2018 (5) TMI 1694 - AT - Income Tax

Validity of reopening of the assessment - assessee did not declare and disclose any business transactions of purchase or sale of properties - Held that - Documents found by revealed the transactions of purchase and sale of the properties and the name of the assessee is found mentioned against the land dealing transactions - since these material were also not disclosed in the return of income of assessee which it certainly constitute a reason to believe that an income assessable to tax in the hands of the assessee has escaped assessment - thus there is no error or illegality in the reopening of the assessment - Decided against the assessee. Additions made by the AO based on the impounded material and statement of Shri Rajesh Tambi recorded u/s 131 - Held that - In view of the decision of M/s Andaman Timber Industries vs CCE (2015 (10) TMI 442 - SUPREME COURT) it is held that since the assessee did not specifically demand the cross examination of Shri Rajesh Tambi (director of the company) during the assessment proceedings, therefore the matter is set aside to give an opportunity to the assessee to cross examine Shri Rajesh Tambi and then adjudicate the issue of addition made by the AO - allowed for statistical purposes

Issues Involved:
1. Validity of reopening the assessment under sections 143(3) and 148.
2. Addition of ?1,00,000 on account of commission/brokerage income.
3. Addition of ?1,00,000 on account of undisclosed income for the purchase of a plot.
4. Addition of ?48,11,525 on account of alleged 25% share of profit from the sale of properties in Balaji Nagar.
5. Charging of interest under sections 234B and 234C.

Issue-wise Detailed Analysis:

1. Validity of Reopening the Assessment:
The assessee challenged the reopening of the assessment, arguing that there was no escapement of income as all income was disclosed in the return. The reopening was based on rough notings found during a survey on a third party, which the assessee claimed did not constitute tangible material. The Tribunal noted that the return filed on 31st March 2007 was processed under section 143(1) without scrutiny. The AO reopened the assessment based on documents impounded during a survey, which included transactions not disclosed by the assessee. The Tribunal upheld the reopening, stating that the impounded documents provided tangible material to form a belief that income had escaped assessment. The Tribunal emphasized that at the time of reopening, only a prima facie belief of escapement of income is required, not concrete evidence.

2. Addition of ?1,00,000 on Account of Commission/Brokerage Income:
The assessee contested the addition of ?1,00,000, arguing that no actual receipt of commission/brokerage income occurred, and it was merely an adjustment entry. The Tribunal did not provide a specific ruling on this issue within the provided text, but the general approach suggests that the Tribunal would require substantial evidence to overturn the AO's addition.

3. Addition of ?1,00,000 on Account of Undisclosed Income for the Purchase of a Plot:
The assessee argued that the payment for the plot was made in the year 2006-07 from disclosed sources, not in the year under consideration. The Tribunal did not provide a specific ruling on this issue within the provided text. However, it is implied that the Tribunal would consider the timing and source of payment critically.

4. Addition of ?48,11,525 on Account of Alleged 25% Share of Profit from the Sale of Properties in Balaji Nagar:
The assessee objected to the addition, arguing that it was based on rough documents found in a third party's possession and statements not cross-examined. The Tribunal noted that the addition was based on impounded material and the statement of Shri Rajesh Tambi, which were not sufficiently corroborated. The Tribunal emphasized the need for cross-examination, citing the Supreme Court's decision in Andaman Timber Industries vs. CCE, which held that the denial of cross-examination violates principles of natural justice. The Tribunal set aside this issue, directing the AO to allow cross-examination and then adjudicate the issue afresh.

5. Charging of Interest under Sections 234B and 234C:
The assessee denied liability for interest charged under sections 234B and 234C. The Tribunal did not provide a specific ruling on this issue within the provided text, but it is generally understood that interest under these sections is consequential to the tax demand and would be upheld if the underlying additions are sustained.

Conclusion:
The Tribunal upheld the reopening of the assessment, emphasizing the sufficiency of prima facie belief for escapement of income. However, it set aside the addition of ?48,11,525, directing the AO to allow cross-examination of Shri Rajesh Tambi and re-adjudicate. The other issues were not specifically ruled upon in the provided text but are implied to be contingent on further evidence and examination. The appeal was partly allowed for statistical purposes.

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