2017 (11) TMI 674 - AT - Income Tax

Amount received as beneficiary of firm - addition u/s 68 - assessee is one of the beneficiaries in the Estate of late Shri M.S. Kotwal who is partner in the partnership firm - addition on the ground as the amount received by the assessee is from the firm which has not paid any taxes on the transaction of introduction of capital by new partners and transferred property there off relating to the firm and since the assessee did not pay the taxes it is the income and it should be treated as the income of the assessee and should be taxed u/s. 68 - . Alternatively, AO concluded that the investments made by the assessee should be treated as unexplained investment u/s. 69 Held that - AO s conclusion is not permissible under law. If the Assessing Officer was of the view that there is distribution/transfer of assets by the Firm appropriate action should be taken in the hands of the Firm. The assessee has fully explained the sources of the amounts received by her which were invested by her in purchase of properties and therefore none of the conditions laid down in the provisions of section 68/69 are attracted so as to invoke the said sections. Ld.CIT(A) taking note of the fact that the assessee received amount from the partnership firm as a beneficial owner to the Estate of her grandfather who was a partner of the partnership firm and also taking note of the fact that even the amount received by the assessee from the Firm is exempted u/s. 10(2A) as business income and further taking note of the fact that assessee has not received these amounts during the current Assessment Year, he rightly held that the provisions of section 68 and 69 have no application to the facts of the case. We also find force in the contentions of the Ld.CIT(A) if at all if any proceedings are to be instituted under the Act it is in the case of the partnership firms but not in the case of the assessee. Thus we hold that the Assessing Officer is not justified in making addition u/s. 68 of the Act in respect of the amounts received by her from the Firm as a beneficiary. We further find that the assessee explained the source of investments made in the residential flats and therefore the investments made in such residential flats cannot be treated as unexplained investment u/s. 69 of the Act. In view of what is stated above we uphold the order of the Ld.CIT(A) in deleting the addition made u/s. 68 of the Act. - Decided in favour of assessee.

Issues Involved:
1. Applicability of Section 68 of the Income Tax Act for unexplained cash credits.
2. Applicability of Section 69 of the Income Tax Act for unexplained investments.

Detailed Analysis:

Applicability of Section 68 of the Income Tax Act for Unexplained Cash Credits:
The Revenue filed an appeal against the order of the CIT(A) deleting the addition of ?7 Crores made by the Assessing Officer (AO) as unexplained investment under Section 69 of the Income Tax Act. The facts reveal that the assessee filed her return of income for the Assessment Year 2011-12, declaring an income of ?42,38,628/-. During the scrutiny assessment, the AO found that the assessee had purchased two immovable properties and was asked to explain the source of funds. The assessee explained that the funds were mainly from the bequeathal of property by her maternal grandfather and amounts received from her mother.

The AO issued a show cause notice stating that the assessee received money in her bank account from different accounts without proper explanation regarding the source, purpose, and tax payment on those amounts. The assessee clarified that she was a beneficiary in the profits of a partnership firm, M/s. Mira Salt Works, and received her share of ?8.75 crores, which was invested in the purchase of properties.

The AO, however, concluded that the partnership firm did not distribute the property but effectively transferred it to new partners without paying capital gains tax, stamp duty, etc. The AO treated ?7 Crores as unexplained investment under Section 69 of the Act.

The CIT(A) observed that the conditions for invoking Section 68 were not satisfied as the amounts were credited in Financial Year 2007-08 and 2008-09, and hence, could not be taxed in the Assessment Year 2011-12. The CIT(A) held that the share received from the partnership firm falls under business income and is exempt under Section 10(2A) of the Act. The CIT(A) concluded that the funds received by the assessee were not untaxed money.

Applicability of Section 69 of the Income Tax Act for Unexplained Investments:
Regarding the alternative stand of the AO that the investment of ?7 Crores in residential flats should be treated as unexplained investment under Section 69, the CIT(A) held that the assessee satisfactorily explained the source of the investments as funds received from M/s. Mira Salt Works. The CIT(A) noted that no addition was made by the AO under Section 69 in the final computation of total income, and hence, no adjudication was required on this issue.

The Tribunal heard the rival submissions and perused the orders of the authorities below. It was noted that the assessee was a beneficiary in the estate of her grandfather, who was a partner in M/s. Mira Salt Works. The AO invoked Sections 68 and 69, arguing that the firm did not pay capital gains tax, and the amount received by the assessee should be treated as income. However, the Tribunal held that the AO should have taken appropriate action in the hands of the firm if there was a distribution/transfer of assets. The assessee had fully explained the sources of the amounts received and invested in properties, and hence, Sections 68 and 69 were not applicable.

The CIT(A) elaborately dealt with the issue, stating that the amount received by the assessee was from the capital account balance in the firm, credited in Financial Year 2007-08 and 2008-09. The CIT(A) cited various judicial pronouncements to support the conclusion that the provisions of Section 68 were not applicable, and the amount received was not taxable in the hands of the assessee.

In conclusion, the Tribunal upheld the order of the CIT(A) in deleting the addition made under Section 68 and found that the investments made in residential flats were satisfactorily explained, and hence, could not be treated as unexplained investment under Section 69. The Revenue's appeal was dismissed.

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