ACIT, New Delhi vs. Sidhavandan Enterprises - (Income Tax Appellate Tribunal) (23 Sep 2020)

Burden is upon the Assessee to prove identity of the creditor, creditworthiness of the creditors and genuineness of the transaction

MANU/ID/0785/2020

Direct Taxation

The Assessee is a company and filed return of income showing loss of Rs.35,53,560. The Assessing Officer, (AO) noted that, in assessment year under appeal, the Assessee Company has received an amount of unsecured loan of Rs.2 crores from Varrenyam Securities Pvt. Ltd., The AO noted back ground of the case with regard to bogus accommodation entry provided by various entities controlled by S.K. Jain and V.K. Jain and Investigation conducted by Investigation Wing of the Department. The AO has given an opportunity to the Assessee to prove creditworthiness of the investor and genuineness of the transaction and required the Assessee to produce Director Director of Varrenyam Securities Pvt. Ltd., and C.A. who has arranged the funds in the matter. However, both the above persons were not produced.

The AO after considering the fact that, burden is upon the Assessee to prove the ingredients of Section 68 of the Income Tax Act, 1961 (IT Act) i.e., identity of the creditor, creditworthiness of the of the creditors and genuineness of the transaction, found that assessee failed to prove the same, therefore, addition of Rs.2 crores was made against the Assessee under Section 68 of the IT Act, 1961. The assessee challenged the addition before the Learned Commissioner of Income Tax CIT(A). The learned CIT(A) deleted the addition.

The matter requires reconsideration at the level of the Learned CIT(A). It is well settled Law that, burden is upon the Assessee under Section 68 of the IT Act to prove identity of the creditor, its creditworthiness and genuineness of the transaction in the matter. The AO in the present case directed the Assessee to produce Director of the lender Company and the person who has arranged the amount in question, but, both of them were not produced before AO for examination on behalf of AO. The Learned CIT(A) in his finding has merely referred to the facts noted in the preceding A.Y. 2012-013 with regard to loan transaction between the assessee and the Investor Company. Merely because loan is repaid through banking channel in assessment year by itself may not be a ground to delete the addition because ultimately Assessee shall have to prove the ingredients of Section 68 of the IT Act to the satisfaction of the AO.

According to Section 250(6) of the IT Act, the Learned CIT(A) is required to mention point for determination and reasons for decision in the appellate order while deciding the appeal. The impugned findings of the Ld. CIT(A) however clearly show that, he did not mention the evidence and material on record in the light of finding of fact arrived at by the AO in appellate order. The Learned CIT(A) has also not recorded any finding of fact for deleting the addition in the matter.

Since the Learned CIT(A) has not recorded any finding of fact for assessment year under appeal i.e., A.Y. 2013-2014, therefore, the matter requires reconsideration at the level of the Learned CIT(A). The Order of the Learned CIT(A) is set aside and matter restored to his file with a direction to re-decide the appeal of Assessee in accordance with Law by giving reasons for decision in appellate order.

Tags : GENUINENESS TRANSACTION DELETION LEGALITY