2021 (10) TMI 1201 - AT - Income Tax

Addition u/s 68 - Unexplained cash credit - primary discharge of onus - HELD THAT - Where the document furnished explained a credit - cash available to the required extent in the instant case, there is a prima facie discharge of the onus on the assessee, and it is for the AO to, where not satisfied, seek further explanation, so that his non-seeking the same, as stated by Sh. Modh during hearing, cannot disturb the said prima facie discharge of the onus by the assessee. In the instant case, however, the argument of a prima facie discharge of onus by the assessee is not available to him as, as found, he had been specifically required by the AO to furnish the source of the cash available with the creditors, also drawing their cash flow statements, and which had not been complied with. As afore-stated, the reference of cash availability to the opening cash-in-hand (i.e., as on 31/3/2011), only implies that the source of the cash is to be found in an anterior period - nothing more and nothing less. The matter, on balance, warrants being remitted back to the file of the AO for fresh adjudication, which is hereby directed. It shall be open for him to question the assessee, or even, where so considered, the concerned creditor/s, and/or seek further evidence in validation of the document/s (balance-sheet, income statement, etc.) submitted, which, where belonging to the creditors, would need to be signed by them. He shall make an objective and fair assessment of the different variables impinging on the cash availability, and decide in accordance with law per a speaking order after affording a reasonable opportunity to the assessee to present his case before him. Another aspect of the matter that needs to be before parting clarified is that the Revenue has not disallowed the interest allowed by the assessee on the impugned credits, stated to be loans thereto, and which in fact follows in consequence of the same being, or ought to be the case where it is, deemed as the assessee's income. Though inconsistent, that would not by itself render the assessee's case as proved, which will have to be adjudged on its merits. Why, regarding so would make the Revenue's case a non-starter, and allowing the assessee the benefit of what is essentially a fallacy on the part of the Revenue, which ought to have been addressed by the first appellate authority inasmuch as it is, as afore-said, inconsistent with the impugned credits being regarded by it as the assessee's income. Why, for that matter, even the said interest having been returned by them, may have been assessed as the creditor's income for the relevant year. That, again, though would not by itself absolve the assessee from discharging the burden of proof on it Addition toward low house-hold withdrawals - AO effected the same finding the disclosed withdrawal as inadequate to satisfactorily explain the personal and house-hold expenditure, i.e., for self and family. The position before the first appellate authority, and in fact even at the second appellate stage, remains the same; the assessee being unable to show as to how the estimated expenditure was excessive, as alleged per his ground of appeal. The same is found reasonable considering the obtaining price levels, with, as afore-said, the assessee not improving his case before me in any manner. We decide accordingly.

Summary

Issues Involved:
1. Addition of ?5.50 lacs under Section 68 of the Income Tax Act, 1961.
2. Addition of ?60,000 towards low household withdrawals.

Detailed Analysis:

1. Addition of ?5.50 lacs under Section 68 of the Income Tax Act, 1961

Assessee's Argument:
The assessee contends that the amounts of ?4.00 lacs and ?1.50 lacs represent interest-bearing loans from existing depositors who are related to the assessee and have demonstrated means. The relevant documents, including PAN, confirmation, bank account details, and copies of returns, were submitted. The interest on these loans was duly returned by the lenders in their respective income returns for the relevant year.

Revenue's Argument:
The Revenue argues that there is no built-up of savings or transfer of funds to the bank accounts of the two creditors. The genuineness and capacity of the creditors are in serious doubt, and the impugned credits cannot be regarded as proved.

Tribunal's Findings:
- The Tribunal noted that each credit must be separately explained regarding its nature and source, focusing on identity, capacity, and genuineness.
- The deposit of cash by the creditors in their bank accounts just before transferring funds to the assessee suggests that the bank accounts were used as conduits.
- The assessee provided the capital account and balance sheet of both creditors, but these documents did not satisfactorily explain the source of the cash deposited in the bank accounts.
- The Tribunal found that the cash availability with the creditors at the relevant time was not satisfactorily proved, and the source of cash deposits remained unexplained.
- The Tribunal also questioned whether the balance-sheet and income statement of the creditors had indeed been submitted before the Assessing Officer (AO) during the assessment proceedings.
- The Tribunal concluded that the matter warrants being remitted back to the AO for fresh adjudication, allowing the AO to question the assessee or the creditors further and seek additional evidence.

Conclusion:
The Tribunal directed the AO to make an objective and fair assessment of the different variables impinging on the cash availability and decide in accordance with the law per a speaking order after affording a reasonable opportunity to the assessee to present his case.

2. Addition of ?60,000 towards Low Household Withdrawals

AO's Position:
The AO found the disclosed withdrawal of ?76,000 as inadequate to satisfactorily explain the personal and household expenditure for self and family, estimating the required expenditure at ?1,36,000 and making an addition of ?60,000.

Tribunal's Findings:
- The Tribunal found the estimated expenditure reasonable considering the prevailing price levels.
- The assessee was unable to show how the estimated expenditure was excessive.
- The Tribunal upheld the addition made by the AO.

Conclusion:
The Tribunal found the addition of ?60,000 towards low household withdrawals reasonable and upheld the AO's decision.

Final Judgment:
The assessee's appeal is partly allowed for statistical purposes. The Tribunal remitted the matter of the ?5.50 lacs addition back to the AO for fresh adjudication, while the addition of ?60,000 towards low household withdrawals was upheld. The order was pronounced in the Open Court on October 22, 2021.