2024 (12) TMI 313 - AT - Income Tax

Addition u/s 68 - unexplained cash credit - As argued 68 has no application as the amounts have been received towards CSR which cannot be considered as unexplained - HELD THAT - We observe that in the instant facts, the assessee has been able to establish the identity of the person giving the funds to the assessee during the impugned year under consideration, being the company which had incorporated the assessee company to carry out it s CSR activities. Therefore, the identity of the person giving the amount to the assessee and its creditworthiness are not under dispute per se. Assessee has not obtained the necessary approvals for carrying out CSR activities at the time of receipt of funds - Before us, the counsel for the assessee drew our attention to Form number 10 Ab dated 16-01-2024 issued in favour of the assessee, granting approval u/s 12AB(1)(b) for assessment years 22-23 to 2026-27. Accordingly, we observe that albeit subsequently, the requisite approvals for undertaking CSR activities had been duly obtained by the assessee, for the impugned assessment year. Assessee is not able to utilise the funds for carrying out the CSR activities, then whether this would have implications u/s 68 - Looking into the specific provisions of section 68 in our view, section 68 has no applicability of the instant set of facts for the reasons that the identity and creditworthiness of the lender has been duly established, the purpose for which the amount was given to the assessee has also been established and the same has not been doubted, the assessee had also obtained the requisite approvals for carrying out CSR activities for the impugned year under consideration, the lender has also not claimed deduction in respect of this amount from its taxable income and also there is no specific assertion that this amount has flown back to the lender in any form whatsoever. Accordingly, CIT(Appeals) erred in facts and in law in confirming the applicability of section 68 - Assessee appeal allowed.

Issues Involved:

1. Application of Section 68 of the Income Tax Act regarding unexplained cash credits.
2. Compliance with Corporate Social Responsibility (CSR) requirements.
3. Alleged breach of Principles of Natural Justice by lower authorities.
4. Levy of interest under Sections 234A/B/C/D of the Income Tax Act.
5. Initiation of penalty proceedings under Section 271AAC of the Income Tax Act.

Detailed Analysis:

1. Application of Section 68 of the Income Tax Act:

The core issue revolves around the addition of Rs. 9,60,00,000 as unexplained cash credits under Section 68 of the Income Tax Act. The Assessing Officer (AO) treated the amounts received from Madhu Silica Pvt. Ltd. as unexplained cash credits due to the assessee's failure to substantiate the genuineness of the transactions with documentary evidence. The AO noted that the assessee did not have its books audited, nor did it provide an Audit Report or Form No. 10B for prior years. Additionally, the assessee lacked registration under Section 12AA and did not furnish documents regarding the utilization of CSR funds. The CIT(A) upheld the AO's decision, emphasizing that the funds were not used for CSR activities but were instead invested in fixed deposits. However, the Tribunal found that the identity and creditworthiness of the lender (MSPL) were established, and the purpose of the funds was not in dispute. The Tribunal concluded that Section 68 did not apply as the assessee had obtained necessary approvals and the funds were to be treated as a loan if not utilized for CSR, thus allowing the appeal.

2. Compliance with Corporate Social Responsibility (CSR) Requirements:

The assessee argued that the funds received were for CSR activities, and as an implementing agency, it did not require registration under Section 80G or 12AA. The assessee had obtained CSR-1 registration, which was deemed sufficient under the Companies Act. The Tribunal noted that the requisite approvals for undertaking CSR activities were obtained, albeit subsequently, and that the funds were earmarked for CSR purposes. The Tribunal held that the non-utilization of funds for CSR activities could have implications under the Companies Act but did not attract the provisions of Section 68 of the Income Tax Act.

3. Alleged Breach of Principles of Natural Justice:

The assessee claimed that the lower authorities ignored various submissions and explanations, resulting in a breach of the Principles of Natural Justice. The Tribunal did not specifically address this claim, focusing instead on the technical aspects of the case under Section 68.

4. Levy of Interest under Sections 234A/B/C/D:

The CIT(A) confirmed the AO's action of levying interest under Sections 234A/B/C/D. However, the Tribunal's decision to allow the appeal on the grounds of improper application of Section 68 implies that the interest levied on the disputed amount may also be affected, though the judgment does not explicitly address this aspect.

5. Initiation of Penalty Proceedings under Section 271AAC:

The CIT(A) upheld the initiation of penalty proceedings under Section 271AAC. The Tribunal's decision to allow the appeal suggests that the basis for initiating penalty proceedings may no longer be valid, as the primary addition under Section 68 was overturned.

In conclusion, the Tribunal allowed the appeal, finding that the provisions of Section 68 were not applicable as the assessee had established the identity and creditworthiness of the lender, and the funds were earmarked for CSR activities. The Tribunal's decision effectively nullified the additions made by the AO and confirmed by the CIT(A), thus resolving the primary issue in favor of the assessee.

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