2018 (5) TMI 803 - AT - Income Tax

Unexplained cash credit - unexplained source of source of loan received - non appearance of creditors on summon orders - Held that - In Kalyan Memorial (2009 (7) TMI 874 - ITAT AGRA) AO held that the creditworthiness of the creditors was not proved. The Third Member Bench of the Tribunal held that when the particulars regarding Income Tax Assessment and bank accounts had been filed, the initial burden on the assessee stood discharged and no material had been brought by the Department to show that what was explained by the assessee was not the correct state of affairs; that if any sum is found credited in the accounts of the creditors, the creditors may be examined to explain the credits; and that so far as regards the source of the deposit in the account of the assessee. In the present case the creditors chose not to appear in response to the summons, but they filed replies, again filing the documents filed by the assessee. Now, for the non-appearance of its creditors, the assessee cannot be faulted. If the AO was not satisfied with the creditors replies, it was well within his powers to ensure their presence. This, however, was not done and the matter was decided against the assessee, holding that the assessee could not prove the source of the source of the loans received by it. This is not tenable in law - Decided in favour of assessee.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Addition of unsecured loans as unexplained cash credit.
3. Burden of proof regarding creditworthiness of creditors.

Analysis:
1. The delay of 646 days in filing the appeal was sought to be condoned by the assessee. The Tribunal considered the circumstances leading to the delay, including the withdrawal of the Department's appeal and the dismissal of the assessee's cross-objections. Relying on legal precedents, the Tribunal condoned the delay as the cause of action survived for the assessee to file the appeal within one month of the dismissal of cross-objections.

2. Regarding the addition of unsecured loans as unexplained cash credit, the Assessing Officer (AO) made the addition due to the failure of the assessee to prove the creditworthiness of its creditors. The AO highlighted discrepancies in the bank statements of the creditors and questioned the genuineness of the transactions. The ld. CIT(A) upheld the addition, emphasizing the lack of satisfactory explanations and regular income sources justifying the loan amounts. The Tribunal, however, noted that the assessee had provided detailed documentation and discharged its initial burden under section 68 of the Act. Citing legal precedents, the Tribunal held that the burden had shifted to the Revenue to prove the lack of creditworthiness of the creditors, which was not satisfactorily done.

3. The issue of burden of proof regarding the creditworthiness of creditors was central to the case. The ld. Counsel for the assessee argued that once the assessee had fulfilled its obligations under section 68 by providing relevant documents, the onus shifted to the Revenue to demonstrate the lack of creditworthiness of the creditors. Legal precedents were cited to support this argument, emphasizing the importance of examining the parties involved and not solely relying on assumptions. The Tribunal ultimately ruled in favor of the assessee, stating that the addition made by the AO was unjustified as the assessee had met its burden of proof.

In conclusion, the Tribunal allowed the appeal, deleting the addition of unsecured loans as the assessee had sufficiently proven the creditworthiness of its creditors, shifting the burden of proof onto the Revenue which failed to demonstrate the lack of creditworthiness. The judgment highlighted the importance of fulfilling statutory obligations and the necessity for thorough examination of evidence in such cases.