2017 (6) TMI 131 - AT - Income Tax

Initiation of reassessment proceedings - not providing the assessee an opportunity of cross examining - denial of natural justice - Held that - There is no force in the argument of the ld. AR that the assessment be quashed for not providing the assessee an opportunity of cross examining Sh. Mahesh Garg. This being a procedural irregularity, is directed to be made good by the AO by allowing the assessee an opportunity to cross examine Shri Mahesh Garg. - Decided in favour of assessee for statistical purposes

Summary

Issues Involved:
1. Initiation of reassessment proceedings.
2. Addition of ?5 lac as unexplained cash credit.
3. Denial of cross-examination of Shri Mahesh Garg.

Detailed Analysis:

1. Initiation of Reassessment Proceedings:
The first issue concerns the initiation of reassessment proceedings. The assessee filed a return declaring a loss, but the AO issued a notice under Section 148 of the Income-tax Act, 1961, based on a report from the Investigation Wing indicating that the assessee was a beneficiary of ?10 lac through accommodation entries from M/s S.J. Capital Ltd. The AO's initiation was based on statements from Shri Mahesh Garg, who admitted to providing accommodation entries. The Tribunal noted that although there was a duplication error in the report (showing ?10 lac instead of ?5 lac), this did not invalidate the reassessment proceedings. The Tribunal upheld the validity of the initiation of reassessment, citing that the AO had sufficient reason to believe that income had escaped assessment, as supported by the Investigation Wing’s report and statements from Shri Mahesh Garg.

2. Addition of ?5 Lac as Unexplained Cash Credit:
The second issue pertains to the addition of ?5 lac as unexplained cash credit under Section 68. The assessee claimed this amount was received from M/s S.J. Capital Ltd. for the sale of shares. However, the AO found discrepancies, such as the non-existence of M/s S.J. Capital Ltd. at the given address and the fact that the shares were not listed on the Stock Exchange. The AO treated the ?5 lac as unexplained cash credit. The Tribunal noted that while the transaction of purchasing shares in the preceding year supported the genuineness, it did not conclusively prove the sale transaction's genuineness. Given the admission by Shri Mahesh Garg of providing accommodation entries, the Tribunal found a need for further verification.

3. Denial of Cross-Examination of Shri Mahesh Garg:
The third issue involves the denial of the assessee's request to cross-examine Shri Mahesh Garg. The Tribunal emphasized the principle of natural justice, stating that if adverse material (such as Shri Mahesh Garg's statements) is used against the assessee, the assessee must be given an opportunity to cross-examine. The Tribunal found that the AO's failure to allow cross-examination was a procedural irregularity. The Tribunal directed the AO to rectify this by providing the assessee an opportunity to cross-examine Shri Mahesh Garg before making any adverse inference.

Conclusion:
The Tribunal upheld the initiation of reassessment proceedings and found the addition of ?5 lac as unexplained cash credit to be procedurally justified but requiring further verification. The Tribunal emphasized the need for natural justice by directing the AO to allow the assessee to cross-examine Shri Mahesh Garg. The appeal was allowed for statistical purposes, and the case was remanded to the AO for further proceedings consistent with the Tribunal's directions.