TARA CONSTRUCTIONS ,PUNE vs. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-5, PUNE

आदेश / ORDER

PER DR. MANISH BORAD, ACCOUNTANT MEMBER :

This appeal filed by the assessee is directed against the order dated 18.01.2024 passed by the National Faceless Appeal Centre, Delhi [in short ‘NFAC’) arising out of the Assessment order passed u/s.143(3) r.w.s.144B of the Act, dated 15.05.2021.

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4(a). Based on the information/submissions made by the assessee, the Assessing Officer (AO) noticed that assessee is in receipt of huge unsecured loans. The AO thereafter issued notice u/s.142(1) calling upon the assessee to submit the documentary evidences relating to the unsecured loans, bank statements for the loan transactions, identity and creditworthiness of the loan creditors. In compliance, the assessee submitted ledger confirmations, ITR acknowledgement, computations, bank statements etc. The AO based on the details submitted by the assessee, observed that the assessee is paying interest to all other parties @6 to 10% whereas it is paying interest to some parties @12% or as high as 18%. The AO issued notices u/s.133(6) to some of the parties to ascertain the genuineness and creditworthiness of the loan creditors to which the parties submitted their sources. The AO opined that most of the loan creditors getting higher interest are family members/relatives of partners of the firm and the source of the loans granted to the firm is mainly from the gifts given to them by partners. Though the assessee provided the partition deed, ITR acknowledgement, income

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computation, bank statements etc. about the unsecured loans received from the parties, but ld. AO was not satisfied. The details of the loan creditors have been tabulated at page 4 of the assessment order. The AO noticed that the alleged gifts were received by them from relatives and on the very same day the amounts were transferred to the assessee firm in the form of unsecured loans. This raised suspicion for the AO about the creditworthiness and genuineness of the alleged loans and found them to be rotation of funds and sham transactions to introduce the unaccounted income and to claim higher expenditure. Not convinced with the explanation/ submissions provided by the assessee, the AO made addition of Rs.14,76,91,876/- as unexplained income of assessee u/s.68 of the Act by observing as under:

“5.8 Therefore, the assessee has clearly introduced money in the business using a sham transaction where money is being circulated before being introduced in the business to evade tax liability. These transactions failed to pass the test of genuineness as required in various judicial precedents. Thus, it is clear that the assessee-firms has introduced money in the firm in the garb of unsecured loans from the core family members of the partners and thus the amount of Rs.14,76,91,876/- introduced during the year as per table Para-5.4 is liable to be added to the income of the asseseee u/s.68 of the Act. Further, the interest paid on these loans is 18% which is way higher than what assessee has been paying to other unsecured loans. Thus,

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the assessee has not only introduced money in the business by using sham transaction but also used it to inflate its expenses by paying high interest on it. Therefore, interest of Rs.70,48,370/- paid on these loans is to be disallowed and added back to the income of the assessee. 5.9 From the above discussion, it is clear that assessee has introduced funds in the form of unsecured loans whose genuineness could not be established by assessee, and thus Rs. 14,76,91,876/- is added to the income of of the Act. assessee u/s 68 r.w.s 115BBE (Addition of Rs. 14,76,91,876/-) Also being satisfied that the assessee has under reported its income by an amount of Rs. 14,76,91,876/- penalty proceedings u/s 271AAC of the Income Tax Act, 1961 are being initiated separately. 5.10 Further, as per discussion above, as the unsecured loans are themselves sham transactions, interest paid on these funds cannot be allowed as an expense. In view of the above, the amount of Rs. 70,48,370/- claimed as interest paid to related parties mention in Para- 5.4 is disallowed and added back to the income of the assessee. (Addition of Rs. 70,48,370/-).”

4(b). Ld. AO also invoked the provisions of section 115BBE of the Act on the unexplained cash credits and disallowed the interest paid at Rs.70,48,370/- being the interest paid on the amount of unsecured loans tabulated at page 4 of the assessment order.

