2014 (1) TMI 184 - AT - Income Tax

Tribunal rules in favor of assessee, deletes unsecured loans addition & disallowance under section 40A(3)

Sri Ramen Kundu Versus Income Tax Officer

The Tribunal allowed the appeal, ruling in favor of the assessee by deleting both the addition of unsecured loans and the disallowance under section ... Unexplained unsecured loans – Held that:- On 23.11.2011, assessee was represented by its representative whereas on 30.11.2011 assessee himself had appeared personally - The gap between 23.11.2011 and 30.11.2011 was only a week - Within the short gap of time it would have been very difficult for the assessee to frame a fresh set of books of accounts avoiding all the cash loans shown earlier - Preponderance of probability tilts to assesee's side and its explanation that the book produced on 23.11.2011 was not the correct one cannot be brushed aside - Assessee had in support of the cash book produced on 30.11.2011, furnished confirmation from various parties from whom it had purchased the materials - Account of the assessee as appearing in ledgers of various parties were produced before CIT(Appeals - The auditor has certified that there were no personal loans in the books audited by him - He also filed a full copy of cash book audited by him – Ther was no reason to disbelieve the certificate and certification done by the auditors - Lower authorities ought not have brushed aside the cash book produced by the assessee on 30.11.2011 - When there were no unsecured loans appearing therein there was no question of any addition being made on the ground of any unsecured loan. Disallowance u/s 40A(3) – Held that:- The cash book produced by the assessee ought to have been considered - It is also noted that in the original assessment, Assessing Officer had made an addition under section 40A(3) considering withdrawals from the Bank account, which was deleted by the ld. CIT(Appeals), but substituted by him with the chart compiled from the cash book produced - Neither any withdrawal from Bank account could be considered as expenditure for the purpose of applying section 40A(3) of the Act, nor the payment shown in the cash book produced on 23.11.2011 for the purpose of applying section 40A(3) of the Act – Decided in favour of assessee. Issues:- Addition of unsecured loans of Rs.57,00,000- Disallowance under section 40A(3)Issue 1: Addition of unsecured loans of Rs.57,00,000The appeal was against the order of the Commissioner of Income Tax (Appeals) for the assessment year 2009-10. The Assessing Officer had made an addition of Rs.57,00,000 as unsecured loans, which was confirmed by the CIT(Appeals). The assessee, a Civil Contractor, had produced cash books during the assessment, showing unsecured loans received. However, discrepancies were noted by the Assessing Officer, leading to doubts about the genuineness of the loans. The Assessing Officer required details of purchases, cash flow statements, and confirmations from sellers, which the assessee partially provided. The Assessing Officer ultimately rejected the explanation given by the assessee and added the unsecured loans as income. The CIT(Appeals) upheld the addition, stating that the assessee failed to substantiate the loans, leading to the current appeal.Issue 2: Disallowance under section 40A(3)The CIT(Appeals) made a disallowance of Rs.48,77,835 under section 40A(3) based on the cash book produced by the assessee. The Assessing Officer had initially made an addition under section 40A(3) considering withdrawals from the bank account, which was later substituted with the cash book entries. The Tribunal noted that the cash book produced on 30.11.2011 should have been considered instead of the one from 23.11.2011. The Tribunal held that neither bank withdrawals nor the payments shown in the cash book from 23.11.2011 could be considered for disallowance under section 40A(3). Therefore, the disallowance made by the CIT(Appeals) was deemed unjustified, and it was deleted by the Tribunal.In conclusion, the Tribunal allowed the appeal filed by the assessee, deleting both the addition of unsecured loans and the disallowance under section 40A(3).