TaxTMI 
TaxTMI 
2019 (12) TMI 1158
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....f alleged unsecured loan of Rs. 10,65,32,302/- substantiating the creditworthiness and genuineness of the transaction in original assessment proceedings and also in remand proceedings. 3.That on the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition of a sum of Rs. 33,70,549/- u/s 14A read with Rule 8D ignoring the essence of CBDT's Circular No. 5/2014 dated 11.02.2014. 4.That the appellant craves for leave to add, delete, amend or modify any ground before or at the time of appellate proceedings." The grounds of appeal raised by the revenue for the Assessment Year 2013-14 read as under:- "1. That on the facts and in circumstances of the case and in law, the Ld. CIT(A) has erred in deleting a sum of Rs. 1,42,95,699/- representing the alleged amounts received by the assessee as inter-corporate deposit. 2.That on the facts and in the circumstance of the case and in law, the Ld. CIT(A) has erred in appreciating the facts that the assessee failed to file any details or documents as regard to receipt of alleged deposits of Rs. 1,42,95,699/- in original assessment proceedings and also in remand proceedings. 3.Tha....
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.... In the said letter, he had also directed the assessee company to produce the Directors of the lender companies along with the relevant books of accounts/documents to prove the identity, genuineness and creditworthiness of the loan given by them during the relevant Financial Year. According to the Assessing Officer, there was no compliance on the part of the assessee on the date on which the case was listed for hearing i.e., 09/03/2015. Thereafter, the Assessing Officer notes that the assessee had shown unsecured loan (according to the ld. A/R, wrong figure of closing balance of loan as on 31/03/2012) as Rs. 10,71,51,675/-, taken from 13 (thirteen) corporates. The Assessing Officer noted that assessee had filed the list of lenders, on perusal of which, he noted that Rs. 10,65,32,302/- has been credited to the books of the assessee during the previous year. Thereafter, the Assessing Officer notes that summons u/s 131 of the Act, was issued to the Director of the assessee company to verify the genuinity of the loan transactions, however it could not be served upon the assesses because the postal authorities reported back that at the given address, no company was there. So, according ....
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....ng to the assessee it was clearly demonstrated before the Assessing Officer that all the payments/borrowings were made by account payee cheques drawn on their respective bankers showing genuineness of the transactions. According to assessee, by filing the Income-Tax Return acknowledgements of the lenders, it was able to demonstrate before the Assessing Officer that all the lenders were regularly assessed to Income-Tax Department and the sum lent by them to the assessee has been duly and fully reflected in their respective books of accounts as well as reflected in their bank records and thus their identity stands proved. Further, according to the assessee, by filing the lenders' source of funds [certificate for the amount lent by them to the assessee] the lenders' creditworthiness also stands established. Moreover, the genuineness of the transaction cannot be doubted because tax was deducted at source by the assessee while interest was paid to the lenders on the amount of loan taken by it. It was pointed out to us that since the address of the lender companies were furnished before the Assessing Officer, he could have independently verified the veracity of the aforesaid facts. So, a....
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....ance Pvt. Ltd PAN:AACCM1042R -- 3000000 264082 26408 -- 3237674 Bal. remains 3. Maharaja Vanijya Pvt. Ltd PAN:AAFCM3843B -- 50,00,000 429041 42904 -- 5386137 Repaid as on 31.3.19 4. Kokila Exports Pvt. Ltd PAN:AABCK1178K -- 1,05,00000 552699 55270 -- 10997429 Repaid as on 31.3.14 5. Hexagon Commerce Pvt. Ltd PAN: AAACH6742D 16745422 -- 69534 6953 15500000 808003 Repaid as on 31.3.19 6 K.B.Switchger Pvt. Ltd PAN:AABCK2162K -- 30000000 81370 8137 -- 30073233 Repaid as on 31.3.19 7. Dhoot Industrial & Investment Co. Pvt. Ltd PAN: AABCD1808R -- 7500000 9247 925 -- 7508322 Repaid as on 31.3.19 8. Nidhi Agro Pvt. Ltd. PAN:AAACN8759L 11294433 549370 54937 36988866 -- Repaid as on 31.3.12 9 Shree Sudarshan Castings Pvt. Ltd PAN:AADCS9429B -- 10000000 209589 20959 10188630 188630 Repaid as on 31.3.12 10 Dufflaghar Investment Pvt. Ltd PAN:AAACD9587C -- 30000000 867946 86795 -- 30781151 Repaid as on 31.3.14 11. Midnight Agencies Pvt. Ltd PAN:AABCM6864G -- 5000000 121918 12192 -- 5109726 Bal. remains 12 Blackberry Goods Pvt. Ltd PAN:AADCB5112A -- 13250000 -- -- -- 13250000 Repaid....
