2016 (9) TMI 402 - AT - Income Tax

Addition u/s 68 - unsecured cash credit - Held that - It is incumbent on the part of the assessee to prove the identity, genuineness and creditworthiness of the loan taken u/s 68 and non-fulfilling of any of the three conditions, makes a question mark on the impugned transaction. Therefore, we are of the view that assessee has been unable to prove the creditworthiness of both the loan creditors and therefore, addition u/s 68 of the Act for unexplained cash credit of is confirmed and order of ld. CIT(A) is upheld. - Decided against assessee.

Issues Involved:
1. Lack of proper opportunity of being heard by CIT(A).
2. Addition based on statements recorded behind the back of the assessee.
3. Confirmation of addition of ?4,99,600 as unexplained cash credit under Section 68 of the Income Tax Act, 1961.
4. Justification of CIT(A)'s findings in law and facts.

Issue-wise Detailed Analysis:

1. Lack of Proper Opportunity of Being Heard by CIT(A):
The assessee contended that the learned CIT(A) did not provide a proper opportunity to be heard before confirming the addition. However, the Tribunal did not find merit in this argument as the relevant parts of the statements were reproduced in the assessment order, and the assessee had ample opportunity during appellate proceedings to rebut the findings of the Assessing Officer (AO).

2. Addition Based on Statements Recorded Behind the Back of the Assessee:
The assessee argued that the addition was based on statements recorded behind their back and that they were not provided with copies of these statements. The Tribunal noted that the statements of the loan creditors were part of the assessment order, and the assessee could not rebut any facts provided in those statements. Therefore, this ground was dismissed.

3. Confirmation of Addition of ?4,99,600 as Unexplained Cash Credit under Section 68:
The primary issue was the confirmation of ?4,99,600 as unexplained cash credit under Section 68. The assessee had taken unsecured loans of ?3,49,600 from Yogesh Parikh and ?1,50,000 from Dharmendra D. Morabia. Despite submitting necessary documents like PAN cards, income-tax returns, confirmation letters, and proof of loan received through banking channels, the AO found that cash deposits equivalent to the loan amounts were made in the creditors' bank accounts just before issuing cheques to the assessee. The creditors' income profiles did not support their capacity to give such loans. The Tribunal upheld the AO's findings, stating that the assessee failed to prove the creditworthiness of the loan creditors, even though the identity and genuineness of the transactions were established.

4. Justification of CIT(A)'s Findings in Law and Facts:
The Tribunal agreed with the CIT(A)'s observation that the capacity of the creditors to advance the loan was not established. It was noted that the creditors had deposited cash in their bank accounts just before issuing cheques to the assessee, which raised doubts about the genuineness of the transactions. The Tribunal referred to similar cases, including the decision of the Hon'ble Gujarat High Court in Tax Appeal No.835 of 2012 and the case of ITO vs. Vajubhai N. Kanani, where it was held that the creditworthiness of the creditors must be established based on evidence, not presumption.

Conclusion:
The Tribunal dismissed the appeal, confirming the addition of ?4,99,600 as unexplained cash credit under Section 68 of the Income Tax Act, 1961. The assessee's inability to prove the creditworthiness of the loan creditors led to the upholding of the AO's and CIT(A)'s orders. The appeal was dismissed, and the order was pronounced in the open court on 18th July 2016.

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