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Income Tax Appellate Tribunal, MUMBAI ‘B’ BENCH, MUMBAI.
Before: Shri B.R. Baskaran (AM) & Shri Rahul Chaudhary (JM)
The Revenue has filed this appeal challenging the order dated 28.2.2019 passed by the learned CIT(A)-22, Mumbai and it relates to A.Y. 2012-13. The Revenue is aggrieved by the decision of the learned CIT(A) in deleting the addition of Rs. 4.11 crores made by the Assessing Officer under section 68 of the I.T. Act in respect of unsecured loan received by the assessee during the year under consideration.
The facts relating to the case are stated in brief. The assessee is a manufacturer and exporter of pharmaceutical products. The return of income filed by the assessee under consideration was processed under section 143(1) of the Act. Subsequently the Assessing Officer reopened the assessment by issuing notice under section 148 of the Act on 16.9.2016. The background for issuing notice under section 148 of the Act is that the Sales Tax Department shared information with the Income Tax Department about certain hawala dealers, who are involved in providing bogus accommodation 2 M/s. Minimed Laboratories Pvt. Ltd. entries/bogus loan accommodation entries. It was noticed that the assessee is also one of the beneficiary of the above said dealers and this information was shared by the ITO-14(1)(3), Mumbai with the Assessing Officer of the assessee. It was noticed that the assessee had availed bogus purchase/accommodation entries as detailed below :-
Sr. Name of the Hawala operator PAN Transaction No. Amount 1. Atharva Business Pvt. Ltd. (Faststone Trading (I) AAACF9430A 1,76,95,000 Pvt. Ltd.) 2. Josh trading Co. Pvt. Ltd. AACCJ4233H 40,30,000 3. Nakshatra Business Pvt. Ltd. (Hema Trading Co. AABCH4279G 23,00,000 Pvt. Ltd.) 4. Olive Overseas Pvt. Ltd. (Realgold Trading Co. Pvt. AACCR4512K 30,00,000 Ltd.) 5. Viraj Mercantile Pvt. Ltd. AADCV3852H 1,41,00,000 TOTAL 4,11,25,000
Based on the above said information the Assessing Officer issued notice under section 148 of the Act. We notice from the assessment order that the assessee was provided with the reasons for reopening of the case and the assessee also filed its objections for reopening. The Assessing Officer has disposed of the objection on 1.9.2017.
During the course of assessment proceedings, the assessee submitted before the assessing officer that the transactions mentioned in the table above are not related to the “purchases”, but are related to the loans taken from the above said parties. The assessee also furnished copies of confirmation letters, copies of income tax return filed by the above said parties, audited balance sheet of the above mentioned parties and copies of the ledger account of the assessee as appearing in the books of the above said parties in order discharge the responsibility placed upon it u/s 68 of the Act.
3 M/s. Minimed Laboratories Pvt. Ltd.
5. Accordingly, in order to verify the genuineness of the entries, the Assessing Officer issued notice under section 133(6) of the Act which were returned back unserved with the remark “left/not known”. When this fact was informed to the assessee, it furnished current address of the above said companies. Accordingly, the Assessing Officer issued another notice under section 133(6) of the Act to the above said parties and all of them responded by filing details like copies of ledger account, copies of relevant extract of the bank statement, copies of income tax returns, copies of audited balance sheet and profit and loss account. Subsequently the Assessing Officer issued summons to the above said parties and deputed his inspector to serve the same. However, the ward reported that no such parties are available in the above said address. The Assessing Officer noticed that the above said companies are associate concerns of Shri Praveen Kumar Jain, who has operated transactions of providing accommodation entries. By placing reliance on the statement of Shri Praveen Kumar Jain and also statement given by two other directors of the above said companies named Shri Nilesh Parmar and Shri Jitendra Chaudhary, the Assessing Officer took the view that the assessee has availed only accommodation entries by way of loan. Accordingly, he took the view that the bogus accommodation loans are liable to be assessed u/s 68 of the Act and the interest claimed thereon is liable to be disallowed. Accordingly, the Assessing Officer assessed the loan amount of Rs. 4.11 crores under section 68 of the Act and also disallowed interest expenditure of Rs. 12.17 lakhs relating to the above said loan.
5. In the appellate proceedings, the learned CIT(A) deleted the disallowance and addition and hence the Revenue has filed this appeal before us.
