. All the five subscribers were income-tax payees and have made the payments by account-payee cheques. Their full particulars, their complete addresses and their income-tax file numbers were also furnished before the Assessing Officer. It was stated that the assessee has proved the identity and credit-worthiness of the shareholders and also the genuineness of the transaction which has taken place by account-payee cheques, the assessee has discharged its onus cast on it. The written submissions made by the assessee were forwarded by the Commissioner of Income-tax (Appeals) to the Assessing Officer for his comments. The reliance was also placed on the decisions of the Supreme Court in the case of CIT v. Steller Investment Ltd<\/a>. [2001] 251 ITR 263. After considering the remand report of the Assessing Officer, the Commissioner of Income-tax (Appeals) confirmed the addition by observing that the onus was on the assessee to prove the genuineness of the transaction. As the assessee has failed to prove the same, the Assessing Officer has rightly taxed the sum of Rs. 10 lakhs under Section 68<\/a> of the Act. She also held that the ratio laid down by the Supreme Court in the case of Steller Investment Ltd. [2001] 251 ITR 263 was not applicable, as the facts were distinguishable. The assessee is in appeal before us against the findings of the Commissioner of Income-tax (Appeals).\n<\/p>\n

5. It is argued by learned counsel that the Supreme Court in the case of Steller Investment Ltd. [2001] 251 ITR 263 has considered this issue. The Supreme<\/p>\n

Court has held that no addition on account of share capital could be made in the hands of the companies. In case, the Department wanted to make any investigation about the genuineness of the transaction, the same could be done in the cases of the shareholders only. Thus on legal submissions alone, the addition sustained by the Commissioner of Income-tax (Appeals) deserves to be deleted.\n<\/p>\n

6. Learned counsel further stated that even assuming that the ratio laid down by the Supreme Court in the case of Steller Investment Ltd. [2001] 251 ITR 263 were not applicable then the case has to be examined in view the ratios laid down by the Delhi High Court in the case of CIT v. Sophia Finance Ltd<\/a>. [1994] 205 ITR 98 [FB]. In this case, the High Court has held that if the sources of the share application money was not proved, the addition under Section 68<\/a> of the Act could be made in the hands of the companies also. The court also held that the receipt by way of loan\/deposits was quite different from the amount of share capital receipts. While in the cases of the loan\/deposits, the onus was on the assessee to prove the identity and credit-worthiness of the creditors as well as genuineness of the transaction, in the case of share capital, the assessee has to prove the identity of the shareholders. The High Court had held that they were not laying down any parameter on this issue but if the identity of the shareholders was established, perhaps, there was no need of making further investigation into the credit-worthiness of the shareholders or genuineness of the transaction. It was stated that in view of the decision of jurisdic-tional High Court, the onus was on the assessee to prove the identity of the shareholders. Learned counsel stated that there cannot be any dispute about the identity of the shareholders as out of five shareholders, four shareholders were the companies incorporated under the Companies Act<\/a>. These companies have huge share capital and huge investment. The fifth shareholder was a Hindu undivided family who had also huge share capital and huge investment. Moreover, all the five shareholders were being assessed to tax regularly. It was also stated that the notices under Section 133(6)<\/a> issued by the Assessing Officer were duly served on them as none of these notices came back unserved. This also shows that all the shareholders were identifiable. Thus, in view of the decision of the Delhi High Court in the case of CIT v. Sophia Finance Ltd<\/a>. [1994] 205 ITR 98 [FB], the question of making any addition under Section 68<\/a> of the Act does not arise.\n<\/p>\n

