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2013 (6) TMI 494 - AT - Income TaxAccommodation entries - income from undisclosed sources - CIT (A) deleted the addition - reopening of assessment - Held that - A.O. has heavily relied upon the statement of Shri Mahesha Batra. The CIT(A) recorded that the statement recorded by Investigation Wing was not provided to the assessee nor opportunity was given to cross-examine Shri Mahesh Batra. In the light of the fact, DR was directed to place on record the statement of Shri Mahesh Batra vide order sheet entry dated 23.05.2012. Thereafter, a number of opportunities were given to the Revenue but copy of statement of Shri Mahesh Batra has not been placed on record even inspite of last opportunity for this purpose given by us vide order sheet dated 07.03.2013 On perusal of reasons recorded, it is found that the reasons recorded are not in accordance with law as it was simply on the basis of assumption of the A.O. In the reasons recorded, it is stated that share transactions on which long term capital gain has been claimed do not appear to be genuine . This supports to the fact that the reopening has been made on the basis of presumption and not on reasons to believe, thus, no reasons recorded are in accordance with law. The reasons do not reflect that the A.O. has reason to believe that there is an escapement of income. Once it is found that the reasons are not in accordance with law, the reopening is bad in law. In favour of assessee.
Issues Involved:
1. Whether the CIT(A) erred in deleting the addition of Rs. 29,56,142/- on account of accommodation entries received from M/s M.K.M. Finsec Pvt. Ltd. Issue-wise Detailed Analysis: 1. Deletion of Addition on Account of Accommodation Entries: The crux of the issue revolves around the addition of Rs. 29,56,142/- made by the Assessing Officer (A.O.) on account of capital gain on shares from M/s M.K.M. Finsec Pvt. Ltd., which was treated as income from undisclosed sources. The A.O. based this addition on the findings from an investigation conducted by the Investigation Wing, New Delhi, which revealed that Shri Mahesh Batra, an entry operator, provided accommodation entries through his company, M/s M.K.M. Finsec Pvt. Ltd. The A.O. relied heavily on the statement of Shri Mahesh Batra, recorded on 23.01.2004, where he admitted to providing such entries. The CIT(A) deleted this addition, noting several critical points: - The A.O. did not provide the statement of Shri Mahesh Batra to the appellant nor gave an opportunity to cross-examine him. - The case was transferred to another officer, and the appellant provided all necessary details, including share certificates and investment documents, which were not adequately considered by the A.O. - The A.O. failed to bring any adverse material on record to substantiate that the purchase of shares was doubtful. - The A.O. was unduly influenced by the general observations made during the investigation without independently verifying the transactions. - The documentary evidence provided by the appellant, such as purchase bills, sales bills, and share certificates, was ignored by the A.O. - The A.O. relied solely on the statement of Shri Mahesh Batra without corroborative evidence, which is insufficient to disprove the documentary evidence provided by the appellant. The CIT(A) emphasized that the apparent must be treated as real unless proven otherwise, citing the Supreme Court case of CIT vs. Daulat Ram Rawatmal (1964) 53 ITR 574 (SC). The CIT(A) concluded that the A.O. was not justified in making the addition as undisclosed income and thus deleted the addition. Tribunal's Analysis and Decision: The Tribunal upheld the CIT(A)'s decision, noting that: - The A.O. heavily relied on the statement of Shri Mahesh Batra without providing it to the appellant or allowing cross-examination. - Despite multiple opportunities, the Revenue failed to place the statement of Shri Mahesh Batra on record. - The CIT(A) correctly followed the precedents set by the I.T.A.T., Agra Bench in similar cases, such as Shri Ashok Kumar Lavaniya and Shri Baijnath Agarwal, where similar additions were deleted due to lack of corroborative evidence and reliance on documentary evidence provided by the appellants. - The Tribunal also referenced the Hon'ble Supreme Court and High Court judgments emphasizing that the belief for reopening assessments must be reasonable and not based on mere suspicion or presumption. The Tribunal further noted that the assessee provided all relevant details, such as contract notes, delivery notes, and purchase bills, proving the genuineness of the transactions. The Tribunal dismissed the Revenue's appeal, confirming the CIT(A)'s order. Conclusion: The Tribunal concluded that the CIT(A) was correct in deleting the addition of Rs. 29,56,142/- as the A.O. failed to provide sufficient evidence to disprove the documentary evidence provided by the appellant. The Tribunal's decision was based on the principles of natural justice and the precedents set by higher judicial authorities. The appeal of the Revenue was dismissed.
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