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Income Tax Appellate Tribunal, “A”
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Revenue is directed against the order of ld.Commissioner of Income Tax(Appeals)-1, Aurangabad dated 07/08/2018 emanating from the Assessment Order under section 143(3)r.w.s 147 of the Income Tax Act 1961,(herein after referred as “the Act”) dated 28/12/2017 for the A.Y. 2011-12. The Revenue raised the following grounds of appeal: “1. The Ld. Commissioner of Income-tax (A)-I erred in passing the order both on the facts of the case and in law.
2. The Ld. Commissioner of Income-tax (A)-I erred in deleting the addition made by AO of Rs. 1,80,46,609/- u/s 68 of the Income- tax Act, 1961 by treating the advances as unexplained credits.
3. The Ld. Commissioner of Income-tax (A)-I erred in deleting addition made by the AO of Rs. 1,80,46,609/- u/s 68 of the Income- tax Act, 1961 without reasonable satisfaction of creditworthiness of creditor companies, whereas creditworthiness of creditor
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., companies was an essential prerequisite to accept such loan as genuine.
The Ld. Commissioner of Income-tax (A)-I erred in deleting the addition made by .the AO of Rs. 1,80,46,609/- u/s 68 of the Income-tax Act, 1961 whereas assessee company was unable to prove the creditworthiness of creditor companies in respect of such loan and also creditor companies were not approachable as they have already been struck off by ROC for non furnishing of audit reports, annual returns since incorporation in 1998.
5. The Ld. Commissioner of Income-tax (A)-I erredin deleting theaddition made by the AO of Rs. 1,80,46,609/- u/s 68 of theIncome-tax Act, 1961 whereas assessee company was unable to prove the creditworthiness of creditor companies in respect of such loans and also creditor companies did not file any Income-tax returns till date.
6. The order of the CIT(A) be vacated and order of the AO be restored.”
Brief facts are that F.Y.2010-11 is the first year of the Assessee company. The Assessee claimed to have borrowed following loans: Date Particulars Amount 25/1/2011 Fabrickart Furnishing Pvt Ltd 43,77,924/- 28/1/2011 Fabrickart Furnishing Pvt Ltd 8,50,000/- 26/2/2011 Fabrickart Furnishing Pvt Ltd 1,50,000/- 26/2/2011 Fabrickart Furnishing Pvt Ltd 20,00,000/- Total amount received from 73,77,924 Fabrickart Furnishing Pvt Ltd 21/09/2010 Hiem Textiles Pvt Ltd 50,000/- 27/01/2011 Hiem Textiles Pvt Ltd 15,75,000/- 28/01/2011 Hiem Textiles P Ltd 6,50,000/- 1/2/2011 Hiem Textiles P Ltd 15,00,000/- 1/2/2011 Hiem Textiles P Ltd 5,00,000/- 26/2/2011 Hiem Textiles P Ltd 22,00,000/- Total loan form Hiem Textiles P 64,75,000 Ltd 25/2/2011 Loomcraft Fabrics P Ltd 13,00,000/- 25/2/2011 Loomcraft Fabrics P Ltd 28,93,685/- Total Loan from Loomcraft 41,93,685 Fabrics P Ltd Total amount 1,80,46,609/-
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., 2.1 The Assessee explained during the assessment proceedings to the Assessing Officer that the above amounts were received as Advance for Land. However, no document related to land transaction like Agreement for Sale etc. were filed by the assessee. The Assessee filed copies of balance sheet of the lender companies. The Assessing Officer conducted inquiries with the Registrar of Companies (ROC) and learnt that these three lenders have never filed any Return before ROC as per Company Act. These three lenders have never filed any Income Tax Return. The Company Heim Textile P Ltd and Loomcraft Fabrics P Ltd were stuck off in ROC record . Fabricart Furnishing P ltd was under the process of Struck Off by ROC. All these three lendershave not carried out any activities since inception. The Assessing officer after elaborately discussing the various facts came to the conclusion that the impugned loan was not genuine. The AO concluded that the Assessee failed to establish creditworthiness of these so-called lenders and genuineness of the loans. Therefore, the AO added these impugned loans of Rs.1,80,46,609/-,u/s 68 of the Act.
