2025 (9) TMI 1373 - AT - Income Tax

s.68 unexplained cash credits deletion to prevent double taxation where identical sums already assessed in related companies

ITAT (Delhi) allowed the taxpayer's appeal and dismissed the Revenue's appeal, holding the unexplained cash credits added under s.68 could not be taxed ... Unexplained cash credits u/s 68 - chain of transactions were sham and thus the capital introduction in the appellant company remained unexplained - CIT(A) deleted the addition on merit - Addition made in the hands of the assessee before us on the same amount of income which has already been added by the Revenue on two other companies - difference in opinion among AM and JM - Matter referred to third member Order as per JM - Once the addition is made in the hands of individual, the ITO will not be permitted to assess the HUF for the same Assessment Year otherwise, tax would be imposed on the same income twice over. In the case in hand before us, it is an undisputed fact that 3 cheques were issued amounting to Rs. 190 crores circulated amongst the 4 companies. As in the case of ITO vs Blessing Commercials Pvt Ltd [2017 (6) TMI 1284 - ITAT KOLKATA] has confirmed the addition made by the Assessing Officer and similarly in the case of ITO vs Sayaji Marketing Pvt. Limited [2018 (9) TMI 2167 - ITAT KOLKATA] the same has been confirmed by ITAT. The same amount again has been added in the hands of the assessee which is not permissible since tax cannot be levied twice. The addition, therefore, in the hands of the assessee be fore us on the same income, if at all, is not sustainable in the eyes of law which deserves to be deleted. Thus, we do not find any reason to interfere with the order passed by the Ld. CIT(A) in deleting the addition made by the A.O. against the assessee. Order as per AM - No fact has been furnished about the status of assessment in the case of M/s. Stephens Financial Services Pvt. Ltd. which invested share capital and share premium of Rs. 65 crores towards the share capital and premium in the hands of the assessee company. In this regard, the genuineness of transaction and the creditworthiness of M/s. Stephens Financial Services Pvt. Ltd. has to be established by the assessee company as required under Section 68 of the Act which has not done by the assessee company and, therefore, the addition received by the assessee company by M/s. Stephens Financial Services Pvt. Ltd. is not covered as a case of same income being taxed twice as per the provisions of Section 68 of the Act. Therefore, deletion in the case of assessee company on the ground of same income being taxed twice as held by my Ld. Sister is not justified and, therefore, I do not agree with her findings on the same. Finally, in view of the fact that the case was heard only on the issue of same income being taxed twice and not on merits of the addition as required in terms of Section 68 of the Act, therefore, the case may be refixed for fresh hearing on merits by giving notice to both the parties. Order as per Third member - Whether the same income can be taxed doubly? - In the given facts and principle laid down by Hon'ble Supreme Court in the case of Bachu Lal Kapoor [1965 (12) TMI 24 - SUPREME COURT] and Surya Agrotech Infrastructure Limited [2023 (9) TMI 391 - DELHI HIGH COURT] noted that the same income is already assessed and has become final at least up to the ITAT level in the case of Blessings Commercial Pvt.Ltd. and Sayaji Marketing Pvt.Ltd. and the matters are pending before Hon’ble High Court for adjudication of appeals under Section 260 of the Act as informed by the learned CIT-DR. I noted that this addition has been affirmed by the Tribunal in these two cases. However, in the case of third company i.e., Stephens Financial Services Pvt.Ltd., information is neither available before me nor in the earlier round before the Bench. Hence, that can be verified by the regular Bench while giving effect to this order. In terms of the above, agree with the decision of learned Judicial Member in holding that the same cannot be taxed twice in terms of the doctrine of double taxation as the Act does not envisage taxation of the same income twice over on one passage of money in the form of one sort of income. This will tantamount to double addition and hence, answered in the affirmative, in favour of the assessee and against the Revenue. in view of the observation made by the Hon’ble Vice President holding the view of double addition made in the hands of the assessee before us now known as M/s Kanti Commercials Pvt. Ltd. is not sustainable as the impugned addition has already been made in the hands of 2 other companies namely Blessing Commercial Pvt. Ltd., and Sayaji Marketing Pvt. Ltd. which is also applicable in the case of Stephen Financial Services Pvt. Ltd. as the same has already been added in the hands of the Stephen Financial Services Pvt. Ltd. by and under the Ld. AO’s order dated 25.03.2013, further confirmed by the Ld. CIT(A) dated 29.03.2018. Under these facts and circumstances of the matter, the ground of double addition made in the hands of the assessee is found to be acceptable, and the addition is therefore, deleted. Consequent to the opinion of the Ld. Third Member, appeal of the Revenue is dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether the addition of share capital and share premium under Section 68 of the Income-Tax Act, 1961 (the Act) amounting to Rs. 190 crores in the assessee's hands is sustainable where identical amounts have already been added in the hands of three other companies arising from the same chain of cheque endorsements (i.e., whether levying tax again would amount to double taxation). 2. Whether, in the event of disagreement among Bench members on the preliminary question of double taxation/maintainability, the appeal can proceed to decide the substantive merits under Section 68 without first resolving that preliminary question by a Third Member. ISSUE-WISE DETAILED ANALYSIS Issue 1: Legality of addition under Section 68 where identical amounts have been added in the hands of other entities (double taxation) Legal framework: Section 68 treats unexplained cash credits (including share application/allotment money) as taxable unless the assessee satisfactorily explains the nature and source. The general constitutional/legislative principle identified by higher courts prohibits taxation of the same income twice in respect of a single passage of money as one sort of income. Precedent treatment: The Court considered prior appellate and high court determinations in which (a) additions under Section 68 were confirmed against the subscribing companies on identical facts, and (b) other authoritative decisions holding that once a source of funds has been taxed (and that taxation is final), the same funds should not be taxed again in the hands of the recipient (doctrine of double taxation). The Bench examined multiple reported orders where tribunals/high