2019 (11) TMI 756 - AT - Income Tax

Unexplained cash credit u/s 68 - violation of the principle of the natural justice - notices u/s 133(6) were issued by the AO at the wrong address to various share subscribers, which had returned back undelivered - HELD THAT - In the facts of the case, we are of the opinion that whatever may be the reasons, it is evident that those parties could not respond to the notices issued u/s 133(6) and the assessee also failed to produce them before the AO. Now, before us, the assessee has given undertaking that if matter is restored back to the AO, the assessee shall produce all the share applicant parties along with all the required documents to discharge its onus of proving the identity creditworthiness of the share applicant parties and genuineness of the transaction as required under section 68. In view of the facts and circumstances of the case and the undertaking given by the assessee, in the interest of the substantial justice, we feel it appropriate that the assessee must be provided an opportunity to produce all those share applicant parties, which the learned CIT(A) did not provide despite request on the part of the assessee. Accordingly, we restore the issue in dispute involved in the grounds of the appeal to the file of the AO for deciding afresh with the direction to the assessee to produce all the share applicant parties before the Assessing Officer along with all documentary evidences which it wants to rely upon. The assessee shall be afforded adequate opportunity of being heard. The grounds of the appeal of the assessee are accordingly allowed for the statistical purposes.

Issues Involved:

1. Violation of principles of natural justice due to notices issued under section 133(6) to wrong addresses.
2. Non-confrontation of the appellant regarding undelivered notices under section 133(6).
3. Addition of ?12,64,35,000 under section 68 as unexplained cash credit.
4. Incorrect observations by CIT(A) regarding additional evidence under Rule 46A.
5. Legality of assessed total income and resulting tax demand and interest.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant contended that the Assessing Officer (AO) violated principles of natural justice by issuing notices under section 133(6) of the Income Tax Act to incorrect addresses of various share subscribers, resulting in undelivered notices. The Tribunal noted that the AO issued notices based on the addresses provided in the share subscribers' income tax returns for the assessment year 2013-14. The appellant argued that the subscribers had moved to new addresses, which was not considered by the AO. The Tribunal acknowledged the appellant's contention and the need for correct addresses to ensure proper delivery of notices.

2. Non-confrontation Regarding Undelivered Notices:
The appellant argued that the AO did not confront them with the fact that notices under section 133(6) were returned undelivered. The Tribunal observed that the AO should have informed the appellant about the non-delivery of notices to allow them an opportunity to provide correct addresses or produce the share subscribers. The Tribunal found merit in the appellant's argument and emphasized the importance of providing an opportunity to address such issues to uphold the principles of natural justice.

3. Addition under Section 68 as Unexplained Cash Credit:
The AO made an addition of ?12,64,35,000 as unexplained cash credit under section 68, which was upheld by the CIT(A). The AO concluded that the appellant failed to prove the identity, creditworthiness, and genuineness of the share subscribers. The appellant provided documentary evidence, but the AO found it insufficient. The Tribunal noted that the AO's notices under section 133(6) were not issued to all share subscribers and some notices were undelivered. The Tribunal highlighted the appellant's undertaking to produce all share subscribers and relevant documents if the matter was restored to the AO. In the interest of substantial justice, the Tribunal decided to restore the issue to the AO for a fresh decision, allowing the appellant to produce the share subscribers and necessary evidence.

4. Incorrect Observations by CIT(A) Regarding Additional Evidence:
The appellant contended that the CIT(A) made incorrect observations regarding the filing of additional evidence under Rule 46A of the Income Tax Rules, 1962. The CIT(A) rejected the additional evidence and upheld the AO's findings. The Tribunal examined the CIT(A)'s observations and found that the appellant was not provided an opportunity to produce the share subscribers despite their request. The Tribunal emphasized the need to provide the appellant an opportunity to present their case and evidence adequately.

5. Legality of Assessed Total Income and Resulting Tax Demand and Interest:
The appellant challenged the assessed total income of ?11,87,56,430 and the resulting tax demand and interest. The Tribunal's decision to restore the issue of unexplained cash credit to the AO for a fresh decision directly impacted the assessed total income and the resulting tax demand and interest. The Tribunal allowed the grounds of appeal for statistical purposes, indicating that the final determination of total income and tax liability would depend on the fresh assessment by the AO.

Conclusion:
The Tribunal restored the issue of unexplained cash credit to the AO for a fresh decision, allowing the appellant to produce all share subscribers and necessary documentary evidence. The Tribunal emphasized the importance of providing an opportunity to address issues related to notices and evidence to uphold the principles of natural justice. The appeal was allowed for statistical purposes, and the matter was remanded to the AO for a fresh assessment.

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