The Ld D.R, on the contrary, placed his reliance on the assessment order and submitted that the AO has made the addition, since there was credible information that the assessee has availed loans from entities 4 M/s. Minimed Laboratories Pvt. Ltd. providing accommodation entries. Accordingly, he submitted that the Ld CIT(A) was not justified in deleting the addition.
The ld A.R, on the contrary, submitted that the AO has made addition u/s 68 of the Act. The assessee has furnished all the details relating to unsecured loans availed by it and has thus discharged the onus placed upon it u/s 68 of the Act. Hence the AO was not justified in making addition u/s 68 of the Act. He further submitted that the AO has also issued notices u/s 133(6) of the Act and the above said parties have also duly replied by furnishing necessary documents. He submitted that the AO did not disprove the above said documents and hence there is no scope to disbelieve the submissions made by the assessee as well as by the creditors. The AO, however, confirmed the additions based on the statements given by Shri Praveen Kumar Jain and two others. He submitted that it is not shown that the assessee has been specifically implicated by them. In any case, the AO has not provided any opportunity of cross examining these parties before relying on their statements. Accordingly, the Ld A.R submitted that the addition was rightly deleted by Ld CIT(A) and his order does not call for any interference.
We heard the parties and perused the record. We notice that the Ld CIT(A) has incorporated the details of the unsecured loans as under:-
Sr. Name with PAN and Amount (Rs.) Documents Pg. No. Whether Status No. address furnished of PB Interest on MCA paid & website TDS made 1 Atharva Business P. Ltd. 1,76,95,000/- Confirmation 91 Yes (Faststone Trading 1. P. Ltd.) Active PAN: AAACF9430A Audited Accounts 92-711 Income Tax Return 90 Ledger A/c 112 5 M/s. Minimed Laboratories Pvt. Ltd. 2 Josh Trading P. Ltd. 40,30,000/- Confirmation 113 Yes Active PAN: AACCJ4233H Audited Accounts 115-132 Income Tax Return 114 Ledger A/c 133 3 Nakshatra Business P. 23,00,000/- Confirmation 164 Yes Active Ltd. (Hema Trading Co. P. Ltd.) PAN: AABCH4279H Audited Accounts 165-186 Income Tax Return 163 Ledger A/c 187 4 Olive Overseas P. Ltd. 45,00,000/- Confirmation 134 Yes Active (Realgold Trading P.Ltd.) PAN:AACCR4512K Audited Accounts 136-161 Income Tax Return 135 Ledger A/c 162 5 Viraj Mercantile P. Ltd. 1,41,00,000/- Confirmation 188 Yes Active PAN: AADCV3852H Audited Accounts 190-207 Income Tax Return 189 Ledger A/c 208 4,11,25,000/- A perusal of the above said details would show that the assessee has furnished all the details required for the purpose of discharging the initial onus placed upon it u/s 68 of the Act. Once the initial onus is placed upon the assessee, then the burden to disprove the same would shift to the shoulders of the assessing officer. We noticed that the AO has issued notices u/s 133(6) of the Act to the above said parties and they have also responded to the notices 6 M/s. Minimed Laboratories Pvt. Ltd. by furnishing the details that were called for. Though the AO has stated that the inspector of income tax could not find above said parties in the addresses given by them, the details of any of his report was not given to the assessee nor its explanation was called for. Hence no credence could be given to the so called report given by the Inspector. At the end, the AO has only placed reliance on the statements given by Praveen Kumar Jain and two others and those statements were also not confronted with the assessee.
We notice that the Ld CIT(A) has passed a detailed order while deleting the addition made by the AO by placing reliance on various case laws rendered on this subject. For the sake of convenience, we extract below the order passed by Ld CIT(A):- “5.3.4 From the bare perusal of the above section, it is evident that the said section can be invoked only in cases where a sum is found credited in the books of the appellant and the appellant offers no explanation or the explanation offered by him is not satisfactory in the opinion of the Assessing Officer, in respect of the nature and source of such credits. The emphasis is on nature and source. In the present case, on a perusal of the various documents and submissions, it is evident that the appellant has furnished documentation pertaining to the identity of the parties, the credit worthiness of the parties and the genuineness of the transactions i.e. the requirement as to the explanation of nature and source has been duly complied with by the appellant. A list of the party wise details is already reproduced in the earlier part of this order. Not only that, the AO had even issued notices u/s 133(6) of the Act to such parties and who have in turn replied to the said notices accepting the loan transactions with the appellant. In fact, the solid documentation as furnished by the appellant has neither been rebutted or refuted or in any way dislodged by the Assessing Officer by way of any counter, or contrary evidence. In fact, his own further enquiry reveal the transactions with the above parties were genuine. As such, it was grossly erroneous on the part of the AO to disregard the same and make an addition in the hands of the appellant. The various evidences furnished by the appellant are mentioned in the earlier part of this order and have been carefully perused and verified by me. On perusal of these documents, it is further revealed that all the parties who have given loans to the appellant are corporates whose status is active as per the Ministry of Corporate Affairs Website and who are regularly filing Income Tax Returns and are regular tax assessees. Further, even the interest paid to these parties has been subjected to TDS and for which has been produced by the appellant. As apparent from the order, the AO has merely relied on the statements of one Shri Pravin Kumar Jain and his related parties. However, as stated by the Learned Representative for the appellant, neither Shri Pravin Kumar Jain nor any other related parties has ever mentioned about meeting the appellant or 7 M/s. Minimed Laboratories Pvt. Ltd.
