Toplink Developers Consultancy Pvt. Ltd. v ITO (2023)101 ITR 24 (SN) (Kol) (Trib)

S. 68 : Cash credits-Burden of proof-Share Application money and share premium-Availability of sufficient funds-Statements of directors recorded, confirmed decision of the board to invest in assessee-Burden of proof of assessee to prove identity and creditworthiness discharged-A.O not making any inquiry or finding any discrepancy in evidence-Proviso requiring assessee to prove source of credits not applicable-Additions are not justified.

Held that details were filed by the assessee, i. e., bank account, Income-tax return, audited balance-sheet of the investor companies at the time of subscribing to the equity shares of the assessee to show the sufficient availability of funds during the year and most importantly the statements of the directors of the assessee as well as investor companies had been recorded by the Assessing Officer, wherein, the transaction had been confirmed to have been carried out between the investor companies and the assessee pursuant to a decision in the board meeting to invest in the equity share capital of the assessee at a premium. Thus, all the limbs of section 68 required to be fulfilled about the identity and creditworthiness of the share subscriber and genuineness of the transaction had been successfully proved. The assessee having discharged initial burden upon it to furnish the evidence to prove the identity and creditworthiness of the share subscribers and genuineness of the transaction, the burden shifted upon the Assessing Officer to examine the evidence furnished and even make independent inquiries and thereafter to state that on what account he was not satisfied with the details and evidence furnished by the assessee and confronting with the same to the assessee. The Assessing Officer had not made any independent enquiry to verify the genuineness of the transactions nor pointed out any discrepancy or insufficiency in the evidence and details furnished by the assessee before him. The proviso inserted in section 68 of the Act by the Finance Act, 2012 that the assessee receiving share capital and share premium is required to prove the source of the source of the credits to the satisfaction of the Assessing Officer having been inserted with effect from April 1, 2013 was not applicable in the case of the assessee for the AY 2012-13. Thus, additions was to be deleted. (AY. 2012-13)