2014 (1) TMI 693 - AT - Income Tax

Addition made u/s 68 of the Act - Onus to prove - The initial burden is upon the assessee to prove the identity of share subscribers and once the identity is proved, in case of bogus investment, addition can be made in their individual capacity and not in the case of the company - even the identity of such shareholders is not proved, thus, the initial onus has not been discharged by the assessee especially when the assessee was confronted with the finding of the commission (Inspector), summons/notices returned unserved and the addresses given by the assessee itself that too at four places were found to be fictitious - The assessee has not given satisfactory evidence to discharge the onus - It has merely given the names of fictitious parties and this is not a sufficient compliance Decided against Assessee. Disallowance made out of telephone expenses Held that - The Assessing Officer made ad hoc disallowance of Rs. 1 lac out of total expenses - no reason has been assigned for making such ad hoc disallowance by the Assessing Officer - the company is a juristic person, no disallowance of personal nature can be made in the case of a company Decided against Revenue.

Issues Involved:
1. Validity of assessment orders under sections 144/143(3) of the Income-tax Act, 1961.
2. Compliance with statutory notices and summons.
3. Genuineness of share application money and sundry creditors.
4. Addition of unexplained credits under section 68 of the Income-tax Act.
5. Disallowance of expenses under section 69C of the Income-tax Act.
6. Protective vs. substantive addition of income.
7. Onus of proving identity, creditworthiness, and genuineness of transactions.

Detailed Analysis:

1. Validity of Assessment Orders:
The appeals were filed by the assessee against the order of CIT(A) for the assessment years 2005-06, challenging the assessment orders passed by the Assessing Officer under sections 144/143(3) of the Income-tax Act, 1961. The Tribunal noted that the assessment orders were validly passed due to non-compliance by the assessee with statutory notices and summons.

2. Compliance with Statutory Notices and Summons:
The Assessing Officer issued multiple notices under sections 143(2) and 142(1) of the Act, which were not complied with by the assessee. Despite repeated requests and show cause notices, the assessee failed to provide the required details and documents. The Tribunal observed that the assessee's non-compliance justified the ex-parte assessment.

3. Genuineness of Share Application Money and Sundry Creditors:
The Assessing Officer observed that the assessee failed to prove the identity and creditworthiness of the share applicants and sundry creditors. Notices issued under section 133(6) to verify the genuineness of share application money were either returned undelivered or received no response. The Tribunal upheld the findings that the assessee could not substantiate the genuineness of the transactions.

4. Addition of Unexplained Credits under Section 68:
The Assessing Officer added unexplained credits to the assessee's income under section 68, as the assessee failed to provide satisfactory evidence regarding the nature and source of the share application money and sundry creditors. The Tribunal confirmed the addition, citing the assessee's failure to discharge the onus of proving the entries in its books of accounts.

5. Disallowance of Expenses under Section 69C:
The Assessing Officer disallowed expenses claimed by the assessee under section 69C, as the assessee did not produce any books of accounts or vouchers to substantiate its claim. The Tribunal upheld the disallowance, noting the lack of evidence provided by the assessee.

6. Protective vs. Substantive Addition of Income:
The CIT(A) initially made protective additions in the hands of the assessee company and substantive additions in the hands of the persons to whom the money was given. However, the Tribunal modified this order, confirming the additions on a substantive basis in the hands of the assessee company, as the identity, genuineness, and creditworthiness of the share applicants/loan creditors were not established.

7. Onus of Proving Identity, Creditworthiness, and Genuineness of Transactions:
The Tribunal emphasized that the onus is on the assessee to prove the identity, creditworthiness, and genuineness of the transactions. The assessee's failure to produce credible evidence or witnesses to substantiate the transactions led to the confirmation of the additions made by the Assessing Officer.

Conclusion:
The Tribunal upheld the assessment orders and the additions made by the Assessing Officer under sections 144/143(3) and 68 of the Income-tax Act, 1961. The appeals were dismissed, except for the partial relief granted in ITA No. 350/Ind/2012, where the Tribunal modified the CIT(A)'s order to confirm the additions substantively in the hands of the assessee company. The Tribunal reiterated the importance of compliance with statutory notices and the onus on the assessee to prove the genuineness of transactions.

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