2025 (5) TMI 12 - AT - Income Tax

Rectification u/s 254 - Addition u/s 68 - HELD THAT - As in respect of 26 member-depositors details were furnished by the Assessee and notices were sent by the AO and therefore the addition made by the AO and confirmed by the CIT(A) in respect the aforesaid 26 member-depositors could not have been sustained in view of the judgment of Pragati Credit Corporative Society Limited 2005 (6) TMI 26 - GUJARAT HIGH COURT Tribunal had directed the Assessee to substantiate the identity of member-depositors and had clarified that the Assessing Officer may decide the issue of afresh in respect of 14 member depositors on whom notices could not be served. It is clear that the direction given by the Tribunal to the Assessee to substantiate identity of member-depositors was not restricted to any number of members. Thus it is clear that the right of Revenue to carry out inquiry/investigation in respect of member-depositors (except for the 26 member-depositors specified hereinabove) was not precluded. At the same time the Assessee would also be free to raise all the rights and contention before the Assessing Officer. Accordingly we do not find any mistake apparent on record in the order passed by the Tribunal. Present Miscellaneous Application it appears that the Revenue has sought some clarification on the issues stated therein. The Order passed by the Tribunal stands clarified to the extent of our observations hereinabove. Since we have concluded there is no mistake apparent on record the law as laid down in Reliance Telecom Limited 2021 (12) TMI 211 - SUPREME COURT would become applicable. Relief as claimed by the Revenue cannot be granted in the present miscellaneous application preferred u/s 254(2) of the Act.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Appellate Tribunal (AT) in the present matter are:

• Whether the Tribunal was justified in setting aside the issue of addition under Section 68 of the Income Tax Act, 1961 (the Act) back to the Assessing Officer (AO) only with respect to 14 out of 40 parties on whom notices under Section 133(6) were issued but remained unserved, instead of restoring the entire issue to the AO for fresh examination.
• Whether the Tribunal was justified in deleting the addition made in respect of 26 parties out of a large number of parties involved, merely because notices under Section 133(6) were served on these 26 parties, despite the fact that 24 of these parties did not make any submissions during remand proceedings.
• Whether the Tribunal was justified in restricting its decision to only 40 parties out of a large number of parties, without specifying whether additions in respect of all other parties excluding these 40 were confirmed.
• Whether the addition under Section 68 of the Act was correctly made on the entire unsecured loan balance of Rs. 14.33 crores as reflected in the accounts, or should have been restricted to the credit made during the relevant previous year.
• Whether the AO and the CIT(A) were justified in confirming the addition in respect of the 26 parties despite the assessee furnishing details of deposits and members.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Scope of Tribunal's direction to AO regarding 14 parties and entire issue restoration

Relevant legal framework and precedents: Section 68 of the Income Tax Act empowers the AO to make additions where unexplained credits are found. Section 133(6) allows the AO to summon persons to produce evidence or furnish information. The Tribunal's power to remit matters to AO for fresh examination is well established, but the extent of remand must be consistent with facts and law.

Court's interpretation and reasoning: The Tribunal noted that the AO had issued 40 notices under Section 133(6), of which 26 were served and 14 remained unserved. The Tribunal limited its direction for fresh examination only to those 14 parties where notices were unserved, and directed deletion of additions in respect of 26 parties. The Tribunal rejected the Revenue's contention that the entire issue should be remanded, emphasizing that the AO had already conducted enquiry on 40 parties and that the assessee was to substantiate identity of members for the 14 parties. The Tribunal clarified that the right of the Revenue to investigate other members was not precluded.

Key evidence and findings: The assessee had shown unsecured loans of Rs. 14.33 crores in the return and submitted details of various deposits as on 31.03.2016. The AO issued notices to 40 parties randomly selected from a large number of depositors. Of these, 26 parties responded or were served; 14 notices remained unserved. The AO and CIT(A) confirmed additions on the entire amount without restricting to the relevant previous year's credits.

Application of law to facts: The Tribunal applied the principle that additions under Section 68 require verification of identity, creditworthiness, and genuineness of transactions. Since notices were served on 26 parties and details were available, the addition in respect of these parties could not be sustained. For the 14 parties where notices were unserved, the Tribunal directed fresh examination, allowing the assessee to substantiate identity by other credentials.

Treatment of competing arguments: The Revenue argued that the entire issue should be remanded and that the Tribunal erred in limiting its direction. The assessee contended that additions were not sustainable as details were furnished and investigation was incomplete. The Tribunal balanced these views, rejecting the Revenue's plea for full remand and accepting the assessee's contention for deletion in respect of 26 parties.

Conclusion: The Tribunal's direction to remand only the issue relating to 14 parties was justified and within its jurisdiction. The AO's investigation on 40 parties was adequate for the purpose of the addition, and the assessee's right to substantiate identity was preserved.