7. Learned counsel further stated that even assuming that the onus was on the assessee to prove the credit-worthiness of the shareholders as well as the genuineness of the transaction, the same also stood proved in the instant case. It was stated that one shareholder, namely, Raghav High-tech Pvt. Ltd., who had contributed the share capital to the extent of Rs. 2 lakhs, had its capital of more than Rs. 3 crores. It has made the investment in the share of various companies to the extent of more than Rs. 1 crore. The investment in the share capi-\n<\/p>\n

tal of the assessee was, therefore, very negligible. The audited balance-sheet of Raghav High-tech has been placed on record which finds place from pages 7 to 14 of the paper book. The other shareholder, namely, Anant High-tech Pvt. Ltd., had a share capital of more than Rs. 3 crores. Its investment in the share of various companies was more than Rs. 89 lakhs which included the investment of share capital with the assessee-company, at Rs. 2 lakhs. The audited balance-sheet of this company is also on record and the relevant pages are pages 27 and 28 of the paper book. The third shareholder, namely, By-pass Properties Pvt. Ltd., had contributed a sum of Rs. 2 lakhs to the share capital of the assessee. This company has its capital of more than Rs. 25 lakhs. Its investment in the shares of various companies are more than Rs. 10 crores. Compared to the investment made by this company, the investment made in the share capital of the assessee was insignificant. The audited accounts of this company are also placed in the paper book and the relevant pages are 48 of the paper book. A sum of Rs. 2 lakhs has been received from Kanchan Enterprises Pvt. Ltd. towards share capital. This company has share capital of Rs. 10 lakhs and its investment in the shares of various companies are more than Rs. 2 crores. Compared to the investment made by this company in the shares of various companies, the investment with the assessee-company was insignificant. The audited accounts of company is also on record and finds place at page 58 of the paper book. A sum of Rs. 2 lakhs has been obtained towards share capital from Hanuman Dass Hari Prasad, Prop. Hari Prasad Sanjiv Kumar, HUF. This concern is regularly assessed to tax and during the year under consideration, its net profit itself was more than Rs. 48 lakhs. Its share capital was Rs. 50 lakhs and investment in the shares was more than Rs. 9 crores. Looking to this investment the investment with the assessee-company at Rs. 2 lakhs was insignificant. The audited balance-sheet\/profit and loss account is also on record and the relevant pages are 67 and 70 of the paper book. On the basis of these evidences, learned counsel stated that the assessee has even discharged its onus of proving the identity and credit-worthiness of the shareholders as well as genuineness of the transaction. The addition sustained by the Commissioner of Income-tax (Appeals) was, therefore, unwarranted.\n<\/p>\n

8. On the other hand, learned Departmental Representative supported the order of the Commissioner of Income-tax (Appeals).\n<\/p>\n

9. We have considered the rival submissions. Before examining the facts of the case, it will be necessary to appreciate the law relating to the assessment of shares subscription as income under Section 68<\/a> of the Income-tax Act, 1961 :\n<\/p>\n

(i) Initially a Division Bench of the Delhi High Court in the case of CIT v. Stellar Investment Ltd<\/a>. [1991] 192 ITR 287 had held that the share capital of a limited company cannot be brought to tax as unexplained cash credits on the same footing as a spurious loan can possibly be assessed. To quote the decision (page 288) :\n<\/p>\n

“It is evident that even if it be assumed that the subscribers to the increased share capital were not genuine, nevertheless, under no circumstances, can the amount of share capital be regarded as undisclosed income of the assessee. It may be that there are some bogus shareholders in whose names shares had been issued and the money may have been provided by some other persons. If the assessment of the persons who are alleged to have really advanced the money is sought to be reopened, that would have made some sense but we fail to understand as to how this amount of increased share capital can be assessed in the hands of the company itself.”\n<\/p>\n

(ii) In the meantime the Supreme Court rejected ([1993] 199 ITR (St.) 85) a departmental Special Leave Petition in the case of CIT v. Kwick Travels<\/a> (unreported I. T. C. No. 168 of 1991). In this case the assessee-company had increased its share capital which it claimed was received in cash. The Assessing Officer held that the identity of persons who had acquired the shares as well as their credit-worthiness were not established and treated the value of the shares as income from undisclosed sources of the assessee. The Commissioner of Income-tax (Appeals) reduced the amount of such income and the Tribunal affirmed his order. The Tribunal and the High Court rejected the reference applications of the Department. The Supreme Court also rejected the Special Leave Petition of the Department ([1993] 199 ITR (St.) 85) .\n<\/p>\n

