2018 (3) TMI 1521 - AT - Income Tax

Addition of unexplained cash credit u/s 68 - Revision u/s 263 - Held that - As assessee did not get fair opportunity to present the evidences before the AO so, there was a lack of opportunity as aforesaid, therefore, it has to go back to AO. Hon ble Supreme Court in three judges bench in the case of Tin Box, (2001 (2) TMI 13 - SUPREME Court), has held that since there was lack of opportunity to the assessee at the assessment stage itself, the assessment needs to be done afresh - Appeal of assessee is allowed for statistical purposes

Issues Involved:

1. Addition of ?9,02,50,000/- as unexplained cash credit under Section 68 of the Income-tax Act, 1961.
2. Reassessment proceedings and the validity of the order under Section 263 of the Act.
3. Adequacy of opportunity provided to the assessee during reassessment.
4. Compliance with procedural guidelines and natural justice.

Detailed Analysis:

1. Addition of ?9,02,50,000/- as Unexplained Cash Credit:
The primary issue in this appeal is the confirmation of the addition of ?9,02,50,000/- by the Assessing Officer (AO) as unexplained cash credit under Section 68 of the Income-tax Act, 1961. The AO treated the share capital raised by the assessee as bogus due to the failure to prove the identity, creditworthiness, and genuineness of the shareholders.

2. Reassessment Proceedings and Validity of Order under Section 263:
The reassessment was initiated after the Commissioner of Income Tax (CIT) invoked Section 263 of the Act, setting aside the original assessment order. The CIT found that the AO had not properly examined the share capital issue, leading to an erroneous and prejudicial order to the revenue. Consequently, the reassessment was directed to be conducted afresh.

3. Adequacy of Opportunity Provided to the Assessee:
The assessee contended that sufficient opportunity was not granted during the reassessment proceedings. Despite submitting various documents, including a list of shareholders, the AO concluded the proceedings without proper consideration, primarily due to the non-appearance of the directors of the shareholder companies. The Tribunal referenced the Supreme Court's decision in Tin Box Company Vs. CIT, emphasizing that the assessment must be made after providing a reasonable opportunity to the assessee.

4. Compliance with Procedural Guidelines and Natural Justice:
The Tribunal noted that the CIT had provided specific guidelines for a thorough investigation, which the AO failed to follow adequately. The AO's adverse conclusion was primarily based on the non-appearance of the directors, without considering the detailed documents submitted by the assessee. The Tribunal emphasized the importance of following the CIT's guidelines and conducting a comprehensive inquiry as directed.

Conclusion:
The Tribunal, after considering the rival submissions and the facts of the case, found that the AO did not provide a proper opportunity to the assessee and failed to follow the CIT's guidelines for a thorough investigation. Citing the Supreme Court's decision in Tin Box Company and the Delhi High Court's decision in Jansampark Advertising & Marketing Pvt. Ltd., the Tribunal set aside the order of the CIT(A) and remanded the matter back to the AO for de novo assessment. The AO is directed to decide the matter afresh in accordance with the law, providing the assessee with a proper opportunity of being heard.

Result:
The appeal of the assessee is allowed for statistical purposes, and the order is pronounced in the open court on 23.03.2018.

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