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2021 (4) TMI 60 - AT - Income TaxAssessment u/s 153C - additions have been made in the assessment order solely on the basis of the statement of Shri R.K. Miglani, without conducting any independent enquiry - HELD THAT - This Tribunal, in the case of Lord Distillery Ltd. 2018 (12) TMI 1606 - ITAT DELHI passed in the cases of other members of the UPDA, has held that the non-granting of opportunity to cross-examine Shri Miglani is illegal and fatal to the assessment order. Respectfully following the order passed by the Coordinate Bench we hold that in such circumstance, the statement of Shri R.K. Miglani cannot bind the Assessee. In absence of any other new material, and in the absence of any material change in the facts and circumstances of the case, respectfully following the decision/s of the co-ordinate benches on the identical issue and following the rules of consistency, the addition made by the Assessing Officer and sustained by the Ld. CIT (A) is hereby deleted. Assessment u/s 153C - AR submitted that the impugned assessment order framed under S. 143(3) - as submitted that the search took place on UPDA and Radico Khaitan on 14.02.2006, and the alleged incriminating material / documents pertaining to Financial Year 2005-06 were also recovered - HELD THAT - As decided in LORDS DISTILLERY LIMITED, VERSUS DCIT, DELHI 2018 (12) TMI 1606 - ITAT DELHI assessment ought to have been framed u/s 153C r.w.s 153A of the Act which is the mandate of relevant provisions relating to assessment in the case of search and seizure operation. The present assessment order is framed u/s 143(3) of the Act and is, therefore, bad in law. Accordingly, we do not have any hesitation in annulling the assessment order. Since the assessment order has been annulled, all the subsequent happenings get vitiated
Issues Involved:
1. Validity of assessment proceedings under Section 153C read with Section 153A of the Income Tax Act. 2. Denial of opportunity to cross-examine key witness. 3. Reliance on documents and statements from third parties. 4. Alleged generation of funds through inflated charges and bogus bills. 5. Additions to income based on unexplained expenditure. 6. Condonation of delay in filing the appeal. Detailed Analysis: 1. Validity of Assessment Proceedings under Section 153C read with Section 153A: The primary issue was whether the assessment proceedings under Section 153C read with Section 153A were valid when there was no material to support that the documents relied upon by the Assessing Officer (AO) belonged to the assessee. The Tribunal found that the documents recovered from Shri R.K. Miglani and UPDA were "dumb documents" and did not belong to the assessee. The Tribunal cited the case of Lords Distillery Ltd., emphasizing that the term "belong to" is not synonymous with "pertaining to" or "relating to," and the documents must establish ownership. The Tribunal concluded that the AO exceeded his jurisdiction, and the assessment under Section 153C was invalid. 2. Denial of Opportunity to Cross-Examine Key Witness: The assessee argued that the assessment was framed without providing an opportunity to cross-examine Shri R.K. Miglani, whose statement was crucial to the case. The Tribunal noted that despite the assessee's request, the opportunity to cross-examine was denied, making the resultant additions unjustified. The Tribunal referenced the case of Andaman Timber Industries, where the Supreme Court held that not allowing cross-examination violates natural justice principles. 3. Reliance on Documents and Statements from Third Parties: The AO relied on documents and statements from third parties, including loose sheets and diaries, to make additions to the assessee's income. The Tribunal found that these documents were not corroborated by independent evidence and were considered "hearsay evidence." The Tribunal emphasized that possession of documents does not prove their contents unless the writer thereof is examined. The Tribunal found that the AO's reliance on these documents was misplaced. 4. Alleged Generation of Funds through Inflated Charges and Bogus Bills: The AO alleged that the assessee generated funds for illegal payments by inflating transport charges and debiting bogus bills. The Tribunal found no evidence in the seized documents or the assessee's records to support these allegations. The Tribunal noted that the AO's findings were based on presumptions without any cogent proof. 5. Additions to Income Based on Unexplained Expenditure: The Tribunal addressed the specific additions made to the assessee's income for various assessment years on account of alleged unexplained expenditure. The Tribunal found that these additions were based on uncorroborated documents and statements from third parties. The Tribunal annulled the assessment orders for all the assessment years in question, following the principle of consistency with previous Tribunal decisions in similar cases. 6. Condonation of Delay in Filing the Appeal: The Tribunal considered the assessee's application for condonation of delay in filing the appeal for the assessment year 2006-07. The assessee cited medical reasons for the delay. The Tribunal found sufficient cause for the delay and condoned it, allowing the appeal to be heard. Conclusion: The Tribunal annulled the assessment orders for all the assessment years in question, holding that the assessments were invalid due to the lack of material evidence, denial of cross-examination, and reliance on uncorroborated documents. The appeals were allowed in favor of the assessee.
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