Case Law Details
J.S Exim Private Ltd Vs DCIT (ITAT Delhi)
ITAT Delhi held that assessee has placed sufficient evidences to discharge initial onus to explain the nature and source of loans. Accordingly, addition u/s. 68 of the Income Tax Act towards unsecured loan unjustified.
Facts- The assessee was engaged in the business of letting commercial property and deriving income under various heads, viz.; business income, income from house property, and income from other sources. For the Assessment Year 2013-14 in question, the assessee-company filed a return of income declaring a total income at Rs. 4,94,44,640. The case was selected for scrutiny assessment u/s. 143(3) of the Act.
In the course of assessment proceedings, the AO issued a show-cause notice seeking an explanation on bona fides of an unsecured loan of Rs. 21,45,40,000/- as appearing in the books of the assessee-company.
AO opined that the money borrowed and credits recorded in the books are not genuine and the onus contemplated u/s. 68 is not discharged on facts by the assessee. The Assessing Officer accordingly invoked the provisions of Section 68 of the Act and made an addition of Rs.21,45,40,000/- to the returned income of the assessee. The income was accordingly assessed at Rs.26,39,84,640/-.
CIT(A) dismissed the appeal. Being aggrieved, assessee has preferred the present appeal.
Conclusion- The Assessee, in our view, has placed sufficient evidences to discharge initial onus to explain the nature and source of loans. Apart from the documentary evidences, the preponderance of probabilities (in the light of payment of interest; repayment of loans etc.) also appears to tilt in favour of the assessee. After a lapse of nearly a decade, it is not desirable to ignite and instate an enquiry proceedings at the level of AO, more so, when the loans are stated to be have been repaid. We find force in the plea that the AO has discredited the loans primarily on the basis of surmises and conjectures which can not be countenanced in law.
Held that the initial onus which lay upon the assessee was fully discharged on the contours of Section 68 of the Act. The AO has rather failed to shift the onus back on the assessee in the absence of any independent inquiry and findings thereof in the assessment order. We thus see no justifiable reason to endorse the process of reasoning adopted by the lower authorities and find merit in the plea of the assessee. We thus are inclined to reverse the impugned additions on first principles.
FULL TEXT OF THE ORDER OF ITAT DELHI
The captioned appeal has been filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-XXXVI, New Delhi [‘CIT(A)’ in short] dated 09.10.2019 arising from the assessment order dated 31.03.2016 passed by the Assessing Officer (AO) under Section 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2013-14.
2. As per the grounds of appeal, the assessee has challenged the additions of Rs.21,45,40,000/- made by the Assessing Officer under Section 68 of the Act.
3. The appeal in the instant case has been filed belatedly by 61 days. The assessee has filed an affidavit to the effect citing medical reasons for delay in presenting the appeal. Having regard to the reasons enumerated in the affidavit, we observe that sufficient cause exists for condonation of such short delay. The delay is thus condoned and the matter is proceeded for hearing on merits.
4. Briefly stated, the assessee during the year under consideration was engaged in the business of letting of commercial property and deriving income under various heads viz; business income, income from house property and income from other sources’. For the Assessment Year 2013-14 in question, the assessee-company filed return of income declaring total income at Rs.4,94,44,640/-. The case was selected for scrutiny assessment under Section 143(3) of the Act. As per paragraph 2 of the assessment order, the assessee has admittedly attended in the assessment proceedings from time to time and furnished the requisite details/information.
5. In the course of assessment proceedings, the AO issued show cause notice dated 18.03.2016 seeking explanation on bona fides of unsecured loan of Rs.21,45,40,000/- as appearing in the books of the assessee-company. The assessee filed various documentary evidences such as confirmation, copy of income tax return, bank statement and balance-sheet of the borrowers as tabulated in the assessment order. It was inter alia pointed out that loans received have been partly repaid during the year. The assessee however observed that the creditworthiness / capacity of the parties to lend money to the assessee were not clearly established. Having regard to documentary evidences adduced by the assessee, the Assessing Officer ultimately observed that these lender companies are either having common directors or having same e-mail address etc. Based on these common features and with reference to the financials of the lender companies, the Assessing Officer opined that the money borrowed and credits recorded in the books are not genuine and the onus contemplated under Section 68 is not discharged on facts by the assessee. The Assessing Officer accordingly invoked the provisions of Section 68 of the Act and made an addition of Rs.21,45,40,000/- to the returned income of the assessee. The income was accordingly assessed at Rs.26,39,84,640/-.
6. Aggrieved, the assessee preferred appeal before the CIT(A). The CIT(A) in the first appellate order observed that the assessee has not appeared in the appellate proceedings and the initial onus placed upon the assessee under Section 68 has not been discharged. The CIT(A) as per paragraph 5.3 of the appellate order simultaneously observed that the appeal is being decided judiciously based on material available on record. The CIT(A) thus adopted the observations of AO on merits and adjudicated the issue against the assessee on merits as well. In conclusion, the CIT(A) declined to interfere with the order of the AO and dismissed the appeal of the assessee.
