2024 (6) TMI 1131 - AT - Income Tax

Validity of re-opening u/s. 147 - notice based on the information that assessee has borrowed cash loans - HELD THAT - First of all it is not a case of deemed income taxable u/s. 68 that it has some kind of unexplained loan credit in the books of the assessee. The information is based on the fact that the assessee has received cash loans which in turn is based on certain documents seized in search and survey action u/s. 132 carried out at M/s. Evergreen Enterprises. If it is a cash loan ostensibly it cannot be treated as income of the assessee unless conditions specified in Section 68 are satisfied. Also it is not the case of ld. AO that cash loans are added u/s. 68 and that is for the reason that he has not made any addition on amount of cash loan. Once the very basis on which reasons have been recorded i.e. cash loan which has been stated to be chargeable to tax in the hands of assessee is not found to be taxable by the ld. AO then the entire basis of re-opening gets vitiated. Thus we hold that once the ld. AO has accepted cash loans which is not been considered as income there can be escapement of income. Accordingly the reasons recorded by the ld. AO are quashed. Consequently the entire addition made by the ld. AO is also quashed. Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of re-opening under Sections 147/148 of the Income Tax Act, 1961.
2. Addition of Rs. 37,18,314/- under Section 69C on account of interest on alleged cash loan of Rs. 2,45,00,000/-.
3. Condonation of delay in filing the appeal.

Issue-wise Detailed Analysis:

1. Validity of Re-opening under Sections 147/148:
The assessee challenged the re-opening of assessment under Sections 147/148 of the Income Tax Act, 1961. The re-opening was based on information received from the DDIT (Investigation), Unit-5(4), Mumbai, indicating that the assessee had borrowed a cash loan of Rs. 2,45,00,000/- from Shri Nilesh Bharani / M/s. Evergreen Enterprises. The Assessing Officer (AO) recorded reasons to believe that the income to the extent of Rs. 2,45,00,000/- had escaped assessment. However, the AO did not make any addition on account of the alleged cash loan in the final assessment. The Tribunal noted that the very basis of re-opening, i.e., the cash loan of Rs. 2,45,00,000/-, was not found to be taxable by the AO. Citing the Bombay High Court judgment in the case of Sanjeev Amritlal Chhedda, it was held that taking a loan cannot be considered as income, and thus, there was no escapement of income. Consequently, the reasons recorded by the AO were quashed, and the entire re-opening was deemed invalid.

2. Addition of Rs. 37,18,314/- under Section 69C:
The AO added Rs. 37,18,314/- under Section 69C on account of interest and commission on the alleged cash loan of Rs. 2,45,00,000/-. The assessee contended that since no addition was made on the basis of the alleged cash loan, no other addition could be made. The Tribunal observed that the AO had calculated the interest payment based on impounded documents and statements recorded during the search and survey action. However, since the primary basis for re-opening (the cash loan) was not substantiated, the addition under Section 69C was also invalid. The Tribunal quashed the entire addition made by the AO.

3. Condonation of Delay in Filing the Appeal:
The appeal was delayed by 437 days. The assessee attributed the delay to the COVID-19 pandemic and a misunderstanding regarding the filing procedure. The Tribunal considered the reasons provided and noted that the Supreme Court had extended the limitation period for filing appeals due to the pandemic. The Tribunal found no default on the part of the assessee in filing the appeal and condoned the delay.

Conclusion:
The Tribunal allowed the appeal of the assessee, quashing the re-opening under Sections 147/148 and the addition of Rs. 37,18,314/- under Section 69C. The delay in filing the appeal was condoned. The judgment emphasized that taking a loan cannot be considered as income, and any re-opening based on such grounds is invalid.