having personal knowledge of the Directors of the appellant. It was further argued, that even those statement have been retracted. It was further argued that no cross-examination of these parties was given by the AO to the Assessee. It is submitted by the appellant that it has been held in various cases that non-granting of cross-examination results in quashing of the entire order. It has been so held by the jurisdictional High Court in the case of H. R. Mehta v. Asst. CIT - Income Tax Appeal No.58 of 2001 that if cross-examination is not granted to the Assessee then the entire order gets vitiated and hence deserves to be quashed. A similar view is taken by Bombay High Court in the case of CIT v. Ashish International Income Tax Appeal 4299 of 2009. Further in the case of CIT v. Sunita Dhadda - D.B. Tax Appeal 197/ 2012 which has been affirmed by Honourable Supreme Court in the case of SLP (Civil) Diary No.9432 of 2018 it has been held that if the copy of the statement or seized material used against the assessee is not provided to the Assessee, the same cannot be used against the Assessee and such an assessment order based on such material must necessarily be quashed. Similar position in law has been explained by the Honourable Supreme Court in the case of Kishanchand Chellaram v. CIT 125 ITR 713. The appellant was not given any access to the material (reports, intimations, statement etc.) used against it. By withholding the said material, the AO has denied to the appellant an opportunity to refute the evidence by cross examining the witnesses, statements, if any made by whom, incriminated the appellant. In view of these facts, such statements could not have been relied on at all without any corroborative evidence. As such on this ground alone the addition made by the AO deserves to be deleted.
5.3.5 It is also submitted that the AO has merely doubted the genuineness of the loans taken by the appellant simply on the basis of statements of some parties as mentioned in assessment order. However, as stated earlier these could not be relied on. Even otherwise, I find force in the argument of the appellant that no addition could be made in the hands of the Appellant since the appellant has proved the satisfactory nature of the loan transaction and the onus had shifted to the AO. However, the AO has not proved otherwise than merely raising doubts on the said loans based on mere suspicion. In case the AO was not satisfied, he had the option of making enquiries from the alleged lenders by summoning them. In fact, the AO has issued Notices u/s. 133(6) and which were promptly replied by the parties in fact, the Assessing Officer’s enquiries resulted in further affirming the stand of the Appellant. On the contrary, the AO has not substantiated his presumption and doubt with any verifiable documents. The appellant relied on the following case laws :-
In the case of CIT v. Lovely Exports - (2008) 216 CTR 195 (SC) it has been held the onus cast on the Assessee is merely to explain the nature and source of the credits in order to fulfill the conditions laid down u/s 68. Once the Assessee has furnished these details and which in the opinion of the Assessing Officer (AO) are bogus then the right course for the Department is to proceed re-open the individual assessment of the respective shareholders in accordance with law. Further in the case of PCIT 8 M/s. Minimed Laboratories Pvt. Ltd.
