2016 (3) TMI 1319 - AT - Income Tax

Addition u/s 68 - Held that - It is more or less settled position of law that once identity is established, the better course suggested by the judicial authorities is to reopen the assessments of share applicants. In respect of share applicants other than M/ s Mahanivesh India Ltd. and M/s Geefcee Finance Ltd., nothing adverse was brought on record. The law of evidence mandates that if the best evidence is not placed before the court, an adverse inference can be drawn against the person who ought to have produced it. As stated above the assessee has produced possible/best evidence to support its claim. The assessee cannot be fastened with, tax liability for failing to do an impossible/unjustified act of production of directors of investing companies after lapse of 5/6 years. If there is any discrepancy in the books of accounts maintained by the investing companies, there is a case for reopening of the assessment of the respective shareholders/investing companies. The assessee cannot be penalized for the mistakes/faults committed by the share holders. The AO has not found any discrepancy in the books of account and bank accounts maintained by the assessee. CIT(A) has discussed each and every aspect of the issue in dispute and has passed a well reasoned order which does not need any interference on our part, hence, we uphold the same and dismiss the ground nos. 1 to 1.10 raised by the Revenue. Addition of advance given to Sh. K.K. Kapur (HUF) - Held that - the assessee has received back the advance in the Financial Year relevant to the impugned assessment year through cheques. Since the advance was not doubted by the AO, the recovery of the advance is outside the scope of Section 68, therefore, the Ld. CIT(A) has rightly deleted the addition in dispute, which does not need any interference on our part, hence, we uphold the same and dismiss the ground nos. 2 to 2.2. raised by the Revenue. Unexplained investment - Held that - Assessee has explained in the course of assessment proceedings that amount of ₹ 4,50,000/- and shares of Highthrow Corp Ltd. for ₹ 50,000/-. These are already credited to the P&L a/c as sale of shares. The AO simply brushed aside the submission of the AR without appreciating the evidence brought on record. AO has not disputed the acquisition of shares of the assessee. Therefore, the Ld. CIT(A) has rightly deleted the addition in dispute Addition of unexplained credits - Held that - AO made the addition in respect of the amounts received on account of sale of shares cannot be upheld unless the acquisition of shares is bogus. The AO simply disregarded the explanation with regard to the amounts credited in the bank account maintained. Therefore, the Ld. CIT(A) has rightly deleted the additions in dispute. Unexplained investment u/s. 69 in FDRs - Held that - We find that assessee has made the Fixed Deposit with State Bank of Mysore and FDR No. 012020455263 dated 10.10.2003. The AO has added the amount as unexplained investment u/s. 69B. We note that the same was reflected in the books of account. CIT(A) in his appellate proceedings has verified the Bank of Punjab account maintained in the books of account and found that the assesse company has issued the cheques of Bank of Punjab on 14.10.2003 - CIT(A) has rightly held that there is no scope for addition of ₹ 10 lacs towards Fixed Deposit made with State Bank of Mysore and accordingly, deleted the addition Addition on non producing documentary evidence and also not produced the books of accounts - Held that - assessee has issued a cheque no. 581616 for ₹ 40,000/- on 21.5.2003 and the amount was received back on 31.3.2004 vide cheque no. 124066. We further note that the assessee has furnished confirmed account copy. M/s Modiline Build Cap Pvt. Ltd. does possess a PAN AACCM1716A and Ld. CIT(A) has verified the bank account and found that the transaction were duly recorded, hence, CIT(A) has rightly deleted the addition. Non disclosure of transaction in books of accounts - Held that - As on 12.3.2004, the assessee has sold shares of Aparna Capital Services Pvt. Ltd. for ₹ 2 lacs and the same was reflected in the sale of shares credited to P&L account and the transaction passed through the Bank account. Therefore, the Ld. CIT(A) has rightly held that there is no scope for addition of ₹ 2 lacs. - Revenue appeal dismissed.

