2021 (9) TMI 185 - AT - Income Tax

Bogus LTCG - Addition u/s 68 - assessee received the sum from the bogus or non-existing companies and not assessed to tax - HELD THAT - As the assessee failed to fulfill the conditions laid down u/s 68 of the Act by way of documentary evidence and we do not find any merit in the submissions made before us. Therefore, we do not find any infirmity in the order of the CIT(A), who followed the judgment of NRA IRON STEEL PVT. LTD. 2019 (3) TMI 323 - SUPREME COURT to confirm the order of the AO and accordingly, upholding the order of the CIT(A), we dismiss the grounds raised by the assessee on this issue.

Issues Involved:
1. Legality and validity of the CIT(A)'s order.
2. Justification of addition of ?7,30,00,000/- under Section 68 of the Income Tax Act.
3. Consideration of evidence provided by the assessee regarding share allotment.
4. Adherence to principles of natural justice by the AO.
5. Fulfillment of conditions under Section 68 by the assessee.

Detailed Analysis:

1. Legality and Validity of the CIT(A)'s Order:
The assessee contested the CIT(A)'s order, arguing it was against the law, weight of evidence, and probabilities of the case. The CIT(A) confirmed the AO's addition of ?7,30,00,000/- under Section 68 of the Income Tax Act, relying on the Supreme Court's judgment in Pr. CIT Vs. NRA Iron and Steel Pvt. Ltd.

2. Justification of Addition under Section 68:
The AO reopened the case under Section 147 based on information from DCIT, Mumbai, indicating the assessee received accommodation entries totaling ?7,30,00,000/-. The AO completed the assessment under Section 143(3) read with Section 147, making an addition of ?7,30,00,000/- as unexplained cash credit under Section 68. The CIT(A) upheld this addition, citing the Supreme Court's judgment in NRA Iron and Steel Pvt. Ltd., which emphasizes the assessee's burden to prove the genuineness of the transaction, identity, and creditworthiness of the investors.

3. Consideration of Evidence Provided by the Assessee:
The assessee argued that all necessary details regarding share allotment and transactions through banking channels were provided, including Form No. 2 filed with the Registrar of Companies. However, the AO and CIT(A) found these submissions insufficient to discharge the onus under Section 68, as the assessee failed to prove the creditworthiness of the investors and the genuineness of the transactions.

4. Adherence to Principles of Natural Justice by the AO:
The assessee claimed that the AO violated principles of natural justice by not providing information received from DCIT, Central Circle-3(2), Mumbai. However, the tribunal found no merit in this argument, as the assessee failed to substantiate the genuineness of the transactions and the creditworthiness of the investors through documentary evidence.

5. Fulfillment of Conditions under Section 68 by the Assessee:
The tribunal reiterated that under Section 68, the assessee must establish the identity, genuineness of the transaction, and creditworthiness of the investors. The Supreme Court's judgment in NRA Iron and Steel Pvt. Ltd. was cited extensively, emphasizing that the initial onus is on the assessee to provide cogent evidence. The AO conducted detailed inquiries, revealing that the investor companies were either non-existent or lacked financial capacity, and the transactions appeared dubious. Consequently, the tribunal upheld the CIT(A)'s order, finding no infirmity in the addition made by the AO.

Conclusion:
The tribunal dismissed the appeal, affirming the CIT(A)'s order and the AO's addition of ?7,30,00,000/- under Section 68 of the Income Tax Act. The assessee failed to discharge the onus of proving the genuineness of the transactions and the creditworthiness of the investors, as required under Section 68. The judgment was pronounced in the open court on 30th August 2021.

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