2018 (4) TMI 1725 - AT - Income Tax

Assessment u/s 153C - search and seizure operation under section 132 - disallowance of payments made to Sino Credits Leasing Ltd. (SCLL) - statement of Shri S.K Gupta, Director SCLL recorded in which Shri Gupta and reportedly stated that SCLL was involved in giving bogus entries - HELD THAT - Departmental appeal in the instant appeal are similar as have been considered in the case of M/s. Puri Constructions Ltd., 2017 (12) TMI 1708 - ITAT DELHI wherein held the addition so made solely on the basis of statement of Sh. S.K. Gupta s statement and without rebutting the documentary evidences so relied on by the assessee company is hereby deleted The findings of the CIT(A) are similarly worded. It is agreed position that facts are identical in the case of Assessee as well as M/s. Puri Constructions Ltd., (supra). Therefore, all the issues are covered in favour of the assessee. It may also be noted here that search was conducted in the case of M/s. Taneja-Puri Group of cases in which some alleged documents pertaining to assessee were found. On that basis, proceedings were initiated under section 153C against the assessee. Further, in the case of M/s. Puri Constructions Ltd., (supra), the entire additions have been deleted by the Tribunal and no evidence was found admissible against the assessee. Therefore, nothing survive against the assessee so as to proceed under section 153C - no admissible evidence have been brought on record against the assessee so as to make any addition. The additions were made merely on presumptions without bringing any concrete material against the assessee on record. All the evidences found during the course of search and found in post-search enquiry have been considered in the case of M/s. Puri Constructions Ltd., (supra) and entire additions have been deleted by the Tribunal. Therefore, on the basis of the same evidence and material, no additions could be made against the assessee. the Ld. CIT(A) on proper appreciation of evidence and material record, correctly deleted the additions. - Decided in favour of assessee.

Issues Involved:
1. Deletion of the addition on account of disallowance of sum paid to M/s Sino Credits & Leasing Ltd.
2. Ignoring corroborating/incriminating evidence found during survey proceedings.
3. Ignoring corroborating/incriminating evidence collected through independent investigation.
4. Ignoring statements recorded on oath.
5. Holding that the statement recorded u/s 133A has no evidentiary value.
6. Ignoring the statement recorded on oath u/s 132(4).
7. Ignoring the cross-examination statements.
8. Ignoring the false affidavit submitted.
9. Ignoring fabricated evidence produced by the assessee.
10. Violation of the categorical finding of the Income Tax Settlement Commission.
11. Deletion of disallowance against the claim for land development expenses.
12. Erroneous and untenable order of the CIT(A).

Detailed Analysis:

1. Deletion of the Addition on Account of Disallowance of Sum Paid to M/s Sino Credits & Leasing Ltd.
The CIT(A) deleted the addition of ?6,12,60,000/- made by the AO on account of payments made to Sino Credits & Leasing Ltd. (SCLL). The AO had disallowed the expenditure stating that the transactions were not genuine and were mere accommodation entries. The CIT(A) found that the statement recorded during the survey had no evidentiary value and that the AO failed to provide the assessee an opportunity to cross-examine S.K. Gupta, whose statements were relied upon. The CIT(A) noted that the arbitration award and settlement agreement were genuine and supported by documentary evidence.

2. Ignoring Corroborating/Incriminating Evidence Found During Survey Proceedings
The AO argued that the CIT(A) ignored corroborating/incriminating evidence found during survey proceedings u/s 133A, including ledger accounts and other documents. The CIT(A) held that the evidence was not sufficient to disallow the expenditure, especially since the assessee was not given a chance to cross-examine the witnesses.

3. Ignoring Corroborating/Incriminating Evidence Collected Through Independent Investigation
The AO contended that the CIT(A) ignored evidence collected through independent investigations, such as bank statements and balance sheets, which indicated that SCLL was an entry operator. The CIT(A) found that the AO's conclusions were based on conjectures and not supported by concrete evidence.

4. Ignoring Statements Recorded on Oath
The AO claimed that the CIT(A) ignored the statements recorded on oath u/s 131 and 133A, where S.K. Gupta admitted to providing accommodation entries. The CIT(A) noted that these statements were not corroborated by any independent evidence and that the assessee was not given an opportunity to cross-examine S.K. Gupta.

5. Holding that the Statement Recorded u/s 133A has No Evidentiary Value
The CIT(A) held that the statement recorded u/s 133A during the survey had no evidentiary value, citing judicial precedents that such statements cannot be the sole basis for making additions.

6. Ignoring the Statement Recorded on Oath u/s 132(4)
The AO argued that the CIT(A) ignored the statement recorded on oath u/s 132(4) of Mohinder Puri, where he offered unaccounted income for taxation. The CIT(A) found that the statement was made under duress and was subsequently retracted.

7. Ignoring the Cross-Examination Statements
The AO contended that the CIT(A) ignored the cross-examination statements where S.K. Gupta admitted to being an entry operator. The CIT(A) found that these statements were not reliable as they were not corroborated by any independent evidence.

8. Ignoring the False Affidavit Submitted
The AO claimed that the CIT(A) ignored the false affidavit submitted by S.K. Gupta, which contradicted his earlier statements. The CIT(A) found that the affidavit was consistent with the documentary evidence provided by the assessee.

9. Ignoring Fabricated Evidence Produced by the Assessee
The AO argued that the CIT(A) ignored fabricated evidence produced by the assessee, such as the MOU and arbitration award. The CIT(A) found that the evidence was genuine and supported by the statement of the arbitrator.

10. Violation of the Categorical Finding of the Income Tax Settlement Commission
The AO contended that the CIT(A) violated the finding of the Income Tax Settlement Commission (ITSC) that S.K. Gupta was an entry operator. The CIT(A) found that the ITSC's findings were not binding on the assessment proceedings.

11. Deletion of Disallowance Against the Claim for Land Development Expenses
The CIT(A) deleted the disallowance of ?1,46,14,435/- made against the claim for land development expenses. The AO had disallowed the expenditure based on an earlier assessment order, but the CIT(A) found that the expenditure was genuine and supported by documentary evidence.

12. Erroneous and Untenable Order of the CIT(A)
The AO argued that the CIT(A)'s order was erroneous and not tenable on facts and in law. The CIT(A) found that the AO's conclusions were based on conjectures and not supported by concrete evidence.

Conclusion:
The ITAT upheld the CIT(A)'s order, finding that the AO's additions were based on conjectures and not supported by concrete evidence. The ITAT noted that the CIT(A) had correctly deleted the additions after considering the documentary evidence and the lack of opportunity given to the assessee to cross-examine the witnesses. The ITAT also found that the statements recorded during the survey had no evidentiary value and that the arbitration award and settlement agreement were genuine. Thus, the appeal by the Revenue was dismissed.

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