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2022 (11) TMI 1197 - AT - Income TaxAddition u/s 68/41 - opening balance of advances for booking and another sundry creditor - old sundry creditors appearing in the balance sheet - assessee has not filed any confirmation of creditors, copy of ITRs of so-called advances given, were furnished - taxability of sundry creditor u/s 41(1) - HELD THAT - As held that advances for booking and sundry creditor added are carried forward from earlier year and cannot be added under section 68. For creditor assessee furnished copy of sale deed, wherein the details of cheque given to the seller and bank statements established that seller has not deposited cheques or encashed the said amount. CIT(A) recorded that assessing officer had given categorical findings that the above amounts of both the additions are opening balance. On such observation, CIT(A) was of the view that there is no dispute that amounts added are actually opening balance, which was carried forward from assessment year 2014-15. On the observation of AO for taxing the sundry creditor u/s 41(1) being ceased trading liability to assessee who is a builder, we find that the AO was given liberty to examine such facts in relevant assessment year. Once the AO is given liberty, the Ld. CIT(A) found no reason to wait for her remand report as no prejudice is caused to either party on adjudication the matter. We are conscious of the fact that there is no ground of appeal raised by the revenue for making/ sustaining addition under section 41(1), yet we may observe that the assessing officer has not brought any evidence to show that it was a cessation or remission of trading liability. Asin PCIT Vs Matruprasad C Pandey 2015 (4) TMI 830 - GUJARAT HIGH COURT held that amount of old sundry creditors appearing in the balance sheet cannot be added under section 41(1) unless and until it is found that there is remissions/ cessation of liability and that too during the relevant assessment year. Thus, on the basis of the aforesaid factual and legal position, we do not find any infirmity in the order of ld CIT(A) in deleting the addition of advance bookings and sundry creditors, which we affirms with these additional observation.
Issues Involved:
1. Deletion of addition of Rs. 4,56,87,000/- on account of opening balance of advances. 2. Deletion of addition of Rs. 2,82,00,000/- on account of sundry creditors. 3. Whether the CIT(A) ought to have upheld the order of the Assessing Officer. Issue-wise Detailed Analysis: 1. Deletion of Addition of Rs. 4,56,87,000/- on Account of Opening Balance of Advances: The Revenue challenged the deletion of Rs. 4,56,87,000/- by the CIT(A). The Assessing Officer (AO) had added this amount as unexplained cash credit under section 68 of the Income Tax Act, 1961, citing the assessee's failure to provide confirmations, income tax returns, and bank statements of parties from whom the advances were received. The AO noted that the amounts were opening balances and doubted their authenticity. The CIT(A) found that these advances were received in earlier years and were opening balances for the assessment year 2015-16. The CIT(A) referenced various High Court decisions, including the Gujarat High Court in the case of Commissioner of Income-tax, Gandhinagar Vs. Jagatkumar Satish Bhai Patel, which held that section 68 cannot be invoked for opening balances. The CIT(A) concluded that the amounts in question were indeed opening balances and thus could not be added under section 68. 2. Deletion of Addition of Rs. 2,82,00,000/- on Account of Sundry Creditors: The AO added Rs. 2,82,00,000/- as unexplained cash credit under section 68, doubting the genuineness of the sundry creditor, Kishorbhai Laxmanbhai. The AO noted that the entire payment for the property was shown as received in the sale deed, and the creditor's address was unverifiable. The CIT(A) found that the amount was an opening balance carried forward from the previous year and could not be added under section 68. The CIT(A) also noted that the creditor had not presented the cheque for realization, and the amount remained outstanding. The CIT(A) referenced the Gujarat High Court's decision in CIT Vs. Bhogilal Ramjibhai Atara, which held that section 68 cannot be applied to opening balances. 3. Whether the CIT(A) Ought to Have Upheld the Order of the Assessing Officer: The Revenue argued that the CIT(A) should have upheld the AO's order, as the assessee failed to provide necessary confirmations and evidence to prove the genuineness of the transactions. The AO had also suggested that the sundry creditor could be taxed under section 41(1) as a ceased trading liability. The CIT(A) dismissed this argument, noting that the AO had not provided any evidence of cessation or remission of liability. The CIT(A) held that the amounts were opening balances and could not be taxed under section 68 or section 41(1). The CIT(A) concluded that the AO's additions were not justified and deleted them. Conclusion: The Tribunal upheld the CIT(A)'s order, agreeing that the additions under section 68 were not applicable to opening balances. The Tribunal referenced multiple judicial precedents supporting this view and found no infirmity in the CIT(A)'s decision. The appeal by the Revenue was dismissed, affirming the deletion of the additions. Result: The appeal of the Revenue is dismissed. The CIT(A)'s order deleting the additions of Rs. 4,56,87,000/- and Rs. 2,82,00,000/- is upheld.
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