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2018 (10) TMI 490 - AT - Income TaxAddition u/s 68 - person has not appeared in compliance to notice u/s 131 - Held that - The Hon ble Supreme Court in the case of Commissioner of Income Tax vs. Orissa Corporation Pvt. Ltd. 1986 (3) TMI 3 - SUPREME COURT and Commissioner of Income Tax v. Orchid Industries Pvt. Ltd. 2017 (7) TMI 613 - BOMBAY HIGH COURT have held that an addition cannot be made simply because a person has not appeared in compliance to notice u/s 131 of the Act, when all the other requirements of the notices u/s 133(6) of the Act, has been complied with AO has simply disbelieved the evidence filed by the assessee. He has not conducted any verification, let alone investigation, before coming to the conclusion that the confirmations and evidence filed by the Directors cannot be admitted as evidence. As the share applicants are the Directors of the assessee Company and have confirmed the transactions and have also filed their source of funds for the investment. When statement of final accounts were filed giving sources of funds for making the investment, the Assessing Officer has not given any reason as to why he is not able to accept the same. If at all the creditworthiness of the directors is not proved, then an addition can be made only in their hands and not in the hands of the company as held by the Hon ble A.P. High Court in the case of Lanco Industries Ltd. (1999 (12) TMI 45 - ANDHRA PRADESH HIGH COURT). No contrary evidence to controvert the evidence produced by the assessee, is brought on record. Simply because the directors/shareholders did not present themselves before the Assessing Officer, an addition u/s 68 cannot be made. - Decided in favour of assessee
Issues Involved:
1. Unexplained Cash Credit under Section 68 of the Income Tax Act. 2. Disallowance under Section 14A of the Income Tax Act. Issue-wise Detailed Analysis: 1. Unexplained Cash Credit under Section 68 of the Income Tax Act: The primary issue revolves around the addition of ?2,64,20,000/- made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, which pertains to unexplained cash credits. The AO questioned the identity, creditworthiness, and genuineness of the transactions related to the share capital and premium amount credited in the assessee's books. The assessee had raised its share capital by ?52,84,000/- and a premium of ?2,11,36,000/- from four subscribers, totaling ?2,64,20,000/-. The AO issued notices under Section 133(6) and summons under Section 131 to verify the genuineness of these transactions. However, the directors of the subscriber companies did not appear in response to the summons, leading the AO to add the entire amount as unexplained cash credit. The Commissioner of Income Tax (Appeals) [CIT(A)] deleted this addition, noting that the assessee had provided sufficient evidence to establish the identity, creditworthiness, and genuineness of the transactions. The CIT(A) observed that all the share applicants were existing assessees under the Act and had responded to the statutory notices. They submitted copies of their income tax acknowledgments, audited books of accounts, and balance sheets reflecting the investments. The CIT(A) concluded that the AO's addition was based on extraneous parameters and not on the evidence provided during the assessment proceedings. The Appellate Tribunal upheld the CIT(A)'s decision, emphasizing that the assessee had discharged its burden of proof by providing all necessary documents and evidence. The Tribunal cited several judicial precedents, including the Supreme Court's decision in Commissioner of Income Tax vs. Orissa Corporation Pvt. Ltd. and the Bombay High Court's ruling in Commissioner of Income Tax v. Orchid Industries Pvt. Ltd., which held that an addition cannot be made solely because of non-compliance with summons when other requirements of the notices have been met. The Tribunal also referenced its own decisions in similar cases, reiterating that the failure of directors to appear in response to summons does not justify an addition under Section 68 if the identity and creditworthiness of the share applicants are established through documentary evidence. 2. Disallowance under Section 14A of the Income Tax Act: The second issue pertains to the disallowance of ?1,87,566/- made by the AO under Section 14A of the Income Tax Act, which deals with expenditure incurred in relation to income not includible in total income. The AO applied Rule 8D to compute this disallowance. However, the CIT(A) restricted the disallowance to ?900/-, which was the exempt income disclosed by the assessee. The Tribunal upheld the CIT(A)'s decision, noting that the disallowance under Section 14A should be limited to the amount of exempt income earned by the assessee. This approach aligns with judicial precedents that emphasize the need for a reasonable nexus between the expenditure disallowed and the exempt income earned. Conclusion: The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s deletion of the addition under Section 68 and the restriction of the disallowance under Section 14A. The Tribunal's decision was based on a thorough examination of the facts, evidence, and relevant judicial precedents, ensuring that the assessee's rights were upheld in accordance with the law.
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