2025 (4) TMI 1124 - AT - Income Tax

Addition u/s 68 - Unsecured loans - identity creditworthiness was not established - HELD THAT - Based on the overall facts and evidence placed on record we note that the assessee has provided details on the record to prove the identity PAN number and confirmation genuineness bank statement and ITR and capacity ITR so the made u/s. 68 is not correct and is directed to be deleted. See Jaikumar Bakliwa 2014 (8) TMI 685 - RAJASTHAN HIGH COURT wherein held it is an admitted position that all the cash creditors have affirmed in their examination that they had advanced money to the assessee from their own respective bank accounts. Therefore when there is categorical finding even by the AO that the money came from the respective bank accounts of the creditors which did not flow in the shape of the money then in our view such an addition cannot be sustained and has been rightly deleted by both the two appellate authorities. There is no clinching evidence in the present case nor the AO has been able to prove that the money actually belonged to none but the assessee himself. The action of the AO appears to be based on mere suspicion. Decided in favour of assessee.

Issues Presented and Considered

The core legal question considered in this appeal is whether the addition of Rs. 1,95,25,000/- made under section 68 of the Income Tax Act, 1961, on account of unexplained unsecured loans taken by the assessee from 24 different parties, was justified. The issues relevant to this question include:

Whether the assessee discharged the onus of proving the identity, creditworthiness, and genuineness of the creditors and the transactions as required under section 68.
Whether the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) (CIT(A)) correctly applied the legal principles and judicial precedents in making and confirming the addition.
Whether the AO and CIT(A) violated principles of natural justice and equity by not providing adequate opportunity to the assessee to furnish complete evidence or remove defects.
The admissibility and consideration of additional evidence filed by the assessee during appellate proceedings.
Whether the non-receipt of replies from certain creditors to notices issued under section 133(6) of the Act justifies treating the loans as unexplained under section 68.

Issue-wise Detailed Analysis

1. Burden of Proof and Legal Framework under Section 68

Section 68 of the Income Tax Act imposes a burden on the assessee to satisfactorily explain the nature and source of any sum credited in its books. The explanation must convince the AO of the genuineness of the transaction, identity of the creditor, and creditworthiness. The legal framework, as reiterated by the Supreme Court in cases such as Sreelekha Banerjee v. CIT, Kale Khan Mohammad Hanif v. CIT, Roshan Di Hatti v. CIT, Sumati Dayal v. CIT, and CIT v. P. Mohanakala, establishes that:

The assessee must prove the identity and creditworthiness of the creditor and genuineness of the transaction.
The AO's opinion on the adequacy of the explanation must be based on proper appreciation of material and circumstances.
Mere payment through banking channels or production of confirmation letters, PAN, and ITRs is not conclusive proof of genuineness.

Judicial precedents emphasize that the explanation must be tested on the touchstone of genuineness, and suspicion alone cannot sustain an addition.

2. Assessment Officer's Findings and Reasoning

The AO issued notices under section 133(6) to 24 creditors for details including ITRs and bank statements. Replies were received from only 10 creditors, while 14 did not respond despite reminders. The AO found the following:

Incomplete or no replies from 14 creditors, thus failing to establish their identity and creditworthiness.
In some cases, bank statements were illegible or did not show sufficient balance to justify the loan amount.
Deposits in creditors' bank accounts just prior to transferring money to the assessee raised suspicion about genuineness.

Based on these findings, the AO added Rs. 1,95,25,000/- as unexplained income under section 68.

3. CIT(A)'s Consideration and Findings

The CIT(A) examined the AO's order and the assessee's submissions. Although initially noting that the assessee had not filed an application under Rule 46A for additional evidence, the CIT(A) considered the information submitted, including confirmations, ITRs, and bank statements. The CIT(A) upheld the addition on the following grounds:

Information in respect of the 14 creditors was incomplete or defective.
Some bank statements were illegible, and some ITRs did not reflect sufficient income to establish creditworthiness.
Deposits in creditors' accounts just prior to transferring money to the assessee indicated possible manipulation.
The assessee failed to discharge the onus under section 68.

The CIT(A) also held that the AO and CIT(A) had not violated principles of natural justice as adequate opportunity was provided.

