2025 (9) TMI 607 - AT - Income Tax

Deletions under s.68 upheld where unsecured loans paid and repaid via banking channels, no accommodation entries found

The DCIT, Central Circle-1 (1), Ahmedabad Versus Piyush Subodhbhai Jhaveri And Soham Commodities Pvt. Ltd., Ahmedabad

ITAT AHMEDABAD held that additions under s.68 were deleted where unsecured loans received by the assessee were paid and repaid by banking channels during ... Addition u/s 68 - unsecured loans received is in the nature of accommodation entry - HELD THAT:- It is undisputed fact that the assessee received amount by five cheque payments. Revenue could not dispute the repayment of loans by the assessee through banking channels. As decided in M/S. OJAS TARMAKE PVT. LTD. [2023 (9) TMI 845 - GUJARAT HIGH COURT] since amount of loan received by assessee was returned to loan party during year itself and all transactions were carried out through banking channels, impugned addition was to be deleted. Decided in favour of assessee. ISSUES PRESENTED AND CONSIDERED 1. Whether unexplained unsecured loans received and repaid during the year can be treated as unexplained cash credit under section 68 in absence of the Assessing Officer disproving the identity, genuineness and creditworthiness of the creditor. 2. Whether documents furnished by the assessee - ledger, bank statements (both parties), audited accounts, ITRs and confirmations - suffice to discharge the primary onus under section 68 when the transactions were routed through banking channels and repayment was effected in the same year. 3. Whether material/seized documents recovered from a third party during search and seizure operations and statements of that third party can be used to make additions against the assessee in the absence of corroborative independent evidence and in the absence of opportunity for cross-examination. 4. Whether a creditor company can be treated as a paper/shell/dummy company for the purpose of invoking section 68 when its company-law status, listing status and audited financials demonstrate net worth, revenue and operations. 5. Whether matters involving alleged accommodation entries and manipulation seized in searches attract an exception to withdrawal of low-tax-effect appeals under departmental instruction (CBDT Circular) - addressed insofar as the Revenue sought to keep the appeals alive. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Treatment of unsecured loans under section 68: legal framework Legal framework: Section 68 places an initial/primary onus on the assessee to establish (i) identity of the creditor, (ii) genuineness of the transaction and (iii) creditworthiness of the creditor; if the assessee succeeds, the onus shifts to the AO to disprove the same. Precedent treatment: The Tribunal relied on an array of authorities that hold that once identity, genuineness and creditworthiness are reasonably established by the assessee, additions under section 68 cannot be sustained without positive disproof by the AO. Interpretation and reasoning: The Tribunal examined the documentary record (PAN, MCA data, stock-exchange listing, audited accounts, bank statements and confirmations) and observed that the AO had not carried out enquiries to discredit these documents. The Tribunal emphasized that repayment in the same year through banking channels further supports genuineness and negates unexplained credit. Ratio vs. Obiter: Ratio - where the assessee furnishes ledger, confirmations, bank evidence and audited financials of the creditor showing net worth and operations, and the AO fails to disprove them, an addition under section 68 is not sustainable. Obiter - ancillary remarks on the persuasive weight of particular precedents. Conclusion: The primary onus under section 68 was discharged by the assessee; the AO failed to disprove identity/genuineness/creditworthiness and the addition under section 68 was rightly deleted by the Appellate Authority and affirmed by the Tribunal. Issue 2 - Sufficiency of documents and banking channel repayments to discharge onus under section 68 Legal framework: Documentary proof of remittance and repayment through bank accounts, corroborated by creditor's audited accounts and confirmations, constitutes prima facie proof of genuineness and source of funds under section 68. Precedent treatment: The Tribunal followed High Court and Tribunal decisions holding that transactions effected through banking channels and supported by ledger confirmations and audited financials warrant deletion of additions under section 68. Interpretation and reasoning: The Tribunal noted undisputed bank entries showing receipt and repayment, the creditor's Income Tax Returns and audited accounts demonstrating substantial revenue and reserves, and absence of any AO contention that banking entries were forged or fabricated. On that factual matrix, the documents were held sufficient. Ratio vs. Obiter: Ratio - bona fide