2021 (9) TMI 797 - AT - Income Tax

Addition u/s 68 - Unexplained Bank credits, unexplained share application money, unexplained share premium and unexplained share capital - assessee has failed to discharge the initial onus cast on it by proving the various transactions appearing in the bank account - submission that additions on account of Bank interest, dividend income and share application money received through Banking channels have been made, which were already taxed and therefore the same amounts to double addition - HELD THAT - We deem it proper to restore the issue to the file of A.O. with a direction to grant one more opportunity to the assessee to substantiate its case by filing the requisite details and explaining each and every transaction including the credits in the Bank Account from Auto Sweep Account. Wherever double addition has been made on account of Bank interest, dividend income and share application money etc., the A.O. shall, upon satisfaction, delete the same. The A.O. shall also consider the application of proviso to section 68 of the I.T. Act w.e.f. 01.04.2013 in respect of share application money received from family members relatives of directors. A.O. shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. The assessee is also hereby directed to appear before the A.O. and substantiate its case by producing the requisite details without seeking any adjournment under any pretext, failing which, the A.O. is at liberty to pass appropriate Order as per Law

Issues Involved:
1. Validity of the search and seizure operation under section 132.
2. Jurisdiction under section 153C.
3. Presence of incriminating material belonging to the assessee.
4. Recording of satisfaction by the AO of the searched person.
5. Additions on account of unexplained share capital, share premium, share application money, and bank credits.
6. Application of section 68.
7. Double addition of income.

Detailed Analysis:

1. Validity of the Search and Seizure Operation:
The assessee contended that the search and seizure operation under section 132 was unlawful and invalid. The Tribunal did not provide a conclusive judgment on this issue but focused on the procedural aspects and the evidence provided.

2. Jurisdiction under Section 153C:
The assessee argued that the order under Section 153C was bad in law due to lack of jurisdiction. The Tribunal noted that the satisfaction note was recorded, and the case was centralized as per the provisions. However, the Tribunal restored the matter to the AO to reassess the jurisdictional aspects.

3. Presence of Incriminating Material:
The assessee claimed that no incriminating material belonging to them was found during the search. The Tribunal directed the AO to reassess the presence of any incriminating material and its relevance to the assessee.

4. Recording of Satisfaction by the AO:
The assessee argued that there was no satisfaction recorded by the AO of the searched person that incriminating material belonging to the assessee was found. The Tribunal instructed the AO to ensure that proper satisfaction is recorded and to reassess the case accordingly.

5. Additions on Account of Unexplained Share Capital, Share Premium, Share Application Money, and Bank Credits:
The AO made substantial additions to the assessee's income on account of unexplained share capital, share premium, share application money, and bank credits. The Tribunal observed that the assessee had provided explanations and evidence for each transaction, including reconciliations and details of credits in the bank account. However, the AO disregarded these explanations. The Tribunal directed the AO to re-examine each transaction and consider the explanations provided by the assessee.

6. Application of Section 68:
The assessee contended that the provisions of section 68 could not be applied to the transactions in question, particularly for share application money received from relatives and family members. The Tribunal instructed the AO to consider the application of the proviso to section 68, effective from 01.04.2013, and to reassess the transactions accordingly.

7. Double Addition of Income:
The assessee argued that certain additions, such as bank interest and dividend income, amounted to double addition since these were already taxed. The Tribunal directed the AO to verify and delete any instances of double addition.

Conclusion:
The Tribunal restored the matter to the AO for fresh adjudication, directing the AO to grant the assessee an opportunity to substantiate their case by filing requisite details and explaining each transaction. The AO was instructed to delete any double additions and to apply the proviso to section 68 appropriately. The Tribunal emphasized that the AO should decide the issue as per the facts and law, giving due opportunity to the assessee. All appeals filed by the assessee were allowed for statistical purposes.

Order Pronounced:
The order was pronounced in the open court on 03.09.2021.

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