2019 (10) TMI 1407 - AT - Income Tax

Denial of Natural justice - no opportunity of the cross-examination to the assessee those two persons who were examined by the Assessing Officer behind the back of the assessee - Rejecting the application filed u/r 46A for admission of affidavit of Satish Patidar which was material to the issue before the ld. CIT(A) - HELD THAT - We had recorded the statement of Shri Satish Patidar in the presence of learned Counsel for the assessee and ld. Sr. DR Shri Amit Kumar Soni on 15.7.2019, copy of which was supplied to concerned parties. Before us, the submission of the learned Counsel for the assessee in respect of following principles of natural justice and rejection of additional evidence under Rule 46A was not controverted by the Revenue by bringing any cogent material on record. The assessee has also filed paper books and written submission/case-laws. Considering the facts and circumstances of the case and the statement recorded by us in the presence of both the parties, we are of the view that in order to provide natural justice, the cross-examination should have been allowed by the Assessing Officer and ld. CIT(A) should also have admitted application for additional evidence, therefore, the matter requires reconsideration at the level of the Assessing Officer. Appeal filed by the assessee is allowed for statistical purposes only

Summary

Issues Involved:
1. Breach of principles of natural justice by Assessing Officer
2. Failure to provide opportunity of cross-examination
3. Rejection of application for admission of additional evidence
4. Application of Section 68 of the Income Tax Act

1. Breach of Principles of Natural Justice by Assessing Officer:
The appeal was filed by the assessee against the order of the ld. CIT(A)-2, Indore, citing the erred dismissal of the appeal by the ld. CIT(A) on the grounds of breach of principles of natural justice by the Assessing Officer. The appellant argued that the ld. CIT(A) arrived at a perverse finding on this issue, which was against established principles of fair play and natural justice applicable to assessment proceedings. The order of the ld. CIT(A) was deemed vitiated both in law and on facts due to this breach. The Tribunal noted that the Revenue Authorities did not follow the principles of natural justice and fair play, as the Assessing Officer failed to provide an opportunity of cross-examination to the assessee regarding individuals examined behind the assessee's back. The Tribunal held that such failure vitiates the evidence and directed the matter to be reconsidered at the level of the Assessing Officer. The appeal was allowed for statistical purposes only.

2. Failure to Provide Opportunity of Cross-Examination:
The assessee contended that the failure of the Assessing Officer to allow cross-examination of individuals examined behind the assessee's back tainted the evidence and subsequent additions made based on those statements. The Tribunal agreed with the assessee, emphasizing the importance of providing natural justice by allowing cross-examination. The Tribunal directed the Assessing Officer to decide the matter afresh, affording the assessee the opportunity of cross-examination and being heard in accordance with the law.

3. Rejection of Application for Admission of Additional Evidence:
The appellant also challenged the rejection of the application filed under Rule 46A for admission of an affidavit, which was deemed material to the issue before the ld. CIT(A). The Tribunal found that the ld. CIT(A) erred in rejecting the application and directed that the matter be reconsidered at the level of the Assessing Officer. The Tribunal emphasized the importance of admitting additional evidence to ensure a fair hearing and proper consideration of all relevant material.

4. Application of Section 68 of the Income Tax Act:
Regarding the addition of a specific amount, the appellant argued that Section 68 of the Income Tax Act was not applicable as the amounts in question were advances made in earlier years via account payee cheques. The Tribunal did not delve into the merits of this argument as the primary focus was on the breach of natural justice principles. However, the Tribunal directed the Assessing Officer to decide the matter de novo, allowing the assessee to present all relevant documents in support of the claim.

In conclusion, the Tribunal found in favor of the assessee on the grounds of breach of natural justice principles, lack of opportunity for cross-examination, and rejection of additional evidence. The matter was remanded back to the Assessing Officer for fresh consideration in accordance with the directions provided by the Tribunal.