2014 (5) TMI 357 - AT - Income Tax

Addition made u/s 68 of the Act Proper opportunity not given - undisclosed income represents share application money Held that - Assessee contended that the assessment was completed without allowing adequate opportunity of being heard share application money was received during the financial year 2003-04 and the AO ssessing Officer had directed the assessee to produce all the shareholders in the year 2011 - He allowed only a few days time to produce the shareholders which would be evident from the fact that the assessment order was passed on 30.11.2011, i.e., within 13 days - if adequate time is allowed, the assessee would make a sincere effort to produce all the shareholders before the AO - the assessee will also produce all the relevant evidences to explain the share application money - adequate opportunity of being heard/producing the shareholders were not allowed to the assessee - the matter is required to be remitted back to the AO for fresh adjudication decided in favour of Assessee.

Summary

Issues:
1. Addition of Rs.20,00,000 under section 68 of the Income Tax Act, 1961.
2. Alleged undisclosed income representing share application money.
3. Jurisdiction and procedure under section 148 of the Income Tax Act, 1961.
4. Compliance with the procedure laid down by the Apex Court.
5. Validity of notice under section 148 as per section 151 of the Act.
6. Basis of sustaining the addition being conjectures and surmises.
7. Adequacy of opportunity provided during assessment proceedings.
8. Cross-examination of a relevant individual, Sh. Tarun Goyal.
9. Acceptance of the explanation regarding the source of cash credits for the addition made by the Assessing Officer.

Analysis:
1. The appellant contested the addition of Rs.20,00,000 under section 68 of the Income Tax Act, 1961, arguing that the CIT(A) erred in confirming it. The appellant claimed that the alleged undisclosed income actually represented share application money. The appellant challenged the jurisdiction and procedure adopted under section 148, citing a Supreme Court decision. The appellant also raised concerns about the compliance with the procedure laid down by the Apex Court.

2. The appellant further contended that the Assessing Officer failed to validly take sanction for issuing a notice under section 148 as required by section 151 of the Act. Additionally, the appellant argued that the basis for sustaining the addition was speculative and not supported by concrete evidence, relying on conjectures and surmises.

3. During the hearing, the appellant's counsel highlighted that the assessment was completed hastily without providing adequate opportunity to be heard. The counsel pointed out that the Assessing Officer directed the appellant to produce all shareholders from whom the share application money was received after a significant delay. The appellant requested the matter to be restored to the Assessing Officer's file for a fair opportunity to present relevant evidence and produce all shareholders.

4. The Departmental Representative opposed the appellant's submission, asserting that sufficient opportunity was indeed granted. However, the Tribunal found that the appellant was not adequately heard or given the chance to produce all shareholders. Consequently, the Tribunal set aside the lower authorities' orders and directed the Assessing Officer to provide adequate time and opportunity for the appellant to present evidence and produce shareholders.

5. In conclusion, the Tribunal deemed the appeal of the assessee as allowed for statistical purposes, emphasizing the importance of affording a fair opportunity to be heard and present relevant evidence during assessment proceedings. The decision was pronounced in open court on 30th April, 2014.