However, the Department had not accepted the decision in CIT v. Stellar Investment Ltd<\/a>. [1991] 192 ITR 287 (Delhi). The objection was to the observations of the hon’ble court that under no circumstances can the amount of share capital be regarded as undisclosed income of an assessee.\n<\/p>\n

(iii) In a subsequent decision in the case of CIT v. Sophia Finance Ltd<\/a>. [1994] 205 ITR 98, the above observations of the Delhi High Court came in for a review by the Full Bench of the same court. The court held that the Assessing Officer would be entitled to enquire and it would indeed be his duty to do so, whether the alleged shareholders do, in fact, exist or not. If the shareholder exists then possibly no further enquiry need be made, but if the Assessing Officer finds that the alleged shareholders do not exist, then in effect, it would mean that there is no valid issue of shares and in such a case the Assessing Officer has jurisdiction, if the facts so warrant, to treat such credit to be the income of the assessee. With these observations, the Full Bench directed that a question of law did arise out of the order of the Income-tax Appellate Tribunal in that case and directed the same to be referred to them for final decision.\n<\/p>\n

(iv) It is, however, of high importance to note that the Full Bench did not lay down the norms for deciding the extent of onus of proof of the amount credited. In the words of the court ( [1994] 205 ITR 98, 105 (Delhi) [FB]) :\n<\/p>\n

“We make it clear that we are not deciding, nor is it our intention to decide as to on whom and to what extent is the onus to show that an amount<\/p>\n

credited in the books of account is share capital and when does that onus stand discharged. This will depend on the facts of each case.”\n<\/p>\n

(v) This significant observation of the court clearly points out that there is a subtle distinction between an ordinary cash credit and a credit by way of share capital. Apparently, the court had in its mind the comprehensive law contained in the Companies Act<\/a>, 1956, on the acceptance of share application money and allotment of shares in consideration therefor. While, in the case of ordinary loans obtained, there are overwhelming judicial decisions to say that the onus is on the assessee to prove not only the identity of the creditors but also to prove the genuineness and the capacity of the persons to lend ; but with reference to share capital for which shares have been issued, the onus on the company is very much limited in the light of the law under the Companies Act<\/a>. The Full Bench decision referred to above makes it clear that in the case of limited companies, the jurisdiction of the Assessing Officer would be limited only to see whether the identity of the shareholders is established and whether they exist or not. Once the identity is established, then, as the Full Bench felt, possibly, no further enquiries need be made. This conclusion was arrived at by the hon’ble High Court apparently due to the reason that when limited companies, especially public limited companies, invite subscription towards their share capital either by private placement or by public issue, it is neither legally possible nor practicable for such companies to insist upon the sources of the share subscriptions being made known to the company. Even regarding the proof of the existence and identity of the shareholders, the public limited companies can only provide the Assessing Officer with the documents\/registers maintained by the companies. In this connection, it is worthwhile to appreciate the comprehensive law laid down under the Companies Act<\/a>, 1956, regarding the issue and allotment of shares by companies.\n<\/p>\n

(vi) Section 68A<\/a> of the Companies Act speaks about personation for acquisition of shares. According to this section, any person, who makes in a fictitious name an application to a company for acquiring, or subscribing for, any shares therein, or otherwise induces a company to allot, or register any transfer of, shares therein to him, or to any other person in a fictitious name, shall be punishable with imprisonment for a term which may extend to five years. These provisions are required to the prominently reproduced in every form of application for shares which is issued by the company to any person. It is worthwhile noting that these provisions were introduced in the Companies Act<\/a> with effect from 1965, based on the recommendations of the Bose Commission. The Commission had adverted to a case where shares to the extent of Rs. 16,00,000 in a public company were applied for on behalf of non-existing shareholders. The Commission itself took note of the fact that benami shareholding and shareholding in the names of fictitious or non-existing persons was common. The Commission, therefore, felt that this practice<\/p>\n

should be severely dealt with and, accordingly, applying for shares in fictitious names was made a punishable offence under the Act. It has to be carefully noted that the company as such is not visited with any adverse legal consequences or is deemed to commit any offence but it is only the person who makes the application in fictitious name or otherwise induces a company to allot a share in fictitious name who is made punishable with imprisonment.\n<\/p>\n