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“6.2 The AO made addition of Rs. 14,76,91,876/- being the loan received during the relevant previous year from 5 persons who are relatives of the partners of the firm by treating the transactions are sham. The source of the amounts advanced was stated as gifts received from the same partners of the firm. It is clearly seen from the findings of the AO and the documents produced by the appellant that the partners introduced money through so-called mode of gifts. The amounts were advanced to the lenders (stating to be gifts) and immediately on the same day amounts credited into appellant's account (as unsecured loans), as pointed out by the AO in para 5.5 of the assessment order and which is confirmed on verification of the documents produced by the appellant during the appeal proceedings. It is further noticed that the appellant did not explain the source of the Donor of the Gift except for making a statement before the AO. The appellant did not file any evidence in support of this even during the appellate proceedings except for relying on case laws which deal with satisfying all three limbs of Section 68. The legitimacy of the so called gifts itself is not proved and it is as such highly suspicious. The AO has elaborately brought out the modus operandi of the appellant. He has verified the transactions and found out that the same are proved to be non-genuine. The plea of the Appellant that on filing of the bank statement and PAN details, the burden stood discharged or that it shifted on to the Assessing Officer is tenuous and is not correct. The credit worthiness of the transaction cannot be said to be proved merely on the strength of the bank statement or identity of the creditor. It is seen from the assessment order that the AO during the course of assessment proceedings called for complete details with regard to so called gifts given by the Donor for which there was no compliance reported by the appellant. Thus the three limbs viz., the identity, credit worthiness and the genuineness of the transaction cannot be said to have been proved. The stand of the Appellant that since the alleged transactions are made through normal banking channels, it is sufficient to prove the genuineness of the transaction and the credit worthiness of the creditor cannot be accepted.

6.2.1 On the issue of circumstantial evidence and in the matters related to the discharge of 'onus of proof and the relevance of the surrounding circumstances of the case, the Hon'ble Supreme Court in the case of CIT v. Durga Prasad More [1972] 82 ITR 540, has observed as under:

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"...that though an appellant's statement must be considered real until it was shown that there were reasons to believe that the appellant was not the real, in a case where the party relied on self-sewing recitals in the documents, it was for the party to establish the transfer of those recitals, the taxing authorities were entitled to look into the surrounding circumstances to find out the reality of such recitals. Science has not yet invented any instrument to test the reliability of the evidence placed before a Court or Tribunal. Therefore, the Courts and the Tribunals have to judge the evidence before them by applying the test of human probability. Human minds may differ as to the reliability of piece of evidence, but, in the sphere, the decision of the final fact finding authority is made conclusive by law."

6.2.2 The above ratio as laid down by the Hon'ble Supreme Court has been reiterated and applied by the Hon'ble Apex Court in the case of CIT v Sumati Dayal [1995] 80 Taxman 89/214 ITR 801. Further, in the case of McDowell & Co. Ltd. (supra), the Hon'ble Supreme Court has held as under:

"Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges."

6.2.3 Considering the facts and circumstances of the case and following the judgments cited supra, the action of the Assessing Officer in considering the unsecured loans as income of the appellant u/s. 68 r.w.s. 115BBE is upheld and the ground No.1 raised in this connection is dismissed. However, the AO is directed to adopt the correct amount of unsecured loans in view of the submission offered by the appellant in para 2.1.12 wherein it was stated that the unsecured loan should be restricted after deduction of interest expenses disallowed separately.”

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“a) The Appellant has duly submitted all the relevant documents related to the parties from whom the unsecured loans have been taken. The documents submitted includes computation, ITR, Bank statements and ledger confirmation in order to prove the identity, creditworthiness and genuineness of the transaction. (Copies of the same is attached as 117 to 164 of the Factual PB). It may be noted that the said papers have been produced before the AO and the First Appellate Authority.

b) The details of the entire transaction are summarized in the table below:

Date Particulars Amount Source Source of source 11/10/2017 Loan by 2,00,00,000/- Gift by Ratan Rathi Withdrawal by Ratan Rathi Raghav Rathi (father) to Raghav (partner) from Tara to Tara Rathi (son) of Constructions of Constructions Rs.1,95,00,000/- Rs.1,95,00,000/-) 08/01/2018 Loan by 1,50,00,000/- Loan by Ratan Rathi Withdrawal by Ratan Rathi Raghav Rathi (father) to Raghav (partner) from Tara to Tara Rathi (son) of Constructions of Constructions Rs.1,50,00,000/- Rs.6,00,00,000/-. 08/01/2018 Loan by Jaya 1,50,00,000/- Gift by Ratan Rathi Rathi to Tara (father) to Jaya Rathi Constructions (daughter) of Rs.1,50,00,000/- 08/01/2018 Loan by 1,50,00,000/- Gift by Ratan Rathi Ruchita Deole (father) to Ruchita to Tara Deole (daughter) of Constructions Rs.1,50,00,000/- 08/01/2018 Loan by Rekha 1,50,00,000/- Gift by Ratan Rathi Devi Rathi to (husband) to Rekha Tara Devi Rathi (Wife) (of Constructions Rs.1,50,00,000/-

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08/01/2018 Loan by 6,00,00,000/- Loan by Nandkishore Withdrawal by Shailaja Devi Rathi (husband) to Nandkishore Rathi Rathi to Tara Shailaja Devi Rathi (partner) from Tara Constructions (wife) of Constructions of Rs.6,00,00,000/- Rs.6,00,00,000/-

The detailed summary of fund flow to the above along with the reference to the documents in the factual paper book is attached as Annexure-1 for Your Honour's ready reference and record).

Another summary was also given during the course of hearing before Your Honour.

c) The Appellant respectfully submits that the gift transaction in question, carried out between the partners of the Appellant firm and their relatives, is legitimate and in accordance with law. The Appellant has provided a detailed explanation and evidence supporting the genuineness of the transaction, where the partners of the Appellant firm have gifted certain amounts to their respective relatives. These amounts were withdrawn from the capital of the Appellant firm. During the hearing it was submitted that the source of funds which has been loaned back to the Appellant is withdrawal from the firm itself. There is a clear trail of transaction in the bank records. The entire money has been withdrawn from the firm on the same day that it has been reintroduced. The transactions are as good as simultaneous in nature. Keeping this in mind there is no reason to hold that the genuineness of the transaction is in doubt.

d) To substantiate the aforementioned gift and loan transaction, the Appellant has submitted the following documents:

a. Bank statements of Appellant showing withdrawals made by the partners from the firm's capital (Refer Page no.45 to 54 of the Factual PB),

b. Ledger Accounts of the partners in the books of Appellant firm (Refer Pg No.55 to 116 of the Factual PB),

c. Bank statement of Ratan Rathi OD A/C. The OD A/c number ending with 820 is jointly held by the family members. (Refer Page no.55 to 100 of the Factual PB)

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d. Bank statement of Nandkishore Rathi HUF A/c no. ending with 349 (Refer Page no.101 to 116 of the Factual PB).

e) The Appellant respectfully submits that the contention of the Ld. CIT(A) that the gift/loan transaction between the partners and their relatives is non-genuine is not sustainable. The Appellant has diligently submitted all the requisite documentary evidence to substantiate the genuineness of the gift transaction. Therefore, the findings of the Ld. CIT(A) in this regard should be set aside, as they are not supported by the facts and documents on record.

f) The Appellant respectfully submits that, in accordance with the provisions of Section 68 of the Income Tax Act, the source of the unsecured loans received by the Appellant from the concerned parties has been duly established and proven. The Appellant has submitted all requisite documentary evidence to substantiate the bona fide nature of the loans, including the identity of the lenders and the genuineness of the transactions.

g) Further, Section 68 of the Act is amended to provide that the nature and source of any sum, whether in form of loan or borrowing, or any other (lability credited in the books of an assessee shall be treated as explained only if the source of funds is also explained in the hands of the creditor or entry provider. It is important to note that this additional onus of proof of satisfactorily explaining the source in the hands of the creditor is effective from AY 2023-24 and onwards. However, the year under consideration before Your Honour is AY 2018-19 and hence, the said amendment to prove source-of-source is not applicable in Appellant's case.