V Paradise Inland Shipping P. Ltd.-255 Taxman 160 (SC) which affirmed the Judgment of the Bombay High Court in CIT vs Paradise Inland Shipping P. L Income Tax Appeal No. 66 of 2016 it has been held that the AO cannot make an addition u/s 68 merely on surmises especially when the Assessee has furnished various details and evidences including those in the form of Government records. The AO is not empowered to make an addition u/s 68 totally disregarding the said evidences and without raising even slightest doubt about the genuineness of the said documents. In fact the Hon'ble Supreme Court has in the case of CIT V. Orissa Corporation Ltd. 159 ITR 78 (SC) held that even if summons or notices u/s 133(6) are served on the party, but he does not appear before the AO, then the Assessee cannot be faulted for the same and no addition could be made in the hands of the assessee on the ground that the party has not appeared before the AO. Further it has been held in the case of CIT v. Creative World Telefilms (2011) 333 ITR 100 (Bombay) that if the Assessee has furnished detailed evidences in support of its claim and if the AO is not satisfied with the same then he cannot make an addition in the hands of the Assessee simply on the ground that notices issued by him u/s 133 (6) were returned unserved. In the present case, admittedly notices were served on the various parties and they even replied to the same accepting and acknowledging the transaction with the Appellant. The case of the Appellant is therefore on a much stronger footing. Further, the AO has any doubts about the said parties even after receiving replies from the said parties, he could have enforced their attendance by issuing summons which was not done. In fact in various decisions it has been held that Assessee cannot be penalized for failure of the AO to perform his duty if the Assessee has furnished all the basic details explaining and evidencing its claims [Refer CIT v. ARL Infratech Ltd. - (2017) 394 ITR 383 (Rajasthan), CIT v. Jalan Hardcoke - (2018) 95 Taxmann.com 330 (Rajasthan)]. Likewise in the case of CIT v. Gangeshwari Metal P. Ltd. - (2014) 361 ITR 10 (Delhi) it has been held that once the Assessee furnishes all the requisite details the AO cannot sit back with folded hands till the assessee exhausts all the evidence or material in his possession and then reject the claim of the Assessee on mere presumptions. In view of the law in this regard and considering the detailed evidences furnished by the Appellant which has not even been remotely disputed or refuted by the AO, the entire addition in respect of loans made by the AO deserves to be deleted. A similar view is also taken in the case of Komal Agrotech v. ITO in Income Tax Appeal No. 437/Hyd/2016 where on similar facts the addition is deleted by the Income Tax Appellate Tribunal.
5.3.6 Further, referring to decision of H.K. Pujara Builders (2018) v/s ACIT wherein ITAT Mumbai held that by providing all the information to the Assessing Officer the assessee has discharged the initial onus of proving genuineness of the transactions u/s 68 of the Act. Even the assessee requested Assessing Officer for issue of notices u/s 133(6) of the Act to the lenders to find out the genuineness of the transactions with the assessee. Therefore, once the initial onus is discharged by the assessee the burden shifts to the Revenue to disprove the claim of the assessee. We notice that all the loans were taken through banking channels and the repayments for the same was also made through 9 M/s. Minimed Laboratories Pvt. Ltd. banking channels. The Assessing Officer ignored the documentary evidences submitted by the assessee and has exclusively relied on statements of third party in making the addition. The ITAT Mumbai deleted the addition after considering the decision of Satish N.Doshi HUF vs ITO (Mumbai ITAT) ITA No 2329/Mum/2009 and decision of Shaf Broadcast Pvt Ltd v/s ACIT ITA No.1819/Mum/2012 and held that appellant has proved the identity, credit worthiness and genuineness of loans, then addition cannot be made.
5.3.7 Further, in the recent judgment of Shri Jafferali K.Rattonsey v/s DCIT reported in 5068/Mum/2009, the Mumbai Bench of the Income Tax Appellate Tribunal has also held that the mere statement of a person cannot be a deciding factor for rejecting the genuineness of the purchase of shares by the assessee specially when all other supporting evidences filed by the assessee were neither proved to be false or untrue The Hon'ble ITAT Mumbai in the case of ITO vis Anand Shelters Pvt Ltd (2012) 20 Taxmann.com 153 has enumerated certain principles which would be extremely useful in understanding the issue in hand. It has been stated in the said judgment that over the years, law regarding cash credits have evolved and has taken a definite shape. A few aspects of law u/s 68 can be enumerated.
Sec.68 can be invoked when there is a credit of amounts in the books maintained by the assessee, such credit is a sum of money during the previous year and either the assessee offers no explanation about the nature and source of such credits or the explanation by the assessee in the opinion of the AO is not satisfactory.
2. The opinion of the AO for not accepting the explanation offered by the assessee as not satisfactory is required to be formed objectively with reference to the material on record.
3. Courts are of the firm view that the evidence produced by the assessee cannot be brushed aside in a casual manner.
4. The onus of proof is not static. The initial burden lies on the assessee to establish the identity and the credit worthiness of the creditor as well as the genuineness of transaction.
The identity of creditors can be established by either furnishing their PANs or assessment orders. The genuineness of the transaction can be proved if it was shown that the money was received by Account Payee Cheque. Credit Worthiness of the lender can be established by attending circumstances.
