2021 (11) TMI 1142 - AT - Income Tax

Unexplained Investment - appellant has paid On-Money - Discharge of onus - HELD THAT - On money payment added in the hand of the assessee is not based upon any incriminating material found from the assessee or his premises. It is also not the case that any material in assessee or its staff handwriting has been found. It is also not the case that revenue has gotten the value of said premises independently valued to support the case of value more than that reflected in books. Assessee s plea of crossexamination has also been rejected. It is settled law that in allegation of on many payment , revenue is required to prove the case with convincing material. This proposition is supported by Hon ble Supreme Court in the case of K. P. Varghese 981 (9) TMI 1 - SUPREME COURT and Kalyansundaram 2007 (9) TMI 25 - SUPREME COURT Here revenue has failed to discharge the onus. In the present case the addition is not sustainable. Hence, set aside the order of authorities below and decide the issue in favour of the assessee.

Summary

Issues:
1. Reopening of Assessment
2. Addition made without conclusive evidence
3. Denial of opportunity for cross-examination

Reopening of Assessment:
The appeal challenged the order of the Commissioner of Income Tax (Appeals) regarding the reopening of the assessment for the assessment year 2012-13. The grounds of appeal included contentions about the Assessing Officer's error in reopening the assessment without independent application of mind based on information received from the Deputy Director of Income Tax. The appellant argued that the reopening was unjustified. The Tribunal noted that the Assessing Officer failed to provide convincing material to support the reopening, which is essential in cases of on-money payments. Citing legal precedents, the Tribunal emphasized the requirement for the revenue to prove such cases with substantial evidence. Ultimately, the Tribunal set aside the lower authorities' decision and ruled in favor of the assessee.

Addition made without conclusive evidence:
The second ground of appeal focused on the addition of Rs. 2,00,000 without concrete evidence of unexplained investment. The appellant contested the Assessing Officer's decision to make the addition without stating the relevant section under the Income Tax Act 1961. The Tribunal observed that the addition was based on the alleged payment of on-money to a builder, as noted in seized documents and statements of the builder's directors. However, the Tribunal found that the Assessing Officer did not provide substantial evidence linking the appellant to the on-money payment. Additionally, the Tribunal highlighted the lack of incriminating material found from the appellant or their premises. Considering the absence of convincing material and failure to allow cross-examination, the Tribunal ruled that the addition was not sustainable and decided the issue in favor of the assessee.

Denial of opportunity for cross-examination:
The third ground of appeal raised concerns about the denial of the opportunity for cross-examination to the assessee and the reliance on loose papers found in the builder's premises without verifying their authenticity. The Tribunal noted that the Assessing Officer had made the addition based on loose papers without confirming their accuracy. The Tribunal emphasized the importance of providing the assessee with the chance for cross-examination in such situations. Referring to legal principles, the Tribunal highlighted the necessity for revenue to substantiate allegations of on-money payments with concrete evidence. In this case, the Tribunal found that the revenue failed to meet this burden of proof, leading to the decision to set aside the lower authorities' order and rule in favor of the assessee.