2017 (4) TMI 1372 - HC - Income Tax

Penalty levied u/s 271(1)(c) - cash receipts from the assessee deposited in M/s Abhaya Investment Pvt. Ltd. - Held that - In the present case except the statement of 3rd party which was partially retracted, no other evidence was used by the AO. Under the facts and circumstances of the case the addition made by the AO being not based on any evidence is directed to be deleted. In view of the identical appeal being dismissed, the department while accepting the judgment will not follow the penalty provisions. In view of the above, the appeal stands dismissed with liberty to revive in case the judgment comes within 90 days.

Summary

Issues involved: Challenge to Tribunal's order allowing the appeal of the assessee, legality of reversing CIT(A)'s findings and deleting penalty under section 271(1)(c) based on deleted quantum addition.

Analysis:
1. The appellant challenged the Tribunal's order allowing the assessee's appeal. The substantial question of law framed was whether the Tribunal was justified in reversing CIT(A)'s findings and deleting the penalty under section 271(1)(c) based on the deleted quantum addition.

2. The Tribunal observed that the Assessing Officer made additions based on cash receipts deposited in a company and got accommodation entry. CIT(A) discussed the situation but confirmed the addition without providing an opportunity to the assessee. The Coordinate Bench considered a similar case where additions were made without cross-examination and decided in favor of the assessee. The Tribunal concurred with CIT(A)'s decision to delete the addition, citing lack of sufficient evidence and violation of natural justice principles.

3. The Tribunal upheld the first appellate order, citing a Supreme Court case emphasizing the right to cross-examine witnesses. The Tribunal allowed the assessee's appeal based on the Coordinate Bench's order and the Supreme Court's principle, highlighting the serious flaw in not allowing cross-examination, which affected the assessee adversely.

4. The Court agreed with the Tribunal's view, stating that if the department challenges the judgment, they can revive the appeal. Consequently, no substantial question of law arises, and the department will not follow penalty provisions due to the identical appeal dismissal.

5. The appeal was dismissed with the liberty to revive within 90 days if necessary, based on the Tribunal's decision and the lack of substantial legal questions arising from the case. The judgment focused on the importance of providing opportunities for cross-examination and adhering to principles of natural justice in tax assessment cases.