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....identity, creditworthiness and genuineness of the transactions between the assessee and the 12 (twelve) lender companies:- i)Copy of the return filing acknowledgement along with computation of income and audited accounts of the assessee for AY 2012-13. (Pg.17-28 of the Paper Book) ii)Copy of the notice dated 3-06-2014 and 02-02-2015 issued by the AO during assessment proceedings. (Pg.29-31 of the Paper Book) iii)Copy of the reply dated 15-07-2014, 02-02-2015, 10-02-2015 and 23-03-2015 filed by the assessee before the Assessing Officer (Pg.32-38 of the Paper Book) iv)Copy of the certificate of incorporation of the assessee company. (Pg.39 of the Paper Book) v) Copy of the summary of the compliance made before the AO by the assessee. (Pg. 40 of the Paper Book) vi) Details of the short term borrowings as on 31-03-2012. (Pg. 41 of the Paper Book) vii)Copy of the relevant bank statement of the assessee highlighting the loan received. (Pg.42-47 of the Paper Book) viii)Copy of the return filing acknowledgement & audited accounts for AY 2012-13 of loan creditor party namely Deepak Pens & Plastics Pvt. Ltd., along with copy of relevant bank statem....
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....n of accounts for AY 2012-13 and copy of the ledger accounts for the period 01-04-2011 to 31-03-2019 and letter filed before the AO by the party submitting the details.(Pg. 191-225 of the Paper Book) xv)Copy of the return filing acknowledgement & audited accounts for AY 2012-13 of loan creditor party namely Nidhi Agro Pvt. Ltd., along with copy of relevant bank statement reflecting the loan along with confirmation of accounts for AY 2012-13 and copy of the ledger accounts for the period 01-04-2011 to 31-032012. (Pg.226-243 of the Paper Book) xvi)Copy of the return filing acknowledgement & audited accounts for AY 2012-13 of loan creditor party namely Shree Sudarshan Casting Pvt. Ltd., along with copy of relevant bank statement reflecting the loan along with confirmation of accounts for AY 2012-13 and copy of the ledger accounts for the period 01-042011 to 31-03-2012. (Pg.244-264 of the Paper Book) xvii)Copy of the audited accounts for AY 2012-13 of loan creditor party namely Dufflaghar Investment Pvt. Ltd., along with confirmation of accounts for AY 2012-13 and copy of the ledger accounts for the period 01-04-2011 to 31-032014. (Pg.265-286 of the Paper Book) xviii) &nbs....
