Addition for Investment in Shares / Mutual Fund based on mere AIR report not sustainable

Aarti Raman vs. DCIT (ITAT Bangalore), ITA No.245/Bang/2012, Date of Pronouncement : 05.10.2012

Assessee submitted that the part of the AIR on which the AO made the impugned addition of Rs. 26 lakhs was not correct and that the assessee did not make any such investments as revealed in the AIR. The assessee also brought to the notice of the CIT(A) the decision of the ITAT Bangalore ‘A’ Bench dated 22.10.2010 in the case of DCIT v. G. Selvakumar – ITA No.868/Bang/2010 A. Y. 2006-07, wherein the Tribunal had taken the view that when the AIR shows some investment and the assessee denies it, no addition can be made on account of unexplained investments without further evidence to show that the assessee made investments. The assessee also submitted that the information contained in the AIR is a guideline for the Officer based on which the Officer can initiate enquiries and that under no circumstances can AIR be considered as absolute document to conclude the assessment.

On the above submissions by the assessee, the ld. CIT(A) held as follows:–

“8. I completely agree with the above inference of the AR quoted in Para 7. In fact by denying so the assessee shifted the burden to the A.O. I observe the A.O. had been given sufficient time i.e., from 23rd March 2010 to 25-11-2010 to prove the assertion he made to justify the addition. However no such efforts have been made at all. But he made the addition on the basis of AIR information. Thus the onus shifted to AO could not be discharged at all. Besides the A.O. has also failed to respond to objection of the assessee that the AIR is patently wrong in showing 7 lakhs investments made in cash in Mutual Fund as per SEBI Guidelines. But this does not mean that I am in favour of the assessee and as per the prayer going to direct the AO to delete the addition. I observe that the A.O. probably got handicapped by the AIR passed on to him because no details of scrips/shares purchased or names of Mutual Fund was mentioned in the AIR. Probably the assessee had taken advantage of such lack of information in the AIR. This itself differentiates the fact from the cited case law wherein at least the AO had got the Knowledge of Sub-Registrars Office from whom he could have elicited the information to strengthen the addition made in that case. Here there is no such scope at all, But this would not render the AIR wrong on the basis of allegation of AR that if contains arbitrary information. Hence the addition is held justified. However the details of additions as per the Assessment order is –

The above shows that Sl.No. (iv) does not pertain to this A.Y. 2007-08. Hence the addition is restricted to Rs.21 lakhs. Appellant gets relief of Rs.5 lakhs.

In the present case, the assessee denies having made any such investment. The onus is on the revenue to show that the assessee made investments. The AIR which is the only basis on which the AO has proceeded to make the impugned addition is not conclusive as to the factum of the assessee having made investments. In this regard, the ld. counsel for the assessee has also filed before us the Frequently Asked Questions & Answers on AIR brought out by the Income Tax Department. In answer to question 38 as to under what circumstances the AIR will not be accepted, one of the answers given by the department is that mismatch of name of filer mentioned in Form 68A with AIR file but no document submitted in support of name appearing on Form 61A (Part A). Further, the press release dated 26.10.2006 brings out the CBDT Guidelines for dealing with the grievances arising out of cases selected for scrutiny on the basis of information contained in AIR. The guidelines mentions that when a grievance is projected by a tax payer with regard to AIR, steps should be taken to redress such written grievances expeditiously.

As already stated, the Bangalore Bench of ITAT in the case of G. Selvakumar (supra) has already taken the view that assessment order based only on the AIR will not stand in the eye of law. Further, the Hon’ble Bombay High Court in the case of RBNJ Naidu v. CIT 29 ITR 194 (Nag) has held that when an assessee denies that he is in receipt of income from a particular source, it is for the ITO to prove that the assessee received income and that the assessee cannot prove the negative. In this regard, as early as on 23.01.2012 the assessee has written a letter to the CIT (Computer Operations), Banglaore-I denying the correctness of the AIR in so far as addition of Rs. 21 lakhs sustained by the CIT(Appeals) is concerned. The department has not acted on this letter. In the light of the above discussion and on the facts and circumstances of the present case, we are of the view that the addition of Rs. 7 lakhs sustained by the ld. CIT(Appeals) deserves to be deleted.

Another investment of 7 lakhs in mutual funds stated to have been made on 12.03.2008 by cheque is again lacking of all material particulars like mutual fund in which the investment was made, the scheme of the mutual fund, etc. The discussion referred to above will be equally applicable to this addition also.

One more investment which requires to be considered is investment of Rs.  7 lakhs stated to have been made on 10.03.2008 by the assessee in mutual funds by cash. As already stated, the AIR lacks any information with regard to the mutual funds as well as the scheme in which the investments are made. It was brought to our notice by the ld. counsel for the assessee that as per SEBI Guidelines issued on 30.09.2002 to Mutual Funds (copy placed at page 31 of the compilation filed by the assessee), mutual funds are debarred from accepting cash applications for investment in funds. On 13.09.2012, the SEBI has issued a Circular in which it has carved out an exception to the above rule by permitting cash transactions in mutual funds per investor per mutual fund per financial year at Rs. 20,000/-. The above being the applicable regulation, there is every reason to doubt the veracity of the AIR, based on which the revenue authorities have made the impugned addition. In light of the aforesaid discussion, we are of the view that the impugned addition made by the AO and sustained by the CIT(A) deserves to be deleted. There is no material to show that the assessee made investments, in such circumstances the question of offering a satisfactory explanation by the assessee does not arise for consideration. The revenue authorities have proceeded on a wrong premise in making the impugned addition. We therefore direct the addition sustained by the ld. CIT(A) be deleted. The appeal of the assessee is accordingly allowed.