In case for repayment of loan to the assessee, there is no requirement on the part of assessee to prove the source of funds.

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In case for repayment of loan to the assessee, there is no requirement on the part of assessee to prove the source of funds.

Short Overview : There was no requirement on the part of assessee to prove the source of receipt when it was merely the repayment of loan given by assessee. Hence, AO was not justified in making addition under section 68.

AO made an addition under section 68 alleging that assessee had not explained the source of funds. Assessee contended that amount received by it was current liability in subsequent years and the said liability was repaid.

It is held that Since this was a case for repayment of loan given by the assessee, there was no requirement on the part of assessee to prove the source of funds. Accordingly, AO was directed to delete the addition made under section 68.

Decision: In assessee’s favour.

Relied on: Pr. CIT v. Veedhata Tower Pvt. Ltd. [ITA No. 819 of 2015] : 2018 TaxPub(DT) 2030 (Bom-HC) and Pr. CIT v. SDB Estate Pvt. Ltd. [ITA No. 1356 of 2015] : 2019 TaxPub(DT) 0280 (Bom-HC).

IN THE ITAT, MUMBAI BENCH

JOGINDER SINGH, V.P. & N.K. PRADHAN, A.M.

ITO v. Vijay Dwellers Pvt. Ltd.

ITA No. 141/MUM/2018

30 January, 2019

Appellant by: B. Satyanarayan Raju, DR

Respondent by: Nadeem Ahmed Lasani, AR

ORDER

N.K. Pradhan, A.M.

This is an appeal filed by the Revenue. The relevant assessment year is 2009-10. The appeal is directed against the order of the Commissioner (Appeals)-14, Mumbai [in short ‘CIT(A)’] and arises out of the assessment completed under section 143(3) read with section 147 of the Income Tax Act 1961, (the ‘Act’).

2. The grounds of appeal filed by the Revenue read as under :–

1. Whether on the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) is justified in deleting the addition made under section 68 of the Income Tax Act of Rs. 13,48,00,000 received by the assesse from Prakruti Infrastructure Pvt. Ltd.

2. The learned Commissioner (Appeals) erred in holding that there is no requirement for assesse to prove the source of funds in the hands of M/s. Prakruti Infrastructure Pvt. Ltd., because this was a case of repayment of loan given in the financial year 2007-08 by the assesse.

3. The learned Commissioner (Appeals) failed to see that loan money given earlier was not lying dormant in bank account of M/s. Prakrutt Infrastructure Pvt. Ltd., to be “returned” this year and was applied elsewhere necessitating fresh, flow of funds even for repayment.

4. The learned Commissioner (Appeals) failed to see that the amounts were returned in 14 transactions over the year in amounts varying from Rs. 2,50,000 to Rs. 50,00,000 and sources of funds for each such transfer was to be explained as it was part of the assesse group company and rotation of funds among group concerns is seen.

5. The learned Commissioner (Appeals) ‘s order is contrary in law and on facts and deserves to be set aside.

3. Briefly stated, the facts are that the assessing officer (AO), on receipt of information from the Deputy Director of Income Tax-(Inv.), Mumbai, noticed that a total amount of Rs. 14,78,00,000 has been credited in the bank account of the assessee from various concerns including credits from the group concern i.e. Prakruti Infrastructure Pvt. Ltd. On that basis, the assessing officer reopened the assessment by issuing notice under section 148 dated 30-3-2016 to the assessee. In response to a query raised by the assessing officer during the reassessment proceedings, the assessee filed a reply dated 19-12-2016, which is reproduced as under :–

“With reference to the above subject matter and as directed vide your aforesaid notice we confirm that the amount received from various parties namely M/s Prakruti Infrastructure Pvt. Ltd., Rashmikant M. Shah & from Dharmendra Bhanushali & Tulsi Bhanushali & from New Park Sun Gardens.

Amount received from Rashmikant M. Shah (Director) & from New Park Sun Gardens is amount received as unsecured loan.

However, Amount received from Prakruti Infrastructure Pvt. Ltd. is current liability in subsequent years and the said liability of Prakruti Infrastructure Pvt. Ltd. is repaid.

Amount received from Dharmendra Bhanushali & Tulsi Bhanushali is towards booking of flat no. 501 & 502 and the above said amount is shown in the balance sheet as an advances received towards flat.”

However, the assessing officer was not convinced with the above explanation of the assessee for the reason that the identity, genuineness and creditworthiness of the Director and the related parties were not proved along with any supporting documentary evidence. Therefore, the assessing officer made an addition of Rs. 14,78,00,000 as unexplained cash credit under section 68 of the Act.

