2022 (12) TMI 633 - AT - Income Tax

Addition u/s 68 - identity of the creditor, genuineness of the transaction and creditworthiness of the creditor not proved - HELD THAT - Addition made by AO invoking Section 68 does not hold it good since the assessee has filed the confirmation letter from the lender, Bank statement from the assessee, Income Tax Return and statement of total income of the lender namely Mr. Rajesh Vaswani proprietor of M/s. Sunderdeep Builders. Thus the assessee has discharged its initial onus namely identity of the creditor, genuineness of the transaction and creditworthiness of the creditor. Further AO has disbelieved Rs. 5 Crores received from creditor and not doubted about the Rs. 30 Crores received from the same lender. Assessing Officer has not doubted the interest payment of Rs. 1,83,79,553/- as against the above loan, with appropriate TDS made by the Assessee. Therefore the addition made by the AO u/s. 68 of the Act is not sustainable in law. We have no hesitation in confirming the order of the Ld. CIT(A), who deleted the addition made by the Assessing Officer u/s. 68 - Decided in favour of assessee. Assumption of jurisdiction under 153C - what is the relevant date from which the amended provisions of section 153C would be applicable? - HELD THAT - No doubt, the amended provisions has been expressly brought into force with effect from 01.06.2015. However the search action has been conducted in this case on 10.03.2015 which is prior to 01.06.2015. Hence the provisions of law, as existing on the date of search namely 10.03.2015 in this case is to be followed. Therefore the satisfaction note recorded by the Assessing Officer on 17.11.2017 (which is extracted in Para 2.1 of this order), invoking the amended provisions of section 153C namely various documents were seized which relates to and the information contained therein pertains to the assessee is not correct in law. Even as per the pre-amended provisions of Section 153C, AO has to record satisfaction to the effect that seized material belongs or belongs to other person. In this case, the A.O. has not put on record that any material seized during the course of search does belong to the assessee. However seized materials related to other third party. Therefore in our considered view, the invocation of proceedings u/s. 153C is against the provisions of law. As relying on ANILKUMAR GOPIKISHAN AGRAWAL case 2019 (6) TMI 746 - GUJARAT HIGH COURT the grounds raised by the assessee in the cross objection is allowed and assessment order is hereby quashed.

Summary

Issues Involved:
1. Validity of proceedings initiated under Section 153C of the Income Tax Act.
2. Addition of Rs. 5 Crores and Rs. 6.5 Crores as unexplained income under Section 68 of the Income Tax Act for the Assessment Years 2013-14 and 2015-16 respectively.

Issue-wise Detailed Analysis:

1. Validity of Proceedings Initiated Under Section 153C of the Income Tax Act:

The core issue was whether the proceedings initiated under Section 153C were valid. The search action was conducted on Venus Group's premises on 10.03.2015, and various documents were seized. The Assessing Officer recorded satisfaction on 17.11.2017, stating that the seized documents pertained to the assessee, thus initiating proceedings under Section 153C. The assessee contested this, arguing that the documents did not pertain to them.

The Tribunal noted that the search was conducted before the amendment of Section 153C by the Finance Act, 2015, which came into effect on 01.06.2015. According to the pre-amended provisions, the seized material must "belong" to the assessee. The Tribunal found that the Assessing Officer did not establish that the seized documents belonged to the assessee. The Tribunal referenced the jurisdictional High Court judgment in Anil Kumar Gopikishan Agrawal vs. ACIT, which clarified that the pre-amended provisions should apply if the search occurred before 01.06.2015. Consequently, the Tribunal held that the invocation of Section 153C was invalid and quashed the assessment order.

2. Addition of Rs. 5 Crores and Rs. 6.5 Crores as Unexplained Income Under Section 68 of the Income Tax Act:

Assessment Year 2013-14:

The Assessing Officer added Rs. 5 Crores as unexplained income under Section 68, based on transactions between the assessee and Venus Group. The assessee argued that the transactions were unsecured loans from M/s. Sunderdeep Builders, supported by documentation such as Income Tax Returns, Tax Audit Reports, and bank statements. The CIT(A) deleted the addition, noting that the documents were found on Venus Group's premises and not from the assessee. The Tribunal upheld the CIT(A)'s decision, emphasizing that the assessee had provided sufficient evidence to prove the identity, genuineness, and creditworthiness of the lender. The Tribunal also noted that the Assessing Officer had accepted other transactions with the same lender and had not disallowed the interest payment on the loan.

Assessment Year 2015-16:

For this year, the Assessing Officer added Rs. 6.5 Crores as unexplained income under Section 68. The assessee had taken a loan of Rs. 10.5 Crores from M/s. Sunderdeep Builders and repaid Rs. 21.5 Crores during the financial year, with appropriate TDS deducted on the interest paid. The Tribunal found that the assessee had discharged its initial onus under Section 68 by providing necessary documentation. The Tribunal reiterated its reasoning from the 2013-14 assessment year and deleted the addition.

Conclusion:

The Tribunal dismissed both appeals filed by the Revenue and allowed the cross-objection filed by the assessee. The Tribunal found that the proceedings under Section 153C were invalid and that the additions made under Section 68 were not justified, given the evidence provided by the assessee. The Tribunal's decision was based on the principles of identity, genuineness, and creditworthiness of the transactions, as well as the requirement for the Assessing Officer to provide the assessee with an opportunity for cross-examination.