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.... for the period 01-042012 to 31-03-2019. (Pg. 61-76 of the Paper Book) ix)Copy of the return filing acknowledgement & audited accounts for AY 2013-14 of loan creditor party namely Ishphan Real Estates Pvt. Ltd along with copy of relevant bank statement reflecting the loan along with confirmation of accounts for AY 2013-14 and copy of the ledger accounts for the period 01-04-2011 to 31 03-2015. (Pg.77-126 of the Paper Book) x)Copy of the return filing acknowledgement, computation of income & audited accounts for AY 2013-14 of loan creditor party namely Mega Energy Pvt. Ltd., along with copy of relevant bank statement reflecting the loan along with confirmation of accounts for AY 2013-14 and copy of the ledger accounts for the period 01-04-2012 to 31-03-2014. (Pg. 144-154 of the Paper Book) xi)Copy of the return filing acknowledgement & audited accounts for AY 2013-14 of loan creditor party namely Rudra Goods Pvt. Ltd., along with copy of relevant bank statement reflecting the loan along with confirmation of accounts for AY 2013-14 and copy of the ledger accounts for the period 01-04-2012 to 31-03-2019. (Pg. 155-170 of the Paper Book) xii....
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....bank statements evidencing payments of the above sum to the assessee were also filed. The ld. CIT(A) has taken note that the assessee also has submitted its own bank statement evidencing the receipt of the said sum in his accounts and all the payments were made through account payee cheques drawn on their respective bankers. Since the 12 (twelve) companies are body corporates and were registered companies with the Registrar of Companies (RoC). The RoC has granted valid certificates of incorporation which proved their identity. The tax returns filed by them as well as PAN details, support their identity. The transactions happened through proper banking channels, show the genuineness of the transactions. The assessee had filed the financial statements of the lender companies which goes on to show that all the loan creditors had possessed sufficient capital and reserves out of which loan amounts were paid through account payee cheques. Since the net owned funds of each lender company were several times more than the loan amount given to the assessee and the assessee had paid interest after deducting the requisite TDS on interest to these lender companies and when the loans were repaid....
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....f the assessee of that previous year. In this case the legislative mandate is not in terms of the words 'shall' be charged to income-tax as the income of the assessee of that previous year". The Supreme Court while interpreting similar phraseology used in section 69 has held that in creating the legal fiction the phraseology employs the word "may" and not "shall". Thus the un-satisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1999] 237 ITR 570. We note that against the said decision of Hon'ble Gujarat High Court the special leave petition filed by the Revenue has also been dismissed by the Hon'ble Apex Court. 18.The main plank on which the AO made the addition was because the directors of the assessee company did not turn up before him and as discussed at para 13 supra. In such a case the Hon'ble Apex Court in the case of Orissa Corpn. (P) Ltd. (supra) 159 ITR 78 and the Hon'ble Gujarat High Court, in the case of Dy. CIT v. Rohini Builders [2002] 256 ITR 360 /[2003] 127 Taxman 523 ....
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.... Act which says that a person can be required to prove only such facts which are in his knowledge. The Hon'ble Court in the said case held that, once it is found that an assessee has actually taken money from depositor/lender who has been fully identified, the assessee/borrower cannot be called upon to explain, much less prove the affairs of such third party, which he is not even supposed to know or about which he cannot be held to be accredited with any knowledge. In this view, the Hon'ble Court has laid down that section 68 of Income-tax Act, should be read along with section 106 of Evidence Act. The relevant observations at page 260 to 262, 264 and 265 of the order are reproduced herein below:- "While interpreting the meaning and scope of section 68, one has to bear in mind that normally, interpretation of a statute shall be general, in nature, subject only to such exceptions as may be logically permitted by the statute itself or by some other law connected therewith or relevant thereto. Keeping in view these fundamentals of interpretation of statutes, when we read carefully the provisions of section 68, we notice nothing in section 68 to show that the scope of t....
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.... then the interpretation of section 68 has to be in such a way that it does not make section 106 redundant. Hence, the harmonious construction of section 106 of the Evidence Act and section 68 of the Income- tax Act will be that though apart from establishing the identity of the creditor, the assessee must establish the genuineness of the transaction as well as the creditworthiness of his creditor, the burden of the assessee to prove the genuineness of the transactions as well as the creditworthiness of the creditor must remain confined to the transactions, which have taken place between the assessee and the creditor. What follows, as a corollary, is that it is not the burden of the assessee to prove the genuineness of the transactions between his creditor and sub-creditors nor is it the burden of the assessee to prove that the sub-creditor had the creditworthiness to advance the cash credit to the creditor from whom the cash credit has been. eventually, received by the assessee. It, therefore, further logically follows that the creditor's creditworthiness has to be Judged vis-a-vis the transactions, which have taken place between the assessee and the creditor, and it is not th....