h) However, in the interest of transparency and to further substantiate the legitimacy of the transactions, the Appellant has also provided details of the source of source of the funds received as unsecured loans. The Appellant has taken this additional step to prove, beyond any reasonable doubt, that these transactions are not fictitious or sham in nature.

i) In view of the above, the Appellant respectfully prays to Your Honour that kindly consider the evidence and explanations provided and acknowledge that the unsecured loans are legitimate, with their

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sources and the source of the sources being clearly established. The Appellant further prays that no adverse inference be drawn in relation to these transactions.

j) The Appellant relies on the following judicial decisions: o Principal Commissioner of Income Tax v. Himachal Fibers Ltd. [2018] 98 taxmann.com 173 (SC) (Page no.1 to 4 of the Legal PB) (Please refer Para 4 on Page no.3 of the Legal PB) o Gaurav Triyugi Singh v. Income Tax Officer 24(3)(1), Mumbai [2020] 121 taxmann.com 86 (Bom. HC) (Page no.5 to 8 of the Legal PB) (Please refer Para 13 on Page No.7 of the Legal PB) o Principal Commissioner of Income-tax-1 v. M. Dinshaw And Co. (P.) Ltd. [2023] 156 taxmann.com 170 (Bom. HC) (Page no. 15 to 19 of the Legal PB) (Please refer Page No.17 of the Legal PB) o Principal Commissioner of Income-Tax-13, Mumbai v. Veedhata Tower Pvt. Ltd. [2018] ITXA-819-2015 (SR. 14) (Bom. HC). (Page no.9 to 14 of the Legal PB). (Please refer Para 6 and 8 on Page no. 11 to 14 of the Legal PB)

k) In light of the above judicial precedents and the facts of the present case, it is respectfully submitted that the Appellant is not under any obligation to disclose or explain the source of the source of the funds. The relevant assessment pertains to the Assessment Year (A.Y.) 2018-19, during which no statutory provision or legal requirement mandated the Appellant to substantiate the source of the source. Therefore, it is contended that the Appellant cannot be held liable for failure to provide such an explanation, as no such obligation existed under the law for the said assessment year.

l) During the course of hearing the Ld. DR submitted that the bank statement of Mr. Ratan Rathi have not been provided before any of the authorities. It was submitted by the DR that the claim of the appellant that funds were transferred by Ratan Rathi to his relatives remains not proved. In response to this reference was drawn to page no. 55 of the PB. The heading of the bank statement mentions the name of Ratan Shrikant Rathi (HUF) bearing account no. 086613023820. It was submitted that this is a joint account of all the

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family members including that of Mr. Ratan Rathi individual. The bank generally puts a single name in the statement in case of a joint account for their convenience. To substantiate the fact that this account is indeed a joint account for all the family members, a bank letter dated 03/03/2015 has been produced. This letter serves as a sanction letter issued in favour of all the members of Mr. Ratan Rathi's family. Another letter of the bank dated 25/08/2022 was also submitted which clearly mentions the bank account number 086613023820 in which one of the joint holders is Mr. Ratan Rathi. It was pointed out that all the transactions of withdrawal towards capital account of Mr. Ratan Rathi from the Appellant form are routed through this account and the same has been submitted before the AO and the 1 Appellate Authority for verification. It was submitted that the claim of the Ld. DR that this account has not been produced is factually incorrect.

m) It has been humbly prayed that addition of amount as non- genuine, the source of which is the funds provided by the Appellant itself is uncalled for and the addition so made needs to be deleted in full. Reliance is placed on Commissioner of Income Tax, Central-I, Kolkata Versus Binani Industries Ltd. (2024) ITA/258/2009 (Calcutta High Court).

