2025 (11) TMI 569 - AT - Income Tax

Rs.5 crore unsecured loans held genuine; s.68 addition deleted, s.37 interest allowed, s.115BBE contention left undecided

Deputy Commissioner of Income Tax, Circle 4 (2), New Delhi. Versus Ms Commmunique Marketing Solutions (P) Ltd. And (Vice-Versa)

ITAT (Delhi) upheld the CIT(A)'s deletion of a Rs.5,00,00,000 addition under s.68 and the related disallowance of interest under s.37, finding the ... Addition u/s 68 - unaccounted credit received through unsecured loans from its own entities - HELD THAT:- Assessee paid interest @ 9% per annum to the lenders after deducting TDS on the payments. Entire loan taken from three parties was repaid in the succeeding financial years and no adverse action was taken by the Department against such repayments. The three lenders had sufficient net worth to grant loan of Rs. 5,00,00,000/- to the assessee. Therefore, the addition of Rs. 5,00,00,000/- under Section 68 of the Act and disallowance of interest under Section 37 of the Act were rightly deleted by the Ld. CIT(A). As such, in absence of any supporting evidence, the grounds of appeal by the Revenue being de void of merit are rejected. CIT(A) erred in not deciding grounds of appeal to the effect that section 115BBE of the Act was not applicable to the facts of case because all the credits were prior to Notification dated 15.12.2016 by which higher rate of tax was made applicable by represented cash credits under Section 68 of the Act. Ratio of judgment decided by the Hon’ble Apex Court in the case of Kasimtharuvi Tea Estate Ltd. Vs. State of Kerala [1965 (12) TMI 35 - SUPREME COURT] ISSUES PRESENTED AND CONSIDERED 1. Whether additions of Rs. 5,00,00,000 made under Section 68 (cash credits/unsecured loans) are sustainable where the assessee produced documents to establish identity, genuineness and creditworthiness of lenders and repayments were made subsequently through banking channels. 2. Whether disallowance of interest expenditure of Rs. 51,39,694 under Section 37 (alleged bogus interest on the above loans) is sustainable once the primary addition under Section 68 is deleted. 3. Whether the higher rate taxation provision in Section 115BBE (applying to income represented by cash credits under Section 68) is applicable to the credits in question given the dates of the transactions and the relevant notification/notification effective dates. 4. Ancillary legal question addressed in submissions: whether mis-recital or non-mentioning of an enabling provision in assessment proceedings vitiates the assessment (principle of substance over form / Section preserving validity despite clerical errors). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of addition under Section 68 for unsecured loans / cash credits Legal framework: Section 68 permits treating unexplained cash credits as the assessee's income where identity, genuineness or creditworthiness of the lender or source of funds is not satisfactorily explained. The onus is on the assessee to explain nature and source of such receipts; once identity/genuineness/creditworthiness and mode of payment (banking channel) are proved, the addition is not warranted and the department, if aggrieved, may proceed against the lender. Precedent treatment: The Court/Tribunal applied settled principles from prior authorities that (a) receipts through doubtless banking channels and proof of investor identity/creditworthiness tend to defeat an addition under Section 68; (b) where direct evidence of lender capacity exists, reliance on precedent holding to the contrary (where such proof was absent) is inapposite and facts must be distinguished; and (c) additions under Section 68 can be made even without rejection of books where deposits in bank accounts remain unexplained. Interpretation and reasoning: The Tribunal examined documentary proof provided for each lender: company master data, incorporation certificate, PAN/ITR acknowledgments, lenders' bank statements and financials, ledger confirmations, assessee's bank statements evidencing receipt and interest payments, and repayment in succeeding year(s). It noted payment of interest at 9% with TDS deduction, full repayment through banking channels in succeeding F.Y., absence of adverse departmental action against repayments, and sufficient net worth of lenders. The Tribunal applied the principle that where identity, genuineness and creditworthiness of lenders and banking channel receipts are established, the addition under Section 68 is unwarranted and the correct course for Revenue is to examine and, if necessary, proceed against lenders rather than impute income to the assessee on conjecture. Ratio vs. Obiter: The holding that the assessed additions under Section 68 were unwarranted on the facts before the Tribunal is ratio for the matter at hand (binding for the present dispute). The general observations distinguishing other precedents for lack