2013 (9) TMI 1109 - AT - Income Tax

Reopening of assessment u/s. 147 - general statement of Shri Rakeshkumar Gupta that was made by him in the course of survey u/s. 133A at his premises - Held that - Not only Shri Rakesh Kumar Gupta has stated that he has retracted from the statement recorded during the survey but also filed an affidavit dated 20/2/2009 and letter dated 27/4/2009 to deny the statement made during the survey under section 133A. He has further confirmed that the sales made by the assessee were effected and the consideration was received by cross order cheques. Thus it is clear that there is no material on record to say that the purchases made by the assessee from the said concern were bogus except the general statement recorded by the Department in the case of Shri Rakesh Kumar Gupta which was later on retracted. In absence of any material brought on record against the submissions made by Shri Rakesh Kumar Gupta in his letter dated 20/12/2009 filed before the AO of the assessee the addition if any made in the case of the assessee will be based on presumption only and it cannot be sustained in the eyes of law. As against that assessee has submitted various evidences to show that the actual delivery of the goods was received by the assessee from the said party which has not been discarded by the AO. The addition sustained by Ld. CIT(A) is also on presumption basis. Therefore keeping in view the facts and circumstances of the case we are of the opinion that additions made by the AO deserves to be deleted in its entirety.

Summary

Issues involved:
Challenge to the legality and validity of the order passed under section 143(3) r.w.s. 147 of the Act; Addition to the extent of purchases made from specific parties; Involvement of cash in making purchases from undisclosed parties; Addition on the peak value of cash involved in purchases from unidentifiable parties; Reopening of assessment u/s. 147 of the Act based on a general statement; Confirmation of reopening of assessment; Arbitrary confirmation of addition based on estimated profit; Sustaining addition based on retracted statement; Dismissal of appeals by the Revenue.

Issue 1: Challenge to the legality and validity of the order passed under section 143(3) r.w.s. 147 of the Act:
The Assessee challenged the legality and validity of the order passed under section 143(3) r.w.s. 147 of the Act, questioning the reopening of assessment based on a general statement made during a survey. The Counsel stated that this ground was not pressed and was accordingly dismissed.

Issue 2: Addition to the extent of purchases made from specific parties:
The Assessee contested the addition made on purchases from certain parties, arguing that the estimate of profit was arbitrary and ignoring the merits of submissions. The Revenue's ground related to the involvement of cash in purchases from undisclosed parties and the peak value of cash involved in purchases from unidentifiable parties.

Issue 3: Reopening of assessment u/s. 147 of the Act based on a general statement:
The department raised an additional ground regarding the confirmation of addition on purchases made from certain parties, emphasizing the involvement of cash and the decision in a specific case. The Tribunal analyzed the facts and circumstances, considering the retracted statement and various evidences submitted by the Assessee.

Issue 4: Confirmation of reopening of assessment and arbitrary confirmation of addition based on estimated profit:
The Tribunal reviewed the assessment order, the CIT(A)'s decision, and a related case to determine the validity of the addition made by the Assessing Officer. It was noted that the addition was based on a presumption and lacked substantial evidence against the submissions made by the concerned party.

Issue 5: Sustaining addition based on retracted statement and dismissal of appeals by the Revenue:
As the facts and issues were found to be identical to a previous case, the Tribunal followed the decision of a co-ordinate Bench and partly allowed the appeals filed by the Assessee while dismissing the appeals filed by the Revenue.

In conclusion, the judgment addressed various issues including the challenge to the legality of the assessment order, addition on purchases from specific parties, involvement of cash in transactions, confirmation of additions based on statements, and the dismissal of appeals by the Revenue. The Tribunal carefully analyzed the evidence, retracted statements, and legal precedents to arrive at a decision that favored the Assessee in part and dismissed the Revenue's appeals.