2017 (7) TMI 605 - AT - Income Tax

Reopening of the assessment - unexplained credit u/s 68 - Held that - A plain reading of the assessment order demonstrate that the A.O. merely went by the investigation done by the Office of D.G.I (Investigation), Mumbai. No enquiries or investigation was carried out. No evidence to controvert the claims of the assessee was brought on record by the A.O. Even the statement of Mr.Praveen Kumar was supplied. Nothing is on record about the result if investigations done by DGIT (Inv.), Mumbai. The papers filed by the assessee do demonstrate, the identity, credit worthiness and genuineness of the transaction. The addition is made merely on surmises and conjectures. We hold that the addition made under section 68 of the Act is in bad in law. In the result, reopening of the assessment is quashed and the addition is also deleted on merits. Appeal of the assessee is allowed.

Issues Involved:
1. Validity of the reassessment proceedings.
2. Validity of the addition of ?75 lakhs under Section 68 of the Income Tax Act, 1961.
3. Application of principles of natural justice and the right to cross-examine witnesses.

Detailed Analysis:

1. Validity of the Reassessment Proceedings:

The assessee challenged the reassessment proceedings on the grounds that the Assessing Officer (AO) merely relied on information from the DGIT (Investigations), Mumbai, without applying his mind. The Tribunal observed that the AO reopened the assessment mechanically, without verifying the information or applying his own judgment. This was deemed insufficient for a valid reassessment. The Tribunal referenced multiple judgments, including *Pr. CIT vs. G & G Pharma India Ltd.* and *Signature Hotels Pvt. Ltd. vs. ITO*, which emphasize that the AO must apply his mind to the materials before forming a belief that income has escaped assessment. The Tribunal concluded that the reassessment was invalid as it lacked the necessary application of mind and tangible material.

2. Validity of the Addition of ?75 Lakhs under Section 68:

The AO added ?75 lakhs to the assessee’s income under Section 68, claiming it was unexplained credit from shell companies managed by Mr. Praveen Kumar Jain. The assessee argued that they had provided sufficient evidence of the identity, creditworthiness, and genuineness of the transactions, which the AO did not properly investigate or disprove. The Tribunal noted that the AO relied solely on the DGIT (Inv.) Mumbai's investigation without conducting his own inquiry or providing the assessee with the evidence collected. The Tribunal cited several cases, such as *CIT vs. Kamdhenu Steel & Alloys Ltd.* and *CIT vs. Gangeshwari Metal P. Ltd.*, which establish that once the assessee provides adequate evidence, the AO must conduct a proper inquiry before making any addition under Section 68. The Tribunal found that the AO failed to do so and thus, the addition was unsustainable.

3. Application of Principles of Natural Justice and Right to Cross-Examine Witnesses:

The assessee contended that the addition was based on a statement by Mr. Praveen Kumar Jain, which was not provided to them, and they were not given an opportunity to cross-examine him. The Tribunal highlighted that the principles of natural justice were violated as the assessee was not given access to the evidence or the opportunity to cross-examine the witness. This lack of transparency and fairness further invalidated the AO’s addition under Section 68.

Conclusion:

The Tribunal quashed the reassessment proceedings and deleted the addition of ?75 lakhs under Section 68. The reassessment was deemed invalid due to the AO’s failure to apply his mind and the mechanical reliance on external information. The addition under Section 68 was also invalidated due to the AO’s lack of proper inquiry and violation of the principles of natural justice. The appeal of the assessee was allowed, and the stay application was dismissed as infructuous.

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