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2023 (2) TMI 221 - AT - Income TaxAddition u/s 68 - unexplained cash credit for non fulfilling the conditions thereof - CIT-A deleted the addition - HELD THAT - The assesse has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. AO simply harped on the non production of managing directors of the share subscribing companies to make the addition which is not correct. CIT(A) has passed a very reasoned and speaking order discussing all facts and satisfaction of all the ingredients of section 68 of the Act while allowing the relief as stated above - we are inclined to uphold the order of Ld. CIT(A) by dismissing ground no. 1 of the revenue. Employee benefit expenses and other expenses - Disallowance of expenditure to the tune of 20% - CIT(A) restricted such expenditure to the tune of 10% - HELD THAT - We have noticed that the assessee company has submitted its copy of audited profit loss account before the ld. AO and the ld. AO without giving any reason disallowed the expenditure to the tune of 20% on account of employee benefit expenses and other expenses. Therefore, such disallowance made on estimated basis without any cogent reason for the same shall be unlawful and prejudicial to the interest of assessee and while considering this aspect, the ld. CIT(A) has rightly decided the issue by disallowing the expenditure to the tune of 10% in the hands of assessee. As such we do not find any infirmity in the order passed by the ld. CIT(A) - Decided against revenue.
Issues Involved
1. Deletion of addition of Rs. 2,10,00,000/- made by the AO under Section 68 on account of unexplained cash credit. 2. Restriction of estimated expenses to 10% by the CIT(A) despite non-compliance by the assessee during the assessment proceedings. Detailed Analysis Issue 1: Deletion of Addition under Section 68 The revenue contested the deletion of the addition of Rs. 2,10,00,000/- made by the AO under Section 68, which was initially added as unexplained cash credit. The assessee had raised share capital amounting to Rs. 2,10,00,000/- through the issuance of shares at a premium. During the assessment proceedings, the AO found that the assessee failed to explain the amount in its books and did not comply with notices under Sections 131 and 142(1). Consequently, the AO added the amount as unexplained cash credit. The CIT(A) reversed the AO's decision, noting that the assessee provided comprehensive documentation, including PAN, bank statements, audited financial statements, and IT return acknowledgments of the subscribers. The CIT(A) concluded that the assessee had discharged its onus to prove the identity, creditworthiness, and genuineness of the transactions. The CIT(A) found that the AO's addition was based on surmises and conjectures without pointing out any defects in the provided documents. Upon appeal, the Tribunal affirmed the CIT(A)'s decision, emphasizing that the assessee had furnished all necessary details and that the AO had not identified any deficiencies in the evidence. The Tribunal cited precedents, including the Calcutta High Court's decision in Crystal Networks Pvt. Ltd. vs. CIT, which held that non-compliance with summons does not negate the genuineness of transactions if substantial evidence is provided. The Tribunal concluded that the non-production of directors could not justify the addition when adequate documentary evidence was available. Thus, the deletion of the addition by the CIT(A) was upheld. Issue 2: Restriction of Estimated Expenses The revenue also challenged the CIT(A)'s decision to restrict the estimated disallowance of expenses to 10%, arguing that the AO's original 20% disallowance was justified due to the assessee's non-compliance during the assessment proceedings. The AO had disallowed 20% of employee benefit expenses and other expenses without providing specific reasons. The CIT(A) reduced the disallowance to 10%, considering that the accounts were audited by a qualified chartered accountant and that the AO's disallowance lacked a valid basis. The Tribunal reviewed the submissions and found that the AO's 20% disallowance was indeed arbitrary and without cogent reasoning. The Tribunal upheld the CIT(A)'s decision to restrict the disallowance to 10%, finding no infirmity in the CIT(A)'s order. Conclusion The Tribunal dismissed the revenue's appeal on both issues. The deletion of the addition under Section 68 was upheld as the assessee had provided sufficient evidence to prove the genuineness of the transactions. The restriction of estimated expenses to 10% was also upheld as the AO's higher disallowance was found to be without valid justification. The order was pronounced in the open court on 16.01.2023.
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