2016 (12) TMI 1678 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - burden of proof - identity and credit worthiness of the creditors - Held that - Tax authorities have not discharged the burden of proof shifted upon their shoulders by bringing any material on record to disprove the claim of the assessee. On the contrary, the tax authorities have merely suspected the genuineness by making certain adverse inferences. It is pertinent to note that they have not disputed the genuineness of various documents furnished by the assessee to prove the identity and credit worthiness of the creditors and genuineness of the transactions. We are of the view that the tax authorities have not discharged the burden of proof placed upon them. As noticed earlier that the Ld CIT(A) has deleted the addition pertaining to M/s ACPL, but confirmed the addition pertaining to M/s NVPL and M/s SVPL. Since we have held that the tax authorities have failed to discharge the burden of proof shifted upon them, we are of the view that they are not justified in making the addition in respect of all the three loans. Confirm the order of Ld CIT(A) in granting relief in respect of loan taken from M/s ACPL . Set aside the order passed by Ld CIT(A) in respect of loan taken from M/s NVPL and M/s SVPL and direct the AO to delete the additions relating to them. - Decided in favour of assessee

Summary

Issues Involved:
1. Deletion of addition under Section 68 of the Income Tax Act.
2. Creditworthiness of the loan-giving companies.
3. Genuineness of the loan transactions.
4. Commonality of address and directors among loan-giving companies.
5. Interest-free loans and lack of written agreements.
6. Allegation of accommodation entries and routing of unaccounted money.

Issue-wise Detailed Analysis:

1. Deletion of Addition under Section 68 of the Income Tax Act:
The Revenue challenged the CIT(A)'s decision to delete the addition of ?5,12,50,000/- under Section 68 of the Act. The AO had added this amount as unexplained cash credits, relying on the report of DDIT (Inv.) Kolkata, which suggested that the loans were accommodation entries and the money was routed through these lender companies. The CIT(A) deleted the addition, stating that the identity, creditworthiness, and genuineness of the loan transactions were established through various documents submitted by the assessee, such as PAN cards, audited annual accounts, balance sheets, profit & loss accounts, ITR acknowledgments, and bank statements.

2. Creditworthiness of the Loan-Giving Companies:
The AO doubted the creditworthiness of the loan-giving companies, citing their meager incomes. However, the CIT(A) observed that the test of creditworthiness should be based on the availability of funds from explained sources, not just the returned income. The companies had substantial own funds, as evidenced by their annual reports and assessment orders, which were sufficient to advance the loans to the assessee.

3. Genuineness of the Loan Transactions:
The genuineness of the loan transactions was questioned by the AO due to the lack of interest charged and the absence of written agreements. The CIT(A) found that the transactions were genuine as they were routed through banking channels and supported by documentary evidence. The loans were advanced for business purposes and were repaid along with compensation, further substantiating their genuineness.

4. Commonality of Address and Directors Among Loan-Giving Companies:
The AO noted that the loan-giving companies shared the same address and had common directors, suggesting that the loans were accommodation entries. The CIT(A) countered this by stating that common addresses or directors do not negate the individual identity and capacity of the companies to advance loans, as long as their identity and creditworthiness are bona fide.

5. Interest-Free Loans and Lack of Written Agreements:
The AO highlighted that the loans were interest-free and lacked written agreements, which was unusual for NBFCs. The CIT(A) accepted the explanation that the loans were advanced for specific business projects, and compensation was paid when the projects did not materialize. The Tribunal also noted that the doubt about interest-free loans was beyond the scope of Section 68, which focuses on identity, creditworthiness, and genuineness.

6. Allegation of Accommodation Entries and Routing of Unaccounted Money:
The AO alleged that the loans were accommodation entries meant to route the assessee's unaccounted money. The CIT(A) and the Tribunal found no evidence to support this claim. The assessee had discharged the initial onus of proving the cash credits, and the tax authorities failed to disprove the claim with any material evidence.

Separate Judgments:
The Tribunal upheld the CIT(A)'s decision, referencing its own previous judgment in the assessee's case for the preceding assessment year. It reiterated that the assessee had discharged the initial burden of proof under Section 68, and the tax authorities did not bring any material to disprove the claim. The Tribunal confirmed the deletion of the addition and dismissed the Revenue's appeal.

Conclusion:
The appeal by the Revenue was dismissed, and the order of the CIT(A) was upheld, confirming that the addition of ?5,12,50,000/- under Section 68 was not justified. The identity, creditworthiness, and genuineness of the loan transactions were established, and the tax authorities failed to provide any contrary evidence.