2014 (12) TMI 379 - AT - Income Tax

Reopening of assessment u/s 148 on the basis of AIR information Jurisdiction of the CIT(A) Affidavit filed by assessee to misguide the AO - Opportunity to cross examine not availed - Held that - The reopening of the assessment within four years, the AO has wide power but he did not receive the AIR information on 31/12/2008, therefore he made the office-note along with the original assessment order - When the information received from the Head Office of the HDFC Bank, Mumbai he recorded the reasons and issued the notice u/s.148 of the Act - the reopening of the assessment was on valid reasons and as per law - assessee filed an Affidavit to misguide the AO and had not extended the co-operation with the AO to complete the original assessment by considering the copy of the bank account - The AO recorded the statement of Shri Amit kumar Patel and also allowed the assessee for cross-examination, but he has not availed this opportunity thus, the matter is required to be remitted back to the AO and he is directed to provide a copy of the statement of Shri Amit kumar Patel and also allow the cross-examination to the assesse Decided in favour of revenue.

Issues Involved:
1. Deletion of addition of Rs. 24,04,000/- on account of unexplained cash deposits under Section 68 of the Income Tax Act.
2. Allegation that the assessee misled the Department with untrue information/affidavit about his bank account.
3. Allowing exemption under Section 54F following the deletion of the addition of Rs. 24,04,000/-.
4. Allowing the claim under Section 17 instead of Section 10 as claimed by the assessee.
5. Legality and jurisdiction of the reassessment.

Issue-wise Detailed Analysis:

1. Deletion of Addition of Rs. 24,04,000/- on Account of Unexplained Cash Deposits Under Section 68:
The Assessing Officer (AO) had added Rs. 24,04,000/- to the assessee's income as unexplained cash deposits under Section 68 based on AIR information. The CIT(A) deleted this addition, citing that the AO failed to provide an opportunity for cross-examination of the party involved, relying on the decision in the case of Shree Shakti Cotton Pvt. Ltd. The Tribunal found that the AO had not provided the assessee with a copy of the statement of Shri Amitkumar Patel, who denied any transaction with the assessee, thus quashing the assessment. However, the Tribunal directed the AO to provide the statement copy and allow cross-examination, remanding the issue back for reconsideration.

2. Allegation of Misleading the Department with Untrue Information/Affidavit:
The AO observed that the assessee had submitted an affidavit denying any cash deposits in the HDFC Bank account, which was later contradicted by the bank's information. The CIT(A) found that the reopening of the assessment was based on a mere change of opinion without new tangible material. The Tribunal upheld the reopening as valid, noting the assessee's affidavit was misleading, and directed the AO to reassess with proper cross-examination.

3. Allowing Exemption Under Section 54F Following Deletion of Addition:
The CIT(A) allowed the exemption under Section 54F consequent to the deletion of the Rs. 24,04,000/- addition. The Tribunal's decision to remand the issue of unexplained cash deposits for reassessment would impact the exemption claim, as it is contingent on the resolution of the primary issue.

4. Allowing the Claim Under Section 17 Instead of Section 10:
The CIT(A) allowed the assessee's claim under Section 17 of the Income Tax Act, which was contested by the Revenue. The Tribunal did not specifically address this issue in detail, focusing instead on the primary issue of unexplained cash deposits and the reassessment's validity.

5. Legality and Jurisdiction of the Reassessment:
The CIT(A) held that the reassessment was illegal and without jurisdiction, as it was based on a mere change of opinion without new tangible material, referencing the Supreme Court's decision in CIT vs. Kelvinator. The Tribunal, however, found that the AO had valid reasons for reopening the assessment based on the new information received from HDFC Bank, thus upholding the reassessment's legality.

Conclusion:
The Tribunal concluded that the reassessment was valid and directed the AO to provide the assessee with a copy of Shri Amitkumar Patel's statement and allow cross-examination. The issue of unexplained cash deposits was remanded for reassessment, impacting related claims under Sections 54F and 68. The appeal was allowed for statistical purposes, emphasizing the need for proper procedural compliance and reassessment.

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