(vii) According to Section 72<\/a> of the Companies Act, no allotment can be made without an application in writing and, the company can call for only certain limited information from the shareholders for the purposes of the allotment. Further as held by the Delhi High Court in Stellar Investment Ltd. [1991] 192 ITR 287, the company cannot seek information from the shareholders regarding the sources of their investment in those shares.\n<\/p>\n

(viii) Section 75<\/a> of the Companies Act specifies that, whenever a company, having a share capital, makes any allotment of its share then it shall, within 30 days thereafter, furnish to the Registrar a return of the allotment, stating the number and normal value of the shares comprised in the allotment, the names, addresses and occupations of the allottees and the amount paid or payable on each share.\n<\/p>\n

(ix) Section 77<\/a> of the Companies Act prohibits a company from purchasing its own shares or providing any person with funds for purchase of its own shares.\n<\/p>\n

(x) From the above narration, it would be clear that the law relating to application for, and allotment of shares is fully codified. Apparently, it is in this view of the matter, that the Full Bench of the Delhi High Court in the case of Sophia Finance Ltd. [1994] 205 ITR 98 observed that they were not laying down any general norms relating to the onus in respect of providing the credits in respect of share capital.\n<\/p>\n

10. Keeping in view the ratios laid down by the Delhi High Court in the case of Sophia Finance Ltd. [1994] 205 ITR 98 [FB], we find that out of five shareholders, four shareholders are companies incorporated under the Companies Act<\/a>. They are regularly assessed to tax. They are regularly filing their statements with the Registrar of Companies. All the four companies have huge share capital and their investments in the share of various companies was very huge. The audited copy of the accounts are also on record. Looking to these documents, there cannot be any dispute about their identity, credit-worthiness as well as genuineness of the transaction. As regards share capital received from the Hindu undivided family, we find that the capital of the Hindu undivided family was more than Rs. 50 lakhs and its net profit during the year was more than Rs. 48 lakhs. It has made huge investment in the shares of various companies to the extent of Rs. 9.46 crores in comparison to the investment of Rs. 2 lakhs with the assessee-company. The audited accounts are also on record. The Hindu undivided family is also being asses-\n<\/p>\n

sed to tax. In view of these evidences, we have no hesitation in holding that the identity and credit-worthiness of the Hindu undivided family stands established and the genuineness of the transaction also stands established. Under these circumstances, we hold that the addition sustained by the Commissioner of Income-tax (Appeals) is not justified and the same is deleted.\n<\/p>\n

11. As regards learned counsel’s reliance on the decision of the Supreme Court in the case of Steller Investments Ltd, [2001] 251 ITR 263, we feel that the reliance on this case was misplaced. In the case of Steller Investments Ltd. [2001] 251 ITR 263 (SC), it was the public issue at large. It was under these circumstances that the court took the view that it was not possible for the company to verify the identity of the shareholders. But the case before us is the case of a private limited company where the shareholders are known to the assessee-company. Under the circumstances, reliance on the decision of the Supreme Court in the case of Steller Investments Ltd. [2001] 251 ITR 263 is misplaced. But as we have deleted the addition on other grounds, the grounds of appeal directed by the assessee are allowed.\n<\/p>\n

12. In the result, the appeal filed by the assessee is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"

Income Tax Appellate Tribunal – Delhi Sky High Properties Pvt. Ltd. vs Income-Tax Officer on 2 August, 2002 Equivalent citations: 2002 258 ITR 98 Delhi Bench: K Prasad, R Bahadur ORDER Keshaw Prasad, (Accountant Member) 1. The appeal has been directed by the assessee against the order of the Commissioner of Income-tax (Appeals), dated February […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-257287","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nSky High Properties Pvt. 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