2017 (7) TMI 865 - AT - Income Tax

Addition u/s 68 - Disallowance due to non verification of sundry creditors - onus to prove - Held that - The provisions of section 68 of the Act are applied to the cash credit which has not been explained by assessee. In the instant case sundry creditors are arising out of the purchases as claimed by assessee which have been duly accepted by the Authorities Below. We also find that the provision of Sec. 41(1) of the Act cannot also be invoked at the same time. It is because the liabilities shown by the assessee have not seized to exist in the books of account. However, it is the duty of the assessee to justify its transaction on the basis of evidence which in the instant case, the assessee has failed to do so. The onus lies on assessee to justify that these are sundry creditors. In order to justify the impugned trade creditors, the assessee should produce copies of PAN, ledger copies, bills / invoices details of payments, income tax return, mode of payments etc. The arguments of assessee cannot be accepted only when he furnishes the aforesaid details. In the instant case before us the assessee has summarily failed to observe the directions issued by the Authorities Below. However, in the interest of natural justice and fair play we are inclined to restore this issue to the file of AO to give an opportunity to assessee to substantiate its claim in the light of observation as discussed. Therefore, we restore this issue to the file of AO for fresh adjudication as per law. Assessee s appeal stands partly allowed for statistical purpose.

Summary

Issues:
Disallowance of sundry creditors due to non-verification.

Analysis:
The appeal was against the order of the Commissioner of Income Tax (Appeals) confirming the disallowance of ?1,45,53,427 of sundry creditors. The Appellant argued that the order was arbitrary and unjustified as evidence submitted was not considered. The Appellant also contended that the assessment order was without jurisdiction, being framed under the wrong section. The Appellant further claimed that the list of creditors lacked evidentiary value and that the addition based on trade creditors was erroneous. Additionally, the Appellant challenged the finding that the introduction of capital was unsupported by evidence and that the trade creditors could not be added under a specific section of the Act. The Appellant also argued against the finding that the trade creditors could be added under a different section of the Act.

The Appellant's representative argued that the addition on account of trade creditors could not be made under section 68 of the Act as the books of account were not available. The representative cited relevant case law to support this argument. It was contended that the addition should have been considered under section 69 of the Act instead. The representative also referenced a case law where no addition was made by invoking section 68 for similar circumstances. The Appellant requested the order of the Authorities Below to be quashed.

The Appellant's representative's argument was considered by the Tribunal. It was observed that the issue related to the disallowance of sundry creditors due to non-confirmation. The Tribunal agreed with the Appellant's argument that section 68 of the Act was not applicable to the sundry creditors arising from purchase expenses. The Tribunal noted that the onus was on the assessee to justify the transactions, which the Appellant failed to do. However, in the interest of natural justice, the Tribunal decided to restore the issue to the Assessing Officer for fresh adjudication. The Appellant was directed to provide necessary details to verify the genuineness of the sundry creditors. The issue of the appeal was partly allowed for statistical purposes.

In conclusion, the Tribunal partially allowed the appeal, directing the Assessing Officer to re-examine the issue of disallowance of sundry creditors based on the Appellant's submissions and evidence. The Appellant was instructed to provide the required documentation to support their claim regarding the sundry creditors.