The Assessee filed appeal before the Ld.Commissioner of Income Tax (Appeal). The Ld.Commissioner of Income Tax (A) decided the appeal in favour of the assessee. The relevant portion of the Ld.CIT(A)’s order is as under :
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd.,
“5.3 The remand report of the AO was also provided to the counsel of theappellant vide my letter No.ABD/CIT(A)/HRPL/2017-18/281 dated31.05.2017. In response, the appellant company vide letter dated23.06.2017 has raised various contentions/arguments which are placedon record. On careful consideration of the facts & circumstances of thepresent case, I am inclined to accept the arguments of the appellantcompany. Considering the remand report of the AO, it is clear that theappellant company has not only satisfactorily explained the sources ofcredit of Rs.2,64,31,847/- but also the source of the source i.e. sourcesof sub-creditors of the creditors. It is not in dispute that all the lendercompanies are assessed to tax i.e. M/s. Fabrikart Furnishings Pvt. Ltd.has PAN- AAACF8219P, M/s. Hieem Textiles Pvt. Ltd. has PAN- AABCH4541B and M/s. Loomcraft Fabrics Pvt. Ltd. has PAN- AAACL7236J. The requisite confirmations/ledger accounts of thecreditors have also been filed before the AO. Further the bankstatements of the lender companies have also been filed before the AO.It is not in dispute that advances in question have been receivedthrough banking channels. Nothing adverse has been noticed by theAO in respect of transactions through bank accounts. No cash wasfound deposited in the bank accounts of the lender companies so as toentailany adverse inference against them. The certified copies of balancesheets, audited financial statements and other documents for respectiveyears in respect of lender companies were also submitted to the AOduring the remand proceedings. In these facts & circumstances, it can't besaid that the appellant company has failed to prove the creditworthinessof the lender companies and genuineness of the transactions) The AOhas even gone to the extent of verifying the source of the source i.e.sub- creditors namely Sanjay Damodhar More, Synergy Fabrics Pvt. Ltd.and Shafeeq Ahmed of the creditors. Moreover these lender companieswere not dormant or their names were striken off during the year underreference i.e. FY 2011-12. If these lender companies had became dormantor were under the process of strike off in the later years, then it wouldnot affect the genuineness of the transactions in the year under referencewhen the lender companies were functional. The AO has raised doubtsabout the genuineness of money received by the lender companies fromShri Sanjay Damodhar More. It has been alleged that as per his statement,he had never entered into any transactions with M/s. FabrikartFurnishings Pvt. Ltd., Hiem Textiles Pvt. Ltd. and Loomcraft Fabrics Pvt.Ltd. On this basis, the AO has argued that in the balance sheet of M/s.Fabrikart Furnishings Pvt. Ltd., Hiem Textiles Pvt. Ltd. and LoomcraftFabrics Pvt. Ltd., the credit balance of Rs.35,00,000/- in the name of ShriSanjay Damodhar More was not genuine. On the contrary, a carefulperusal of the details of unsecured loans as mentioned by the AO onpages 2 & 3 of the assessment order would show that the appellantcompany had itself shown the receipts from Shri Sanjay Damodhar More& Shri
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., Kapil Patil in its books of account. For example in case of FabricartFurnishing Pvt. Ltd., the AO has himself mentioned that amount ofRs.11,00,000/- was received from More & Patil through cheque No.127367on 25.10.2011. Similarly in the case of Hiem Textiles Pvt. Ltd., the AO hashimself mentioned that amount of Rs.12,00,000/- was received from More& Paul through cheque No.127367 on 25.10.2011. In the case ofLoomcraft Fabrics Pvt. Ltd., the AO has himself mentioned that amount ofRs.12,00,000/- was received from More & Patil through cheque No.127367on 25.10.2011. The appellant company has itself shown receipts ofRs.35,00,000/- from Shri Sanjay Damodhar More & Shri Kapil Patil in itsbooks of account. However it has credited the amount in favour of M/s.Fabrikart Furnishings Pvt. Ltd., Hiem Textiles Pvt. Ltd. and LoomcraftFabrics Pvt. Ltd. through journal entries as originally land was proposedto be sold to these companies. Moreover the appellant company is notconcerned with the entries passed in the books of the lender companies.In fact, the AO had also recorded the statement of Shri Sanjay DamodharMore and he clarified that he along with Shri Kapil Patil had entered intoland transactions with the appellant company. Thus Shri SanjayDamodhar More has not denied the transactions with the appellantcompany i.e. advances against sale of land. The amount of Rs.35,00,000/-was received by the appellant company through banking channels. In viewof above facts, the contentions raised by the AO are devoid of merit andthese are therefore rejected.”
