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2019 (2) TMI 1848 - AT - Income TaxAssessment u/s 153A - additions u/s 68 on account of share application money, special deposits against the issue of preferential equity shares treating the same as accommodation entries - HELD THAT - Addition made by the A.O. u/s 153A of the Act is not sustainable and liable to be deleted when the assessment for the A.Y. 2010-11 was completed u/s 143(3) of the Act and was not pending as on the date of search on 02/7/2015. This ground of the assessee s appeal stands allowed. Violation of principles of natural justice due to non-allowing the cross examination of the witness, whose statement was relied upon by the assessee - HELD THAT - Where the assessee has repeatedly requested and demanded the cross examination of the witnesses whose statements were relied upon by the AO in the assessment order and further the report of the DDIT Investigation Kolkata is also based on the statement of such person then the denial of cross examination by the AO as well as ld. CIT (A) despite the fact that the assessee was ready to bear the cost of the cross examination of the witnesses is a gross violation of principles of natural justice. Thus the additions made by the AO on the basis of such statement without any tangible material is not sustainable in law and liable to be deleted. Addition u/s 68 in respect of the share capital received - HELD THAT - Once the assessee has produced the relevant documentary evidence in support of the claim as well as repayment of the loan including the payment of interest, which were not disallowed or disturbed by the A.O. in any of the years then in absence of any contrary material brought by the A.O. to controvert or dispute the correctness of the evidence filed by the assessee, the addition made by the A.O. and confirmed by the ld. CIT(A) are not sustainable. Further the statement relied upon by the A.O. no where states that he has provided any accommodation entry to the assessee but reference in the statement is only to the extent that he has provided accommodation entries through another company. Further the A.O. has not pointed out any discrepancy in the record to show that the assessee s own money has been routed back in the garb of unsecured loans. Accordingly we delete the addition made by the A.O. in respect of unsecured loan Disallowance u/s 14A - HELD THAT - The fact recorded by the ld. CIT(A) that the assessee has not earned any exempt income during the year under consideration has not been disputed by the department and therefore, in view of the settled proposition of law on this point and particularly the decision of Chemvest Ltd. Vs CIT 2015 (9) TMI 238 - DELHI HIGH COURT we do not find any error or illegality in the order of the ld. CIT(A) qua this issue. Hence, we uphold the same.
Issues Involved:
1. Addition made by the A.O. without incriminating material. 2. Violation of principles of natural justice due to non-allowing the cross-examination of the witness. 3. Addition made U/s 68 of the Income Tax Act, 1961 for share capital received from M/s Jalsagar Commerce Pvt. Ltd. 4. Denial of benefit of telescoping, recycling, and rotation of funds by rejecting the peak credit theory. 5. Deletion of addition of unexplained share application money from M/s ISIS Mercantile Pvt. Ltd., M/s Sangam Distributors Pvt. Ltd., and M/s Tech Consultants Pvt. Ltd. 6. Deletion of disallowance made by the A.O. by invoking the provisions of section 14A of the IT Act. Issue-wise Detailed Analysis: 1. Addition made by the A.O. without incriminating material: The Tribunal held that the assessment for the A.Y. 2010-11 to 2012-13 were not pending on the date of search, and therefore, the proceedings U/s 153A of the Act in respect of these assessment years would be in the nature of reassessment and not in the nature of assessment. The Tribunal noted that the A.O. made the addition solely on the basis of the information received from the Kolkata Investigation Wing and not on the basis of any material or information gathered during the search and seizure proceedings. The Tribunal relied on various judicial precedents, including the Hon’ble Delhi High Court in the case of CIT vs. Kabul Chawla, which held that in the absence of any incriminating material, the completed assessment can only be reiterated. Consequently, the Tribunal deleted the additions made by the A.O. for the A.Y. 2010-11 and 2011-12. 2. Violation of principles of natural justice due to non-allowing the cross-examination of the witness: The Tribunal held that the A.O. and the ld. CIT(A) violated the principles of natural justice by not providing the opportunity for cross-examination of the witnesses whose statements were relied upon by the A.O. The Tribunal relied on the Hon’ble Supreme Court in the case of Andaman Timber Industries vs. CCE, which held that not allowing the assessee to cross-examine the witnesses amounted to a violation of principles of natural justice. The Tribunal also referred to the Hon’ble Delhi High Court in the case of CIT vs. Ashwani Gupta, which held that denial of cross-examination would be fatal to the proceedings. Consequently, the Tribunal deleted the additions made by the A.O. on the basis of such statements. 3. Addition made U/s 68 of the Income Tax Act, 1961 for share capital received from M/s Jalsagar Commerce Pvt. Ltd.: The Tribunal noted that the assessee produced all relevant documentary evidence, including ITR, financial statements, bank statements, confirmation of loan, affidavit of the Director of the loan creditor, balance sheet of various years showing the availability of funds, status of the loan creditor as per the ROC master data, and the assessment orders framed U/s 143(3) of the Act by the A.O. The Tribunal held that the A.O. did not bring any material on record to controvert the correctness of the evidence filed by the assessee. Consequently, the Tribunal deleted the addition made by the A.O. in respect of unsecured loan taken from M/s Jalsagar Commerce Pvt. Ltd. 4. Denial of benefit of telescoping, recycling, and rotation of funds by rejecting the peak credit theory: Since the additions made by the A.O. were deleted by the Tribunal, this ground of the assessee’s appeal became infructuous. 5. Deletion of addition of unexplained share application money from M/s ISIS Mercantile Pvt. Ltd., M/s Sangam Distributors Pvt. Ltd., and M/s Tech Consultants Pvt. Ltd.: The Tribunal noted that the assessee produced all relevant documentary evidence to establish the identity, creditworthiness, and genuineness of the transactions. The Tribunal held that the A.O. made the addition based on the report of the Investigation Wing Kolkata, which was merely a narration of the statements of various persons allegedly operators of bogus entry providers. The Tribunal upheld the order of the ld. CIT(A) in deleting the addition in respect of share capital received from these companies. 6. Deletion of disallowance made by the A.O. by invoking the provisions of section 14A of the IT Act: The Tribunal noted that the assessee did not earn any exempt income during the year under consideration. The Tribunal relied on the decision of the Hon’ble Delhi High Court in the case of Chemvest Ltd. Vs CIT, which held that no disallowance U/s 14A of the Act can be made in the absence of exempt income. Consequently, the Tribunal upheld the order of the ld. CIT(A) in deleting the disallowance.
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