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....rcumstantial, to show that the amount which has been advanced by the sub-creditor to the creditor, had actually been received by the sub-creditor from the assessee ...." ********** "Keeping in view the above position of law, when we turn to the factual matrix of the present case, we find that so far as the appellant is concerned, he has established the identity of the creditors, namely, Nemichand Nahata and Sons (HUF) and Pawan Kumar Agarwalla. The appellant had also shown, in accordance with the burden, which rested on him under section 106 of the Evidence Act, that the said amounts had been received by him by way of cheques from the creditors aforementioned. In fact the fact that the assessee had received the said amounts by way of cheques was not in dispute. Once the assessee had established that he had received the said amounts from the creditors aforementioned by way of cheques, the assessee must be taken to have proved that the creditor had the creditworthiness to advance the loans. Thereafter the burden had shifted to the Assessing Officer to prove the contrary. On mere failure on the part of the creditors to show that their sub-creditors had creditworthine....
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....ot satisfactory, the Assessing Officer can disbelieve the alleged transaction of loan. But the law is equally settled that if the initial burden is discharged by the assessee by producing sufficient materials in support of the loan transaction, the onus shifts upon the Assessing Officer and after verification, he can call for further explanation from the assessee and in the process, the onus may again shift from the Assessing Officer to assessee. 16. In the case before us, the appellant by producing the loan-confirmation-certificates signed by the creditors, disclosing their permanent account numbers and address and further indicating that the loan was taken by account payee cheques, no doubt, prima facie, discharged the initial burden and those materials disclosed by the assessee prompted the Assessing Officer to enquire through the Inspector to verify the statements." 22.In a case where the issue was whether the assessee availed cash credit as against future sale of product, the AO issued summons to the creditors who did not turn up before him, so AO disbelieved the existence of creditors and saddled the addition, which was overturned by Ld. CIT(A). However, ....
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....returned unserved and no one came forward to prove. Therefore, it shall be assumed that the assessee failed to prove the existence of the creditors or for that matter the creditworthiness. As rightly pointed out by the learned counsel that the Commissioner of Income-tax (Appeals) has taken the trouble of examining of all other materials and documents, viz., confirmatory statements, invoices, challans and vouchers showing supply of bidis as against the advance. Therefore, the attendance of the witnesses pursuant to the summons issued, in our view, is not important. The important is to prove as to whether the said cash credit was received as against the future sale of the product of the assessee or not. When it was found by the Commissioner of Incometax (Appeals) on facts having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this -fact finding. Indeed the Tribunal did not really touch the aforesaid fact finding of the Commissioner of Income-tax (Appeals) as rightly pointed out by the learned counsel. The Supreme Court has already stated as to what should be the duty of the learned Tribunal to decide in this si....
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....oss account of the creditor when admittedly the creditor himself is an income tax assessee. After getting the PAN number and getting the information that the creditor is assessed under the Act, the Assessing officer should enquire from the Assessing Officer of the creditor as to the genuineness" of the transaction and whether such transaction has been accepted by the Assessing officer of the creditor but instead of adopting such course, the Assessing officer himself could not enter into the return of the creditor and brand the same as unworthy of credence. So long it is not established that the return submitted by the creditor has been rejected by its Assessing Officer, the Assessing officer of the assessee is bound to accept the same as genuine when the identity of the creditor and the genuineness" of transaction through account payee cheque has been established. We find that both the Commissioner of Income Tax (Appeal) and the Tribunal below followed the well-accepted principle which are required to be followed in considering the effect of Section 68 of the Act and we thus find no reason to interfere with the concurrent findings of fact recorded by both the author....