4. Aggrieved by the order of the Ld.CIT(A), the revenue filed appeal before this tribunal.
The Ld.AR has filed paper book. Ld.AR submitted that the assessee had filed confirmations issued by the lenders, Assessee also filed copies of the Balance sheets, loan was through Banking channel, thus the assessee has proved the Genuineness of loans, creditworthiness of the lenders. AR further submitted that non filling of Return of Income or Return before ROC does not have any impact on the impugned transactions. The AR heavily relied on the order of the Ld.CIT(A).
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd.,
The Ld.DR relied on the order of the AO. The Ld.DR vehemently submitted that these lender companies are not in existence, they had no business. The genuineness of the transaction has not been proved. Creditworthiness has not been proved.
We have heard both the parties, studied the record. It is an admitted fact that the Assessee company have claimed these as advances for land however no document related to land transaction was ever filed. Not only that the assessee has even not vaguely mentioned the location of the land. Thus, the assessee failed to establish that the amounts were advance for land. It is also an admitted fact that the lender companies have never filed any Return of Income, never filed any return as per Company Act before the ROC. In this background, the Assessee’s reliance on the so-called copies of the Balance sheet to substantiate the impugned loan is misplaced. Before us the Assessee has filed incomplete copies of the balance Sheets, these Balance Sheets were not having any schedules of Loans, Advances. In absence of schedules, one cannot ascertain the fact of impugned loans. Also, these balance sheets were signed by one CA with a rider “certified on the basis of books of accounts extracted subject to final Audit”. Thus, these so-called Balance Sheets are not proving anything. Till date the Assessee has not confirmed whether Final Audit was ever completed. These so-called Balance Sheets were claimed to have been certified on the basis of A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., Extracted books, it means the CA who certified these Balance Sheets have not seen the books. Therefore, these so-called Balance Sheets do not prove the impugned loan transactions.
7.1 It is also a fact that as per the P&L Account of all these three lenders, the Sale is Zero. Let’s analyze the incomplete B/S and P&L of these three impugned lenders which have been submitted by the AR for FY 2010-11. The FY 2009-10 figures are appearing in B/S, P&L of FY 2010-11.
Loomcraft Fabrikart Hiem Textile As on 31.3.11 31.3.10 31.3.11 31.3.10 31.3.11 31.3.10 Reserve & (5321) 0 (5825) 0 (6571) 0 Surplus Fixed Assets 0 0 0 0 0 0 Inventory 0 0 0 0 0 0 Debtors 0 0 0 0 0 0 Sale 0 0 0 0 0 0 Thus, there is no inventory, no Fixed Assets, no salesof these so-called Lenders.
7.2 The AR on specific query from the Bench submitted that these Loans are Outstanding even today. The AR submitted that following are the outstanding amounts as on date. Fabrikart Furnishing Pvt Ltd -- 68,85,764/- Hiem Textiles Pvt Ltd -- 71,52,125/- Loomcraft Fabrics Pvt Ltd -- 58,78,999/- No genuine loan will remain outstanding for such a long period when the so-called lenders are not in existence as companies.
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., 7.3 The Ld.CIT(A) has recorded an incorrect fact on page 8 of the order that “no cash was found deposited in the bank account of lender companies” .On perusal of the Bank Statement of Fabrikart Furnishing P ltd Account Number 01132000002247, it is observed that there is cash Deposit of Rs.8,50,000/- on 28/1/11 and then immediately amount transferred to the assessee. Similarly there are cash deposits on 7/9/2010,14/9/2010,21/9/2010.
7.4 Similarly in the Bank account of Hiem Textiles Pvt Ltd (Hiem) Account Number 01132000002141, there is cash deposit of Rs.6,50,000/- on 27/1/11 and on the same day transferred to the assessee. Both these bank statement shows Account Status as CLOSED.
7.5 Other entries in the bank accounts of these so-called lenders are deposits and immediately transfer to some entity. Thus, these entities are merely acting as conduit to transfer funds from one entity to another. It is nothing but “layering”.
7.6 The Ld.CIT(A) has also recorded incorrect fact on page 10 that “ there was no direct linkage between Synergy Fabrics Pvt Ltd and the appellant company . In fact Synergy Fabrics Pvt ltd had not lent any moneys to the appellant company”. The Ld.CIT(A) had failed to notice that the Assessee
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., has given Loan to Synergy Fabrics Pvt Ltd of Rs.1,14,96,609/- and to Mr.Shafeeq Ahemed Khan Rs.45,13,925/-.
7.7 Address of all these so-called Lenders is as under : Silk Mill Compound Silk Mill Colony Paithan Road, Aurangabad 431005. 7.8 All these so-called Lenders have issued a confirmation incidentally, on same date i.e. 23rd November 2017, but none of these confirmation letters have any Telephone Number mentioned for these so-called lender companies.
