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of <h1>Addition under Section 68 for partner capital introduction from loan advances legally unsustainable against firm</h1> <h3>M/s. Om Namah Shivay Trading Company Versus DCIT, Circle 1, Jalgaon</h3> M/s. Om Namah Shivay Trading Company Versus DCIT, Circle 1, Jalgaon - TMI Issues Involved:1. Addition u/s 68 of the Income-tax Act, 1961.2. Creditworthiness and genuineness of the transaction.3. Onus of proving the source of capital introduced by partners.Summary:Issue 1: Addition u/s 68 of the Income-tax Act, 1961The Assessing Officer (AO) made an addition of Rs. 1,10,00,000/- u/s 68 of the Act, being the capital introduced by five partners. The AO noted that the firm received a loan from M/s. M.M. Traders, whose proprietor, Shri Harish Kantilal Shah, was a non-filer and could not explain the source of the loan. The AO inferred that M.M. Traders was a route to channelize the firm's own money. The Ld. CIT(A)/NFAC sustained the addition, stating that the identity, creditworthiness, and genuineness of the transactions were not satisfactorily explained.Issue 2: Creditworthiness and Genuineness of the TransactionThe AO observed that the bank account of M.M. Traders showed cash deposits before transferring money to the partners, indicating that the entity was used to route the firm's own money. The Ld. CIT(A)/NFAC agreed, noting that the transactions seemed circular and involved unaccounted money.Issue 3: Onus of Proving the Source of Capital Introduced by PartnersThe assessee argued that the partners introduced the capital through banking channels, supported by documentary evidence such as ledger extracts, bank statements, and confirmations. The Tribunal found merit in the assessee's argument, citing various judicial precedents which held that the addition, if any, should be made in the hands of the partners and not the firm. The Tribunal referred to the decision in CIT v. Metachem Industries, which stated that once the firm proves the investment by a partner, the onus shifts to the individual partner to explain the source of the investment.Conclusion:The Tribunal held that the addition made by the AO u/s 68 in the hands of the assessee firm was not sustainable. The Tribunal set aside the order of the CIT(A)/NFAC and directed the AO to delete the addition. The appeal filed by the assessee was allowed.Order pronounced in the open Court on this 29th day of April, 2024.
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