2017 (11) TMI 1764 - AT - Income Tax

Addition on account of share premium/share application money/unexplained cash credit u/s 68 - non providing opportunity for cross examination - Held that - It is cardinal principle of natural justice, that before conclusions are drawn against a person based on statement of a third party, he must be allowed an opportunity for cross examination. This has not been provided. There is a limit to the capacity or responsibility expected of an assessee to prove facts. AO has not inquired into or reported on assessment in the case of the investor companies. There is no specific evidence cited by the AO in respect of the investor companies and the appellant which would shift the burden back on the appellant u/s 68. The assessing officer has stated that the appellant has not disproved the findings of the department. Now the question is what are the appellant specific findings that has to be disproved is not spelt out. In this fact matrix, and the judicial decisions covering the scope of section 68, the addition made in respect of share capital and advances u/s 68 in the case of the appellant is deleted. - decided in favour of assessee.

Issues Involved:
1. Deletion of addition on account of share premium/share application money/unexplained cash credit under Section 68.
2. Reduction of transportation charges from work in progress.
3. Reduction of purchase of goods from work in progress.
4. Reduction of compensation paid on cancellation of flat booking from work in progress.
5. Reduction of rent paid to slum dwellers from work in progress.
6. Reduction of cash payment made to slum dwellers from work in progress.

Issue-wise Detailed Analysis:

1. Deletion of Addition on Account of Share Premium/Share Application Money/Unexplained Cash Credit under Section 68:

The revenue appealed against the deletion of an addition of ?1,50,00,000/- made by the Assessing Officer (AO) under Section 68 of the Income Tax Act, claiming the amount was unexplained cash credit. The AO based the addition on the lack of identity, creditworthiness, and genuineness of the investors, linking the transaction to Praveen Kumar Jain, an alleged entry provider. The Commissioner (Appeals) deleted the addition, noting that the AO relied on third-party statements without providing cross-examination opportunities to the assessee. The Tribunal upheld the Commissioner (Appeals)'s decision, emphasizing the need for direct evidence linking the assessee with the alleged accommodation entries and the importance of cross-examination for fair adjudication. The Tribunal cited various judicial precedents supporting the assessee's position, including the Hon'ble Supreme Court's decision in CIT Vs Lovely Exports and the Bombay High Court's ruling in CIT Vs Creative World Telefilms Ltd.

2. Reduction of Transportation Charges from Work in Progress:

The Commissioner (Appeals) upheld the AO's action of reducing ?52,000/- from work in progress, arguing that the transportation charges did not pertain to the relevant assessment year. The assessee contended that the charges were correctly recorded in the books of the year under reference. The Tribunal admitted additional evidence provided by the assessee, including transport bills and vouchers, and remanded the issue back to the AO for verification and fresh adjudication.

3. Reduction of Purchase of Goods from Work in Progress:

The AO reduced ?45,215/- from work in progress, stating that the purchases were made from dealers declared as "suspicious" by the Maharashtra Sales Tax Department. The Commissioner (Appeals) upheld this reduction. The assessee argued that no material evidence supported this reduction. The Tribunal admitted additional evidence, including purchase bills and vouchers, and remanded the issue back to the AO for verification and fresh adjudication.

4. Reduction of Compensation Paid on Cancellation of Flat Booking from Work in Progress:

The AO reduced ?1,00,000/- from work in progress, treating the compensation paid on flat booking cancellation as penal interest and disallowing it under Section 40(a)(ia) for non-deduction of TDS. The Commissioner (Appeals) upheld this reduction. The assessee argued that the compensation was not subject to TDS provisions. The Tribunal admitted additional evidence, including ledger accounts, and remanded the issue back to the AO for verification and fresh adjudication.

5. Reduction of Rent Paid to Slum Dwellers from Work in Progress:

The AO reduced ?30,35,000/- from work in progress, stating that the rent paid to slum dwellers was not necessary. The Commissioner (Appeals) upheld this reduction. The assessee argued that the rent was paid wholly and exclusively for business purposes. The Tribunal admitted additional evidence, including payment details, and remanded the issue back to the AO for verification and fresh adjudication.

6. Reduction of Cash Payment Made to Slum Dwellers from Work in Progress:

The AO reduced ?25,89,156/- from work in progress under Section 40A(3) for cash payments exceeding the prescribed limit. The Commissioner (Appeals) upheld this reduction. The assessee argued that the payments were justified and necessary. The Tribunal admitted additional evidence, including bank statements, and remanded the issue back to the AO for verification and fresh adjudication.

Conclusion:

The Tribunal dismissed the revenue's appeals for AY 2008-09, 2009-10, and 2012-13, upholding the Commissioner (Appeals)'s deletion of additions under Section 68. The Tribunal remanded the assessee's appeal for AY 2012-13 back to the AO for verification of additional evidence and fresh adjudication on the issues of transportation charges, purchase of goods, compensation for flat booking cancellation, rent paid to slum dwellers, and cash payments to slum dwellers. The Tribunal emphasized the importance of cross-examination, direct evidence, and fair adjudication in income tax proceedings.

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