2016 (6) TMI 1301 - AT - Income Tax

Reopening of assessment - reopening after expiry of four years - addition u/s 68 - non providing assessee to cross examination - Held that - The concerned issue has been enquired by AO by raising the query letter which has been responded with sufficient evidences as required U/s 68. The assessee has furnished name and address of the shareholders, PAN number, copy of bank account, ROC details, allotment of shares, payments receipts through banking channels, which are sufficient to discharge his onus casted on the assessee. AO had not provided any copy of the seized material and copy of statement to the assessee on which the AO relied upon. Further no cross examination has been allowed to the assessee as in the case of Andaman Timber (2015 (10) TMI 442 - SUPREME COURT) as held that not providing cross examination to the assessee is violation of the principles of natural justice - we reverse the order of the ld CIT(A) on reopening U/s 147/148 - Decided in favour of assessee

Issues Involved:
1. Deletion of addition made under Section 68 on account of unexplained cash credits.
2. Establishing the identity, creditworthiness, and genuineness of the share capital transactions.
3. Confrontation with evidence collected during search proceedings.
4. Validity of the order passed under Section 148 of the Income Tax Act.

Detailed Analysis:

Issue 1: Deletion of Addition Made Under Section 68 on Account of Unexplained Cash Credits
The Revenue appealed against the deletion of additions amounting to ?55,00,000 for A.Y. 2005-06 and ?51,00,000 for A.Y. 2006-07 for M/s Ganga Projects Pvt. Ltd., and ?60,00,000 for M/s B.S. Traders Pvt. Ltd. The Assessing Officer (AO) had made these additions based on information from a search operation in the S.K. Jain Group, which indicated that the assessee had taken accommodation entries. The CIT(A) deleted these additions, stating that the share application money could not be assessed as the assessee's undisclosed income without establishing a nexus that the money had flowed from the assessee's own funds.

Issue 2: Establishing the Identity, Creditworthiness, and Genuineness of the Share Capital Transactions
The CIT(A) held that the assessee had discharged its onus by providing confirmations, bank statements, and other documents from the share applicants. The AO's claim that the share capital was routed through the same bank was found incorrect as only three out of six companies had accounts in the specified bank. The CIT(A) relied on the jurisdictional High Court's rulings, which state that share application money cannot be presumed to belong to the assessee without establishing a clear nexus.

Issue 3: Confrontation with Evidence Collected During Search Proceedings
The AO argued that the assessee was not confronted with the evidence collected during the search proceedings. However, the CIT(A) noted that no adverse evidence was found during the reassessment proceedings, and the AO had made the additions based on general information without specific evidence against the assessee. The Tribunal upheld this view, emphasizing that the AO did not provide any incriminating documents or statements directly linking the assessee to the alleged accommodation entries.

Issue 4: Validity of the Order Passed Under Section 148 of the Income Tax Act
The assessee challenged the reopening of the assessments under Section 148, arguing that the AO had not applied his mind independently and relied solely on information from the Investigation Wing. The Tribunal found that the reopening was based on vague and general information without specific details or evidence. It was noted that the original assessments were completed under Section 143(3) after considering the share capital details provided by the assessee. Since the reopening was done after four years and there was no failure on the part of the assessee to disclose material facts, the Tribunal held that the reopening was invalid.

Conclusion:
The Tribunal dismissed the Revenue's appeals and allowed the assessee's cross-objections, quashing the reopening of assessments under Section 148 and upholding the deletion of additions made under Section 68. The Tribunal emphasized the lack of specific evidence against the assessee and the procedural lapses in the reopening of assessments.

← Previous Next →