7. Further aggrieved, the assessee preferred appeal before the Tribunal.
8. The ld. counsel for the assessee submitted at the outset that the relevant details of all the lenders have been furnished before the AO including the confirmation, the income tax return, the bank statement and also the balance-sheet. The ld. counsel thus submitted that particulars of all the lenders are available on record of the department and are filing income tax returns. The bank account copy of the lenders would show the sources from which the money was lent to the assessee. The balance-sheet of the lenders also vouches the overall financial status of the respective parties. The ld. counsel next submitted that out of 36 parties giving varied amounts during the year, the assessee had also availed loans from two directors also namely, Bhagyashree Jain and Shri Rajesh S. Jain. The assessee-company had availed the loan from the Directors in the earlier years also. The fact of payment of interest and also partial repayment of loans during the same FY 12-13 relevant to AY 2013-14 was also brought on record.
8.1 The Ld. Counsel submitted that the AO proceeded solely on surmises and conjectures. It was submitted that suspicion, at best, is mother of enquiry. The AO could have made enquiries under s. 133(6) or under s. 131 of the Act. The AO did not consider it expedient to use such tools to collate the evidences filed and only engaged himself in irrelevant considerations such as common address, common directors etc. of lender cos. Having filed adequate evidences of the lenders, the initial burden has been discharged regarding the identity, genuineness and creditworthiness of the lenders and the AO has simply converted good proof into no proof without bringing any tangible evidences except the findings premised on suspicion and conjectures.
8.2 The ld. counsel thus submits that in the light of these clinching documentary evidences, there was no reason for the Revenue to question the bona fides or the capacity of the lenders, more so, where the Assessing Officer has passed the generalized order without pointing out any defect on such incisive documents placed towards each lender parties. To reiterate, the AO has not given any reference to any enquiry under S. 133(6) or under S. 131 of the Act and thus no independent verification were not deemed necessary to reach any logical conclusion. It is not a case where only confirmations have been produced but it is a case where the lenders are being continuously assessed and cogent documentary evidences, as pointed out, have been placed to establish the bona fides of the credit entries.
8.3 The ld. counsel next submitted that the Assessing Officer has proceeded simply on account of extraneous considerations such as common address, common e-mail, common directors etc.
8.4 The ld. counsel thereafter vociferously asserted that a part of the loans in the vicinity of 8.97 cr. was also repaid during the same year and all the loans have been eventually repaid in the next year or in subsequent financial years as per the tabulation furnished in this regard. The fact of part repayment in the same year was glossed over. The ld. counsel thus claimed that, in effect, on eventual repayment of loans, no benefit per se can be said to have accrued to the assessee by obtaining allegedly fictitious loans. The repayment would also evenly suggest that the loans received at the first instance did not emanate from the unaccounted coffers of the Assessee. Reference was made to several judgments rendered by Hon’ble High Courts of different jurisdicitons and also that of ITAT to support such line of contention. The ld. counsel also simultaneously emphasized that the loans have been obtained on commercial considerations and interest accrued on such loans has been duly paid to the lenders after deducting TDS at an applicable rate. The ld. counsel thus submitted that the inference drawn by the AO in holding such credit entries to be accommodation entry is solely founded upon suspicion and surmises in total disregard of factual matrix and hence such action is wholly outside the sanction of law and a mere ipsi dixit of the AO in the absence of any independent inquiry carried out.
8.5 The ld. counsel also submitted that the CIT(A) while passing the order on merits ought to have taken these factors into account which were duly available on the record of the AO. The CIT(A) thus has perfunctorily dismissed the appeal of the assessee without considering the material placed on record despite adjudicating the issue on merits.
8.6 The ld. counsel thus submitted in conclusion that in the light of the cogent evidences placed, factum of payment of interest on such loans and also repayment of loans itself, the adverse inference drawn is a damp squib and wholly unjustified. The ld. counsel thus urged for suitable relief in the matter.
9. We have carefully considered the rival submissions and perused the first appellate order as well as the assessment order.
10. The controversy revolves around correctness of additions made under s. 68 of the Act towards credits arising on account of loans received by the assessee from various parties during the year. The issue is essentially a question of fact and depends squarely on the factual matrix and attendant preponderance of probabilities. Hence, to adjudicate the issue, we notice a few facts;
(a) that the assessee has filed party-wise confirmation, copy of IT returns, financial statements and bank statements. Thus, the identity and source of credit entries are explainable from the record.
(b) that the loans are demonstrated to have been obtained on commercial considerations. The assessee has paid the interest to the respective parties and such interest payments have been subjected to TDS provisions. The interest income is also shown to be declared in the respective returns of the lender companies.
(c) that the AO has not considered it necessary to make any independent inquiry with lenders under Section 133(6)/131 of the Act. The AO has proceeded to formulate opinion on bona fides of such loans on the basis of common address, common email and common directorship etc without any traces of independent enquiries from lenders. Some infirmities were observed in respect of few parties for non availability of their balance-sheet where such loans were already squared up before the end of financial year etc.
(d) that the assessee claims to have repaid all the loans either in the financial year relevant to Assessment Year 2013-14 itself or in next years. The assessee categorically contends that all loans in questions stood ultimately repaid.
