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2019 (8) TMI 1695 - AT - Income TaxAddition made unexplained cash credit u/s. 68 - assessee has failed to prove the identity, genuineness and credit worthiness of lender parties, invested as share application money in the assessee company - HELD THAT - We are of the considered view that the Ld.AO was erred making additions towards share capital received from three companies, even though the assessee has discharged, its onus cast upon u/s 68 of the Act, on the basis of third party information without providing such information to the assessee and also to provide cross-examination of the person, who gave statement. Further, as regards, the additions towards share capital, once the assessee has discharged its onus by filing various documents, then the onus shifts to the AO to prove otherwise. Unless, the AO has discharges its onus, by conducting necessary enquiries, he cannot proceed to make additions only on the basis of information received from third party. Hon ble Bombay High Court in the case of CIT vs. Gagandeep Infrastructure Pvt.Ltd. 2017 (3) TMI 1263 - BOMBAY HIGH COURT had considered an identical issue and held that proviso to section 68 inserted by the Finance Act, 2012 with effect from 01/04/2013 is applicable from AY 2013-14 onwards, as per which before insertion of provision to 68 of the Act, the assessee need not to prove source of source of an investment. Once, he proved credit worthiness of the parties, it is sufficient enough to come out of provision of section 68. We are of the considered view that the Ld. CIT(A) has rightly deleted additions made by the AO towards share capital received from three companies, on the basis of various evidences filed by the assessee, including confirmation letter from the shareholders. We do not find any error or informative in the findings of Ld. CIT(A) and hence, we are inclined to uphold order of the Ld.CIT(A) and dismissed appeal filed by the revenue.
Issues Involved:
1. Deletion of addition towards unexplained cash credit under Section 68 of the Income Tax Act. 2. Failure to prove the identity, genuineness, and creditworthiness of lender parties. Issue-wise Detailed Analysis: 1. Deletion of Addition Towards Unexplained Cash Credit Under Section 68 of the Income Tax Act: The revenue appealed against the deletion of an addition of ?1,25,00,000/- made by the Assessing Officer (AO) towards unexplained cash credit under Section 68 of the Income Tax Act. The AO had reopened the assessment based on information from the DGIT(Inv.), Mumbai, which revealed that the assessee had received accommodation entries from shell companies controlled by Shri Praveen Kumar Jain. Despite the assessee filing confirmations, bank statements, and other documents, the AO concluded that the transactions were not genuine. The AO added the amount as unexplained cash credit under Section 68. The Commissioner of Income Tax (Appeals) [CIT(A)] found that the assessee had discharged its onus by filing substantial evidence, including confirmations from the parties, PAN numbers, income tax acknowledgments, and bank statements. The CIT(A) noted that the AO did not conduct further inquiries despite the assessee's repeated requests. The CIT(A) held that the AO's failure to provide the assessee with the opportunity to cross-examine the parties involved and the reliance on third-party information without verification amounted to a violation of natural justice principles. Consequently, the CIT(A) deleted the addition. 2. Failure to Prove the Identity, Genuineness, and Creditworthiness of Lender Parties: The revenue contended that the CIT(A) erred in deleting the addition without appreciating that the assessee failed to prove the identity, genuineness, and creditworthiness of the lender parties. The AO had relied on the statement of Shri Praveen Kumar Jain, who admitted to providing accommodation entries. The CIT(A), however, found that the assessee had provided sufficient evidence to establish the identity and creditworthiness of the lender parties. The CIT(A) emphasized that the AO did not specify what additional material was required from the assessee and did not conduct further inquiries. The Tribunal upheld the CIT(A)'s decision, noting that the assessee had filed comprehensive documentation to support the transactions. The Tribunal observed that the AO's reliance on third-party information without providing the assessee an opportunity for rebuttal or cross-examination was unjustified. The Tribunal cited judicial precedents, including the Supreme Court's decision in CIT vs. Lovely Exports Pvt. Ltd., which held that the department could not treat share application money as undisclosed income if the assessee provided the names of the alleged bogus shareholders. The Tribunal also referred to the Bombay High Court's decision in CIT vs. Gagandeep Infrastructure Pvt. Ltd., which stated that the proviso to Section 68 inserted by the Finance Act, 2012, did not apply to the assessment year in question. The Tribunal concluded that the AO had erred in making the addition without conducting necessary inquiries and upheld the CIT(A)'s order deleting the addition. Conclusion: The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s decision to delete the addition of ?1,25,00,000/- towards unexplained cash credit under Section 68. The Tribunal emphasized the importance of providing the assessee with an opportunity for rebuttal and cross-examination and noted that the assessee had discharged its onus by filing substantial evidence. The Tribunal upheld the principle that the onus shifts to the AO to prove otherwise once the assessee provides sufficient evidence to support the transactions.
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