Issues Involved:
1. Validity of the notice issued under Section 148.
2. Deletion of addition of Rs. 1,32,00,000/- made under Section 68.
3. Deletion of addition of Rs. 15,00,000/- as unexplained cash credit.
4. Deletion of addition of Rs. 4,50,000/- as unexplained investment.
5. Deletion of addition of Rs. 2,25,000/- and Rs. 6,08,850/- as unexplained credits.
6. Deletion of addition of Rs. 10,00,000/- as unexplained investment under Section 69.
7. Deletion of addition of Rs. 40,000/-.
8. Deletion of addition of Rs. 2,00,000/-.

Detailed Analysis:

1. Validity of the Notice Issued Under Section 148:
The assessee challenged the validity of the notice issued under Section 148, claiming it was bad in law and without jurisdiction as the requisite sanction under Section 151 was not obtained. The Tribunal upheld the CIT(A)'s decision, referencing the Delhi High Court's ruling in WP(C) No. 8260/2010, which justified the reopening of the assessment. Thus, the Tribunal dismissed the assessee's application under Rule 27 of the ITAT Rules, 1963.

2. Deletion of Addition of Rs. 1,32,00,000/- Made Under Section 68:
The Revenue contended that the share application money was an arranged affair and the assessee failed to prove the creditworthiness and genuineness of the transactions. The CIT(A) found that the assessee had provided necessary details to establish the identity of the creditors, their creditworthiness, and the genuineness of the transactions. The CIT(A) referenced several judicial precedents, including CIT vs. Divine Leasing & Finance Ltd. and CIT vs. Lovely Exports (P) Ltd., to support the deletion of the addition. The Tribunal upheld the CIT(A)'s decision, noting that the assessee had discharged its burden of proof and the AO had not found any discrepancies in the assessee's books of account.

3. Deletion of Addition of Rs. 15,00,000/- as Unexplained Cash Credit:
The CIT(A) found that the assessee had advanced Rs. 15,00,000/- to Sh. K.K. Kapur (HUF) in FY 2001-02 and received the amount back through cheques in the relevant financial year. Since the advance was not doubted by the AO, the recovery was outside the scope of Section 68. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

4. Deletion of Addition of Rs. 4,50,000/- as Unexplained Investment:
The AO added Rs. 4,50,000/- as unexplained investment, alleging the assessee purchased a cheque for Rs. 4,49,500/-. The CIT(A) found that the amount was already credited to the P&L account as sale of shares, and the AO had not disputed the acquisition of shares. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

5. Deletion of Addition of Rs. 2,25,000/- and Rs. 6,08,850/- as Unexplained Credits:
The AO made the addition in respect of amounts received from the sale of shares. The CIT(A) found that the AO had disregarded the explanation without appreciating the evidence. The Tribunal upheld the CIT(A)'s decision, noting that the amounts were credited to the bank account and the acquisition of shares was not disputed.

6. Deletion of Addition of Rs. 10,00,000/- as Unexplained Investment Under Section 69:
The AO added Rs. 10,00,000/- as unexplained investment in FDRs with State Bank of Mysore. The CIT(A) found that the investment was reflected in the books of account and verified the bank account. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

7. Deletion of Addition of Rs. 40,000/-:
The AO added Rs. 40,000/- on the grounds that the assessee did not produce documentary evidence or books of accounts. The CIT(A) found that the transaction was recorded in the bank account and the assessee had furnished a confirmed account copy. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

8. Deletion of Addition of Rs. 2,00,000/-:
The AO added Rs. 2,00,000/- alleging non-disclosure in the books of accounts. The CIT(A) found that the amount was from the sale of shares and was credited to the P&L account. The Tribunal upheld the CIT(A)'s decision, dismissing the Revenue's grounds.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the various additions made by the AO. The Tribunal found that the assessee had provided sufficient evidence to discharge the onus of proof, and the AO's additions were not justified.

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