11. When the evidences placed on record and facts emerging therefrom are dispassionately viewed, it appears that the assessee has filed multiple and in-depth evidences of the lenders about their identity and genuineness of transactions and creditworthiness of respective parties. The loans obtained are found to be commercial in character. The loans are also stated to be repaid either during the year or in the subsequent years. On conspectus such facts read cumulatively, the initial onus which lay upon the assessee stood clearly discharged and onus was thus shifted on the AO to disprove the facts borne out. It is wholly uncomprehensible that while making such intense allegations of accommodation loans, the AO did not choose to carry out any independent enquiry from the lenders. Such high pitched additions have been made on unproved allegations. In the absence any adversarial facts coming to surface, the documentary evidences and confirmation on the fact of lending by lenders gains credence. The onus of proof is more like a swinging pendulum. The onus was shifted to the deptt. for bring something concrete adverse to the documentary evidences filed. In the absence of any enquiries with the parties or any adverse material, the onus so shifted on the AO was never fastened back on the assessee. It is trite that the onus lies on one who alleges or takes a plea on incorrectness of the transaction. The observations in K P Verghese vs. ITO (1981) 131 ITR 597(SC) vouches such proposition. It is also trite that onus of proving that the apparent is not real is on the party who claims it to be so as observed in CIT vs. Daulatram Rawatmal 87 ITR 349(SC). In the absence of any suggestion on any adverse surrounding circumstances or test of human probabilities, any departure from such principle is not plausible.
12. The Assessee, in our view, has placed sufficient evidences to discharge initial onus to explain the nature and source of loans. Apart from the documentary evidences, the preponderance of probabilities (in the light of payment of interest; repayment of loans etc.) also appears to tilt in favour of the assessee. After a lapse of nearly a decade, it is not desirable to ignite and instate an enquiry proceedings at the level of AO, more so, when the loans are stated to be have been repaid. We find force in the plea that the AO has discredited the loans primarily on the basis of surmises and conjectures which can not be countenanced in law.
13. At this juncture, a tabular statement of partywise Loan availed and repayment thereon, as submitted on behalf of the assessee would be pertinent at this point.
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14. A perusal of tabulation suggests that the all loans taken have been either repaid in the same financial year or in the subsequent years. In this backdrop, it may be relevant to refer to the judicial dicta echoed in the case of CIT vs. Ayachi Chandrashekhar Narsangji, 42 com 251 (Guj.); CIT vs. Mahavir Crimpers, 95 taxmann.com 323 (Guj.); CIT vs. Karaj Singh (2011) 15 taxmann.com 70 (P&H) and Panna Devi Chowdhary vs. CIT, 208 ITR 849 (Bom).In these judgments, the Hon’ble High Courts have held in chorus that the factum of repayment of loans are entitled to great weight while evaluating the bonafides of loan transactions. Where the loans itself stands repaid or substantially repaid and no money is left at the command of the assessee, the nature of which might require consideration, the whole exercise is futile at this belated stage. The repayment is thus a relevant circumstance for evaluating the bonafides of loans.
15. In the light of delineations in preceding paragraphs, we find ostensible rationale in the plea advanced on behalf of the assessee on first principles. The plea is backed by evidences and whole set of speaking circumstances. In the light of the documents filed and owing to overwhelming factum of repayment carried out, we are of the opinion that the initial onus which lay upon the assessee was fully discharged on the contours of Section 68 of the Act. The AO has rather failed to shift the onus back on the assessee in the absence of any independent inquiry and findings thereof in the assessment order. We thus see no justifiable reason to endorse the process of reasoning adopted by the lower authorities and find merit in the plea of the assessee. We thus are inclined to reverse the impugned additions on first principles.
16. From the tabular statement, we observe that a substantial part of loans obtained from some parties stood repaid in the same financial year 2012-13. The boanfides of loans to the extent repayment made in the same financial year 897.80 lakh thus deserves to be accepted without any demur.
17. In the similar vain, however, we simultaneously note that the AO or CIT(A) were not necessarily privy to factum of repayment of remaining loans qua some lenders in the very next year FY 2013-14 and remaining amount in FY 2014-15. As noted in the preceding paragraph, such significant fact of repayment transgresses all other considerations and provides considerable support to the plea of bona fides when in conjunction with other evidences. It shall thus be open to Assessing Officer to verify the fact of repayment of loans in subsequent years.
18. Hence, we consider it expedient to remit the matter back to the file of the AO for limited purposes of verification of aspects of repayment of loans which remained outstanding at the end of financial year 2012-13 relevant to AY 2013-14 in question. The assessee may demonstrate the fact of repayment of loans in the subsequent years before the AO by adducing its bank statement showing repayment, ledger of parties etc. Where, the AO finds the outstanding loans have been duly discharged by repayment in the subsequent years, the additions made shall be reversed and deleted. While determining the issue, a reasonable opportunity shall be given to the assessee to adduce the evidences in relation to repayment of loans.
19. In terms of forgoing directions, the matter is remitted back to the file of AO to reframe assessment order in accordance with law.
20. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 04/10/2023
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