2019 (7) TMI 69 - AT - Income Tax

Assessment u/s 153A - Addition u/s 68 - search u/s 132 - no incriminating material found - unsecured loans obtained by the assessee - assessee failed to discharge his onus to prove the identity, creditworthy of creditor and genuineness of transaction - HELD THAT - We find that the assessment for the assessment year 2010-11 was already completed when search action u/s 132 was carried out at the premises of the assessee on August 26, 2015. No incriminating material found during the search in respect of the addition made by the AO, therefore, the addition made by the AO in the impugned assessment year is without jurisdiction. Thus, the legal ground raised by the assessee is allowed and the assessment order is held as invalid, consequent upon the entire addition made therein are directed to be deleted. The learned CIT(A) deleted the addition on his observation that neither report of investigation was provided nor any opportunity was given to the assessee to rebut the report of investigation, therefore, no cognizance on such report could be taken in view of the decision of the hon'ble Supreme Court in Kishinchand Chellaram v. CIT 1980 (9) TMI 3 - SUPREME COURT . Addition u/s 68 - all documentary evidences furnished by the assessee, remand reports including the first, second and supplementary remand report of the Assessing Officer and passed detailed order. The learned Commissioner of Income-tax (Appeals) given his clear finding that, in the absence of any independent inquiry and any adverse findings to rebut the evidences filed by the assessee the addition of ₹ 3,60,00,000 is unjustified; firstly, on the ground that no notice was issued/no inquiries made to rebut the evidences filed by the appellant and secondly on the ground that the assessee duly discharged its burden casted upon under section 68 to explain nature and source of the transactions by proving the identity, creditworthiness of creditor and genuineness of the transaction. No contrary facts or law is brought to our notice to take a different. Therefore, we affirm the order of learned CIT(A). Appeal of the Revenue is dismissed.

Summary

Issues Involved:
1. Deletion of addition under Section 68 of the Income-tax Act on account of unsecured loans.
2. Failure to produce alleged creditors for verification.
3. Establishment of the creditworthiness of the alleged creditors.
4. Disallowance of interest expenses on unsecured loans treated as bogus.

Detailed Analysis:

Issue 1: Deletion of Addition under Section 68
The Revenue challenged the deletion of additions made by the Assessing Officer (AO) under Section 68 of the Income-tax Act, which were based on unsecured loans received by the assessee. The AO had added these amounts, citing the lack of verification and the inability of the assessee to establish the genuineness and creditworthiness of the creditors. The Commissioner of Income-tax (Appeals) [CIT(A)] deleted these additions, stating that no incriminating material was found during the search to justify such additions. The Tribunal affirmed the CIT(A)'s decision, noting that the AO failed to provide any substantial evidence against the assessee and relied on third-party information without giving the assessee an opportunity to rebut it.

Issue 2: Failure to Produce Alleged Creditors for Verification
The AO had issued notices under Sections 131/133(6) to the creditors and conducted verification through the Deputy Director of Income-tax, Kolkata, who reported that the companies did not exist at the given addresses. However, the CIT(A) observed that the AO did not provide these reports to the assessee or offer an opportunity for cross-examination. The Tribunal upheld the CIT(A)'s decision, emphasizing that the AO's reliance on third-party reports without direct evidence or allowing the assessee to contest the findings was insufficient to sustain the additions.

Issue 3: Establishment of Creditworthiness of Alleged Creditors
The AO argued that the creditworthiness of the creditors was not established, as the creditors showed meager incomes in their returns. The CIT(A) found that the assessee had provided sufficient documentary evidence, including PAN, balance sheets, and bank statements, to prove the identity, creditworthiness, and genuineness of the transactions. The Tribunal agreed with the CIT(A), noting that the AO did not find any discrepancies in the documents provided by the assessee and failed to substantiate the claim that the transactions were not genuine.

Issue 4: Disallowance of Interest Expenses on Unsecured Loans Treated as Bogus
For the assessment year 2015-16, the AO disallowed interest expenses related to the unsecured loans deemed bogus. The CIT(A) deleted this disallowance, and the Tribunal upheld this decision, stating that the deletion of the principal amount under Section 68 logically led to the deletion of the related interest expenses.

Conclusion:
The Tribunal dismissed the Revenue's appeals for the assessment years 2010-11, 2014-15, 2015-16, and 2016-17, affirming the CIT(A)'s decisions to delete the additions under Section 68 and the related disallowance of interest expenses. The Tribunal emphasized the lack of incriminating material, the procedural lapses by the AO, and the sufficiency of the documentary evidence provided by the assessee to substantiate the genuineness and creditworthiness of the transactions.