1. Background of Unexplained Cash Credit
Income Tax is levied on five categories of income – salary, house property, business/profession income, capital gains and income from other sources. The Indian Income Tax has provisions to penalize tax evaders.
The aforementioned categories except capital gains deal with revenue income and one must pay taxes on them in the FY in which it is earned/received. Capital gains deal with tax on capital asset. The basic rule of the income tax levy is that all income is taxed unless specifically exempted (i.e. made not taxable). Capital income, in general, is not taxable unless specifically brought within tax bracket.
2. Unexplained Cash Credit – Section 68
Any money that is credited to the taxpayer will be eligible for taxation unless it is specifically exempted as per tax provisions. If such credit is not offered to tax by the taxpayer, he/she must explain the reason for it as well as cite the credit source. Knowing the source of income is relevant as the same might be belonging to a third person (i.e. a person other than the taxpayer) and might have to be taxed in the hands of such third person. It might have to be taxed in the hands of the third person as he might have diverted the funds to the taxpayer with the intention of evading taxes.
Section 68 considers any sum credited in the books of taxpayers in a financial year and not already offered to tax as income of the taxpayer during such financial year, if the following conditions are satisfied:
- Taxpayer offers no explanation about the nature and source of such credit
- Explanation offered by a taxpayer about the nature and source of such credit is not satisfactory in the opinion of assessing officer.
Such credit is referred to as unexplained cash credit.
3. Special Provision in Case of Corporate Taxpayers
Any explanation offered by closely held company (not to serve public interest) with respect to any sum credited being share application money, share capital, share premium or any such amount shall be deemed to be unsatisfactory unless:
- Person in whose name such amount is recorded in the books of such company offers an explanation about the nature and source of such sum credited
- Assessing officer is of the opinion that his/her explanation is satisfactory
However, the aforementioned special provision will not apply if the person in whose name such amount is recorded in the books of such company is a venture capital fund or a venture capital company as per the Section 10(23FB).
Special provision is designed for closely held corporate taxpayers to avoid any tax evasion by companies that show the names of non-existing shareholder/third party as having paid the company share related money. This is a mechanism for parking unaccounted money in such companies, not subject to stringent regulation under company law provisions as compared to widely held companies.
4. Taxability of Unexplained Cash Credit
Unexplained cash credit is treated as income in the year in which it is received and taxed at a flat rate of 60% without providing any benefit of basic exemption limit, irrespective of the tax slab. There is a 25% surcharge and 6% penalty and the final tax rate comes to 83.25% (including cess).
No deduction/allowance is allowed and no loss can be set off against such unexplained cash credit which is considered as income. Penalty is not levied if unexplained cash credit is already included in the return of income and tax on the same is paid on or before the end of the financial year.
5. Key Points to be Noted
- It is advisable to accept payments through account payee cheque or demand draft which enables the taxpayer to know the identity of the payer
- Assessing officer may ask for various details such as mode of payment, bank account of the lender evidencing the transaction/cash flow statement of the lender etc. It is advisable to collect address and/or PAN of the depositor in order to collate the necessary documents as and when the need arises.
- Existence of ‘books’ is necessary to invoke Section 68. Loose sheets or scraps of paper cannot be termed as book as they can be easily detached and replaced.
- Books of accounts in which unexplained cash credit is found must be of the taxpayer