2017 (10) TMI 1567 - AT - Income Tax

Addition u/s 68 on account of loan received - notice issued u/s 133(6) was returned unserved - whether the identity, creditworthiness of the party and genuineness of the transaction have been proved? - HELD THAT - As the assessee has filed confirmation of loan which is placed at paper book duly signed by the AR of the lender company besides, PAN, and other evidences and copy of ledger account of the assessee in the books of the lender company was filed duly attested by the authorized signatory of the company as placed at paper book with the income tax return and final accounts of the lender. We are of the view that the matter requires further verification at the end of AO of all these evidences and therefore it would be fair ,reasonable and in the interest of justice to restore the matter to the file of the AO to examine all these evidences and in the light of said frame the assessment denovo as per facts and law after providing necessary opportunity of being heard to the assessee. Appeal of the assessee stands allowed for statistical purposes.

Summary

Issues:
Confirmation of addition of loan under section 68 due to unserved notice u/s 133(6) - genuineness of transaction in question.

Detailed Analysis:

1. Confirmation of Addition of Loan under Section 68:
- The appeal was against the confirmation of addition of ?25 lakhs by the ld.CIT(A) as made by the AO u/s 68 on account of a loan received from M/s Nicco Securities Private Limited. The issue was the unserved notice u/s 133(6) and the genuineness of the transaction.
- The AO noted that the assessee availed loans from various parties, and notices u/s 133(6) were issued to verify the genuineness. The notice to M/s Nicco Securities Ltd was returned unserved. The assessee was asked to prove the identity, creditworthiness, and genuineness of the transaction.
- The AO added the amount to the total income of the assessee u/s 68 as the source of the loan could not be proven. The ld.CIT(A) dismissed the appeal, stating that the genuineness of the transaction was not proved with necessary documentary evidence.
- The ld.AR argued that all evidences to prove the genuineness of the transaction were provided, including confirmation from the lender. The loan was converted into share capital in a subsequent assessment year.
- The ld.DR contended that despite sufficient opportunities, the genuineness of the transaction could not be proved satisfactorily, even with the presence of the Director of the Company and other documentary evidence.

2. Decision and Analysis:
- The tribunal observed that the assessee had filed confirmation of the loan, signed by the AR of the lender company, along with PAN and other evidence. The copy of the ledger account of the assessee in the books of the lender company was also submitted.
- The tribunal decided that further verification of these evidences was necessary by the AO. Therefore, the matter was restored to the file of the AO for examination of all evidence and framing the assessment denovo after providing necessary opportunity of being heard to the assessee.
- The appeal of the assessee was allowed for statistical purposes, and the order was pronounced in the open court on 25th Oct, 2017.

This detailed analysis covers the issues involved in the legal judgment, focusing on the confirmation of the addition of a loan under section 68 due to an unserved notice u/s 133(6) and the genuineness of the transaction, providing a comprehensive understanding of the case and the tribunal's decision.