2010 (1) TMI 763 - AT - Income Tax

Appeal of the revenue and cross objection of the assessee - Assessee ex parte qua the assessee because the notice has been sent to the assessee at the address given by him in the cross objection and this notice has not come back as un-served and hence the service of notice is presumed as served and in spite of this, none appeared on behalf of the assessee on the appointed date of hearing and hence we decide this appeal of the revenue and cross objection of the assessee ex parte qua the assessee - Held that - cross objection filed by the assessee is treated as un-admitted and dismissed in limine. Addition u/s 68 - share application money from a racket of systematic entry operators - held that - judgment of Hon ble Apex Court in the case of Lovely Exports (P) Ltd. (2008 -TMI - 76942 - SUPREME COURT OF INDIA), is not squarely applicable in the present case because the facts are different. - in the interest of justice, this matter should go back to the file of the Assessing Officer for a de novo assessment after providing an opportunity to the assessee to cross examine Shri SH Mallick.

Summary

Issues:
1. Dismissal of cross objection for non-prosecution.
2. Addition of unexplained cash credits and commission from undisclosed sources.
3. Validity of assessment based on information received from the Investigation Wing.
4. Opportunity for cross-examination of a witness in assessment proceedings.

Issue 1: Dismissal of cross objection for non-prosecution
The Appellate Tribunal decided the appeal and cross objection ex parte as the assessee did not appear despite notice. The Tribunal dismissed the cross objection for want of prosecution, citing the precedent set by the Madhya Pradesh High Court that failure to appear or assist in the preparation of the case relieves the court of the obligation to address the reference.

Issue 2: Addition of unexplained cash credits and commission
The Assessing Officer made additions based on information from the Investigation Wing that the assessee received unexplained cash credits and paid commission from undisclosed sources. The CIT(A) deleted the additions, noting that the AO did not provide an opportunity for cross-examination and lacked material evidence to disprove the genuineness of the transactions. The Tribunal found discrepancies in the case compared to previous judgments and directed a de novo assessment with cross-examination of the witness.

Issue 3: Validity of assessment based on information from Investigation Wing
The assessment was reopened based on an Investigation Report indicating the assessee's involvement in receiving accommodation entries. The AO relied on statements from entry operators without allowing cross-examination. The CIT(A) ruled in favor of the assessee, citing the need for proper evidence and following Supreme Court judgments. The Tribunal found faults in the assessment process and ordered a fresh assessment with proper examination and evidence gathering.

Issue 4: Opportunity for cross-examination in assessment proceedings
The Tribunal emphasized the importance of providing the assessee with an opportunity to cross-examine witnesses, especially when crucial statements are relied upon for making additions. Failure to allow cross-examination led to the Tribunal directing a de novo assessment to ensure fairness and compliance with legal principles.

In conclusion, the Tribunal allowed the revenue's appeal for statistical purposes, directing a fresh assessment with proper cross-examination and evidence gathering. The cross objection was dismissed for non-prosecution, highlighting the significance of active participation in legal proceedings.