5.3.8 Further, in case of Shree Ganesh Developers - (2018). The ITAT, Mumbai has deleted the addition u/s 68 by observing as under:
10 M/s. Minimed Laboratories Pvt. Ltd. 5.13 As far as the question of validity of the transaction done through M/s Duke Business P.Ltd (JPK Trading Pvt.Ltd, Casper Enterprises P.Ltd. (Ostwal Trading P.Ltd. and Sumukh Commercial Pvt.Ltd. (Capstown Mer.P.Ltd. are concerned, even if some of the transactions entered into by Shri Pravin Kumar Jain Group are found to be not genuine, it does not lead to the conclusion that all the transactions entered into by these brokers were bogus or non-genuine including the transactions related to the appellant. There is no evidence brought in the assessment order to prove the above conclusion, by the AO. The outcome of invested the care of Shot Pravin Kumar Jain, the conclusion drawn therein cannot be applied ipso factor to all other cases. Simply relying on the report and statement, the AO cannot conclude all transactions are accommodation entries.
5.3.9 Also, in case of M's Nityanand Industries Pvt. Ltd. -ITA No.4277/4278/M/2017 (2019), the ITAT Mumbai held that addition u/s 68 cannot be made when the assessee has provided all the information in order to prove identity, genuineness and credit worthiness of the party. The relevant paragraphs are reproduced hereinbelow :-
We have heard the rival submissions of both the parties and perused the material on record including the case laws cited by both the parts The undisputed facts are that assessee has raised money by way of share capital and share application money from 12 parties during the Financial year 2008-07 from Shri Pravin Kumar Jain group companies. A search conducted on the said group revealed that the salt group was engaged in providing hawala accommodation entries without any business. This was also confirmed by the directors during the recording of their statements during search. So the AO treated the entire money raised as bogus share capital and share application money just on the basis of statements of the directors of these companies it is also pertinent that the assessee's name was nowhere mentioned by the said entities during search to be beneficiaries of such entries During the course of assessment proceedings the assessee fed various evinces such as share application forms along with letters of acceptance, confirmation letters, copies of PAN numbers copies of ITR acknowledgment, balance sheets, profit and loss account master data of companies from MCA web copies of bank accounts to evidence the transactions through banking channels, copies of MA & AA and share certificates of all the companies. We further M/s. Nityanand Industries Pvt. Ltd. We find that all these transactions were entered into through banking channels and these companies are active on the website of Ministry of Corporate Affairs. Despite the filing all these information with the AO, he did not conducted any verification or investigation to dig out the truth but acted on the information supplied by the investigation wing The Ld CIT(A) considered the contentions of the assessee in detail and came to the conclusion that assessee has duly proved the genuineness, identity and creditworthiness of the 11 M/s. Minimed Laboratories Pvt. Ltd. parties by filing all the necessary evidences dung assessment proceedings. We further note that out of the 12 parties, 3 parties, Le M's Javda India Impex LM, Kush Hindustan Entertainment LM and Olive Overseas Pvt. LM (now known as Realpoky Trading Co. P. LX) were already considered by the Coordinate Bench of the Tribunal Hyderabad in the case of Ms. Komal Agrotech Pvt. Ltd. v. I.T.O. Hyderabad wherein the ITAT held that the addition made under section 68 is bad in law.
5.3.10 In view of the above detailed discussion made above and infacts and case laws cited on this subject the especially the jurisdictional case laws of the Hon'ble ITAT. Mumbai in the cases of M/s Shree Ganesh Developers & M/s Nityanand Industries Pvt.Ltd., wherein the additions made by the AO were deleted. In view of the above and respectfully following these decisions the addition made by the AO is not sustainable, therefore, the AO is directed to delete the addition made of Rs.4,11,25,000/- on account of unexplained unsecured loans and Rs. 12,17,370/-made on account interest on the same. These grounds of appeal are hereby allowed.”
10. For the detailed reasons mentioned in the order passed by Ld CIT(A) and also for the reasons discussed by us earlier, we are of the view that the Ld CIT(A) was justified in deleting the impugned addition made by the AO.
During the course of hearing, the Ld A.R also raised certain legal contentions challenging the validity of reopening of assessment under Rule 27 of Appellate Tribunal Rules. Since we have confirmed the order of Ld CIT(A) in deleting the addition on merits, we do not find it necessary to address the same, as the same would be rendered academic in nature.
In the result, the appeal filed by the revenue is dismissed. Pronounced in the open court on 22.2.2023.