2012 (7) TMI 423 - AT - Income Tax

Addition in respect of share application - appellant had furnished details in the form of additional evidence which was referred back to the Assessing Officer for remand report - Assessing Officer neither examined them nor offered his comments on the same Held that - share applicants existence is recognized as the company is in the records of the IT Department, since the appellant has submitted their PAN and also copies of Income tax records - Assessing Officer had not applied his mind while issuing notice u/s 147/148 of the Act - entire re-assessment is bad in law. Reopening of assessment Held that - Assessing Officer had made 2-3 mistakes while framing re-assessment order yet, there was sufficient material before Assessing Officer for initiation of proceedings u/s 147/148 - report of DIT (Inv.) is a primary source of evidence for initiating proceedings u/s 147/148 of the Act and the Assessing Officer had rightly initiated re-assessment proceedings Against assessee Regarding addition on account of fresh un-secured loans - loans were received by appellant through banking channel from directors, their wives and parents only and that all are income tax payees and has been filing returns since last year creditworthiness of lender is also proved as they had declared source of income and are filing income tax return - appellant had given interest on the amount of loan and had deducted TDS thereon Held that - Assessee has filed necessary documents to prove the genuineness of transactions, identity of investors and creditworthiness of investors - CIT(A) has rightly deleted the addition In favor of assessee

Issues Involved:
1. Deletion of addition of Rs. 21.42 lakhs by CIT(A).
2. Ignorance of facts by CIT(A) regarding notices and proceedings.
3. Non-submission of details by the assessee in response to notices.
4. Acceptance of additional evidence by CIT(A) under Rule 46A(1).
5. Reliance on the decision in the case of M/s Lovely Exports by CIT(A).
6. Establishment of identity, creditworthiness, and genuineness of the transaction under Section 68 of the IT Act.
7. Opportunity for cross-examination not provided to the assessee.
8. Reopening of assessment under Sections 147/148 of the IT Act.

Detailed Analysis:

1. Deletion of Addition of Rs. 21.42 Lakhs:
The revenue challenged the deletion of Rs. 21.42 lakhs by the CIT(A). The CIT(A) deleted the addition of Rs. 11.69 lakhs in unsecured loans and Rs. 9.73 lakhs in share capital. The CIT(A) found that the assessee had provided sufficient evidence to prove the identity, creditworthiness, and genuineness of the transactions. The CIT(A) relied on the case of CIT v. Lovely Exports Pvt. Ltd., where it was held that if the share application money is received from alleged bogus shareholders whose names are provided, the department is free to reopen their individual assessments.

2. Ignorance of Facts by CIT(A) Regarding Notices and Proceedings:
The revenue argued that the CIT(A) ignored the fact that the notices were received by the assessee and proceedings were attended by the counsel of the assessee. The CIT(A) admitted additional evidence and grounds during the appellate proceedings, which were referred back to the Assessing Officer for a remand report. The Assessing Officer did not examine or comment on the additional evidence provided by the assessee.

3. Non-Submission of Details by the Assessee in Response to Notices:
The revenue contended that the assessee did not submit details in response to various notices issued by the Assessing Officer. The re-assessment order was passed under Section 144 as the assessee did not file details to prove identity, genuineness, and creditworthiness of the lenders despite multiple requests.

4. Acceptance of Additional Evidence by CIT(A) Under Rule 46A(1):
The revenue argued that the CIT(A) erred in accepting additional evidence under Rule 46A(1) as this was not an exceptional case. The CIT(A) admitted additional evidence only after obtaining a remand report from the Assessing Officer.

5. Reliance on the Decision in the Case of M/s Lovely Exports by CIT(A):
The revenue contended that the CIT(A) erred in relying on the decision in the case of M/s Lovely Exports, as the facts in the present case were different. The assessee company is a private company with no public participation. However, the CIT(A) found that the principles laid down in the case of M/s Lovely Exports were applicable, as the identity of the shareholders was established through PAN and income tax records.

6. Establishment of Identity, Creditworthiness, and Genuineness of the Transaction Under Section 68 of the IT Act:
The revenue argued that the CIT(A) ignored the fact that the identity of the subscriber was not established, making it impractical to verify the creditworthiness and genuineness of the transaction. The CIT(A) found that the assessee had provided sufficient evidence to prove the identity, creditworthiness, and genuineness of the transactions, including PAN, income tax returns, and bank statements.

7. Opportunity for Cross-Examination Not Provided to the Assessee:
The revenue contended that the CIT(A) erred in stating that no opportunity for cross-examination was provided to the assessee. The Supreme Court in the case of State of J&K v. Bakshi Gulam Mohd. and Nath International Sales v. UOI held that the right of hearing does not include the right to cross-examination.

8. Reopening of Assessment Under Sections 147/148 of the IT Act:
The assessee filed a cross-objection challenging the reopening of assessment under Sections 147/148 of the IT Act. The CIT(A) held that the Assessing Officer acted on specific information provided by the Investigation Wing, which constituted a valid ground for reopening the assessment. The Tribunal upheld the CIT(A)'s decision, stating that there was sufficient material for initiating proceedings under Sections 147/148.

Conclusion:
The Tribunal dismissed both the revenue's appeal and the assessee's cross-objection, upholding the CIT(A)'s order. The CIT(A) was found to have rightly deleted the additions made by the Assessing Officer and justified the reopening of assessment under Sections 147/148. The Tribunal concluded that the assessee had provided sufficient evidence to prove the identity, creditworthiness, and genuineness of the transactions.

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