Issue 2: Deletion of addition in respect of 26 parties despite limited response

Relevant legal framework and precedents: The judgment of the Hon'ble Gujarat High Court in CIT Vs. Pragati Credit Co-operative Society Ltd. (2005) 278 ITR 170 (Gujarat) was pivotal. It held that if the assessee furnishes names and addresses of depositors and the AO treats them as sample for investigation, additions under Section 68 cannot be sustained without further proof.

Court's interpretation and reasoning: The Tribunal distinguished the present facts from the Pragati case, noting that the AO had issued notices to 40 parties and received only two replies. However, the Tribunal held that the AO and CIT(A) were not justified in confirming additions on the entire amount of Rs. 14.33 crores for the 26 parties where notices were served and details were available. The Tribunal observed that the AO failed to provide reasons for sustaining additions despite the availability of details and partial responses.

Key evidence and findings: The assessee submitted detailed account-wise deposits as on 31.03.2016, covering various deposit types. The AO's enquiry was limited to a sample of 40 parties. The Tribunal noted the lack of any finding by the AO that addresses were incorrect or that parties had absconded.

Application of law to facts: Applying the principle from Pragati, the Tribunal concluded that the AO's failure to investigate beyond issuing notices and the absence of sufficient evidence to disprove identity or genuineness meant the additions could not be sustained for the 26 parties. The addition based on the entire balance without restricting to relevant credits was also considered erroneous.

Treatment of competing arguments: The Revenue contended that non-response by most parties justified the addition. The assessee argued that furnishing details and partial cooperation sufficed to disallow additions. The Tribunal sided with the assessee, emphasizing need for AO's active investigation and evidence beyond mere non-response.

Conclusion: The deletion of additions in respect of 26 parties was upheld as justified, given the facts and legal precedent. The AO's confirmation of additions without adequate inquiry was unsustainable.

Issue 3: Restriction of Tribunal's decision to only 40 parties and non-specification on others

Relevant legal framework and precedents: The Tribunal's role is to adjudicate issues brought before it and can limit its decision to the parties and issues examined. The AO has continuing jurisdiction to examine other parties not covered in the Tribunal's order.

Court's interpretation and reasoning: The Tribunal clarified that its direction was limited to the 40 parties selected by the AO for investigation. It did not confirm or reject additions in respect of other parties, thereby leaving the Revenue's right to investigate those parties intact. The Tribunal emphasized that the assessee was free to raise contentions before the AO regarding other parties.

Key evidence and findings: The AO's investigation was limited to a sample of 40 parties from a large number of depositors. The Tribunal's order explicitly addressed only these parties.

Application of law to facts: The Tribunal's limitation of decision to these 40 parties was consistent with the facts and procedural fairness. The AO's jurisdiction over other parties remains unaffected.

Treatment of competing arguments: The Revenue sought clarification on whether additions in respect of other parties were confirmed. The Tribunal declined to make any such confirmation, leaving the issue open.

Conclusion: The Tribunal's restriction of its decision to 40 parties was appropriate and did not preclude further investigation or additions by the AO in respect of other parties.

Issue 4: Correctness of addition on entire unsecured loan balance versus credit during relevant year

Relevant legal framework and precedents: Section 68 additions relate to unexplained credits during the relevant previous year, not the entire balance. The AO must restrict additions to the amount credited in the relevant year.

Court's interpretation and reasoning: The Tribunal noted that the AO made additions on the entire unsecured loan balance of Rs. 14.33 crores as on 31.03.2016, instead of restricting to credits during the relevant previous year. The Tribunal found this approach incorrect and held that additions should be limited to the relevant year's credits.

Key evidence and findings: The assessee's return showed unsecured loans of Rs. 14.33 crores as on 31.03.2016, comprising various deposit types. The AO did not differentiate between credits during the year and opening balances.

Application of law to facts: Applying the statutory mandate, the Tribunal held that additions under Section 68 must be confined to unexplained credits during the relevant year, not the entire outstanding balance.

Treatment of competing arguments: The Revenue did not specifically contest this point but maintained additions on the entire balance. The assessee argued for restriction to relevant year credits.

Conclusion: The Tribunal's view that additions must be restricted to credits during the relevant year is legally sound and consistent with the Act.

Issue 5: Justification of AO and CIT(A) confirming additions despite details furnished

Relevant legal framework and precedents: The AO must verify identity, creditworthiness, and genuineness of deposits before making additions under Section 68. The CIT(A) acts as appellate authority to confirm or delete additions based on evidence and law.

Court's interpretation and reasoning: The Tribunal found that the AO and CIT(A) confirmed additions without adequately considering the details furnished by the assessee, including account-wise deposits and member particulars. The CIT(A) did not provide reasons for confirming additions on the entire amount despite notices being served and partial replies received.

Key evidence and findings: The assessee furnished detailed deposit accounts and member information. The AO issued notices and received limited responses. The CIT(A) confirmed additions without addressing these facts satisfactorily.

