2012 (9) TMI 250 - AT - Income Tax

Addition u/s 68 - unsecured loans - Held that - It is observed that all the persons from whom loans were taken, were identified as assessee has filed their confirmations, affidavits along with copies of election cards. The complete addresses were given. AO didn t bothered to summon these persons independently to examine further, if he wanted to examine them. Therefore, addition made u/s 68 is without merit. Dis-allowance u/s 40A(2)(b) - salary payment to nephew who was studying also - Held that - It is undisputed that Shri Hani Jain was attending the work of assessee s firm. It has not been pointed out by AO in his order that how the salary of Rs. 5,000/- paid to Shri Hani Jain is in violation of provisions of section 40A(2)(b), neither any other reasons have been assigned by the Assessing Officer. If any person is working, he can at the same time, continue his study also in part time, and there is no bar in studying part time. Addition made is deleted - Decided in favor of assessee

Summary

Issues:
1. Addition under section 68 of Rs. 1,14,000
2. Addition of Rs. 60,000 paid as salary to Shri Hani Jain

Analysis:
1. Addition under section 68 of Rs. 1,14,000:
During the assessment, the Assessing Officer raised concerns about a loan of Rs. 1,14,000 shown by the assessee from six individuals. The assessee provided confirmation letters, affidavits, and identity proofs of the lenders. However, the Assessing Officer was not convinced and concluded that the lenders lacked the means to provide the loans, hence confirming the addition. The ITAT, after reviewing the submissions and evidence, found that the lenders were identifiable, some being employees of the assessee firm who had given loans from their salaries. The ITAT highlighted that the Assessing Officer did not independently summon these individuals for further examination. Referring to a judgment, the ITAT ruled that once the existence of creditors is proven, the onus is on the assessee, and the addition under section 68 cannot be sustained if the source of the creditors' money is not further required to be proved. Consequently, the ITAT deemed the addition unjustified and deleted it.

2. Addition of Rs. 60,000 as salary to Shri Hani Jain:
The Assessing Officer disallowed the deduction claimed by the assessee for paying a salary of Rs. 60,000 to Shri Hani Jain, who was the assessee's nephew. The ITAT noted that Shri Hani Jain was indeed working for the assessee's firm and receiving a monthly salary of Rs. 5,000, which was not found to violate any provisions. The ITAT emphasized that studying part-time while working is permissible and beneficial, and the Assessing Officer failed to provide reasons for disallowing the salary payment. The ITAT highlighted that the Assessing Officer did not question the nature of work done by Shri Hani Jain or seek his examination. With salary vouchers produced and other supporting details provided by the assessee, the ITAT concluded that the addition made by the lower authorities lacked justification and hence deleted it.

In conclusion, the ITAT allowed the appeal of the assessee, ruling in favor of the assessee on both grounds.