9911796707
TMI Blog2015 (1) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the capacity of M/s Ahura Exports Pvt. Ltd. to pay such loan. 3. The appellant craves leave to add, amend any / all the grounds of appeal before or during the course of hearing of the appeal." 3. The grounds raised in the Revenue's Appeal 4708/Del/2013 (A.Y. 2008-09) read as under:- "1. The order of the Ld. CIT(A) is not correct in law and facts. 2. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 2,18,74,410/- made by the AO on a/c of unexplained share capital received by assessee company without appreciating the fact that the creditworthiness of the investors could not be proved by the assessee. 3. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 12,20,000/- made by the AO on a/c of unexplained unsecured loan received by the assessee company without appreciating the fact that the creditworthiness of the lenders and the genuineness of the transaction could not be proved by the assessee. 4. On the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 30,51/- made by AO on a/c of disallowance of interest on loan as claimed by assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken. AO observed that the onus is on the assesse to prove that the said party have the financial capacity and the credit worthiness. By not filing the complete details called for, the assessee company has not discharged its onus. Therefore, in view of the partial details furnished by the assessee company, the unsecured loan taken by the assessee amounting to Rs. 10,50,000/-. AO treated as unexplained and added to the income of the assesee company vide his order dated 29.12.2008 passed u/s. 143(3) r.w.s. 153A and 153B of the I.T. Act, 1961. 6. Against the aforesaid assessment order dated 29.12.2008 passed under section 143(3) r.w.s. 153A and 153B of the I.T. Act, 1961, assessee appealed before the Ld. First Appellate Authority, who vide impugned Order dated 23.5.2013 partly allowed the appeal of the assessee wherein he deleted the addition of Rs. 10,50,000/-. 7. Against the order dated 23.5.2013 of the Ld. CIT(A), Revenue filed an appeal before us. 8. We have heard both the parties and perused the records. We find that Ld. CIT(A) while deciding the issue has observed that assessee filed certain supporting documents which were sent to the AO for comments. The AO has objected to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity in the order of the Ld. CIT(A), hence, we uphold the impugned order dated 23.5.2013 passed by Ld. CIT(A) by dismissing the Appeal filed by the Revenue. REVENUE'S APPEAL (ITA NO. 4708/DEL/2013) 9. The brief facts of the case are that the assessee company is engaged in the business of supply of spares to government, PSUs and others. It also undertakes small repair works including AMC in its office at Goa. The return of income was filed on 30.9.2008 declaring a total loss of Rs. 1,18,21,587/-. The notice u/s. 143(2) was issued on 25.9.2009 and served on the assessee. A notice u/s. 142(1) and a detailed questionnaire was issued on 13.9.2010. In response Sh. Aran Ahuja, a Director of the company attended the proceedings from time to time and filed the necessary details. After considering the details, the AO completed the assessment u/s. 143(3) of the I.T. Act, 1961 vide its order dated 11.11.2010 and made the various additions. 10. Against the aforesaid assessment order dated 11.11.2010, assessee appealed before the Ld. First Appellate Authority, who vide impugned Order dated 23.5.2013 partly allowed the appeal of the assessee wherein he deleted the some additions. 11. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assessee has not established the financial capacity and creditworthiness of the shareholders. The Commissioner of Income Tax (Appeals) upheld the addition made by the AO concluding that creditworthiness or the financial strength of the creditor/subscriber has not been established in the absence of relevant bank statements of the subscriber and bank certificates are not sufficient to establish source. 2. The Hon"ble ITA T decided the first issue vide para no.11, pg.no.18 as under:- "The availability of balance-sheet, certificate of incorporation, confirmations and certificates of good standing etc. filed by the assessee in respect of shareholders establish that they are nonresident entities having independent and legal existence. The moneys have come to assessee through banking channels as is 'evident from FIRC, which also mentions the purpose of remittance and also the particulars of the remitting bank. FIPB approval that too with a liberty to collect share capital up to 600 crores and ROC compliance, etc., clearly indicate the stand of the assessee. In our considered view, the plethora of the evidence filed by the assessee amounts to discharge of primary burden cast o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). What is not taxable under s. 5(2) cannot be taxed under the provisions of s.68 or s.69. Under s. 5(2), the income accruing or arising outside India is not taxable unless it is received in India. Similarly, if any income is already received outside India, the same cannot be taxed in India merely on the ground that it is brought in India by way of remittances. For example, there may be appearing an entry of cash credit in the name of a person of USA by way of loan received through cheque and deposited in the bank account maintained at any city in USA. Such money, being. received outside India, cannot be taxed under s. 5(2) unless it is proved that such money is relatable to the income accrued or arising in India. Therefore, the same cannot be taxed under s.68 merely on the ground that assessee fails to prove the genuineness and source of such cash credit. Therefore, we are of the considered view that provisions of s. 68 or 69 would be applicable in the case of nonresident only with reference to those amounts whose origin of source can be located in India. Therefore, the provisions of s. 68 or 69, in our opinion, have limited application in the case of non-resident". 5. The Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, we find that AO has observed that assessee has only submitted a confirmation from Sh. S. Sreekanth regarding the loan and no details have been submitted by the assessee in respect of the unsecured loans, the amount of Rs. 12,20,000/- and he treated the same as unexplained and added to the taxable income of the assessee. We also find that Ld. CIT(A) has observed that he did not find that any evidence was unearthed during the search conducted on the assessee to indicate that these amounts were not genuine. Having searched the assessee and failed to get any evidence, it is not legally tenable for the Revenue to allege that the assessee has failed to prove the transactions. Ld. CIT(A) has further observed that once assessee gives some details the burden shifts on the Revenue to disprove the claim made. Else, the claim has to be accepted. When loans / advances taken through the banking channel and returned through the banking channel it cannot be doubted in the absence of evidence to the contrary. We find force in the conclusion drawn by the Ld. CIT(A) that as there is no evidence to the contrary, the additions made are not legally sustainable and are rightly deleted. In vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