loans shown to be received and repaid via banking channels, supported by corroborative documents, discharge the initial burden under section 68 unless convincingly rebutted by the AO. Conclusion: Documentary and banking evidence were sufficient; the Tribunal affirmed deletion of additions where repayments occurred through banking channels within the year and the AO produced no contrary proof. Issue 3 - Reliance on material seized from third party and necessity of cross-examination; scope of presumption under section 132(4A) Legal framework: Section 132(4A) enables presumption in respect of material seized from a person's possession, but such presumption applies to the person from whose possession the material was seized, not to unrelated third parties; use of seized material against others requires independent corroboration and fair opportunity to test such material. Precedent treatment: The Tribunal referred to authorities holding that additions cannot be based solely on papers recovered from third parties where those papers are not in the assessee's possession or handwriting, and where no cross-examination of the third party statements was afforded. Interpretation and reasoning: The Tribunal observed that the material relied upon by the AO emanated from a third person's premises; those loose papers did not belong to the assessee nor were they in the assessee's handwriting. Statements of the third party and connected persons had been retracted or did not corroborate the AO's case. The AO did not grant the assessee an opportunity to cross-examine the persons whose statements were relied upon. Consequently, the Tribunal held that reliance on such third-party material to make additions under section 68 was not permissible. Ratio vs. Obiter: Ratio - material seized from a third party cannot be the sole basis for addition against an assessee under section 68; the presumption under section 132(4A) is confined to the person from whose possession material was seized and cannot be indiscriminately applied to others absent corroborative evidence and opportunity for contestation. Conclusion: The AO's reliance on seized papers from a third party and on statements not tested by cross-examination was improper; additions based solely on such material were deleted. Issue 4 - Determination whether the creditor is a paper/shell/dummy company Legal framework: The characterization of a company as a paper/shell concern for tax purposes requires relevant and cogent evidence of absence of business, fictitious financials or sham identity; mere suspicion or linkage to searched persons is insufficient if company records, MCA status and audited accounts indicate active operations and financial substance. Precedent treatment: The Tribunal followed precedents that require objective assessment of audited financial statements, listing status and corporate records before branding a company as a paper/shell entity for disallowing claimed credits under section 68. Interpretation and reasoning: The Tribunal scrutinized the creditor's audited financials, MCA status (showing 'ACTIVE'), listing information, substantial share capital, reserves, revenues and profits across years. On that basis, the Tribunal found that the AO's conclusion of a paper/shell company was contrary to the documentary evidence and unsupported by enquiry or disproof. Ratio vs. Obiter: Ratio - a creditor cannot be declared a paper/shell company merely by association with searched persons; objective financial and statutory records must be considered and rebutted by the Revenue before treating credits as unexplained. Conclusion: The creditor company could not be treated as a paper/shell company on the facts; the AO's finding was overturned and additions deleted. Issue 5 - Applicability of departmental low-tax-effect withdrawal (CBDT Circular) to appeals involving alleged accommodation entries Legal framework: Departmental circulars on withdrawal of low tax effect appeals exclude exceptional categories such as organized tax evasion and accommodation entries, which remain within the Revenue's appellate ambit. Precedent treatment: The Tribunal applied the circular's exception for accommodation entries. Interpretation and reasoning: Revenue's representative confirmed that the appeals concern accommodation entries and thus fall within the exception; the Tribunal rejected the assessee's request for withdrawal on grounds of low tax effect. Ratio vs. Obiter: Obiter - administrative guidance governs withdrawal policy; factual classification of cases as accommodation entries excludes them from low-tax withdrawal. This determination did not affect the substantive deletion of additions. Conclusion: The appeals were not withdrawn under the circular's low-tax regime because they fell within the exception for accommodation entries; notwithstanding that, the Tribunal found the Revenue's substantive grounds without merit and dismissed the appeals.