2018 (12) TMI 742 - AT - Income Tax

Addition u/s. 68 - disallowance of interest expenditure relating to loans added u/s. 68 - Non supply of copies of statements nor afforded opportunity of cross examination - Held that - AO did not make further enquiries on the evidences furnished by the assessee. AO has simply rejected them without assigning any reasons. In fact, the assessee has produced the lenders before the AO, who have also confirmed the loan transactions. Instead the AO has placed reliance on the report given by search officials, brushing aside the confirmation given by the lenders and also brushing aside the various documents furnished by the assessee to prove the cash credits. Even though the AO has stated that the assessee has failed to prove the three basic tenets of a legal loan transaction, yet he has not substantiated the same with any credible reasons. Hence, it is a case of mere rejection of various evidences furnished by the assessee. We notice that the AO had asked the assessee to produce books of accounts from one of the lenders, which were not produced. Supreme Court has held in the case of Kishanchand Chellaram vs. CIT 1980 (9) TMI 3 - SUPREME COURT that the materials, which were not supplied to the assessee, could not be used against the assessee. The Hon ble Supreme Court in the case of Andaman Timber Industries 2015 (10) TMI 442 - SUPREME COURT has held that, if the statements of the witnesses were the basis for passing the orders, then not allowing assessee to cross examine witnesses by Adjudicating Authority amounted in serious flaw which make impugned order nullity as it amounted to violation of principles of natural justice. Hence, for these reasons also, the impugned additions cannot be sustained. - Decided in favour of assessee.

Issues Involved:
1. Addition under Section 68 of the Income Tax Act.
2. Disallowance of interest expenditure related to loans added under Section 68.
3. Rejection of deduction claimed under Section 80C for A.Y. 2011-12.

Issue-wise Detailed Analysis:

1. Addition under Section 68 of the Income Tax Act:
The assessee was aggrieved by the decision of the CIT(A) in sustaining the addition made by the Assessing Officer (AO) under Section 68 of the Income Tax Act for A.Y. 2011-12 and 2012-13. The AO reopened the assessment for A.Y. 2011-12 and took up the scrutiny for A.Y. 2012-13 based on the findings from a search conducted in the Bhanwarlal Jain group, which indicated that the group was providing accommodation entries through unsecured loans. The AO concluded that the loans of ?75 lakhs and ?25 lakhs taken by the assessee from M/s. Prime Star and M/s. Sonam Gems Pvt. Ltd., respectively, were not genuine and added these amounts as income under Section 68.

The assessee contended that the AO relied on statements from third parties obtained during the search, which were not provided to the assessee for cross-examination, thus violating the principles of natural justice as established in the case of Andaman Timber Industries vs. CCE. The assessee also argued that all necessary documents to prove the genuineness of the loans were furnished, including the production of the creditors before the AO, who confirmed the loan transactions. The assessee cited several case laws to support the argument that the AO must make further inquiries if the initial onus to prove the cash credits is discharged by the assessee.

The Tribunal found that the AO did not make further inquiries on the evidences provided by the assessee and simply rejected them without credible reasons. The Tribunal referred to the decisions in CIT vs. Varinder Rawlley and CIT vs. Jai Kumar Bakliwal, which held that once the assessee furnishes all materials to prove the cash credits, the onus shifts to the AO to disprove them. The Tribunal concluded that the AO was not justified in making the additions under Section 68 and directed the AO to delete the additions for both years.

2. Disallowance of Interest Expenditure:
Consequent to the deletion of the additions under Section 68, the Tribunal also directed the AO to delete the disallowance of interest expenses related to the impugned loans for both A.Y. 2011-12 and 2012-13. The Tribunal emphasized that the AO's reliance on statements not provided to the assessee for cross-examination was a serious flaw, rendering the impugned order a nullity.

3. Rejection of Deduction Claimed under Section 80C for A.Y. 2011-12:
The assessee challenged the rejection of deduction claimed under Section 80C for A.Y. 2011-12, which the AO had rejected for want of evidence. The Tribunal noted that the CIT(A) did not adjudicate this ground and, in the interest of natural justice, restored this issue to the file of the AO for fresh examination.

Conclusion:
The Tribunal allowed both the appeals of the assessee, directing the AO to delete the additions made under Section 68 and the disallowance of related interest expenses for both assessment years. The issue regarding the deduction under Section 80C for A.Y. 2011-12 was remanded to the AO for fresh examination. The judgment emphasized the importance of providing the assessee with the opportunity to cross-examine third-party statements used against them and the requirement for the AO to make further inquiries when the initial onus of proving cash credits is discharged by the assessee.

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