2018 (3) TMI 1403 - AT - Income Tax

Addition u/s 68 - treating the share capital subscription as unexplained cash credits - denial of natural justice - Held that - As assessee contented that although notices under section 133(6) were issued by the A.O. to all the 16 share applicants, the relevant documentary evidence furnished by them in response to the said notices in the form of statement of source of funds, copies of relevant bank statements, copies of allotment advices, copies of IT returns and audited accounts etc. was not taken into consideration by the A.O. while deciding the issue under section 68 and this position clearly evident from the assessment order passed by the A.O. is not disputed even by the learned DR. Even the summons issued by the A.O. to the directors of the assessee company were not served in time to enable them to comply with the same. He has contended that no further opportunity however was given by the A.O. to the assessee company or even its directors to comply with the requirements and support and substantiate their case by explaining the relevant cash credits representing share capital contribution in terms of section 68. We find merit in the contention of the learned counsel for the assessee that the assessment under section 143(3)/147/263/143(3) was made by the A.O. without giving proper and sufficient opportunity of being heard to the assessee and without considering the relevant documentary evidence filed by the concerned share applicants in response to the notices issued under section 133(6). Restore the matter to the file of the A.O. to decide the same afresh after giving the assessee proper and sufficient opportunity of being heard and after taking into consideration the entire evidence already available on record as well as other documentary evidence which the assessee may choose to file in support of its case on the issue. - Decided in favour of assessee for statistical purpose.

Issues Involved:
1. Addition of ?9,86,00,000/- as unexplained cash credits under section 68.
2. Lack of proper and sufficient opportunity given to the assessee by the A.O.
3. Non-consideration of relevant documentary evidence by the A.O.
4. Compliance with directions given under section 263 by the Ld. CIT.

Issue-Wise Detailed Analysis:

1. Addition of ?9,86,00,000/- as Unexplained Cash Credits under Section 68:
The primary issue in this appeal is the addition of ?9.86 crores made by the Assessing Officer (A.O.) under section 68, treating the share capital subscription as unexplained cash credits. The assessee, a company engaged in the trading of fabric, had its return of income initially assessed at ?55,100/-. However, this assessment was set aside by the Ld. CIT under section 263 with directions to the A.O. to conduct thorough enquiries regarding the identity and creditworthiness of the shareholders. The A.O. issued notices under section 133(6) to the shareholders and summons to the directors, which were not complied with. Consequently, the A.O. treated the share capital contribution as unexplained cash credits and added ?9.86 crores to the total income of the assessee under section 68.

2. Lack of Proper and Sufficient Opportunity Given to the Assessee by the A.O.:
The assessee contended that the A.O. did not provide a proper and sufficient opportunity to present their case. The A.O. issued a notice under section 142(1) and subsequent notices under section 133(6) to the shareholders. However, the documentary evidence furnished by the shareholders in response to these notices was not considered by the A.O. Additionally, the summons issued to the directors were not served in time, and no further opportunity was given to the assessee to comply with the requirements. The Tribunal found merit in the contention that the assessment was made without giving the assessee a fair opportunity of being heard.

3. Non-consideration of Relevant Documentary Evidence by the A.O.:
The A.O. failed to consider the relevant documentary evidence submitted by the shareholders, which included statements of source of funds, bank statements, allotment advices, IT returns, and audited accounts. The Tribunal noted that the A.O. did not take this evidence into account while deciding the issue under section 68. This non-consideration of evidence was a significant factor in the Tribunal's decision to set aside the assessment order.

4. Compliance with Directions Given Under Section 263 by the Ld. CIT:
The Ld. CIT had set aside the original assessment under section 263 and directed the A.O. to conduct detailed enquiries into the identity and creditworthiness of the shareholders. The Tribunal observed that similar cases had upheld the Ld. CIT's directions under section 263, and the A.O. was required to follow these guidelines. In the present case, the A.O. did not adhere to the directions adequately, leading to the Tribunal's decision to remand the matter back to the A.O. for fresh assessment.

Conclusion:
The Tribunal set aside the orders of the authorities below and restored the matter to the file of the A.O. for a de novo assessment. The A.O. was directed to provide the assessee with a proper and sufficient opportunity of being heard and to consider all relevant documentary evidence. The appeal of the assessee was treated as allowed for statistical purposes.

Order Pronounced:
The order was pronounced in the Open Court on 21st March 2018.

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