2019 (9) TMI 1738 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - genuineness of transactions of loan not proved - onus to prove - effect of not producing the cash creditors before the AO - HELD THAT - We observe that the alleged unsecured loan was received through account payee cheque interest paid after deducting TDS financial statement income tax return bank statement and confirmation of account were also filed. We also find that the alleged loan amount was repaid in April 2010 which further adds to prove the genuineness of the loan. AO has not doubted any of the documents filed by the assessee and only reason for which he made addition was that the assessee failed to produce the cash creditors before him. As in the case of S.K. Bothra sons vs. ITO 2011 (8) TMI 22 - CALCUTTA HIGH COURT while dealing with the issue of genuineness of transactions of loan taken by the assessee held that the initial onus is always upon the assessee and if the same is discharged by the assessee by producing sufficient material in support of the loan transaction the onus shifts to the AO and after verification he can call for further explanation from the assessee. Examining the fact we find that the assessee discharged its initial onus by filing necessary documents to prove identity genuineness and creditworthiness of the loan taken and further the loan was also stands repaid. But the ld. AO made the addition only for not producing the cash creditors. Thus merely for not producing the cash creditors before the Ld. AO even when all the necessary documents as required to prove the identity creditworthiness and genuineness of the cash creditors are furnished by the assessee cannot be a reasonable basis to make addition for unexplained cash credit u/s 68 - Decided in favour of assessee.

Summary

1. ISSUES PRESENTED and CONSIDERED

The legal judgment from the Appellate Tribunal ITAT Indore primarily addresses the following issues:

• Whether the CIT(A) was justified in deleting the addition of Rs. 1,85,00,000/- on the grounds of unexplained creditors, given that the assessee failed to produce the directors of the lending companies for examination of creditworthiness and genuineness of the transactions.
• Whether the proceedings initiated under Section 153A and the order of assessment passed by the AO were without jurisdiction, due to the absence of incriminating material found during the search related to the assessment year 2009-10.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Deletion of Addition of Unexplained Creditors

• Relevant Legal Framework and Precedents: The case revolves around Section 68 of the Income Tax Act, which deals with unexplained cash credits. The assessee is required to prove the identity, creditworthiness, and genuineness of the transactions. Relevant precedents include judgments from the Calcutta High Court in S.K. Bothra & Sons vs. ITO and Crystal Net Works Pvt. Ltd. vs. CIT.
• Court's Interpretation and Reasoning: The Tribunal considered the evidence provided by the assessee, which included PAN numbers, confirmations, tax returns, and bank statements of the creditors. The CIT(A) found that the AO had not issued summons under Section 131 or called for information under Section 133(6), which could have verified the creditors' identities.
• Key Evidence and Findings: The assessee provided substantial documentation to support the legitimacy of the loans, including repayment details and interest payments with TDS deductions. The AO's failure to issue summons or conduct further inquiries was noted.
• Application of Law to Facts: The Tribunal upheld the CIT(A)'s decision, emphasizing that the initial onus was on the assessee, which was discharged by providing necessary documentation. The AO's reliance solely on the non-production of creditors was deemed insufficient for making an addition under Section 68.
• Treatment of Competing Arguments: The Revenue argued for the addition based on the non-production of creditors, while the assessee relied on the documentation provided and previous judgments that supported their position.
• Conclusions: The Tribunal concluded that the CIT(A) was justified in deleting the addition, as the assessee had adequately demonstrated the genuineness of the transactions.

Issue 2: Jurisdiction of Proceedings under Section 153A

• Relevant Legal Framework and Precedents: Section 153A pertains to assessments made post-search and seizure actions. The legal question was whether proceedings could be initiated without incriminating material found during the search. Precedents cited include PCIT vs. Ms. Lata Jain and CIT vs. Gurinder Singh Bawa.
• Court's Interpretation and Reasoning: The Tribunal noted that the revised return was filed after the date of the search, which meant the assessment for A.Y. 2009-10 was not a completed assessment. Therefore, the AO had jurisdiction to conduct proceedings under Section 153A.
• Key Evidence and Findings: The Tribunal observed that no incriminating material was found during the search for A.Y. 2009-10, but since the revised return was filed post-search, the AO's jurisdiction was valid.
• Application of Law to Facts: The Tribunal applied the legal framework to determine that the AO's actions were within jurisdiction, given the timing of the revised return.
• Treatment of Competing Arguments: The assessee argued against the jurisdiction based on the lack of incriminating material, while the Revenue maintained that the timing of the revised return justified the proceedings.
• Conclusions: The Tribunal dismissed the assessee's cross-objection, upholding the AO's jurisdiction under Section 153A.

3. SIGNIFICANT HOLDINGS

• Preserve Verbatim Quotes of Crucial Legal Reasoning: "In our considered view merely for not producing the cash creditors before the Ld. AO even when all the necessary documents as required to prove the identity, creditworthiness and genuineness of the cash creditors are furnished by the assessee, cannot be a reasonable basis to make addition for unexplained cash credit u/s 68 of the Act."
• Core Principles Established: The Tribunal reinforced the principle that the initial onus of proving the genuineness of a transaction lies with the assessee, and once discharged, the onus shifts to the AO. Additionally, the absence of incriminating material does not invalidate proceedings under Section 153A if the revised return is filed post-search.
• Final Determinations on Each Issue: The Tribunal upheld the CIT(A)'s deletion of the addition of Rs. 1,85,00,000/- and dismissed the assessee's cross-objection regarding jurisdiction under Section 153A.

The judgment provides clarity on the application of Section 68 concerning unexplained cash credits and the jurisdictional scope of Section 153A in the context of post-search assessments. The Tribunal's decision emphasizes the importance of procedural fairness and the necessity for the AO to substantiate claims with evidence beyond mere non-compliance by the assessee.