2022 (9) TMI 292 - AT - Income Tax

Addition u/s 68 - unexplained cash credits - loan transactions in question as bogus - HELD THAT - Lender Shri Anil Gidwani had categorically admitted of having advanced a loan of Rs.1 lac to the assessee a/w. brief description as to from where it was sourced i.e. accumulated savings, we are of the considered view that there was no justification on the part of the A.O in holding the loan transaction in question as a bogus transaction. Lender, viz. Shri Shaiyad Abdul Mazid had in his statement that was recorded on oath in the course of the assessment proceedings by the A.O admitted of having advanced a loan of Rs. 2 lac vide A/c payee cheque to the assessee firm. Not only the aforesaid lender had admitted the loan transaction in question, but had also on being specifically queried by the A.O explained as to where the same was sourced from - as the assessee before us had duly discharged the onus that was cast upon him as regards proving the authenticity of the loan transaction in question, therefore, the same could not have been added as an unexplained cash credit u/s.68 of the Act in the hands of the assessee. Amount received vide A/c payee cheque from Smt. Rajkumari Gidwani - On the one hand it is stated by the AO that the loan amount of Rs.3 lac that was advanced by the aforementioned person was sourced out of the KCC proceeds of Rs.2,22,086/- while for, on the other hand contradicting his own observation he had drawn adverse inferences qua the credit worthiness of the lender and, had, inter alia, held that she could not have been in possession of a substantial amount of cash savings. As the facts narrated by the AO leading to the addition of Rs. 3 lac under Sec. 68 in the hands of the assessee are in clear contradiction of his observations recorded in the assessment order, therefore, we are of the considered view that the matter requires to be restored to the file of the A.O with a direction to re-adjudicate the same after making necessary verification qua the correct factual position and examining the lender in question Amount received from Smt. Sashikala Dubey an existing income-tax assessee who was deriving income from hiring of a vehicle (Tata sumo) to NTPC had categorically admitted of having advanced a loan of Rs. 2 lac vide A/c payee cheque to the assessee firm. Not only the said lender on being queried by the A.O had stated that the cash deposit in her bank account from where the loan was advanced was out of her accumulated savings, but had also referred to the source from where the cash deposit in her bank account was made. In our considered view, now when the lender had categorically admitted of having advance a loan of Rs. 2 lac a/w the source thereof, then, in case the A.O had any doubts as regards the source of the aforementioned lender, the remedy was to look into the said issue in the latters case. When the assessee had duly discharged the onus that was cast upon her as regards proving the identity and creditworthiness of the lender, and also the genuineness of the transaction in question, therefore, the same could not have been dubbed as a bogus loan and added as an unexplained cash credit under Sec. 68 in the hands of the assessee firm. Loan received from Shri Sudhakar Wankhed lender had in his statement recorded on oath in the course of assessment proceedings duly admitted the loan transaction a/w. source thereof, we are of the considered view that there was no justification on the part of the A.O in treating the said amount as unexplained cash credit u/s.68 of the Act. As observed by us hereinabove, the fact that the lender had immediately prior to advancing of the loan made cash deposits in his bank account would not justify dubbing the amount received by the assessee as unexplained cash credits is fortified by the order of the Tribunal in the case of Amit Kumar Bansal 2017 (5) TMI 205 - ITAT RAIPUR ). The assessee had duly discharged the initial onus that was cast upon him, which we find had not been dislodged by the lower authorities by placing on record any irrefutable material which would prove to the contrary. We, thus, are of the considered view that the addition made by the AO u/s.68 of the Act cannot be sustained and is liable to be vacated. Appeal of assessee allowed.

Summary

Issues Involved:
1. Addition of Rs. 12,00,000/- under Section 68 of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Addition of Rs. 12,00,000/- under Section 68 of the Income-tax Act, 1961:

(A) Shri Anil Gidwani: Rs. 1,00,000/-

The assessee claimed to have received a loan of Rs. 1,00,000/- from Shri Anil Gidwani, a government employee. The Assessing Officer (A.O) doubted the authenticity of the loan due to a cash deposit in the lender's bank account prior to issuing the cheque and the lender's insufficient salary to justify the loan. The Tribunal observed that Shri Anil Gidwani had admitted on oath to having advanced the loan from his accumulated savings. The Tribunal held that the primary onus to prove the loan transaction was discharged by the assessee, and the A.O's rejection was based on assumptions without concrete evidence. The Tribunal referred to judicial precedents, including CIT Vs. Shri Abdul Aziz and CIT Vs. Orissa Corporation Ltd., supporting the view that the assessee cannot be expected to prove the source of the credits in the lender's bank account. The addition of Rs. 1,00,000/- was vacated.

(B) Shri Shaiyad Abdul Mazid: Rs. 2,00,000/-

The assessee claimed to have received a loan of Rs. 2,00,000/- from Shri Shaiyad Abdul Mazid, a petty contractor. The A.O doubted the loan's authenticity due to a cash deposit in the lender's bank account before issuing the cheque and the lender's insufficient financial status. The Tribunal noted that the lender had admitted on oath to having advanced the loan and explained the source as accumulated savings. The Tribunal reiterated that the assessee cannot be called upon to explain the source of the credits in the lender's account. The addition of Rs. 2,00,000/- was vacated.

(C) Smt. Rajkumari Gidwani: Rs. 3,00,000/-

The assessee claimed to have received a loan of Rs. 3,00,000/- from Smt. Rajkumari Gidwani, a lecturer. The A.O held the loan as bogus due to the lender's insufficient financial means. The Tribunal found contradictions in the A.O's observations and restored the matter to the A.O for re-adjudication after verifying the factual position and examining the lender. The addition of Rs. 3,00,000/- was set aside for re-adjudication.

(D) Smt. Sashikala Dubey: Rs. 2,00,000/-

The assessee claimed to have received a loan of Rs. 2,00,000/- from Smt. Sashikala Dubey, an income-tax assessee deriving income from hiring a vehicle. The A.O doubted the loan's authenticity due to a cash deposit in the lender's bank account before issuing the cheque. The Tribunal noted that the lender had admitted on oath to having advanced the loan and explained the source as accumulated savings. The Tribunal held that the assessee had discharged the onus of proving the loan transaction, and the addition of Rs. 2,00,000/- was vacated.

(E) Shri Sudhakar Wankhede: Rs. 4,00,000/-

The assessee claimed to have received a loan of Rs. 4,00,000/- from Shri Sudhakar Wankhede, a petty contractor. The A.O doubted the loan's authenticity due to cash deposits in the lender's bank account before issuing the cheques and the lender's insufficient financial status. The Tribunal noted that the lender had admitted on oath to having advanced the loan and explained the source as cash received in the normal course of business. The Tribunal held that the assessee had discharged the onus of proving the loan transaction, and the addition of Rs. 4,00,000/- was vacated.

Conclusion:

The Tribunal vacated the addition of Rs. 12,00,000/- made by the A.O under Section 68 of the Income-tax Act, 1961, on the grounds that the assessee had discharged the onus of proving the loan transactions, and the A.O's rejection was based on assumptions without concrete evidence. The matter regarding Smt. Rajkumari Gidwani's loan was set aside for re-adjudication. The appeal of the assessee was allowed.