4. Assessee's Contentions and Evidence

The assessee contended that:

All 24 creditors were genuine, having PAN, filing returns, and operating bank accounts through which the loans were advanced and repaid within the year.
The AO issued notices under section 133(6) based on information furnished by the assessee and did not specify which creditors' replies were incomplete or suspicious.
The addition was made arbitrarily without disclosing details of the amounts or creditors involved.
The assessee furnished confirmations, copies of ITRs, and legible bank statements for all creditors, addressing the CIT(A)'s objections.
The AO's suspicion based on deposits in creditors' accounts just prior to loans was unfounded, as these were normal banking transactions.
The assessee was not responsible for non-compliance by creditors in responding to notices under section 133(6), and no adverse inference could be drawn against the assessee on that basis.
The principles of natural justice were violated as neither the AO nor the CIT(A) provided an opportunity to remove defects in the evidence.
The additional evidence filed was not new but corroborative and should be admitted in the interest of justice under Rule 29 of the ITAT Rules.

5. Tribunal's Analysis and Reasoning

The Tribunal scrutinized the entire record, including the assessment order, CIT(A) order, and submissions of both parties. The Tribunal observed:

The AO did not specify which 14 creditors' loans were treated as unexplained or how the addition amount of Rs. 1,95,25,000/- was computed, despite the total of those loans being Rs. 2,58,25,000/-.
The assessee had furnished confirmations, PANs, ITRs, and bank statements for all 24 creditors, demonstrating identity, creditworthiness, and genuineness.
All loans were squared up during the year, and transactions were routed through banking channels.
Notices under section 133(6) were duly served on all creditors, and the AO's failure to specify which replies were incomplete or suspicious deprived the assessee of a fair chance to rebut.
Non-receipt of replies from creditors does not automatically render the loans unexplained under section 68, particularly when the assessee has discharged its burden.
Judicial precedents, including the jurisdictional High Court's decision in CIT v. Jaikumar Bakliwal, support the view that once the assessee proves identity, creditworthiness, and genuineness, the burden shifts to the revenue to prove the money belonged to the assessee.
The Tribunal noted that suspicion or conjecture is insufficient to uphold an addition under section 68.
The Tribunal found that the AO and CIT(A) did not provide adequate opportunity to the assessee to remove defects or clarify issues, violating principles of natural justice.
The additional evidence filed before the Tribunal, though not filed under Rule 46A earlier, was corroborative and admissible in the interest of justice.

6. Treatment of Competing Arguments

The Tribunal carefully weighed the AO's and CIT(A)'s reliance on incomplete replies and suspicious banking transactions against the assessee's comprehensive documentary evidence and legal submissions. The Tribunal rejected the AO's approach of making additions based on non-response of creditors without specifying details or providing opportunity to the assessee. The Tribunal held that mere suspicion or incomplete replies from creditors cannot override the detailed evidence furnished by the assessee. The Tribunal also emphasized the settled legal position that the assessee is not required to prove the source of source of the creditors' funds, and the revenue must produce direct or circumstantial evidence to show the money belonged to the assessee.

Significant Holdings

"The assessee has provided details on the record to prove the identity [PAN number and confirmation], genuineness [bank statement and ITR] and capacity [ITR] so the addition made u/s. 68 is not correct and is directed to be deleted."

"Merely the letters written u/s. 133(6) reply has not been received will not make the transaction covered u/s. 68 of the Act."

"The AO and CIT(A) did not provide adequate opportunity to the assessee to remove defects or furnish clarifications, thereby violating principles of natural justice."

"Suspicion, howsoever strong it may be, is not sufficient to sustain an addition under section 68."

"Where the assessee proves identity, creditworthiness and genuineness of the creditors and transactions, the burden shifts to the revenue to prove that the amount credited actually belongs to the assessee."

"Non-compliance by creditors to notices issued under section 133(6) cannot be attributed to the assessee nor can it be a ground for addition under section 68."

"Additional evidence filed before the Tribunal, even if not filed under Rule 46A earlier, may be admitted in the interest of justice when it is corroborative and necessary for proper adjudication."

The Tribunal allowed the appeal, deleting the addition of Rs. 1,95,25,000/- made under section 68, and held that the assessee had discharged the onus cast upon it by law.

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