2019 (4) TMI 50 - AT - Income Tax

Unexplained credit u/s 68 - unsecured loan from registered NBFC and other companies - opportunity of cross-examination of witness was not given - HELD THAT - We had carefully gone through the above order of the Tribunal in the case of Kota Dall Mill Vs. DCIT, 2019 (1) TMI 344 - ITAT JAIPUR with respect to the very same search and seizure action taken with respect to the amount taken from M/s Jalsagar Commerce Pvt. Ltd. After having similar observation as in the instant case before us, the A.O. has made the addition which has been confirmed by the ld. CIT(A). We found that the Tribunal have dealt with the issue threadbare and after controverting each and every objection of the Assessing Officer and the ld. CIT(A) have confirmed the addition and also dealing with all the judicial pronouncements referred by the ld. CIT(A) deleted the addition so made with respect to the loan taken from M/s Jalsagar Commerce Pvt. Ltd.. As the facts and circumstances during the both the assessment year under consideration i.e. A.Y. 2015-16 and 2016-17 are pari material, respectfully following the order of the Tribunal in the group cases, we do not find any merit in the addition so made in respect of loan taken from M/s Jalsagar Commerce Pvt. Ltd. We found that the Coordinate Bench in the case of group concern namely M/s Kota Dall Mill (supra) vide its order 31/12/2018 deleted the similar addition made in the assessment year 2015-16 and 2016-17. We had also gone through the findings recorded by the ld. CIT(A) in deleting the addition and found that no clinching evidence was brought on record by the Assessing Officer for holding that the loan given by the M/s Competent Securities Pvt. Ltd. was bogus. The assessee proved the identity the company. The company was assessed by Income Tax Department u/s 143(3) of ITax Act.

Summary

Issues Involved:
1. Validity of the assessment order due to violation of natural justice.
2. Confirmation of additions made under Section 68 of the Income Tax Act, 1961.
3. Deletion of additions made by the Assessing Officer (AO) regarding unsecured loans.

Detailed Analysis:

1. Validity of the Assessment Order:
The assessee challenged the validity of the assessment order on the grounds that the AO violated the principle of natural justice by not providing an opportunity for cross-examination of witnesses whose statements were relied upon. The Tribunal noted that the AO did not provide the necessary documents or the opportunity for cross-examination despite repeated requests from the assessee. The Tribunal emphasized that non-providing of material relied upon and not affording the opportunity for cross-examination constitutes a violation of the principle of natural justice. The Tribunal cited several judicial precedents, including the Supreme Court's decision in Andaman Timber Industries, which held that not allowing cross-examination makes the order nullity.

2. Confirmation of Additions Made Under Section 68:
The assessee argued that the additions made under Section 68 were based on statements recorded by other authorities and not on any direct evidence against the assessee. The Tribunal observed that the AO relied on statements of alleged accommodation entry providers without providing the opportunity for cross-examination. The Tribunal noted that the AO did not bring any material evidence to disprove the documentary evidence provided by the assessee, which included confirmations from lenders, bank statements, and financial statements. The Tribunal held that the AO's reliance on statements without cross-examination and without any corroborative evidence was not justified.

3. Deletion of Additions Regarding Unsecured Loans:
The Tribunal dealt with the deletion of additions made by the AO regarding unsecured loans from M/s Jalsagar Commerce Pvt. Ltd. and M/s Competent Securities Pvt. Ltd. The Tribunal found that the assessee had provided sufficient documentary evidence, including confirmations, bank statements, and financial statements, to prove the identity, creditworthiness, and genuineness of the transactions. The Tribunal noted that the AO did not provide any material evidence to counter the assessee's claims and that the statements relied upon by the AO were recorded behind the assessee's back without cross-examination. The Tribunal upheld the findings of the CIT(A) in deleting the additions, emphasizing that the transactions were conducted through banking channels and were supported by documentary evidence.

Conclusion:
The Tribunal allowed the appeals of the assessee for both assessment years and dismissed the appeals of the revenue. The Tribunal held that the assessment orders were invalid due to the violation of the principle of natural justice and that the additions made under Section 68 were not justified as they were based on statements without cross-examination and without any corroborative evidence. The Tribunal upheld the deletion of additions regarding unsecured loans, finding that the assessee had provided sufficient documentary evidence to prove the genuineness of the transactions.