2016 (6) TMI 32 - AT - Income Tax

Addition u/s 68 - addition treating the share capital subscribed as undisclosed income of the company - Held that - It emerges from the record that Investigation Wing report is based entirely on the fact that one Shri Deepak Gupta was engaged in accommodation entry provider and M/s. Enpol (P) Ltd. was one of the benami concern. The ld. CIT(A) held that Shri Deepak Gupta is non-existent. His finding are self-contradictory and contrary to Investigation Wing. Besides non-providing of cross examination of the key person Deepak Gupta amounts to violation of principles of natural justice. From the materials available on record, it emerges that assessee discharged its primary onus in terms of Section 68 of the Act. Relying on judgment of ITAT Mumbai Bench in the case of ITO vs. M/s. Superline Construction (P) Ltd. and another (2015 (12) TMI 1453 - ITAT MUMBAI ) and various other judgments cited by the assessee, the addition in question is deleted. - Decided in favour of assessee.

Summary

Issues:
1. Validity of notice u/s 148 for income escapement.
2. Addition of share capital as undisclosed income.

Issue 1 - Validity of notice u/s 148 for income escapement:
The appeal challenged the AO's action of issuing notice u/s 148 without proper application of mind. The ld. CIT(A) confirmed the notice, leading to the assessment being considered void. The AO added share capital as undisclosed income based on information from the Investigation Wing. The assessee provided documents, but the AO added the amount as unexplained cash credit due to non-service of notice to the company. The ld. CIT(A) upheld the addition, citing the non-existence of the company and reliance on the statement of Shri Deepak Gupta. In the second appeal, the assessee argued that the observations were contradictory, and primary onus under sec. 68 was fulfilled. The AR highlighted the necessity of cross-examination and cited relevant case laws. The Tribunal found the ld. CIT(A)'s findings contradictory and held that the assessee met the primary onus, deleting the addition.

Issue 2 - Addition of share capital as undisclosed income:
The AO added the share capital received from M/s. Enpol (P) Ltd. as undisclosed income, alleging it was a conduit for accommodation entries. The ld. CIT(A) upheld the addition based on non-service of notice to the company and Shri Deepak Gupta's statement. The assessee argued that the primary onus under sec. 68 was fulfilled and cited case laws requiring cross-examination. The Tribunal found the ld. CIT(A)'s findings contradictory and held that the assessee met the primary onus, deleting the addition. The Tribunal emphasized the violation of natural justice due to the lack of cross-examination and relied on precedents to support the decision.

In conclusion, the Tribunal allowed the appeal, finding in favor of the assessee on both issues, emphasizing the importance of fulfilling the burden of proof under sec. 68 and the necessity of cross-examination in such cases.