2013 (4) TMI 68 - HC - Income Tax

High Court affirms Tribunal's decision on unaccounted capital. Partners, not firm, liable.

THE COMMISSIONER OF INCOME TAX-II Versus M/s. RAJ CONTAINER

The High Court upheld the Tribunal's decision to dismiss the Revenue's appeal regarding the addition of unaccounted capital under Section 68 of the Income ... Unaccounted Capital - introduction of capital by the partners - Section 68 - onus to discharge - Held that:- In the absence of any material to indicate that there were profits of the firm, the amount credited to the partners' accounts could not be assessed in the hands of the firm. Once the partners have owned that the monies deposited in their accounts are their own, the Income Tax Officer is entitled to and may proceed against the partners and assess the same in their hands, if their explanation is not found satisfactory. The assessee had discharged the primary onus which was on it by offering explanation, which has not been found to be incorrect or false in any manner - The interest of the revenue is also safeguarded as the Income Tax Officer has been given the liberty to consider the said credits in the hands of the partners if he is not satisfied with the sources of investment of cash credits in the accounts of the partners. - Decided against the revenue. Issues:Appeal against Tribunal's judgment on addition of unaccounted capital under Section 68 of the Income Tax Act, 1961.Analysis:The primary issue in this case revolves around the addition of Rs.12.07 lakhs as unaccounted capital by the Assessing Officer under Section 68 of the Income Tax Act, 1961. The Tribunal dismissed the Revenue's appeal against this addition, citing the decision of a Division Bench in a similar case. The Tribunal emphasized that the addition should have been made in the hands of the respective partners of the firm, not the firm itself. The Tribunal differentiated between Section 68 and Section 69 of the IT Act, highlighting that Section 68 applies to sums found credited in the books, while Section 69 applies to unexplained investments recorded in the books of account. The Tribunal also referred to various judgments to support its decision, emphasizing that the issue at hand was distinct from those covered in the cited cases by the Revenue.The Tribunal's decision was further supported by a previous judgment of the Gujarat High Court in a similar case, which stated that if partners claim the deposited monies as their own, the Income Tax Officer can proceed against the partners and assess the amounts in their hands if their explanation is unsatisfactory. This principle was applied to the current case, where the Tribunal found that the assessee had discharged the onus by providing explanations that were not disputed by the Income Tax Officer. The Tribunal concluded that in the absence of evidence indicating profits of the firm, the amount credited to the partners' accounts could not be assessed in the hands of the firm. The Tribunal upheld the deletion of the addition in the hands of the assessee-firm, directing the Assessing Officer to take legal action against the partners for the capital introduced by them.Overall, the High Court found no error in the Tribunal's decision and dismissed the Tax Appeal. The judgment highlighted the importance of correctly attributing additions of unaccounted capital to the appropriate entity, emphasizing the distinction between the firm and its partners in such assessments.