2015 (5) TMI 984 - AT - Income Tax

Tribunal upholds CIT(A)'s deletion of additions under Section 68 for unaccounted sale proceeds.

ITO Versus. Jatin Investment Pvt. Ltd.

The tribunal dismissed the department's appeals for both assessment years, affirming the CIT(A)'s deletion of additions made under Section 68 for ... Addition u/s 68 - unaccounted sale proceeds of shares and unaccounted commission - CIT(A) deleted the addition - Held that:- In the present case, it is noticed that the assessee purchased the shares in earlier years which were shown as investment in the books of accounts and reflected in the “Asset Side” of the “Balance Sheet”, out of those investments the assessee sold certain investments and accounted for the profit / loss and offered the same for taxation. In the present case, the amount in question was neither a loan or the deposit , it was also not on account of share application money, the said amount was on account of sale of investment therefore the provisions of Section 68 of the Act were not applicable and the AO was not justified in making the addition. In our opinion, the Ld. CIT(A) rightly deleted the addition made by the AO. - Decided in favour of assessee Issues Involved:1. Deletion of addition made under Section 68 of the IT Act for unaccounted sale proceeds of shares.2. Deletion of addition made on account of unaccounted commission.Issue-wise Detailed Analysis:1. Deletion of Addition Made under Section 68 of the IT Act for Unaccounted Sale Proceeds of Shares:The department's appeal contested the deletion of an addition of Rs. 93,45,000 made by the Assessing Officer (AO) under Section 68 of the IT Act, which was attributed to unaccounted sale proceeds of shares. The AO had reopened the case under Section 147 based on information from the investigation wing that the assessee received accommodation entries amounting to Rs. 96,25,000. Notices issued under Section 131 for verification were returned unserved, leading the AO to conclude that the transactions were not genuine and represented the assessee's unaccounted money. The AO added Rs. 93,45,000 as unaccounted money and Rs. 1,86,900 as commission for obtaining accommodation entries.The assessee contended that the amount represented the sale proceeds of shares, duly recorded in the books of accounts, and not new loans or share application money. The assessee provided confirmations, bank statements, and income tax returns of the parties involved. The CIT(A) observed that the AO relied solely on information from the investigation wing without independent verification and that the assessee had provided sufficient evidence to support the claim. The CIT(A) noted that the amount was already shown in the profit and loss account, and no new money was introduced during the year. The CIT(A) concluded that the AO failed to disprove the assessee's evidence and deleted the addition.The tribunal upheld the CIT(A)'s decision, emphasizing that the amount was from the sale of investments, not loans or deposits, thus Section 68 was not applicable. The tribunal cited the jurisdictional High Court's decision in CIT vs. Vishal Holding and Capital Pvt. Ltd., which supported the assessee's position that the AO acted on investigation wing information without verifying details furnished by the assessee.2. Deletion of Addition Made on Account of Unaccounted Commission:The AO added Rs. 1,86,900 as commission for obtaining accommodation entries, based on the investigation wing's findings that entry operators charged a 2% commission. The CIT(A) deleted this addition, reasoning that the primary addition of Rs. 93,45,000 was not justified, and consequently, the commission addition also lacked basis.The tribunal agreed with the CIT(A), noting that since the principal addition was deleted, the consequential addition for commission could not stand. The tribunal found no merit in the department's appeal, affirming the CIT(A)'s findings.Conclusion:The tribunal dismissed the department's appeals for both assessment years, affirming the CIT(A)'s deletion of additions made under Section 68 for unaccounted sale proceeds of shares and on account of unaccounted commission. The tribunal emphasized the necessity of independent verification by the AO and the sufficiency of evidence provided by the assessee. The decision in CIT vs. Vishal Holding and Capital Pvt. Ltd. was instrumental in supporting the assessee's case.