2018 (1) TMI 186 - AT - Income Tax

Addition of share application money made by the AO u/s 68 - Held that - FAA was satisfied that the assessee has discharged the initial burden of proof placed on its shoulders by sec. 68 of the Act. Once the assessee discharges the burden placed upon him, then the burden to disprove the same would shift upon the shoulders of the AO. As pointed out by Ld CIT(A), the AO has failed to discharge the burden shifted upon his shoulders. Before me, no material was placed by the revenue to contradict the findings given by Ld CIT(A). Since the Ld CIT(A) has passed an reasoned order, it is of the view that the same does not call for any interference. The Ld D.R submitted that the share applicants are paper companies, but the Assessee has shown that those companies are active companies . - Decided against revenue

Issues Involved:
1. Addition of ?41.00 lakhs as unexplained cash credit under Section 68 of the Income Tax Act.
2. Burden of proof regarding the genuineness of share application money.
3. Application of the test of human probabilities.
4. Right to cross-examine witnesses.

Detailed Analysis:

1. Addition of ?41.00 lakhs as unexplained cash credit under Section 68 of the Income Tax Act:
The appeal concerns the deletion of an addition of ?41.00 lakhs made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, treating the share application money received by the assessee from certain companies as unexplained cash credit. The AO's decision was based on the premise that these companies were part of a group known for providing accommodation entries.

2. Burden of proof regarding the genuineness of share application money:
The CIT(A) observed that the assessee had discharged the initial onus by furnishing necessary evidence to prove the identity, creditworthiness of the applicants, and genuineness of the transactions. The evidence included the names, addresses, and PAN of the share applicants, IT acknowledgments, GIN Master data, share application forms, confirmations of account, balance sheets, and bank statements. The AO, however, did not take steps to disprove these evidences. The CIT(A) noted that the AO's assessment was based on presumptions and the statement of a third party without providing the assessee an opportunity to cross-examine the witness.

3. Application of the test of human probabilities:
The Department argued that the share applicants were paper companies and the evidences furnished by the assessee were not sufficient, advocating for the application of the test of human probabilities. The CIT(A) countered this by referencing various judicial precedents, including the Supreme Court's ruling in CIT v. P. Mohanakala, which emphasized that the AO's opinion must be based on proper appreciation of material and circumstances available on record. The CIT(A) concluded that the AO's decision was based on suspicion rather than concrete evidence.

4. Right to cross-examine witnesses:
The CIT(A) highlighted that the AO did not provide the assessee with the opportunity to cross-examine the third party whose statements were used as the basis for the addition. Citing the Supreme Court's decision in Andaman Timber Industries vs. Commissioner of Central Excise, the CIT(A) emphasized that not allowing cross-examination amounted to a violation of the principles of natural justice, rendering the assessment order null and void.

Conclusion:
The CIT(A) deleted the addition of ?41.00 lakhs, concluding that the assessee had provided sufficient evidence to discharge the initial burden of proof under Section 68. The AO failed to bring forth any evidence to contradict the assessee's claims and did not provide the opportunity for cross-examination. The appellate tribunal upheld the CIT(A)'s decision, noting that the burden of proof had shifted to the AO, who did not discharge it. The tribunal dismissed the revenue's appeal, affirming that the CIT(A)'s order did not warrant interference.

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