courts applied these principles after factual scrutiny of identity, creditworthiness and genuineness of transactions. Interpretation and reasoning: The Judicial Member held that (i) the factual record showed the identical three crossed cheques of Rs. 65 cr, Rs. 60 cr and Rs. 65 cr circulated among four entities and that additions of the same amounts had been made and affirmed in the hands of two subscribing companies by coordinate Tribunals; (ii) the principle against taxing the same passage of money twice applies and, where the identical amount has already been added in the hands of the share applicants, further addition in the recipient's hands would amount to double taxation and is not permissible; and (iii) therefore the addition in the assessee's hands deserved deletion. The Judicial Member relied on the doctrine that appropriate revenue adjustments must be made to avoid double taxation where assessments on related parties/recipients overlap. Ratio versus obiter: Ratio - Where identical monies arising from the same single passage have been added as unexplained/unaccounted funds in the hands of subscribing companies and those additions have been affirmed, imposing an identical addition in the recipient's hands constitutes impermissible double taxation and is not sustainable under the Act. Obiter - Observations about the necessity of establishing 'source of source' or creditworthiness in other fact patterns (as discussed in other authorities) are explanatory but not the narrow ground for the present decision. Conclusions: The majority concluded that, on the facts before the Court (identical amounts added in the hands of the subscribing companies and those additions surviving), imposition of an identical addition in the assessee's hands would amount to double addition and therefore the addition under Section 68 must be deleted. The Third Member concurred with the Judicial Member's majority conclusion after reference. Issue 1 - Separate view (dissenting/contrary reasoning by the Accountant Member) Legal framework acknowledged: Same statutory provision (Section 68) and the general principle against double taxation as recognized by higher courts. Precedent treatment: The Accountant Member distinguished the high-court/tribunal decisions relied upon by the majority, noting those authorities turned on cumulative factual findings - particularly establishment of identity, creditworthiness and genuineness - and not solely on the double taxation argument. He also noted factual differences and pendency of appellate outcomes in the subscribing entities' matters. Interpretation and reasoning: The Accountant Member reasoned that (i) in the present record the genuineness and creditworthiness of one of the subscribing companies (Stephens) had not been established on the available material; (ii) the confirmed additions in the other two subscribing companies were not yet finally settled before the highest fora (appeals pending), so the double taxation argument could not be invoked as a free-standing bar; (iii) the statutory scheme permits protective or parallel additions where limitation or simultaneous proceedings explain why one assessment may be finalized earlier; and (iv) therefore the preliminary question of double taxation could not be treated as a definitive bar to deciding the substantive Section 68 issue; on that basis he would remit/retain the matter for adjudication on merits. Ratio versus obiter: Ratio (dissent) - Deletion on double taxation ground is not automatic where (a) the substantive issues of identity/creditworthiness/genuineness have not been finally adjudicated across all subscribing entities, or (b) factual divergence exists for a particular subscribing company; the Tribunal may instead direct fresh adjudication on merits. Obiter - Observations regarding the interplay of limitation, protective additions and set-off/adjustments are contextual commentary. Conclusions (dissent): The Accountant Member concluded the deletion on double taxation grounds was not justified at that stage and directed a fresh hearing on the merits; he would not endorse deletion solely on the double taxation plea given the factual and procedural distinctions. Issue 2: Whether the appeal can proceed on merits without resolving the preliminary maintainability/double taxation question by a Third Member Legal framework: Where a difference of opinion arises between judicial members of a Tribunal Bench on a point of law or fact, the matter may be referred to a Third Member to resolve the disagreement before the appeal proceeds to a conclusive order; the Bench must follow statutory/administrative referral procedure when required. Precedent treatment: The Bench followed the procedure for reference to a Third Member under the Tribunal's rules when members disagreed on the preliminary question; the Third Member was nominated to decide the specific question(s) of disagreement. Interpretation and reasoning: The Vice-President (Third Member) framed the referred questions and examined whether the double taxation preliminary question should be resolved before proceeding to merits. He concluded that the preliminary question was material and required resolution; accordingly, after examining the status of the subscribing companies' assessments (and finding that identical additions had been made and survived at appellate levels), he answered the preliminary question in favour of the assessee (i.e., it would be double addition) and held the matter need not proceed to merits. The Third Member thus resolved the disagreement and the majority opinion became dispositive. Ratio versus obiter: Ratio - Where members disagree on a preliminary maintainability issue that could be determinative (double taxation), the Bench must refer the question to a Third Member; the Third Member's resolution of that question governs whether adjudication on merits proceeds. Obiter - Procedural observations about timing, availability of records and the possibility of appropriate adjustments by revenue in certain scenarios are ancillary. Conclusions: The reference to, and decision by, the Third Member resolved the split; having answered the preliminary question in favour of deletion (double addition), the majority concluded the appeal should not be proceeded with on merits and the impugned addition under Section 68 was deleted. Cross-references and practical outcome Where an identical monetary addition arising from the same single passage of funds has already been made in the hands of subscribing entities and those additions survive on the record before the Tribunal, imposing the identical addition in the recipient's hands will amount to double addition and is unsustainable; however, factual distinctions (e.g., non-establishment of creditworthiness for a subscribing party or non-finality of related assessments) may justify a different approach, and those distinctions justify referral to a Third Member when Bench members differ.