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2012 (12) TMI 595 - AT - Income TaxAddition u/s 68 as cash credit Share application money AO has instituted enquiry u/s 133(6) from the share applicant s - Held that - Following the decision in case of Orissa Corporation Pvt. Limited (1986 (3) TMI 3 - SUPREME COURT) that AO did not pursue the matter further with the share applicants nor required the assessee to produce them or further material in that regard, it has to be accepted that the appellant has discharged the burden that lay upon him u/s 68. Issue decides in favour of assessee Prior period expense Disallowance of expenses relating to earlier years Held that - Any reference to the return of income or computation filed with the return of income showing claim made for deduction of expenses in the impugned year nor did he make verification of the facts himself. Therefore issue remand back to AO
Issues Involved:
1. Deletion of addition of Rs. 10 lakhs as unexplained share application money. 2. Deletion of addition of Rs. 24,000 as disallowance of expenses. 3. Deletion of addition of Rs. 15.40 lakhs as unexplained loan. Issue-wise Detailed Analysis: 1. Deletion of Addition of Rs. 10 Lakhs as Unexplained Share Application Money: The Revenue contested the deletion of Rs. 10 lakhs received as share application money, arguing that the identity of some shareholders could not be established. The CIT(A) had applied the ratio of the decision in Lovely Exports (P) Ltd. 216 CTR 195 (SC), which the Revenue claimed was misapplied as it only applies where the shareholder exists and accepts having invested. The Assessing Officer (AO) had found that the share application money was received through cheques drawn on one bank and noted immediate deposits before withdrawals, questioning the creditworthiness of the applicants. The CIT(A) considered affidavits and confirmations provided by the assessee, and after a remand report from the AO, found no adverse comments on the applicants, thus deleting the addition. The Tribunal found that the AO did not confront the assessee with the enquiry results nor required the production of the share applicants, and the identity of the applicants was not doubted. The Tribunal upheld the CIT(A)'s decision, stating that the assessee had discharged the burden under Section 68 of the Act, and the deletion of the addition was not unreasonable or perverse. 2. Deletion of Addition of Rs. 24,000 as Disallowance of Expenses: The CIT(A) deleted the disallowance of Rs. 24,000, which related to earlier years, based on the assessee's contention that the amount was credited into accounting charges and debited to the suspense account in the financial year 2000-2001. The Tribunal noted that the CIT(A) did not verify the facts himself nor refer to the return of income or computation filed. Therefore, the Tribunal set aside the CIT(A)'s decision and remitted the matter back to the AO for verification and fresh adjudication. 3. Deletion of Addition of Rs. 15.40 Lakhs as Unexplained Loan: The Revenue challenged the deletion of Rs. 15.40 lakhs added under Section 68 of the Act, arguing that the CIT(A) substituted his satisfaction for that of the AO. The AO had required the assessee to file confirmations and prove the creditworthiness of the creditors but treated the entire amount as unexplained due to insufficient details. The CIT(A), after obtaining a remand report, found that the AO verified and accepted the credits from M/s Tankers India, M/s Aash Chemicals, and M/s Samridhi Share & Capitals Ltd., and made no adverse comments on Gupta Bulk Carriers. The Tribunal found that the AO had accepted the correctness of the claims during remand proceedings and that the assessee had discharged the burden under Section 68. The Tribunal upheld the CIT(A)'s decision, stating that the findings were based on material on record and not conjectures, and the judgment in CIT vs. P. Mohankala was not applicable. Conclusion: The Tribunal upheld the CIT(A)'s deletion of the addition of Rs. 10 lakhs as unexplained share application money and Rs. 15.40 lakhs as unexplained loans, finding no error in the CIT(A)'s decisions. However, the Tribunal remitted the issue of the Rs. 24,000 disallowance of expenses back to the AO for verification and fresh adjudication. The appeal by Revenue was partly allowed for statistical purposes.
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