Application of law to facts: The Tribunal held that the AO and CIT(A) failed to discharge their duty to conduct a thorough investigation and consider evidence before confirming additions. This failure rendered the additions unsustainable.

Treatment of competing arguments: The Revenue relied on non-response and incomplete investigation to justify additions. The assessee emphasized furnishing of details and partial cooperation. The Tribunal sided with the assessee.

Conclusion: The confirmation of additions by AO and CIT(A) without adequate inquiry and reasoning was unjustified and set aside by the Tribunal.

3. SIGNIFICANT HOLDINGS

The Tribunal's crucial legal reasoning is preserved verbatim from Paragraph 26 of the order:

"26. At this stage the argument of the learned authorised representative cannot be accepted that in case of a bank no addition under section 68 of the Act can be made as held by the honourable Gujarat High Court in case of Pragati Credit Co-operative Society Ltd. (2005) 278 ITR 170 (Gujarat) for the reason that in that case names and addresses of all the depositors had been supplied by the assessee as demanded by the assessing officer and the assessing officer has agreed to treat the same as samples of the total number of depositors. This fact was not disputed by the revenue. Further when the assessee has given sufficient indication regarding particulars of the deposits and the depositors and thereafter it was for the assessing Officer to carry out necessary investigation in respect of the depositors, If the learned assessing officer has any doubt about the capacity of the investors. The failure of the assessing officer to make further investigation cannot justify an addition in the hands of the assessee. Further the coordinate bench in that particular case has held that there are cases of inadvertent errors in the course of accepting and repaying hundreds of deposits where the procedure for acceptance on repayment of such deposits was explained and the causes for irregularities in the specimen signature cards was also narrated. However in the present case out of the total deposit of Rs. 14.33 crores, the AO sent notices in 40 cases out of which 26 were served and only two of them replied to the notices. The balance 14 notices could not be served on the parties. Therefore it is apparent that in the present case the AO carried out the enquiry in the remand proceedings which showed the result. Therefore, the facts in this case are clearly distinguishable. However, it is also to be accepted that out of the 40 cases, 26 notices could be served on the parties, therefore, it cannot be said that the details with respect to these 26 accounts were not available with the AO. The AO as well as the learned CITA, did not delete the addition to the extent of at least these 26 accounts wherein the parties were identified as per the know your customer norms. The balances of 14 notices were received back. The learned AO did not say that whether the addresses to which this notices were served were not correct, it has changed, or the parties have left or for any other reasons. It is the claim of the assessee that the members of it are residing in rural areas and most of them are farmers having agricultural income, some of them are small shopkeepers. It is also not the finding of the AO that that the members had only account for which the addition is made. Those members may also have the accounts in the nature of other deposits such as savings, current deposits or fixed deposits. Further, with respect to 26 accounts, the addition is sustained by the learned CIT - A in the hands of the assessee is also not justified. No reason is given by the learned CIT - A to confirm the action of the AO with respect to the full amount of Rs. 14.33 crores when those parties were served notices and 2 of them have replied to such notice. According to this, the addition made by the learned AO and confirmed by the learned CITA cannot be sustained, However, the learned assessing officer is further required to examine with respect to the balance 14 parties (members) who have not responded to his notices under section 133 (6) of the act by giving an opportunity to the assessee to identify those members by their other credentials of savings bank account, current account, agricultural loan accounts etc. Of course, the addition with respect to those 26 parties deserves to be deleted in view of the decision of the honourable Gujarat High Court. However as the amount pertaining to those 26 parties is not available, so we set-aside ground number 2 6 of the appeal back to the file of the learned assessing officer (1) with a direction to the assessee to substantiate the identity of the members of the society. The AO may examine the same and decide the issue afresh with respect to those of 14 parties and after ascertaining the detail of amount involved (2) with respect to 26 parties, delete the same. Accordingly, ground number 2 - 6 of the appeal is allowed with above direction."

Core principles established include:

• The necessity for AO to conduct thorough investigation and not rely solely on non-response to justify additions under Section 68.
• The requirement that additions under Section 68 be confined to unexplained credits during the relevant previous year, not entire outstanding balances.
• The principle that furnishing names and addresses of depositors and treating them as samples limits the AO's power to make additions without further proof.
• The Tribunal's authority to limit remand to specific parties based on facts and investigation status, without precluding further inquiry on others.

Final determinations on each issue are as follows:

• The Tribunal's decision to remand only the issue relating to 14 parties was justified and proper.
• The deletion of additions in respect of 26 parties was warranted in view of the evidence and legal precedent.
• The Tribunal's restriction of its decision to 40 parties was appropriate, leaving other parties open for investigation.
• Additions under Section 68 must be limited to credits during the relevant previous year, not entire balances.
• The AO and CIT(A) erred in confirming additions without adequate inquiry and reasoning; such additions were set aside.
• The Revenue's remedy against the Tribunal's order lies in appeal under Section 260A of the Act, not by miscellaneous application under Section 254(2).