In the said case, the Hon'ble Bombay High Court held as under:

"The case set up by the assessing officer so as to invoke Section 68 of the Act, 1961 may be found in paragraph 5 of the assessment order in which he set up a case that the amount originated from the assessee company and after routing through various companies, it was ultimately given as unsecured loan by one M/s. Lexus Holdings & Finance Private Limited to the assessee, which was subsequently converted into share capital. Thus, the case set up by the assessing officer was that the amount originated from the assessee company and it ultimately came in the hands of the assessee company as share capital, We fail to understand that even on this Imaginary ground taken by the assessing officer, how Section 68 of the Act, 1961 would be attracted. That apart, we find that the finding recorded by the ITAT as aforequoted is a finding of fact based on consideration of relevant evidences on record. Therefore, no interference can be made. The appeal lacks merit and, therefore,

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deserves to be dismissed and is hereby dismissed. The substantial question of law as framed above is answered accordingly"

(The copy of the judgement is attached as Annexure-2 for Your Honour's ready reference and record).

2.2. Ground number 2:

"On facts and circumstances prevalling in the case and as per provisions and scheme of the Act it be held that, the Honourable NeAC erred in disallowing the interest payment made by the Appellant and making addition of Rs. 70,48,370/- to the total income of the Appellant. The addition so made is unwarranted, unjustified, and contrary to the provisions and scheme of the Act. The addition so made be deleted. The Appellant be granted just and proper relief in this respect"

2.2.1. Contention of the Ld.CIT(A):

a. The ground no.2 deals with interest portion said to have been made by the appellant on the unsecured loans. As the addition on unsecured loans has already been upheld as discussed in the preceding paragraphs, the interest disallowance also is accordingly upheld. The ground no.2 is thus dismissed. (Refer Page no. 18 Para 6.3 of the CIT(A) order)

2.2.2. Contention of the Appellant:

a. The Ld. AO has disallowed the interest on the unsecured loans claimed as expense due to the mere reason that the interest paid on these loans is 18% which is way higher than what Appellant has been paying to other unsecured loans.

b. The interest claimed as expense by the Appellant has been duly offered as income by the respective parties in their Return of Income. The aforesaid fact is evident from the Computation of income of the parties. (Please refer Page no. 117 to 164 where the Appellant has provided the computation of income for all the party).

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c. We would like to draw your attention to the Circular No.6-P, dated 06/07/1968 of Finance Act, 1968, the relevant portion of the amendments is reproduced below for your reference:

The Finance Act, 1968 has introduced a new section 40A, with effect from 1-4-1968. Under sub- section (2) of new section 40A, expenditure incurred in a business or profession for which payment has been or is to be made to the taxpayer's relatives or associate concerns is liable to be disallowed in computing the profits of the business or profession to the extent the expenditure is considered to be excessive or unreasonable. The reasonableness of any expenditure is to be judged having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession or the benefit derived by, or accruing to, the taxpayer from the expenditure. Such portion of the expenditure which, in the opinion of the Income-tax Officer, is excessive or unreasonable according to these criteria is to be disallowed in computing the profits of the business or profession.

d. In view of the above circular, Your Honour would appreciate the fact that the interest expenses claimed by the Appellant in the present case are in accordance with the provisions of the Act. However, in view of the provisions outlined in the relevant circular(s), it is evident that the disallowance of interest expenses can only be made to the extent that the Income Tax Officer (ITO) is of the opinion that such expenses are excessive or unreasonable.

e. It is further submitted that the onus lies on the revenue authorities to demonstrate why the claimed interest rate is unreasonable in the present case which the Ld. AO failed to do so.

f. Further, the Ld. AO had mentioned that the Appellant had paid interest on the aforesaid loans which is way higher than the rate of interest paid on other unsecured loans. Your Honour would appreciate that banks are very reluctant to extend loans to borrower operating in real estate sector and that too without any collateral security as the banks are of the belief that real estate sector is risky sector. Hence, to fund the project the borrower has to look for avenue available which generally happens to be in close friends and relatives. Moreover, the rate of interest charged by lenders depends

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on situation, circumstance and need of both borrower and lender and hence varies.