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....e required to be applied in the facts of the present case and, thus, we do not find any reason to interfere with the concurrent findings of fact based on materials on record. The appeal is, thus, devoid of any substance and is dismissed summarily as it does not involve any substantial question of law. 25. In the light of the aforesaid decisions of the Hon'ble Apex and jurisdiction High court and other High Courts let us examine the present case in hand. We will examine each lender companies which has given loan/advance to assessee. The Ld. AR took pains to bring out the relevant facts in respect of each lender companies for both the assessment years which will throw light as to the identity, creditworthiness and genuineness of the lender companies. For AY 2012-2013 (i)In respect of M/s. Deepak Pens and Plastic Pvt. Ltd., the Ld. AR drew our attention to pages 48 to 65 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 25,00,000/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before ITO, Kolkata and was having PAN AAACD9050G. Th....
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....he loan the appellant company paid interest after deducting TDS and the loan was repaid as on 31.3.2019 as per ledger account available at pages 102 to109 of the paper book. iv)In respect of Kokila Exports Pvt. Ltd., the Ld. AR drew our attention to pages 110 to 131 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 1,05,00,000/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before ITO, Ward 4(4), Kolkata and was having PAN AABCK1178K. This company was having a paid up capital with free reserves and surplus of Rs. 92,94,07,446/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the loans are also available from a perusal of the bank statement filed in the paper book. On the loan the appellant company paid interest after deducting TDS and the loan was repaid as on 31.3.2014 as per ledger account available at pages 129 to 131 of the paper book. v)In re....
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....On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the loans are also available from a perusal of the bank statement filed in the paper book. On the loan the appellant company paid interest after deducting TDS and the loan was repaid as on 31.3.2019 as per ledger available at pages 217 to 224 of the paper book. The company had also submitted reply to the AO of the appellant company and copy of the reply is available at page 225 of the paper book. viii)In respect of M/s. Nidhi Agro Pvt. Ltd., the Ld. AR drew our attention to pages 226 to 243 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 1,12,94,435/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before Central Circle- 31, Delhi and was having PAN AAACN8759L. This company was having a paid up capital with free reserves and surplus of Rs. 91,10,57,715/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that ....
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....Ld. AR drew our attention to pages 287 to 304 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 50,00,000/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before ITO, Ward 1(3), Kolkata, and was having PAN AABCM6864G. This company was having a paid up capital with free reserves and surplus of Rs. 23,99,99,314/- as on 31/03/2012. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the loans are also available from a perusal of the bank statement filed in the paper book. On the loan the appellant company paid interest after deducting TDS as per ledger available at page 304 of the paper book. xii)In respect of M/s. Blackberry Goods Pvt. Ltd., the Ld. AR drew our attention to pages 313 to 331 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 1,32,50,000/- to the appellant company. The loan was made by account payee cheque. This compa....
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....pany was having a paid up capital with free reserves and surplus of Rs. 35,47,13,529/- as on 31/03/2013. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the loans are also available from a perusal of the bank statement filed in the paper book. On the loan the appellant company paid interest after deducting TDS as per ledger available at pages 118-126 of the paper book and the loan was repaid as on 31-03-2019. iii)In respect of M/s. Ishphan Realstates Pvt. Ltd., the Ld. AR drew our attention to pages 127 to143 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 20,00,000/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before ITO, Ward 6(2), Kolkata and was having PAN AABCI3872L. This company was having a paid up capital with free reserves and surplus of Rs. 2,01,31,713/- as on 31/03/2013. The copy of the bank statement of the Company is duly available in the paper book. On e....
