2018 (10) TMI 855 - AT - Income Tax

Addition on account of share capital/premium received - unexplained share Premium Received by the assessee - unexplained unsecured loans received by the assessee - Held that - After pointing out all these defects, CIT(A) directed the AO to file its remand report. On perusal of the remand report, we find that none of the above defects, stand meet out in the remand report. AO has only referred to some ITI report stating that none of the four companies were found in existence. The remand report further categorically speaks that the Assessing Officer needs 30 days more time to conduct deep enquiry from the AO of various companies regarding the transactions made, but the CIT(A) in the impugned order sustained the addition, without giving any further time to the AO sought for making proper enquiries. Such conclusion of the CIT(A), in our considered opinion, is not sustainable, which appears to have been reached on the basis of some alleged enquiries in other cases or with reference to the general statement of Shri Tarun Goel. CIT(A) appears to have stressed on the fact that the impugned share holders has shown meager income in their return of income. The income/losses declared by the investor companies is not a sole criterion to examine the creditworthiness of the shareholders. None of the authorities below have brought any material on record to falsify the fund flow shown in the bank statements of creditors filed by the assessee. Disallowance u/s. 24(a) - Held that - The averment of the assessee has been that it was due to some calculation error at the end of AO. CIT(A) has also not given any cogent reasoning on this issue. AO is directed to verify the claim of assessee and to give benefit thereof, if found admissible under law.

Issues Involved:
1. Addition of ?1,07,25,000 on account of unexplained share premium received.
2. Addition of ?42,60,340 on account of unexplained unsecured loans.
3. Disallowance of ?10,114 out of ?2,91,135 claimed under section 24(a) of the Income Tax Act.
4. Framing of the assessment order without providing adequate opportunity of hearing and confronting adverse material.
5. Charging of interest under sections 234A, 234B, and 234C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Addition of ?1,07,25,000 on account of unexplained share premium received:
The assessee declared income from various sources and filed a return of income on 11.10.2008. During a search operation, it was revealed that the share capital of the assessee increased by ?3,00,000 and the assessee received a share premium of ?1,07,25,000 from companies run by Shri Tarun Goel, who was involved in providing accommodation entries. The Assessing Officer (AO) made the addition on the ground that the assessee failed to produce the share applicants for statements. The assessee provided supporting documentary evidence, including confirmations from the shareholder companies, their PAN numbers, bank statements, affidavits, and balance sheets. The CIT(A) sustained the addition despite these submissions. The Tribunal noted that the AO did not conduct necessary inquiries and relied on the case laws which established that the burden of proof shifts to the Revenue once the assessee provides initial evidence. The Tribunal found the partial acceptance of share capital and disallowance of share premium contradictory and deleted the addition.

2. Addition of ?42,60,340 on account of unexplained unsecured loans:
The AO made this addition on the basis that the loan was received from a company related to Shri Tarun Goel without any substantive evidence. The assessee provided confirmations and other supporting documents, including responses to notices under section 133(6). The CIT(A) sustained the addition based on the lender company's financial status. The Tribunal noted that the AO and CIT(A) did not provide any basis to reject the evidence provided by the assessee. The Tribunal deleted the addition, emphasizing that the necessary ingredients of genuineness were established by the assessee.

3. Disallowance of ?10,114 out of ?2,91,135 claimed under section 24(a):
The AO reduced the deduction claimed by the assessee due to a calculation error. The CIT(A) upheld the AO's decision without addressing the calculation error pointed out by the assessee. The Tribunal directed the AO to verify the claim and provide the benefit if found admissible under law.

4. Framing of the assessment order without providing adequate opportunity of hearing and confronting adverse material:
The assessee argued that the assessment order was framed without providing adequate opportunity for hearing and without confronting the adverse material used against it. The Tribunal noted that the AO framed the assessment order in a haphazard manner and did not address the provisions of law under which the additions were made. The Tribunal emphasized the need for proper inquiries and verification by the AO, which were not conducted. The Tribunal found the approach of the authorities below unsustainable and deleted the additions.

5. Charging of interest under sections 234A, 234B, and 234C:
The assessee contended that the interest charged under these sections was consequential in nature. The Tribunal directed the AO to give consequential effect to the interest charged.

Conclusion:
The Tribunal allowed the appeal of the assessee, deleted the additions made on account of unexplained share premium and unsecured loans, and directed the AO to verify the calculation error in the deduction claimed under section 24(a) and provide the benefit if admissible. The Tribunal also directed the AO to give consequential effect to the interest charged under sections 234A, 234B, and 234C.

← Previous Next →