7.9 In this factual background we need to analyze the impugned transaction.
The Hon’ble SC has held in Principle CIT vs. NRA Iron and Steel Pvt. Ltd. Reported in (2019) 412 ITR 161 (SC) and held as follows:
“On the facts of the present case, clearly the Assessee Company- Respondent failed to discharge the onus required under Section 68 of the Act, the Assessing Officer was justified in adding back the amounts to the Assessee's income.”
7.10 It is a settled legal position that the onus of the assessee, of explaining nature and source of credit, does not get discharged merely by filing confirmatory letters, or demonstrating that the transactions are done through the banking channels or even by filing
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., the income tax assessment particulars. The genuineness of the transaction as a whole is thus a very important and critical factor in the examination of explanation of the assessee, as required under section 68 of the Act. In this case as discussed earlier the so-called Lenders have not got their books of account audited as no Audited Balance Sheet filed before AO / CIT(A) or this Tribunal. The Balance sheet filed before this tribunal is without any Schedules and it is with a rider. Hence the balance sheets do not prove the Genuineness of the transaction.
7.11 The Analysis of Bank statements have been discussed in earlier paras. These Bank statements clearly establishes that the so-called Lenders do not have any Creditworthiness, they are merely acting as a conduit in money transfers from one entity to another. This clearly, explains that the impugned transactions are not genuine. No normal business entity will have these kinds of layering.
7.12 It is also a fact that these three so-called lenders do not have their own sufficient capital at all to advance these impugned loans.
7.13 The Hiem Textiles Pvt Ltd was incorporated in 29/12/1998, the paid up capital was only Rs.2000/- till FY 2010-11 . There were no business activities since 1998. Coincidently Loomcraft Fabric Pvt Ltd., was also formed on 29/12/1998 with paid up capital of Rs.10,00,000/- and it also had no business activities for so many
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., years. Fabrikart Furnishing Pvt Ltd was also formed on 29/12/1998 with paid up capital of only Rs.2000/- and no business activities for so many years. Thus, how a company which has not done any business for around 12 years, which has paid up capital of only Rs.2000/-, will be able to advance a substantial loan without any Interest, without any documentation? Why such company, which has paid up capital of only Rs.2000/- and no business activity, will get a loan from some other companies, when these companies do not have any source to repay the loans? Obviously, answer to these questions, will be that these companies like Hiem, Fabrikart , will not be able to give any genuine loan. The company Loomcraft though have a paid up capital of Rs.10,00,000/- but the Reserve & Surplus is negative, impugned loan is much more than the paid up capital and it also had no business, so it is also not in a position to advance genuine loan. The appellant assessee tried to explain that these so-called lender companies had borrowed money from some other companies. The question to be answered is when these so-called lenders do not have any capacity to repay so called borrowed loan, when they do not have any creditworthiness , why some entity will givet hem loan to- be advanced to another entity. This itself explains that all these entities are engaged in circular transaction to create layering . These so called lenders are merely conduits. This explains that the transaction is not genuine.
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., 7.14 These lenders do not have any business transactions throughout the years. They have not filled any return of income for any years. They have not filed Return as per company act before ROC. These so-called lenders have never submitted any Audit report. No normal business entity will have these kinds of features. These features itself explains that these so-called lenders are mere name lenders and are not genuine. Therefore, the so-called transaction is also not genuine.
7.15 Also as mentioned earlier these loans are still outstanding, after so many years, after the companies have been struck off. When, we apply the law of human probability no entity will keep any loan outstanding for such a long time when the entities themselves have no finance of their own.