g. The Ld. AO by disallowing the interest on the unsecured loan on the ground that the interest @18% is higher as compared to other unsecured loan has stepped into the shoes of the Appellant borrower in deciding what the interest should be paid by Appellant. As mentioned above, availability of funds and charging of interest by lender is purely a commercial understanding between the borrower and lender and that Ld. AO cannot decide as to what the Appellant should do to fund his project and run his business.

h. Various courts have held that the Ld. AO cannot dictate to the Appellant as to how the business should be done. Further, the Ld. AO shall have to evaluate the legitimate needs of the business at a point of time when the services were rendered and this would involve in inquiry as a businessman.

i. It is important to note that the interest expense claimed by the Appellant is duly offered for taxation as interest income by the parties to whom interest is paid. Further, majority of the parties are in the highest tax bracket which is also evident from the computation of income of the parties. (Please refer Page no.117 to 164 of the factual PB). Hence, there is no loss to the revenue as the interest income has been duly offered for tax in the hands of the respective parties.

j. Therefore, in view of the above, it is apparent that the disallowance of expenditure of Rs. 70,48,370/- towards interest payment on unsecured loans paid by the Appellant is bad in law and deserves to be deleted.

k. The appellant firm is paying interest on capital to the partners @12% p.a. The interest paid to the partners is in accordance with the limit allowable under the Income Tax Act. Further the partners are also withdrawing hare profit against the risk capital employed. The interest charged by the relatives is ranging upto 18% because of the fact that they are providing risk capital without any share in profits. The interest charged be held as reasonable and no disallowance be upheld on this score. If for any reason, it is felt that the interest charged is unreasonable then the disallowance made is on a very

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high side. Just and proper relief be granted to the appellant on this score.

In view of the above submission, the facts of the case and the judicial pronouncements relied upon in the case of the Appellant, the fact that the Appellant has carried out a genuine transaction, it is humble prayed to Your Honour that the order of Hon'ble CIT(A) be dismissed on the following grounds:

3.1. Addition of unsecured loans even when the Appellant has proved the identity, creditworthiness and genuineness of transaction as per the provisions of section 68 of the Act along with the has provided the source of source in a summarized manner with detailed explanation in order to prove the transparency and genuineness of the transaction to be deleted.

3.2. The Appellant has also provided with the detailed documents in order to prove the genuineness of the gift transaction.

3.3. Disallowance of interest on the ground that said interest is paid @18% which is higher as compared to interest paid on other unsecured loan is like stepping into the shoe of Appellant on how to conduct his business moreover when banks are reluctant to give loan to real estate sector that too without any collateral security under the pretext that real estate sector is high risky sector. Further, there is no loss of revenue as the interest income has been duly offered by the parties in the return of income for the assessment year under consideration.

We hope Your Honour will find above information/clarification in order. We shall submit further information on intimation to us.”

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prove the genuineness of the transactions and creditworthiness of the loan creditors.

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genuine and the nature and source of the same is duly explained, we, however, considering the fact that some of the details were either not been furnished before the ld.CIT(A)/NFAC (as alleged in the impugned order) or the specific details of transactions were not made clear before the ld.CIT(A)/NFAC on account of joint bank OD account referred supra. Therefore, in the light of submissions made by the ld. Counsel for the assessee (referred supra), in the interest of justice and being fair to both the parties and considering the facts and circumstances of the case, we deem it appropriate to restore the issue to the file of ld.CIT(A)/NFAC to examine the details of each loan transaction along with the bank statements, ledgers and supporting documents in order to verify the nature and source of the alleged sum and also the identity and creditworthiness of the loan creditors and genuineness of the transactions. If required, the ld.CIT(A)/NFAC may call for a remand report from the Jurisdictional Assessing Officer and then after obtaining comments of the assessee to such remand report, shall pass a speaking order in accordance with law. All the grounds of appeal raised by the appellant are allowed for statistical purposes.

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Order pronounced on this 23rd day of December, 2024.

Sd/- Sd/- (VINAY BHAMORE) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 23rd December, 2024. Satish

आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The Pr. CIT concerned. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B” ब�च, 4. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 5. आदेशानुसार / BY ORDER,

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.