of direct evidence in those cases are treated as explanatory reasoning (obiter) but used to justify the differentiation of factual matrices. Conclusion: Addition of Rs. 5,00,00,000 under Section 68 was deleted because the assessee satisfactorily established identity, genuineness and creditworthiness of lenders, payments and repayments were through banking channels, interest was paid with TDS and lenders had requisite net worth; therefore the AO's addition was unwarranted and set aside. Issue 2 - Disallowance of interest under Section 37 once principal addition under Section 68 is deleted Legal framework: Section 37 disallows business expenditure if shown to be bogus; however, interest payments legitimately made on genuine loans are allowable. Disallowance predicated on the loans being bogus collapses if loans themselves are held genuine. Precedent treatment: The Tribunal followed the logical and established approach that interest disallowance for being bogus is consequential on the characterization of the underlying loan; deletion of the loan addition removes the foundation for treating interest payments as bogus. Interpretation and reasoning: Because the Tribunal concluded that the unsecured loans were genuine and properly evidenced, interest paid on such loans (with TDS) cannot be characterized as bogus expenditure. Consequently, the AO's disallowance was reversed as consequential to deletion of the Section 68 addition. Ratio vs. Obiter: The reversal of interest disallowance is ratio in the present appeal (consequential and necessary to final disposition). Conclusion: Disallowance of interest of Rs. 51,39,694 under Section 37 was deleted consequent to deletion of the Section 68 addition. Issue 3 - Applicability of higher tax under Section 115BBE to the impugned credits (timing of notification / effective dates) Legal framework: Section 115BBE applies a higher rate of tax to income represented by cash credits under Section 68 as amended; applicability depends on the effective date of the amendment/notification and the dates of the underlying transactions/credits. Precedent treatment: The Tribunal invoked principles on construction of taxing statutes and temporal application of amendments/notifications; it referred to ratio in an earlier apex decision (Kasimtharuvi Tea Estate principle) concerning temporal effect and retrospective/non-retrospective operation of tax notifications and statutes. Interpretation and reasoning: The Tribunal observed that the CIT(A) omitted adjudication of the ground asserting non-applicability of amended Section 115BBE because the credits predated the relevant notification (15.12.2016/notification dated 18.12.2016 and the 01.04.2016 reference in submissions). Applying the cited ratio on temporal effect, the Tribunal concluded that the higher rate provision did not apply to the credits that arose prior to the relevant notification/effective date and therefore the cross-objection raising this point succeeded. Ratio vs. Obiter: The conclusion that Section 115BBE was not applicable to the credits in question given their timing is ratio as accepted by the Tribunal for the cross-objection. Conclusion: The Tribunal accepted the cross-objection on this point and held that Section 115BBE (higher rate on cash credits) was not applicable to the credits which anteceded the relevant notification/effective date. Issue 4 - Effect of mis-recital or wrong/omitted reference to legal provisions in assessment proceedings Legal framework: Provision preserving validity of assessments despite clerical mistakes prevents invalidation of proceedings solely because of non-mentioning or wrong citation of a legal provision; principle of substance over form applies where proceedings are otherwise valid. Precedent treatment: The Tribunal noted authorities holding that wrong quotation/non-mention of a Section is not fatal to proceedings and that assessments may not be invalidated solely on such grounds; the Tribunal emphasized the need to read judgments in factual context and not apply precedents without distinguishing facts. Interpretation and reasoning: Submissions raising this principle were acknowledged; the Tribunal treated the principle as supporting the view that technical recitals do not automatically vitiate otherwise valid proceedings, but the Court's ultimate decision rested on substantive proof of identity/genuineness/creditworthiness and timing of transactions rather than on any purely formal infirmity. Ratio vs. Obiter: Observations on the non-fatality of mis-recital are explanatory (obiter) in the context of this judgment, cited to counter arguments that procedural misstatements should invalidate the AO's action. Conclusion: Clerical errors in citing statutory provisions do not automatically invalidate assessment proceedings; however, here the outcome turned on substantive evidentiary findings and temporal construction of the taxing provision.