2019 (1) TMI 859 - HC - Income Tax

Status of the assessee - Association of persons OR firm - ITAT affirmed the status of the assessee as AOP - Block assessment u/s 158BC - Held that - There was no partnership deed filed, which was duly registered for at least four entities constituted with effect from 01.04.1996. The A.O. had called for the details of the link between the said four entities and the four others constituted as a partnership. The assessee had failed to produce any such evidence. The registration as a firm, inclusive of all the entities carrying on business in common, being not established by the assessee, the compelling evidence as recovered under the survey and seizure would commend us also to find that the status of the assessee is one of Association of Persons. We do not think any question of law arises from the said aspect, since the lower authorities had found such status on the strength of the evidence recovered and on the basis of facts. We, hence, decline to answer the said question raised in the appeal of the assessee and uphold the order of the Tribunal affirming the finding of the lower authorities. Unexplained cash credit u/s 68 - Held that - Having found the list of creditors in the insolvency petition to have no bearing insofar the assessment proceedings under the I.T.Act, we are of the opinion that the remand order is erroneous. The insolvency proceeding eventually was concluded with a composition scheme. We also have found that the Tribunal itself on the basis of the facts found the deletion of the cash credits by the first appellate authority to be bad. In such circumstances, we answer the questions raised herein above both in the appeals of the assessee and the Revenue in favour of the Revenue and against the assessee. We restore the assessment order with respect to the addition of cash credits under Section 68. Interest on gold deposits - Held that - The books of accounts failed to stand the test of verification, especially with reference to the direct and indirect evidence in the possession of the Revenue in respect of the business/financial transactions of the assessee. The business expenditure whatever there be, stood already claimed and allowed in the regular assessments and hence there could be no further claim of expenditure by way of interest paid on deposits. True, the Tribunal found that the C.I.T.'s (Appeal) order was not speaking. However, when the Tribunal had gone into the evidences, as revealed from the survey and search, which it was competent to do, as the last fact finding authority, we are of the opinion that there was no warrant for a further remand to the A.O. C.I.T.(Appeals) having found the books of accounts to be genuine without any discussion thereon, the order has to be set aside. However, the Tribunal having looked into the facts and found the books of accounts to be not worthy of acceptance, especially in the context of the compelling evidences available by way of materials recovered in survey and search, there was no question of any further consideration by the A.O. Fixed deposit receipts found in the two banks, in bogus names was also telescoped and the A.O. in the subject assessment years had made addition only to the extent of ₹ 27.22 lakhs. This is not liable to be interfered with. Hence, we restore the regular assessments made against the assessee for the years 1995-96 and 1996-97 finding the deletion of the various additions and the direction to accept the books of accounts as genuine, made by the C.I.T.(Appeals), to be erroneous and the remand order made by the Tribunal, to the A.O. and the C.I.T. (Appeals) to be not justified in the light of the facts having been elaborately gone into by the Tribunal and the assessments found to be valid in law.

Summary

Issues Involved:
1. Status of the assessee as an Association of Persons (AOP).
2. Addition of cash credits under Section 68.
3. Addition of 18% interest on gold loans.
4. Validity of separate additions in regular assessments for AY 1995-96 and 1996-97.

Detailed Analysis:

1. Status of the Assessee as an Association of Persons (AOP)
The Assessing Officer (A.O.) determined the status of the assessee as an Association of Persons (AOP) based on materials recovered during the search, indicating unity of control, interlocking and interlacing of funds, and common business premises. The assessee did not refute these findings, and no partnership deed was produced for the entities. The Tribunal affirmed this status, and the High Court upheld the Tribunal's decision, finding no question of law arising from this aspect.

2. Addition of Cash Credits under Section 68
The A.O. added the cash credits found in the books of accounts as unexplained credits under Section 68. The first appellate authority deleted this addition, relying on a list of creditors approved by the Civil Court in an insolvency petition filed by the assessee. The Tribunal found that the Civil Court's findings were not binding on the Income Tax authorities and that the preliminary list of creditors could not substantiate the genuineness of the deposits. The High Court agreed with the Tribunal, stating that the insolvency proceedings could not interfere with the assessment proceedings under the Income Tax Act. The remand order by the Tribunal was found to be improper, and the High Court restored the A.O.'s addition of cash credits under Section 68.

3. Addition of 18% Interest on Gold Loans
The A.O. added 18% interest on gold loans, which was not disclosed in the books of accounts. The Tribunal affirmed the A.O.'s findings based on compelling evidence, including sworn statements and seized materials indicating that the assessee charged 36% interest but accounted for only 18%. The High Court found that the Tribunal's remand was unjustified, as the Tribunal had already examined the facts and found substantial evidence to support the A.O.'s addition. The High Court upheld the addition of 18% interest on gold loans.

4. Validity of Separate Additions in Regular Assessments for AY 1995-96 and 1996-97
The assessee argued that the income assessed in the block period was also assessed in the regular assessments for AY 1995-96 and 1996-97, leading to duplication. The High Court found no duplication, as the A.O. had reduced the amounts assessed in the regular assessments from the block assessment. The High Court restored the regular assessments, finding the deletion of various additions by the first appellate authority to be erroneous and the remand by the Tribunal to be unjustified.

Conclusion:
The High Court upheld the status of the assessee as an Association of Persons, restored the A.O.'s addition of cash credits under Section 68, affirmed the addition of 18% interest on gold loans, and validated the separate additions in the regular assessments for AY 1995-96 and 1996-97. The appeals of the assessee were dismissed, and the Revenue's appeals were allowed.