2019 (2) TMI 248 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - Held that - There was no evidences to show that there was any cash trail in respect of the amounts received by the assessee company from the investors. We noticed that though the AO was specifically asked to furnish specific incriminating evidences, but the AO was unable to pin point the specific evidences which could clearly show that the share application money was received in lieu of cash. It is an admitted fact that the investor companies were assessed to tax and had filed their returns of income. The notices u/s 133(6) were complied with by the parties and copy of bank statement, ledger account, share application form, board resolution authorizing investments, income tax return and audited accounts of the investor companies were filed before the assessing officer and CIT(A). Sec. 69 places the burden of proof on the tax payer to explain the nature and source of any credit found in the books. But, when assessee proves or submit the basic information like identification, genuineness of transactions and creditworthiness of the creditors, onus is discharged by him and if Assessing Officer disbelieve the genuineness of the same, he has to prove otherwise, merely, doubting or pointing out some discrepancy is not the foundation for discarding the genuineness of the deposit or share money or substance of the matter, held by the Hon ble Supreme Court in the case of CIT v. Gujarat-Heavy Chemicals Ltd. (2001 (10) TMI 89 - SUPREME COURT). Question of making any addition u/s. 68 of the Act does not arise - Decided in favour of assessee.

Summary

Issues Involved:
1. Deletion of addition made of ?5,75,00,000/- under Section 68 of the Income Tax Act.
2. Non-appreciation of the incomplete statement of a witness.
3. Opportunity for cross-examination of the witness.

Issue-wise Detailed Analysis:

1. Deletion of Addition Made of ?5,75,00,000/-:
The core issue was whether the CIT(A) erred in deleting the addition of ?5,75,00,000/- made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, 1961. The AO had added this amount as unaccounted cash credit, claiming the assessee failed to establish the identity, genuineness, and creditworthiness of the investors. The CIT(A) found that the assessee, a profit-making company engaged in trading shares and securities, had adequately explained the increase in share capital. The AO's adverse view on the share premium was not substantiated with evidence linking the investor companies to any illicit activities or cash trails. The CIT(A) noted that the investor companies were assessed to tax, filed returns, and provided necessary documents like bank statements, ledger accounts, share application forms, board resolutions, income tax returns, and audited accounts. The CIT(A) emphasized that the AO failed to produce specific incriminating evidence linking the share application money to unexplained cash credits. The Tribunal upheld the CIT(A)'s decision, citing various judicial precedents that support the view that if the assessee provides sufficient details about the investors, the burden shifts to the revenue to prove otherwise.

2. Non-appreciation of the Incomplete Statement of a Witness:
The AO relied on the statement of Shri Praveen Jain, recorded during an investigation, to link the assessee with accommodation entries. However, the CIT(A) observed that the statement did not specifically incriminate the assessee or the investor companies. The statement was deemed meandering and lacked direct questions or confirmations linking the investors to the alleged activities. The Tribunal agreed with the CIT(A) that the AO did not present any evidence from the statement that could substantiate the claim of accommodation entries.

3. Opportunity for Cross-Examination of the Witness:
The AO argued that the CIT(A) erred in concluding that no opportunity was provided to the assessee for cross-examination of the witness, Shri Praveen Jain. The CIT(A) noted that even though an opportunity for cross-examination was provided during the remand proceedings, it did not yield any confirmation from Shri Praveen Jain regarding the provision of accommodation entries. The Tribunal supported the CIT(A)'s view that the principle of natural justice requires an opportunity for cross-examination, and in its absence, the statement could not be used against the assessee.

Conclusion:
The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s order to delete the addition of ?5,75,00,000/- under Section 68. The Tribunal found that the assessee had adequately discharged the burden of proof regarding the identity, genuineness, and creditworthiness of the investors. The AO's reliance on the incomplete statement of Shri Praveen Jain and the lack of specific incriminating evidence were insufficient to sustain the addition. The Tribunal emphasized the importance of providing an opportunity for cross-examination and upheld the CIT(A)'s findings as judicious and well-reasoned. The grounds raised by the revenue were dismissed, and the appeal was concluded with no order as to cost.

General Grounds:
The remaining grounds raised by the revenue were deemed general and did not require specific adjudication. The appeal was dismissed in its entirety.