Facts of the Case
The assessee company filed its return of income for Assessment Year 2012-13 declaring total income of ₹480. The return was processed under Section 143(1) and later selected for scrutiny under CASS. Notices under Sections 143(2) and 142(1) were issued but there was non-compliance by the assessee. The Assessing Officer noted that the assessee had introduced fresh share capital and share premium aggregating to ₹26,92,50,000 and, due to failure to substantiate identity, creditworthiness and genuineness, treated the entire amount as unexplained cash credit under Section 68 and assessed the income at ₹26,92,69,613 under Sections 143(3)/144. On appeal, the CIT(A) partly allowed relief by holding that no “real money” was received as the transactions were through journal entries and directed the AO to restrict the addition only to real money actually received, effectively setting aside the assessment.

Issues Involved
Whether the CIT(A) was justified in directing the Assessing Officer to assess only “real money” and thereby effectively setting aside the assessment, whether Section 68 applies only to cash credits or also to journal entry credits, and whether the CIT(A) complied with the statutory mandate of passing a reasoned speaking order under Section 250(6).

Petitioner’s Arguments
The Revenue contended that the CIT(A) exceeded jurisdiction by issuing directions that amounted to setting aside the assessment, a power no longer available to the CIT(A) after 01.06.2001. It was argued that Section 68 applies to “any sum found credited” in the books irrespective of whether it represents actual cash or journal entries and that the CIT(A) failed to adjudicate the matter on merits by passing a speaking order.

Respondent’s Arguments
The assessee did not appear before the Tribunal. Before the CIT(A), it had contended that the share capital was introduced through journal entries among group companies without actual inflow of money and therefore Section 68 was not applicable.

Court Order / Findings
The ITAT Kolkata held that Section 68 is widely worded and applies to any sum found credited in the books, irrespective of whether the credit represents cash or value of transactions recorded through journal entries. The Tribunal relied on the decision of the Delhi High Court in Sophia Finance Ltd. and other judicial precedents to hold that the Assessing Officer is empowered to enquire into the true nature and source of such credits. The Tribunal observed that by directing the Assessing Officer to verify and restrict the addition to “real money”, the CIT(A) had effectively set aside the assessment, which is beyond his jurisdiction post 01.06.2001. It was further held that the CIT(A) failed to discharge his duty under Section 250(6) to pass a reasoned and speaking order. Accordingly, the order of the CIT(A) was set aside and the matter was restored to him for fresh adjudication on merits after providing opportunity to both the Assessing Officer and the assessee in accordance with Rule 46A.

Important Clarification
The Tribunal clarified that Section 68 is not restricted to cash credits alone and covers all credits appearing in the books of account, including those arising through journal entries. It was further clarified that the CIT(A) does not possess the power to set aside assessments and must decide appeals by passing a reasoned speaking order in compliance with Section 250(6), after following Rule 46A where additional evidence is involved.

Final Outcome
The appeal filed by the Revenue was allowed for statistical purposes. The order of the CIT(A) was set aside, and the matter was restored to the CIT(A) for fresh adjudication on merits by passing a speaking order after granting opportunity of hearing to both the Assessing Officer and the assessee.

Source Link- https://itat.gov.in/public/files/upload/1768385715-2ZQRAz-1-TO.pdf

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