2017 (8) TMI 1549 - AT - Income Tax

Addition u/s 68 - addition under the heading loan as cash credit - HELD THAT - Assessee placed on record the evidence as well as copy of income-tax returns of the loan creditor, ROC filings, Boards Resolutions of investor companies, bank statement of investors from where loan money was received by appellant company etc. Revenue has all the power and ability to trace the person. AO ought to have issued notice u/s 133(6) or summons u/s 131 to share applicant companies to substantiate his findings in respect of bank account discrepancy at third and fourth level before drawing conclusions. Merely because the AO has not fulfilled his duty to show how the companies are bogus or their relationship with Shri Pravin Kumar Jam, addition u/s 68 cannot be justified in hands of the appellant. Appellant has indeed proven the genuineness of the loan creditors. Accordingly the addition made by the AO under section 68 of the Act cannot be sustained. - Decided in favour of assessee.

Issues Involved:
1. Legitimacy of unsecured loans and share application money received by the assessee.
2. Application of Section 68 of the Income Tax Act.
3. Examination of the evidence provided by the assessee.
4. Reliance on third-party information by the Assessing Officer (AO).
5. Onus of proving the genuineness of transactions.
6. Legal precedents and judicial pronouncements related to Section 68.

Detailed Analysis:

1. Legitimacy of Unsecured Loans and Share Application Money:
The assessee, engaged in the manufacture and sale of sarees, received ?40.00 lakhs in AY 2008-09 and ?40.00 lakhs in AY 2011-12 from various entities. The AO reopened the assessments, adding these amounts under Section 68 of the Income Tax Act, based on the claim that the entities involved were providing accommodation entries. The CIT(A) deleted these additions, leading to the revenue's appeal.

2. Application of Section 68 of the Income Tax Act:
Section 68 requires the assessee to prove the identity of the creditor, the genuineness of the transaction, and the creditworthiness of the creditor. The CIT(A) found that the assessee provided sufficient evidence, including bank statements, PAN cards, audited reports, and share application forms, proving the genuineness of the transactions.

3. Examination of Evidence Provided by the Assessee:
The CIT(A) noted that the AO relied solely on information from the investigation wing without conducting further inquiries. The assessee submitted comprehensive documentation, including annual reports, directors' reports, bank statements, loan confirmations, and TDS certificates, demonstrating the genuineness of the transactions. The AO failed to discredit this evidence or establish any direct relationship between the assessee and the alleged accommodation entry providers.

4. Reliance on Third-Party Information by the AO:
The AO's additions were based on information from a third-party investigation involving Shri Praveen Kumar Jain, who admitted to providing accommodation entries. However, the AO did not corroborate this information with independent inquiries or evidence against the assessee. Judicial precedents emphasize that mere suspicion or third-party statements without corroborative evidence cannot justify additions under Section 68.

5. Onus of Proving the Genuineness of Transactions:
The CIT(A) concluded that the assessee had discharged the onus of proving the genuineness of the transactions. The AO did not provide any material evidence to refute the assessee's submissions. The CIT(A) highlighted that the AO did not issue notices or summons to the lenders or share applicants to verify the transactions, which was a critical procedural lapse.

6. Legal Precedents and Judicial Pronouncements:
The judgment referenced several judicial decisions, including:
- CIT v. Lovely Exports P. Ltd.: If share application money is received from alleged bogus shareholders, the department can reopen their individual assessments but cannot treat it as the assessee's undisclosed income.
- Murlidhar Lahorimal v. CIT: The assessee is not required to prove the source of the source of the loans.
- CIT v. Orissa Corporation Pvt. Ltd.: The assessee must provide the identity, capacity, and genuineness of the transactions but is not required to prove the source of the creditors' funds.

Conclusion:
The CIT(A) meticulously examined the facts, evidence, and relevant judicial precedents, concluding that the AO's additions were unsustainable. The Tribunal upheld the CIT(A)'s orders, dismissing the revenue's appeals for both assessment years. The judgment emphasized the importance of corroborative evidence and procedural diligence in applying Section 68.

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