ACIT v. Ariba Foods Pvt. Ltd (2021)86 ITR 174 (Indore)(Trib.)

S. 68 : Cash credits-Unsecured loans-Statement in the course of survey and search-No nexus with loan transaction of year under consideration-Failure to issue summons-No addition can be made-Receipt of investment made in earlier years-Had sufficient funds to make investments-Addition is held to be not justified. [S.131, 133(6)]

Tribunal held that the Assessing Officer was duty-bound to provide an opportunity to the assessee to comment upon the statement of such persons and to cross-examination of them, if requested by the assessee. During the course of the assessment proceedings, the assessee had specifically requested the Assessing Officer to issue summons under section 131/133(6) to the loan creditor companies, but, the Assessing Officer remained silent and did not even apprise the assessee that the statements of the directors of these companies had already been recorded by the Investigation Wing. Thus there was no infirmity in the finding of the Commissioner (Appeals) that the Assessing Officer failed to follow the principles of natural justice. Relied on Kishinchand Chellaram v. CIT(1980) 125 ITR 713 (SC), Andaman Timber Industries v. CCE (2016) 38 GSTR 117 (SC), CIT v. Sunita Dhadda (Smt.) (2018) 406 ITR 220 (Raj)(HC) and ACIT v. Ei Dorado Biotech Pvt. Ltd. [2020 60 CCH 233 (Ahd) (Trib). The assessee has discharged the burden of proving identity  and also creditworthiness. As regards receipts of investments    the assessee had sufficient funds to make various investments and therefore, any subsequent realisation of such investments could not again be subjected to tax under section 68 of the Act. Once it was found that the assessee-company had received some funds, whether through explained sources or unexplained sources, they had to be regarded as available for making further investments. Merely because the assessee had agitated the addition made under section 68 of the Act against the addition made for the assessment year 2008-09, its claim regarding availability of funds raised in that year could not be denied.  (AY.2011-12, 2015-16, 2016-17)