2023 (7) TMI 1577 - AT - Income Tax

Assessment u/s 153A - Addition u/s 68 - treating the Loan received from individuals as bogus - HELD THAT - In this case there is no dispute with regard to fact that the assessment for AY 2010-11 is unabated/concluded on the date of search because the due date for issue of notice u/s.143(2) was expired on 30.11.2011 which is much before the date of search on 26.09.2012. Therefore in absence of incriminating material as a result of search no addition can be made in the assessment framed u/s. 143(3) r.w.s.153A of the Act if such assessments are unabated on the date of search. Fact remains that the CIT(A) has brought out clear fact to the effect that the assessee is a part of group companies which are involved in taking accommodation entries from alleged entry providers in the form of unsecured loans and share capital. Therefore facts need to be verified to ascertain unsecured loans claimed to have been received by the assessee is having any nexus with bogus unsecured loans/share capital entries obtained by the assessee from Kolkata Companies. We set aside the issue of addition made towards unsecured loans for AY 2010-11 to the file of the AO and direct the AO to re-examine the claim of the assessee in light of the decision of Abhisar Buildwell (P) Ltd 2023 (4) TMI 1056 - SUPREME COURT For AY 2011-12 assessee could not file necessary evidences to justify the loans taken from various persons and thus one more opportunity of hearing may be given to the assessee to justify its case - We find that since the addition made towards unsecured loans for AY 2010-11 has been set aside to the file of the AO a similar issue of addition made towards unsecured loans for AY 2011-12 also needs to be verified by the AO in light of evidences if any filed by the assessee to justify the loans.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in these appeals are:

- Whether the addition made by the Assessing Officer (AO) treating unsecured loans received by the assessee as bogus is justified in the absence of incriminating material found during the search under section 132 of the Income Tax Act, 1961 (the Act).

- Whether additions can be made in assessments framed under section 143(3) read with section 153A of the Act, when such assessments were unabated or completed prior to the date of search, without any incriminating material found during the search.

- Whether the Commissioner of Income Tax (Appeals) erred in upholding the AO's addition of unsecured loans and interest paid thereon.

- Whether the assessee is entitled to further opportunity of hearing to justify the genuineness of the unsecured loans for the assessment years 2010-11 and 2011-12.

- The admissibility and consideration of additional grounds raised by the assessee challenging the additions made in absence of incriminating material.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Legality of addition of unsecured loans in absence of incriminating material found during search

Relevant legal framework and precedents: The Tribunal relied heavily on the Supreme Court decision in PCIT v. Abhisar Buildwell (P) Ltd., [2023] 454 ITR 212 (SC), which established that no addition can be made in a completed or unabated assessment under section 143(3) read with section 153A of the Act without incriminating material found during the search or requisition under sections 132 or 132A, respectively.

Court's interpretation and reasoning: The Tribunal noted that the assessment year 2010-11 was unabated on the date of search (26.09.2012), as the due date for issuance of notice under section 143(2) had expired on 30.11.2011, well before the search date. Therefore, in absence of any incriminating material found during the search relating specifically to the unsecured loans, the AO's addition treating the loans as bogus was not sustainable.

Key evidence and findings: The AO and the CIT(A) referred to a modus operandi involving the group companies taking bogus accommodation entries in the form of share capital and loans from Kolkata companies. However, there was no direct incriminating material discovered during the search linking the unsecured loans to undisclosed income for the relevant assessment years.

Application of law to facts: Applying the Supreme Court's ruling, the Tribunal held that additions cannot be sustained merely on suspicion or modus operandi without incriminating material found during search in unabated assessments. The absence of such material in this case invalidated the additions made by the AO.

Treatment of competing arguments: The Revenue argued that the rotation of funds and linkages with entry providers constituted incriminating material. The Tribunal rejected this contention, emphasizing that the legal standard requires tangible incriminating material discovered during the search, not mere inference or suspicion.

Conclusions: The Tribunal concluded that the additions towards unsecured loans for AY 2010-11 cannot be upheld in absence of incriminating material and set aside the issue to the AO for re-examination in light of the Supreme Court decision.

Issue 2: Treatment of interest paid on unsecured loans

Relevant legal framework and precedents: The CIT(A) had observed that when additions are made towards loans and advances, separate additions towards interest paid or credited on such loans are not warranted.

Court's interpretation and reasoning: The Tribunal did not disturb this finding and accepted the CIT(A)'s direction to delete the separate addition of Rs. 2,94,904/- towards interest, holding that the interest is inherently part of the loan transaction and separate addition would amount to double counting.

Conclusions: The separate addition towards interest was rightly deleted by the CIT(A), and this aspect was not challenged further by the Revenue.

Issue 3: Admission and adjudication of additional grounds challenging additions in absence of incriminating material

Relevant legal framework and precedents: The Tribunal recognized that legal grounds challenging additions on the basis of absence of incriminating material can be raised at any stage, including before the Tribunal, as they do not require fresh factual investigation.

Court's interpretation and reasoning: The Tribunal admitted the additional grounds filed by the assessee during the hearing and proceeded to decide them on merits, reinforcing the principle that such legal grounds are not barred by procedural timelines.

Conclusions: Additional grounds challenging the additions were admitted and decided in favour of the assessee.

Issue 4: Opportunity to the assessee to justify unsecured loans for AY 2011-12

Relevant legal framework and precedents: The principle of natural justice and fair hearing requires that the assessee be given an opportunity to produce evidence to substantiate claims of unsecured loans.

Court's interpretation and reasoning: Since the issue of unsecured loans for AY 2010-11 was set aside to the AO for fresh examination, the Tribunal held that the similar issue for AY 2011-12 also warrants re-examination. The assessee had indicated inability to produce evidence for the 2011-12 loans and requested further opportunity.

Application of law to facts: The Tribunal directed the AO to re-examine the unsecured loans claims for AY 2011-12 in light of any evidence produced by the assessee and decide in accordance with law.

Conclusions: The issue for AY 2011-12 was remanded to the AO for fresh consideration and opportunity to the assessee.

3. SIGNIFICANT HOLDINGS

- "In respect of completed assessment/unabated assessment, no addition can be made by the AO in absence of any incriminating material found during the course of search u/s.132 of the Act, or requisition made u/s.132A of the Act."

- "In order to make any addition in the assessment framed u/s.143(3) r.w.s.153A of the Act, incriminating material for each assessment year is must if such assessment is unabated/completed on the date of search."

- "The grounds taken by the assessee is purely a legal ground which can be taken at any time of proceedings, including pending proceedings before the Tribunal."

- "When the additions made towards loans and advances includes interest paid/credited on said loans, then separate additions towards interest is not required."

- The Tribunal set aside the addition towards unsecured loans for AY 2010-11 to the AO for re-examination in light of the Supreme Court ruling and directed similar treatment for AY 2011-12, allowing the assessee further opportunity to justify the loans.