2010 (6) TMI 892 - AT - Income Tax

Addition on account of unexplained opening capital - unexplained portion of newly introduced capital - addition in the hands of assessee on protective basis - Papers impounded from the premises of Shri Danawala indicated an enhancement in the opening capital of A.Y.2003-04 - admission made by the Mohanbhai Dhanjibhai Patel Group, this is required to be taxed in the hands of Mohanbhai Dhanjibhai Patel substantively alongwith the enhanced capital - HELD THAT - Assessing Officer, in the assessment order, himself observed that considering the admission made by the Mohanbhai Dhanjibhai Patel Group, this is required to be taxed in the hands of Mohanbhai Dhanjibhai Patel substantively alongwith the enhanced capital of ₹ 15,00,000/- altogether which works out to ₹ 15,00,000/- an on protective basis in the case of the assessee . This clearly indicates that the Assessing Officer himself was not sure whether this income of ₹ 15,00,000/- is earned and actually belonged to the assessee. The assessee has filed an affidavit before the Assessing Officer. From the perusal of the same and after considering the totality of the facts and reasoning given by the Learned Commissioner of Income Tax(Appeals), we are convinced that the Assessing Officer made the addition of ₹ 15,00,000/- on the basis of fictitious entries in loose sheets of paper found from the premises of the C.A. Shri Pankaj Danawala, who had admitted to have created such amounts himself. Therefore, the Learned Commissioner of Income Tax(Appeals) is legally and factually correct in deleting the addition of ₹ 15,00,000/-, which was made by the Assessing Officer in the hands of assessee on protective basis. Resultantly, the ground of appeal raised by the Revenue is rejected.

Summary

Issues Involved:
1. Deletion of addition of Rs. 15,00,000/- made by the Assessing Officer on account of unexplained opening capital.
2. Justification of the Commissioner of Income Tax (Appeals) in deleting the addition.

Issue-Wise Detailed Analysis:

1. Deletion of Addition of Rs. 15,00,000/- Made by the Assessing Officer on Account of Unexplained Opening Capital:

The Revenue's appeal contends that the Commissioner of Income Tax (Appeals) erred in deleting the addition of Rs. 15,00,000/- made by the Assessing Officer on account of unexplained opening capital. The facts reveal that the assessee filed her return of income declaring Rs. 90,060/-, which was later revised under section 148. The Assessing Officer discovered a jump in the capital account by Rs. 15,00,000/-, leading to an assessment under section 143(3) read with section 147, where the addition was made on a protective basis under section 68 of the Income Tax Act, 1961. The Assessing Officer observed that this amount should be taxed substantively in the hands of another individual, Mohanbhai Dhanjibhai Patel, and protectively in the assessee's case.

2. Justification of the Commissioner of Income Tax (Appeals) in Deleting the Addition:

The Commissioner of Income Tax (Appeals) deleted the addition, noting that the capital created by Shri Pankaj Danawala, a Chartered Accountant, was only in the form of rough journal entries and not entered into the regular books of the assessee. The Commissioner emphasized that no unaccounted funds were introduced in the books or bank accounts of the assessee, nor were any financial benefits derived from the manipulated opening balance. The Commissioner held that the differential amount was fictional and not real income, thus not taxable. The Commissioner also noted that the assessee did not utilize the increased capital for any financial benefit, and the entries were fabricated by the CA without the assessee's knowledge.

Tribunal's Decision:

The Tribunal upheld the decision of the Commissioner of Income Tax (Appeals), agreeing that the Assessing Officer's addition was based on fictitious entries in loose sheets found at the CA's premises. The Tribunal noted that the Assessing Officer himself was unsure if the Rs. 15,00,000/- actually belonged to the assessee, as indicated by his statement about taxing the amount substantively in another individual's hands. The Tribunal concluded that the Commissioner was correct in deleting the addition, as the entries were not supported by independent evidence and were not utilized by the assessee. Consequently, the Revenue's appeal was rejected, and the assessee's cross-objection was rendered infructuous and dismissed.

Conclusion:

The Tribunal's judgment affirms that the addition of Rs. 15,00,000/- was rightly deleted by the Commissioner of Income Tax (Appeals), as it was based on fictitious entries created by the CA without the assessee's knowledge and not supported by any real financial transactions. The Revenue's appeal and the assessee's cross-objection were both dismissed.