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2022 (4) TMI 1501 - AT - Income TaxAddition u/s 68 - cash credit unexplained as neither the identity nor creditworthiness of the six parties, which are benami concerns was proved - onus to prove - HELD THAT - Before us, the Ld. counsel submitted that AO has not asked any further documents or rejected the document placed on record. We find that this observation of Counsel is not correct. The learner Assessing Officer issued notice u/s133(6) of the Act, but there was no compliance on the part of the unsecured loan party. The Ld. CIT(A) has also noticed that Assessing Officer asked that assessee to produce those unsecured loan parties, but assessee failed in doing so. We are of the opinion that assessee failed to discharge his onus required in terms of section 68 of the Act. The finding of the Ld. CIT(A) on the issue in dispute is accordingly set aside and addition in dispute made by the Assessing Officer is hereby sustained. The grounds of the appeal of the Revenue are accordingly allowed. Validity of Assessment u/s 153C - essential condition of material belonging to person other than the searched person - HELD THAT - As in the instant case before us the assessee has not established that the material found from the search in the case of Sh Shirish C Shah belongs to the assessee. During the course of the search in the case of Sh Shrish Shah, he stated to have been engaged in providing bogus accommodation entries through the companies controlled by him including M/s Secunderabad Healthcare Private Limited. The DCIT, central circle found that said entity has given accommodation entry of the loan to the assessee and accordingly he provided said information to the Assessing Officer. This fact is evident from the reasons recorded by the Assessing Officer reproduced in the assessment order For invoking the provision of section 153C of the Act during relevant time the prime condition of material belonging to third/other person was to be fulfilled as held by the Hon ble Supreme Court above in Sinshad Technical Education Society 2017 (8) TMI 1298 - SUPREME COURT In view of the above discussion, the cross objection of the assessee accordingly dismissed.
Issues Involved:
1. Addition on account of cash credit under Section 68 of the Income Tax Act. 2. Applicability of Section 147 & 148 versus Section 153C of the Income Tax Act for assessment. Detailed Analysis: Issue 1: Addition on Account of Cash Credit under Section 68 The Revenue challenged the deletion of additions made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, arguing that the identity, creditworthiness, and genuineness of the transactions were not established, citing the Supreme Court's decision in Navodaya Castle (P) Ltd. Facts: - The assessee received loans from six parties, which were reflected in their books. - The AO received information from the Deputy Commissioner of Income-Tax (DCIT) that the assessee had obtained accommodation entries from entities controlled by Sh. Shirish C. Shah. - The AO issued notices under Section 133(6) to verify the loan parties, but some notices returned unserved. - The AO added the loan amounts as unexplained cash credits under Section 68, citing the failure to prove the creditworthiness of the loan parties and relying on Sh. Shirish C. Shah's statements. Assessee's Defense: - The assessee provided documents such as bank statements, ledger accounts, MCA records, and confirmation letters to substantiate the loans. - The assessee argued that the loans were genuine, repaid with interest, and the loan creditors were corporate entities with valid PAN details. CIT(A) Decision: - The CIT(A) deleted the additions, stating that the assessee had provided sufficient evidence to prove the identity, creditworthiness, and genuineness of the transactions. - The CIT(A) noted that Sh. Shirish C. Shah had retracted his statements and that no corroborative evidence was provided by the AO to support the addition. Tribunal's Findings: - The Tribunal observed that the CIT(A) had wrongly concluded that the documents were filed before the AO, as they were submitted for the first time before the CIT(A). - The Tribunal held that the CIT(A) did not follow Rule 46A of the Income Tax Rules, which requires sending additional evidence to the AO for comments. - The Tribunal noted that the AO was justified in asking for the presence of the loan parties due to the returned notices and the assessee's failure to produce them. - The Tribunal found that the loan parties were paper companies without substantial bank balances or income, indicating a lack of creditworthiness. - The Tribunal concluded that the assessee failed to discharge the onus under Section 68 to prove the identity, creditworthiness, and genuineness of the transactions. Conclusion: The Tribunal set aside the CIT(A)'s decision and sustained the AO's addition of Rs. 1,75,79,740/- as unexplained cash credits under Section 68. Issue 2: Applicability of Section 147 & 148 versus Section 153C The assessee argued that the assessment should have been conducted under Section 153C, not Section 147, as the assessment was based on information from a search on Sh. Shirish C. Shah. Assessee's Argument: - The assessee contended that Section 153C, which overrides Sections 139, 147, 148, 151, and 153, should apply when the assessment is based on a search on a third party. - The assessee relied on Tribunal decisions supporting the precedence of Section 153C over Section 147. Revenue's Argument: - The Revenue argued that Section 153C applies only when the seized material belongs to a person other than the searched person. - The AO proceeded under Section 147 as the information received did not constitute material belonging to the assessee. Tribunal's Findings: - The Tribunal noted that for Section 153C to apply, the material found during the search must belong to the third person (assessee). - In this case, the information indicated that the assessee received accommodation entries, but no material belonging to the assessee was found during the search on Sh. Shirish C. Shah. - The Tribunal cited the Supreme Court's decision in CIT vs. Singhad Technical Education Society, which emphasized the necessity of the material belonging to the third person for invoking Section 153C. Conclusion: The Tribunal dismissed the assessee's cross-objection, holding that the AO correctly proceeded under Section 147 as the condition for invoking Section 153C was not met. Final Order: The Tribunal allowed the Revenue's appeal, sustaining the addition under Section 68, and dismissed the assessee's cross-objection regarding the applicability of Section 153C.
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