2016 (7) TMI 950 - AT - Income Tax

Addition u/s 68 - addition based on report of investigation wing - Held that - AO has made addition merely based on the investigation carried out by the investigation wing from the order of the Ld. assessing officer without bringing out any material evidence against the assessee and not confronting assessee with that material. Contrarily evidences produced by the assessee of stalwart Realtors Limited of loan given of 46 lakhs which is supported by the bank statement of the lender was not anyway found false or an accommodation entry. In view of this we reverse the finding of the CIT (A) and are of the view that appellant has discharged its onus cast upon him under section 68 of The Income Tax Act by proving the identity creditworthiness and genuineness of the transactions and therefore the addition of 46 lakhs of loan received by it from M/s Stalwart realtors private limited cannot be added into the hands of the assessee under section 68 of the Income Tax Act 1961. On the above factual aspects we delete the addition made by the Ld. assessing officer. - Decided in favour of assessee.

Summary

Issues Involved:
1. Confirmation of addition of ?46,00,000 under Section 68 of the Income Tax Act, 1961.
2. Genuineness of the loan transaction.
3. Creditworthiness of the lender, M/s Stalwart Realtors Private Limited.
4. Procedural lapses by the Assessing Officer (AO).

Issue-wise Detailed Analysis:

1. Confirmation of Addition of ?46,00,000 under Section 68 of the Income Tax Act, 1961:
The primary issue in this appeal is the confirmation of the addition of ?46,00,000 by the CIT(A) under Section 68 of the Income Tax Act, 1961. The AO added this amount to the total income of the assessee, claiming the assessee failed to prove the creditworthiness of the lender and the genuineness of the loan transaction. The CIT(A) upheld this addition, leading to the present appeal.

2. Genuineness of the Loan Transaction:
The assessee received a loan of ?46,00,000 from M/s Stalwart Realtors Private Limited. The AO argued that the lender was involved in creating artificial capital and providing accommodation entries to other companies. The AO based this on investigations and statements from various individuals, which were not confronted to the assessee. The assessee provided several documents, including bank statements, income tax returns, and confirmations from the lender, to prove the genuineness of the transaction. The Tribunal noted that the AO did not provide the assessee with the evidence or statements used against it, nor did the AO examine the directors of the lender company.

3. Creditworthiness of the Lender, M/s Stalwart Realtors Private Limited:
The assessee argued that the lender, M/s Stalwart Realtors Private Limited, had substantial accumulated reserves and surplus, as well as significant bank balances and sundry debtors. The lender’s financial statements showed a reserve and surplus of ?3.59 crores. The Tribunal found that the lender’s creditworthiness was sufficiently demonstrated by the assessee through various documents, including the lender’s balance sheet and bank statements. The Tribunal also noted that the AO did not take any action against the lender despite having evidence of alleged fictitious capital.

4. Procedural Lapses by the Assessing Officer (AO):
The Tribunal criticized the AO for not confronting the assessee with the evidence and statements used against it. The AO did not provide copies of the inquiry reports or statements from individuals, nor did the AO give the assessee an opportunity to cross-examine these individuals. The Tribunal emphasized that the AO made the addition based on the investigation wing’s findings without bringing any material evidence against the assessee or confronting the assessee with such evidence. The Tribunal found that the assessee had discharged its onus under Section 68 by proving the identity, creditworthiness, and genuineness of the transaction.

Conclusion:
The Tribunal reversed the findings of the CIT(A) and held that the assessee had discharged its onus under Section 68 of the Income Tax Act. The Tribunal deleted the addition of ?46,00,000 made by the AO, concluding that the loan transaction was genuine and the lender’s creditworthiness was adequately demonstrated. The appeal of the assessee was allowed, and the addition was deleted.

Order:
The appeal of the assessee is allowed, and the addition of ?46,00,000 is deleted. The order was pronounced in the open court on 13/06/2016.