2019 (12) TMI 665 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - HELD THAT - In nut-shell it is made out that injustice is done to assessee and bone of contentions made out by assessee were not appreciated by authorities below in right perspective despite all material placed by it before authorities below. It is also made out that appeal of the assessee was kept pending by CIT(A) for a period of almost 10 years and effective opportunity was not accorded by learned CIT(A) while disposing the appeal by CIT(A). Our attention was drawn to para 3 of learned CIT(A) order. Prayers aremade to set aside the issues in its appeal to the file of the AO for fresh adjudication on merits in accordance with law. We find merit in the contentions of assessee and we are of the considered view that issues in this appeal need to be restored to file of AO for framing denovo assessment on merits in accordance with law. We make it clear that these amounts stood credited in books of accounts of the assessee and primary onus is on assessee to prove identity of the creditors, creditworthiness of the creditors and genuineness of the transactions through cogent and credible evidences. In case the assessee did not cooperate in set-aside proceedings, the AO shall be at liberty to adjudicate the issue on merits in accordance with law based on material on record. AO is directed to admit evidences/explanations filed by the assessee in its defense during set aside proceedings. Needless to say that AO shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in accordance with law in denovo assessment proceedings

Issues Involved:

1. Legality and propriety of the order confirming the assessment.
2. Consideration of share application money and its proper accounting.
3. Adequacy of the opportunity for a personal hearing.
4. Initial onus of proof on the appellant regarding loans and share application money.
5. Differentiation between unsecured loans and cash credits.
6. Additional grounds raised at the time of hearing.

Detailed Analysis:

1. Legality and Propriety of the Order Confirming the Assessment:
The appellant contended that the order confirming the assessment was "highly illegal, improper, against the facts and circumstances of the case, against the material evidence on record, perverse and liable to be set aside." The Tribunal noted that the AO had invoked Section 69D of the Income-tax Act, 1961, deeming certain cash loans as the income of the assessee due to the lack of promissory notes and other supporting evidence. The CIT(A) upheld this view, confirming the addition of ?25,44,388 as unexplained cash credits under Section 68.

2. Consideration of Share Application Money and Its Proper Accounting:
The appellant argued that ?14,82,488 representing share application money had been properly accounted for, with relevant documents filed with the Registrar of Companies. However, the CIT(A) found that the appellant "could not give any documentary evidence with regard to share application, share allotment, or intimation to the ROC," and thus confirmed the AO's addition of this amount as unexplained cash credit under Section 68.

3. Adequacy of the Opportunity for a Personal Hearing:
The appellant claimed that the appeal was pending for ten years and was decided in haste without offering a personal hearing. The Tribunal noted that the CIT(A) first posted the appeal for hearing on 16.02.2016 and subsequently on 27.12.2017 and 01.02.2018. The appellant appeared on 27.12.2017 but failed to appear on 01.02.2018, leading to the adjudication. The Tribunal found merit in the appellant's contention that effective opportunity was not accorded and ordered a fresh adjudication.

4. Initial Onus of Proof on the Appellant Regarding Loans and Share Application Money:
The appellant argued that the initial onus was on them to prove the genuineness of the transactions, which they claimed to have done by producing appropriate documents. The Tribunal emphasized that the primary onus is on the assessee to prove the identity, creditworthiness of the creditors, and genuineness of the transactions. The Tribunal directed the AO to admit new evidence and explanations during the set-aside proceedings.

5. Differentiation Between Unsecured Loans and Cash Credits:
The appellant contended that unsecured loans are different from cash credits and that the loans and repayments were properly accounted for. The CIT(A) and AO treated these as cash loans received in violation of Section 69D, as the appellant failed to provide promissory notes or other supporting evidence. The Tribunal noted the appellant's claim that majority of the loans were not received in cash and were repaid through banking channels, and directed a fresh examination of these claims.

6. Additional Grounds Raised at the Time of Hearing:
The appellant raised additional grounds during the hearing, including the submission of an affidavit by the Managing Director and other documents. The Tribunal directed the AO to consider these additional grounds and documents during the fresh adjudication process.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, setting aside the orders of the lower authorities and directing the AO to conduct a fresh adjudication on merits, providing the appellant with a proper and adequate opportunity of being heard. The AO was instructed to admit new evidence and explanations submitted by the appellant and to ensure compliance with the principles of natural justice.

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