2019 (8) TMI 1768 - AT - Income Tax

Validity of reopening of assessment - borrowed satisfaction v/s independent application of mind - Accommodation entries pertaining to bogus transaction - Assessee argued for non independent application of mind by AO - HELD THAT - We find that the AO has reopened the assessment merely on the basis of information received from Director of Investigation (Inv)-II, Mumbai without conducting any enquiry at his own. Thus, the reasons recorded was not based on his own satisfaction, but on the borrowed satisfaction, which is clearly discernible from the reasons recorded for reopening of assessment. As reasons were based on borrowed satisfaction, as the above reasons did not indicate any enquiry or examination of assessment records by the AO. Thus, the basis of the reasons of the AO was merely framed his opinion on the information provided by the DIT (Inv.)-II, Mumbai. We further find that the assessment has been reopened on the basis of statement given by third party. It is also noticed that in the reassessment order the AO at various instances depicted his reliance on information received from Director of Investigation (Inv) Mumbai without making his own inquiry, thus, the re-opening is based on borrowed satisfaction. Denial of natural justice - The third party statement cannot be relied without allowing cross-examination. The assessment records showed that the assessee has demanded cross-examination but same was not allowed. The assessee has filed affidavit from Shri Bhanwarlal M. Jain wherein he has retracted for his statement recorded under section 132(4) of the Act. His affidavit was not examined. Thus, non allowing opportunity of cross examination renders assessment proceeding as invalid as held by the Hon ble Supreme Court in the case of Andaman Timber Industries 2015 (10) TMI 442 - SUPREME COURT held that not allowing the assessee to cross examine witnesses by Adjudicating Authority though statements of those witnesses were made basis of impugned order, amounted to serious flaw which makes impugned order nullity as it amounted to violation of principle of natural justice. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the reassessment proceedings initiated under Section 148 of the Income Tax Act.
2. Estimation of profit from alleged bogus purchases.

Issue-wise Detailed Analysis:

1. Validity of the Reassessment Proceedings:
The primary issue raised by the assessee was the validity of the reassessment proceedings initiated by the Assessing Officer (AO) under Section 148 of the Income Tax Act. The assessee argued that the AO's assumption of jurisdiction was invalid as it was based solely on information received from the Director of Investigation (Inv)-II, Mumbai, without any independent inquiry. The AO had reopened the assessment on the basis of accommodation entries from M/s. Rose Gems Pvt. Ltd., which were alleged to be bogus. The CIT(A) upheld the reopening, citing credible information from the Investigation Wing and supporting case laws such as Phoolchand Bajranglal v. ITO and Dishman Pharmaceuticals & Chemicals v. DCIT (OSD).

However, the Tribunal found that the AO had not conducted any independent inquiry and had relied entirely on the information from the Investigation Wing, making the reopening based on "borrowed satisfaction." The Tribunal cited several judicial precedents, including Pr. CIT v. M/s. Shodiman Investments Pvt. Ltd. and Shilpi Jewellers Pvt. Ltd. v. Union of India, which emphasize that the AO must apply his own mind and not merely act on external information. Additionally, the Tribunal noted that the assessee was not provided with the opportunity to cross-examine the third party whose statement was used against them, violating the principles of natural justice as upheld in Andaman Timber Industries v. Commissioner of Central Excise Kolkata-II.

2. Estimation of Profit from Alleged Bogus Purchases:
On the merits of the case, the CIT(A) had restricted the addition to 5% of the total disputed purchases, amounting to ?55,38,660/-, as opposed to the AO's addition of 12.5%, totaling ?1,38,46,651/-. The assessee contended that the purchases were genuine, supported by account payee cheques, and that the goods were subsequently sold, with quantities tallied. The Tribunal, however, did not delve deeply into this issue as it had already determined that the reassessment proceedings were invalid.

Conclusion:
The Tribunal allowed the assessee's appeal, declaring the reassessment proceedings invalid due to the AO's reliance on borrowed satisfaction and the denial of the opportunity for cross-examination. Consequently, the Revenue's appeal, which contested the reduction of the addition by the CIT(A), was dismissed as infructuous. The Tribunal's decision was pronounced under Rule 34(4) of the Income Tax Appellate Tribunal Rules 1963.