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.... 170 of the paper book. vi)In respect of M/s. Royalpet Traders Pvt. Ltd., the Ld. AR drew our attention to pages 171 194 of the paper book and the Balance sheet, from where we note that this company gave loan of a sum of Rs. 50,00,000/- to the appellant company. The loan was made by account payee cheque. This company duly filed its return of income before ITO, Ward, 4(1), Kolkata, and was having PAN AAFCR7873N. This company was having a paid up capital with free reserves and surplus of Rs. 14,92,01,336/- as on 31/03/2013. The copy of the bank statement of the Company is duly available in the paper book. On examination of the bank statement it is taken note that there is no deposit of cash. The details of source of funds from which this company had made the loans are also available from a perusal of the bank statement filed in the paper book. On the loan the appellant company paid interest and the loan was repaid as on 31.3.2014 as per ledger available at pages 193-194 of the paper book. Advances Received of Rs. 1,30,00,000/- (Departmental grounds no. 4-5) vii)In respect of M/s. Asish Finance Ltd., the Ld. AR drew our attention to pages 196 to 220 of the paper book a....
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....regard to the creditworthiness of the lenders, as we noted supra, these Companies are having capital in several crores of rupees and the investment made in the assessee company is only a small part of their capital. These transactions are also duly reflected in the balance sheets of the lenders, so creditworthiness is proved. Even if there was any doubt if any regarding the creditworthiness of the lenders was still subsisting, then AO should have made enquiries from the AO of the lender companies as held by Hon'ble jurisdictional High Court in CIT vs DATAWARE (supra) which has not been done, so no adverse view could have been drawn. Third ingredient is genuineness of the transactions, for which we note that the monies have been directly paid to the assessee company by account payee cheques out of sufficient bank balances available in their respective bank accounts. It will be evident from the paper book that the appellant has even demonstrated the source of money deposited into their bank accounts which in turn has been used by them to lend it to the assessee as loan. Hence the source of source of source is proved by the assessee in the instant case. The lending companies have conf....
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....AO to disprove the materials placed before him. Without doing so, the addition made by the AO is based on conjectures and surmises cannot be justified. In the facts and circumstances of the case as discussed above, no addition was warranted under Section 68 of the Act and consequently ground number 1 & 2 [AY 2012-13] and ground number 1 to 5 [AY 2013-14] of revenue stands dismissed. . 30.Ground no. 3 for AY 2012-13 and ground no. 8 for AY 2013-14 are regarding deletion of addition made by the AO u/s. 14A read with Rule 8D. At the outset itself, it has been brought to our notice that the Ld. CIT(A) has taken note that there was no exempt income earned by the assessee in both the assessment years before us. This fact that the assessee has not earned any exempt income for both the assessment years under consideration stands undisputed. Taking note of this fact, the Ld. CIT(A) has given relief to the assessee by deleting the disallowance made by AO u/s. 14A read with Rule 8D. This view has been endorsed by the Hon'ble Calcutta High Court in CIT Vs. Ashika Global Securities Ltd. in ITAT 100 of 2014, GA No.2122 of 2014 dated 11.06.2018, therefo....
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.... filed by the appellant before Ld. CIT(A), But the A.O. has not commented anything upon the merits of the case in such report. The AO has only objected that adequate opportunity was provided to the assessee in course of assessment proceedings therefore the assessee cannot take the plea in appellant proceedings that adequate opportunity was not provided to it in course of assessment proceedings, The AO was redirected to send the Remand Report after considering the merits of the case. Therefore in the Remand Report dated 11.10.2017 the AO has furnished another report. In this report also the AO has repeated the same allegation as mentioned in the original assessment order. However, the AO also mentioned that in respect of following issues i.e. (i) Unsecured Loan u/s 68 of Rs. 1,42,95,699/-, (ii) Advance received u/s 68 of Rs. 1,30,00,000/-& (iii) Trade payable u/s 68 of Rs. 16,20,000/- details were furnished in assessment proceedings but no address of parties were furnished. It is submitted that the Remand Report should be held to be factually incorrect in view of the specific submissions and evidences filed in course of assessment proceedings as well as appellate proceedings in the ....