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2019 (1) TMI 217 - AT - Income TaxAddition u/s 41 - credit balances treated as the assessee s income from undisclosed sources and added back the same to the income of the assessee for continuous & willing failure of assessee to get the same verified - Held that - From the perusal of the records it can be seen that the Assessing Officer has not established with evidence that the liability in respect of the above outstanding balances has ceased to exist. The case laws referred by the Ld. DR are factual distinguished by the Ld. AR and will not be applicable in the present case. Case THE PR. COMMISSIONER OF INCOME TAX-6 VERSUS NEW WORLD SYNTHETICS LIMITED 2018 (9) TMI 230 - DELHI HIGH COURT to be followed. The appeal of the assessee is allowed.
Issues Involved:
1. Addition of ?37,95,928/- on account of sundry creditors. 2. Applicability of Section 41(1) versus Section 68 of the Income Tax Act. 3. Charging of interest under Sections 234A, 234B, and 234C of the Income Tax Act. Detailed Analysis: 1. Addition of ?37,95,928/- on Account of Sundry Creditors: The Assessing Officer (AO) added ?37,95,928/- to the assessee's income, treating it as income from undisclosed sources due to the non-verification of sundry creditors. The AO noted that notices issued under Section 133(6) were returned undelivered, and personal inquiries by the Inspector revealed that the creditors were non-existent at the given addresses. The assessee failed to provide adequate confirmations from the creditors. 2. Applicability of Section 41(1) versus Section 68 of the Income Tax Act: The CIT(A) partly allowed the appeal by determining that the addition should be made under Section 41(1) instead of Section 68. The CIT(A) sustained the addition of ?22,73,232/- for four creditors who did not provide confirmations. The assessee argued that the liabilities were still payable and acknowledged in the balance sheet, citing several case laws to support that liabilities shown in the balance sheet cannot be treated as ceased to exist under Section 41(1) unless there is a bilateral act or remission. The Tribunal noted that the AO failed to establish with evidence that the liabilities ceased to exist. The Tribunal emphasized that the burden of proof under Section 41(1) lies on the AO to prove that the liabilities have ceased. The Tribunal referred to the Delhi High Court's decision in the case of New World Synthetics Ltd., which held that mere non-payment of liabilities does not constitute cessation or remission of liabilities under Section 41(1). The Tribunal concluded that both Section 68 and Section 41(1) were not applicable as the liabilities were opening balances and continuously acknowledged by the assessee. 3. Charging of Interest under Sections 234A, 234B, and 234C: The assessee contested the charging of interest under Sections 234A, 234B, and 234C. However, the Tribunal's primary focus was on the addition of sundry creditors and the applicability of Sections 41(1) and 68. The Tribunal did not provide a detailed discussion on this issue, implying that the primary contention was the addition of sundry creditors. Conclusion: The Tribunal allowed the appeal of the assessee, holding that the addition under Section 41(1) was not sustainable. The Tribunal reiterated that the AO did not provide sufficient evidence to prove the cessation of liabilities and that the liabilities were acknowledged in the balance sheet. The Tribunal's decision was based on the principle that mere non-payment does not constitute cessation of liability under Section 41(1). The appeal of the assessee was allowed, and the addition made by the AO and sustained by the CIT(A) was deleted.
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