4. Aggrieved by the order of the assessing officer, the assessee filed an appeal before the learned Commissioner (Appeals) and submitted additional evidence which could not be filed before the assessing officer. On receipt of it, the learned Commissioner (Appeals) sent a copy of it to the assessing officer and called for a remand report. After the receipt of the remand report from the assessing officer, the learned Commissioner (Appeals) forwarded a copy of it to the assessee for its comments. The assessee filed a reply dated 7-8-2017.

As regards the addition of Rs. 13,48,00,000 made by the assessing officer, the learned Commissioner (Appeals) held as under :–

 “5.2 So far as receipt of sum of Rs. 13,48,50,000 from Prakruti Infrastructure (P.) Ltd. is concerned, the assessing officer has accepted the claim of the appellant that the said sum was received from Prakruti Infrastructure (P.) Ltd. by the appellant. However, the only objection of the assessing officer was that the source of funds in the hands of Prakruti Infrastructure (P.) Ltd. has not been explained by the appellant. Since this is a case for repayment of loan given by the appellant, there is no requirement for the appellant to prove the source of funds in the hands of Prakruti Infrastructure (P.) Ltd. Accordingly, the assessing officer is directed to delete the addition of Rs. 13,48,50,000 made in the assessment order in respect of receipt of Rs. 13,48,50,000 from Prakruti Infrastructure (P.) Ltd.”

4.1 As regards the addition of Rs. 50,00,000 made by the assessing officer, the learned Commissioner (Appeals) held as under :–

“So far as receipt of sum of Rs. 50,00,000 from Dhamendra Bhanushali and receipt of sum of Rs. 20,00,000 from Tulsiben Bhanushali is concerned, the appellant has filed copies of cheques issued by these parties, confirmation letters from these parties as well as the registered agreement of sale of flats with these parties. Accordingly, the additions made under section 68 of the Income Tax Act in respect of sums received from these parties are liable to be deleted. However, the copies of confirmation and the copies of the cheques issued by these parties were not available before the assessing officer, though the relevant registered agreements of sale were made available to the assessing officer. Therefore, the appellant is directed to file a copy of these documents before the assessing officer who shall satisfy himself regarding the correctness of the documents filed by the appellant and delete the addition of Rs. 50,00,000 made in the assessment order in respect of receipt of Rs. 50,00,000 from Dharmendra Bhanushali and also delete the addition of Rs. 20,00,000 from Tulsiben Bhanushali, if the documents filed by the appellant are found to be correct.”

5. Before us, the learned Departmental Representative reiterates the grounds of appeal. On the other hand, the learned counsel of the assessee submits that the requirement of explaining the source of source of the receipts came into the statue book by amendment to section 68 of the Act on 1-4-2013 effective from the assessment year 2013-14 onwards. This appeal in question pertains to assessment year 2009-10, therefore, during the subject assessment year, there was no requirement to explain the source of source. In this regard reliance is placed by him on the decision by the Hon’ble Bombay High Court in Pr. CIT v. Veedhata Tower Pvt. Ltd., [ITA No. 819 of 2015] : 2018 TaxPub(DT) 2030 (Bom-HC) & Pr. CIT v. SDB Estate Pvt. Ltd., [ITA No. 1356 of 2015] : 2019 TaxPub(DT) 0280 (Bom-HC). The learned counsel further submits that it has discharged the onus placed upon it under section 68 by filing confirmation of account copies from Prakruti Infrastructure Pvt. Ltd. for both the financial years 2007-08 and 2008-09, the year of payment and the year of receipt ; the bank account of the said Prakruti Infrastructure Pvt. Ltd. for both the financial years 2007-08 and 2008-09 in which the transactions in question are reflecting and has also filed a copy of ITRV for both the assessment years 2008-09 and 2009-10 in the case of Prakruti Infrastructure Pvt. Ltd. and all these documents were duly verified by the assessing officer while forwarding his remand report to the learned Commissioner (Appeals).

6. We have heard the rival submission and perused the relevant materials on record. So far as receipt of Rs. 13,48,50,000 from Prakruti Infrastructure (P.) Ltd. is concerned the learned Commissioner (Appeals) has rightly observed that since this is a case of repayment of loan given by the assessee, there is no requirement on the part of the assessee to prove the source of funds in the hands of Prakruti Infrastructure (P.) Ltd. There cannot be any dispute on the above reasoning. We are supported by the decision in Veedhata Tower Pvt. Ltd. (supra) and SDB Estate Pvt. Ltd. (supra).

In so far as, the receipt of Rs. 50,00,000 from Dharmendra Bhanushali and Rs. 20,00,000 from Tulsiben Bhanushali is concerned. The learned Commissioner (Appeals) has directed the assessee to file the copies of confirmation and cheques before the assessing officer as delineated at para 4.1 hereinbefore.

Thus we uphold the order of the learned Commissioner (Appeals).

7. In the result, the appeal is dismissed.

 

 

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