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2019 (4) TMI 1223 - AT - Income TaxAddition u/s 68 - Denial of principal of natural justice - addition merely on the strength of statement of third party - no statement is confronted to the assessee much less offered for cross examination which also lacks of independent corroboration from any incriminating material - HELD THAT - As decided in SMT. JYOTI GUPTA VERSUS THE I.T.O, DELHI 2018 (11) TMI 1353 - ITAT NEW DELHI since the impugned addition was made on the statement of Sh. Vikrant Kayan third party without providing any opportunity to the assessee to cross examine the same, which is in violation of principle of natural justice and against the law laid down by the Hon ble Supreme Court of India in the case of Andaman Timber vs. CIT 2015 (10) TMI 442 - SUPREME COURT - Decided in favour of assessee.
Issues Involved:
1. Violation of principles of natural justice. 2. Reliance on material collected without offering an opportunity for cross-examination. 3. Legitimacy of capital gains claimed by the assessee. Issue-wise Detailed Analysis: 1. Violation of Principles of Natural Justice: The assessee contended that the assessment order was passed in violation of the principles of natural justice. Specifically, the Assessing Officer (AO) relied on material collected at the back of the assessee without offering an opportunity for cross-examination. The Tribunal noted that the AO's observation, "In order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the appellant by the procedure followed," was not tenable in the eyes of law. The Tribunal emphasized that the absence of a formal opportunity for oral cross-examination constitutes a violation of natural justice principles. 2. Reliance on Material Collected Without Offering an Opportunity for Cross-Examination: The Tribunal found that the AO had formed a negative inference solely based on extracts of statements that were not confronted to the assessee, nor was the opportunity for cross-examination provided. The assessee had raised this issue before the Commissioner of Income Tax (Appeals) [CIT(A)], but it was not adjudicated. The Tribunal referenced the case of Andaman Timber vs. CIT, where the Supreme Court held that not allowing cross-examination when statements are the basis of the impugned order is a serious flaw that violates principles of natural justice. The Tribunal reiterated that the assessee's request for cross-examination was denied, which is against the settled law. 3. Legitimacy of Capital Gains Claimed by the Assessee: The AO had questioned the legitimacy of the capital gains claimed by the assessee, noting that the gains were from the sale of shares of a relatively unknown company, M/s CCL International Ltd., and were disproportionate compared to the average market returns. The AO added the amount of ?18,57,743/- (capital gain of ?12,47,743/- plus ?6,10,000/- invested) back to the income of the assessee under section 68 of the Income Tax Act, 1961. However, the Tribunal found that the addition was made without confronting the assessee with the statements or providing an opportunity for cross-examination, which lacks independent corroboration from any incriminating material. The Tribunal referenced a similar case, Smt. Jyoti Gupta vs. ITO, where the addition was deleted due to the denial of cross-examination. Conclusion: The Tribunal allowed the appeals filed by the assessee, emphasizing that the addition was made based on statements not confronted to the assessee and without offering an opportunity for cross-examination. This was deemed a violation of principles of natural justice. The Tribunal followed the precedent set in the case of Smt. Jyoti Gupta vs. ITO and the Supreme Court's ruling in Andaman Timber vs. CIT, ultimately directing the AO to allow the claim of exemption under section 10(38) of the Act. The decision was pronounced on 18/04/2019.
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