7.16 The Hon’ble Delhi High Court in the case of PCIT Vs. Bikram Singh IT APPEAL No.55 OF 2017, has held as under : Quote, “An analysis of the above facts shows that none of these four individuals have the financial strength to lend such huge sums of money to the Assessee, that too without any collateral security, without interest and without a loan agreement. The mere establishing of their identity and the fact that the amounts have been transferred through cheque payments, does not by itself mean that the transactions are genuine. The AO and the CIT (A) have rightly held that the identity, creditworthiness and the genuineness are all in doubt. Moreover, the Court notes that that these amounts have been advanced to the Assessee without any explanation as to their relationship with the Assessee, the reason for the payment of such huge amounts, as also whether any repayments have, in fact, been made. There are contradictions in the explanation given by the Assessee and the statements recorded by these four individuals,
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., which are irreconcilable. For example, in the case of Shri Ram Chander/Ram Charan, he had initially stated that he had given Rs.10,00,000/- out of the proceeds of sale of the land but thereafter it was claimed by him that the money had come from her sister Vidya. Such contradictions clearly render all these transactions dubious. The ITAT could not have, merely because the payments were through cheques, held that the transactions were genuine. The ITAT erred in simply accepting the explanation of the Assessee qua the four transactions. The ITAT, clearly, did not follow the binding precedent in Divine Leasing & Finance Ltd. (supra), which in no uncertain terms requires that the authorities are duty bound to investigate the creditworthiness of the creditors, subscribers and the genuineness of the transactions. Thus the ITAT did not merely give findings of fact but misapplied the law. Hence the authorities CIT v. S. Nelliappan [1967] 66 ITR 722 (SC), Orissa Corpn. Pvt. Ltd. (supra), Gun Nidhi Dalmia (supra) do not support the Assessee's case. The Assessee has failed to discharge his initial burden as the explanation given by the Assessee and the four individuals does not appear to be credible.
There is no dispute to the proposition that the source of the source need not be seen as held in Shiv Dhooti Pearls & Investment Ltd. (supra) and the other cases relied upon by the Assessee. The ITAT has erred in its approach towards dealing with the transactions and has incorrectly held that the Assessee has discharged his onus merely because the money was advanced through the banking channels. The ITAT has ignored all the contradictions and has ignored glaring circumstances such as Shri Amar Singh, not even being an Income- tax Assessee, in holding that the transactions are genuine and creditworthiness is established. The explanation for advancing the loans is clearly contradictory in respect of two of the creditors. To accept such explanations would in effect result in turning a blind eye as has been done by the ITAT, to transactions which clearly lacked bona fides. Thus, the ITAT's order is erroneous and contrary to law and is accordingly, set aside.
The transactions in the present appeal are yet another example of the constant use of the deception of loan entries to bring unaccounted money into banking channels. This device of loan entries continues to plague the legitimate economy of our country. As seen from the facts narrated above, the transactions herein clearly do not inspire confidence as being genuine and are shrouded in mystery, as to why the so-called creditors would lend such huge unsecured, interest free loans - that too without any agreement. In the absence of the same, the creditors fail the test of creditworthiness and the transactions fail the test of genuineness. The findings of the CIT (A) are upheld and the order of the ITAT dated 19th July, 2016 is set aside to the extent of the deletion of four entries. The deletions made in respect of the transactions of the Assessee with Shri Amar Singh, Shri Chandan
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd.,
Singh, Shri Ram Charan/Ram Chander and Smt. Sunita to the tune of Rs.50,00,000/-, Rs.1,10,00,000/-, Rs.10,00,000/- and Rs.98,00,000/-, respectively, are liable to be added back to the returned income of the Assessee for the relevant AY, under Section 68 of the Act.” Unquote. 7.17 The Hon’ble Bombay High Court in the case of CIT Vs. Sadiq Sheikh Tax Appeal Nos.18 and 19 of 2014 vide order dated 14/10/2020, has observed as under: “39. Even according to us, merely pointing out to a source and the source admitting that it has made the payments is not, sufficient to discharge the burden placed on the assessees by Section 68 of the said Act. If this were so, then, it would be sufficient for assessees, to simply persuade some credit- less person or entity to own up having made such huge payments and thereby evade payment of property tax on the specious plea that the Revenue, can always recover the tax from such credit- less source, if possible. To discharge the burden which section 68 casts upon assessees, at least some plausible explanation is required to be furnished, which must be backed by some reliable evidence. If the circumstances listed above are to be taken into consideration, then, it can hardly be said that the assessees in the present case, has discharged the burden which was cast upon it by section 68 of the said Act.” 7.18 When we apply the proposition of law laid down by the Hon’ble High Courts, on the facts of this case, it is clear that the impugned loan transaction is not genuine. The impugned lenders have no creditworthiness. As the Hon’ble Delhi High Court has observed (supra), this case is deception of loan entries. In the present case also there is no loan agreement, interest free loan outstanding for so many years, the transaction herein do not inspire Genuineness. Thus, the creditors fail the test of Creditworthiness and transaction fails the test of Genuineness. Therefore, we uphold the, addition
A.Y. 2011-12 M/s. Hassab Realty Pvt. Ltd., made by the Assessing Officer in the Assessment order u/s.68 of the Act.
In the result appeal of the Revenue is allowed.
Order pronounced in the open Court on 29th August, 2022.