2023 (5) TMI 1441 - AT - Income Tax

Addition u/s 68 - unexplained cash credits - unsecured loans that were raised by the assessee during the year from three parties - CIT(A) was of the view that the assessee had failed to substantiate the identity and creditworthiness of the lenders and also genuineness of the transactions under consideration HELD THAT - As the assessee had failed to discharge the primary onus that was cast upon him as regards proving the identity and creditworthiness of the aforementioned lenders as well as genuineness of the transactions under consideration therefore finding no infirmity in the view taken by the CIT(Appeals) who had on the basis of a well-reasoned order rightly held the impugned loans as unexplained cash credits u/s. 68 - Decided in favour of assessee.

Summary

The core legal questions considered in this appeal revolve around the treatment of certain unsecured loans as unexplained cash credits under section 68 of the Income-tax Act, 1961. Specifically, the issues include:

1. Whether the addition of Rs. 26,72,250/- to the assessee's income on account of unsecured loans raised from three parties without producing their bank account details is justified.

2. Whether the genuineness of the loan transactions can be challenged without proper inquiry or scrutiny of the evidence submitted by the assessee.

3. Whether the assessee discharged the onus of proving the identity, creditworthiness of the lenders, and genuineness of the loan transactions.

4. Whether the failure to produce bank account details of the lenders, despite specific directions, justifies treating the loans as unexplained cash credits.

5. Whether the lower authorities erred in sustaining the addition without conducting further inquiry or verification.

Issue-wise Detailed Analysis:

Issue 1: Justification for addition of Rs. 26,72,250/- as unexplained cash credits under section 68

The legal framework under section 68 of the Income-tax Act mandates that when any sum is found credited in the books of an assessee and the assessee offers any explanation about the nature and source of such sum, the Assessing Officer (AO) must be satisfied about the genuineness of the credit and the identity and creditworthiness of the creditor. The burden lies on the assessee to prove these elements.

In the present case, the AO directed the assessee to produce confirmations along with bank account details of the lenders to verify the genuineness of the unsecured loans aggregating Rs. 26,72,250/-. The assessee provided only confirmations without bank statements. The AO found the confirmations inadequate and treated the loans as unexplained cash credits, adding the amount to the income.

The CIT(Appeals) upheld the AO's addition, citing serious infirmities in the confirmations: absence of full names, addresses, PANs, phone numbers, bank account details, and lack of evidence proving creditworthiness. The confirmations were signed in illegible short forms, and no attempts were made to produce bank statements or tax returns of lenders. The CIT(Appeals) also noted that the assessee failed to produce the lenders or request the AO to summon them under sections 131 or 133(6) of the Act.

The Court concurred with the findings of the lower authorities, emphasizing that the assessee failed to discharge the primary onus of proving the identity and creditworthiness of the lenders and genuineness of the transactions. The failure to produce bank accounts despite specific directions was viewed as a deliberate withholding of evidence.

The Court rejected the contention that the AO should have conducted independent inquiries, holding that the primary responsibility lies with the assessee to substantiate the transactions.

Issue 2: Whether genuineness of transactions can be challenged without proper inquiry

The assessee argued that the addition was based on suspicion and surmises without proper inquiry and that the confirmations submitted should have been accepted as sufficient evidence. The assessee relied on judicial precedents stating that additions under section 68 require proper inquiry and satisfaction of the AO based on relevant facts.

The CIT(Appeals) and the Court rejected this argument, noting that the confirmations were incomplete and suspicious, lacking critical details for verification. The Court observed that no enquiry could be conducted due to absence of necessary information such as addresses, PANs, and bank details. The Court held that the absence of credible evidence precluded any meaningful inquiry, and the AO's satisfaction was based on the lack of evidence rather than mere suspicion.

The Court distinguished the cited precedents on facts, noting that in those cases, the assessee had furnished credible confirmations and details enabling inquiry, which was not the case here.

Issue 3: Whether the assessee discharged the onus of proving identity, creditworthiness, and genuineness

The legal principle is well settled that the assessee must prove:

• Identity of the creditors;
• Creditworthiness of the creditors; and
• Genuineness of the transactions.

The Court noted that the assessee failed to provide complete confirmations with full names, addresses, PANs, phone numbers, or bank details. The assessee also did not provide copies of the lenders' income tax returns or any evidence of their financial standing. The confirmations were signed in illegible forms, and the authenticity of the signatories was not established.

The Court found the assessee's failure to produce bank statements or request the AO to summon the lenders as a significant lapse. The explanation that lenders were non-cooperative was not accepted as the assessee did not take steps to compel production of evidence through statutory provisions.

Therefore, the Court held that the assessee did not discharge the onus and the additions were rightly made.

Issue 4: Whether failure to produce bank account details justifies addition

The AO specifically directed production of bank accounts to verify the source and genuineness of the loans. The assessee failed to comply. The Court emphasized that mere confirmations without bank account details or other corroborative evidence are insufficient.

The Court rejected the assessee's contention that the AO should have summoned the lenders or conducted independent inquiries. It held that the assessee must take proactive steps to substantiate the transactions. The failure to produce bank accounts despite directions led to the conclusion that the loans were unexplained cash credits.

Issue 5: Whether the lower authorities erred in sustaining the addition without further inquiry

The assessee contended that the AO and CIT(Appeals) erred in not making further inquiries or summoning the lenders. The Court rejected this contention, holding that the AO cannot be expected to conduct inquiries when the assessee fails to provide adequate details to initiate such inquiries.

The Court noted that the assessee did not request the AO to summon the lenders under section 131 or call for bank statements under section 133(6), thereby failing to utilize available statutory remedies.

Accordingly, the Court found no error in the approach of the lower authorities.

Significant Holdings:

"The appellant had failed to discharge the primary onus that was cast upon him as regards proving the identity and creditworthiness of the lenders and also, genuineness of the transactions under consideration."

"The confirmations filed by the appellant suffered from serious infirmities as they did not contain full names, addresses, PAN numbers, phone numbers, bank account details, or any credible evidence of the lenders' creditworthiness."

"The failure of the assessee to produce bank accounts of the lenders despite specific directions, and the failure to request the AO to summon the lenders or call for bank statements under statutory provisions, justified treating the loans as unexplained cash credits under section 68 of the Act."

"The AO's satisfaction that the loans were unexplained was not based on suspicion or surmises but on the absence of credible evidence and failure of the assessee to discharge the onus cast upon him."

"The assessee cannot shift the burden of inquiry on the AO when it fails to produce adequate details to enable such inquiry."

"The addition of Rs. 26,72,250/- was rightly upheld as unexplained cash credits and added to the total income of the assessee."