2017 (11) TMI 1204 - AT - Income Tax

Addition u/s 69C on account of bogus purchases - profit estimation - Held that - There is no basis on the part of the Ld. CIT(A) of estimating the profit rate by adopting the gross profit rate @ 7.86% in the case of a transaction in which the genuineness is not proved by the assessee. In view of the above, we set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh assessment in the light of our observation hereinbefore after giving opportunity to the assessee to cross-examine the concerned parties. We also direct the assessee to file the relevant documents/evidence before the AO. Needless to say the AO would give reasonable opportunity of being heard to the assessee before finalizing the assessment order.In the result the appeal is allowed for statistical purposes.

Summary

Issues:
- Estimation of unexplained expenditure
- Failure to produce witness for examination
- Cross-examination rights of parties in the controversy

Estimation of unexplained expenditure:
The appeal involved the estimation of unexplained expenditure by the Revenue against the order of the Commissioner of Income Tax (Appeals). The Revenue challenged the estimation made by the Ld. CIT(A) at 7.86% of the unexplained expenditure of ?61,36,358. The AO had added this amount under section 69C on account of bogus purchases. The AO reopened the assessment based on information received regarding accommodation entries obtained by the assessee. The Ld. CIT(A) estimated the gross profit at 7.86% on the disputed amount, reducing the disallowance to ?4,82,318 from the original ?61,36,358.

Failure to produce witness for examination:
The AO found that the genuineness of the transaction was not proved as the assessee failed to produce a witness, Shri Karnawat, for examination. The AO considered the witness essential to establish the authenticity of the transaction. The Ld. CIT(A) upheld the addition but reduced the disallowance percentage. The Ld. DR contended that the onus was on the assessee to produce the witness and that the addition made by the AO should be confirmed. However, as the assessee did not appear during the proceedings, the Tribunal proceeded based on the material on record.

Cross-examination rights of parties in the controversy:
The Tribunal emphasized the importance of cross-examination in establishing the veracity of claims. Referring to the statement by Shri Jain, the Tribunal highlighted the duty of the AO to enforce the attendance of a witness if their evidence is material. The Tribunal cited legal precedents emphasizing the right to cross-examine witnesses as a fundamental aspect of natural justice. It was noted that the Ld. CIT(A) erred in estimating the profit rate without proving the transaction's genuineness. The Tribunal set aside the Ld. CIT(A)'s order and directed a fresh assessment, allowing the assessee to cross-examine concerned parties and submit relevant documents before the AO.

In conclusion, the Tribunal allowed the appeal for statistical purposes, emphasizing the importance of providing a fair opportunity for cross-examination and submission of evidence to establish the authenticity of transactions in tax assessments.