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2021 (10) TMI 216 - AT - Income TaxBogus purchases - CIT(A) sustained the addition@5% of impugned purchases - In alternative conclusion No.2, the ld CIT(A) has worked out the addition to the tune of ₹ 14,99,663/- - why not the alternative addition worked out by ld CIT(A) should not be sustained, in the hands of the assessee? - HELD THAT - It is settled legal position that where two views are available on an issue, the view favourable to the Assessee has to be followed. We note that Article 265 of the Constitution of India which says that no tax shall be levied or collected except by authority of law . The Constitution has conferred upon the right to collect the due taxes from the assessee to the Revenue Department. As per the aforesaid Article, it is the duty of the assessee to pay the tax what is rightfully due to the Government and it is the responsibility of the tax officials to collect the revenue what is rightfully due to the Government by following the due process of law. Since, the ld CIT(A) (Department) has worked out the alternative addition on which the assessee supposed to pay the taxes. In the instant case, the Ld. CIT(A) has himself worked out the alternative addition, which can be sustained in the hands of the assessee, therefore, we are of the view that said alternative addition, (which is a lesser addition), should be sustained in the hands of the assessee. We note that Hon'ble Supreme Court in the case of Vegetable products Ltd. 1973 (1) TMI 1 - SUPREME COURT held that if two reasonable constructions of a taxing provision are possible the construction which favours the assessee must be adopted. Therefore, we are of the view that Department may recover the taxes from the assessee on the addition which is less amount out of two alternatives, as worked out by ld CIT(A), by following the due process of law. In this scenario, we have no hesitation to prefer to follow the conclusion No. 2 reached by the ld CIT(A) and accordingly, we sustain the addition as made by CIT - Decided partly in favour of assessee.
Issues Involved:
1. Sustaining the addition of ?32,50,000 out of the total addition of ?6,49,99,999 on account of bogus purchase. 2. Rejection of book results by invoking provisions of section 145(3) of the Income Tax Act, 1961. 3. Denial of cross-examination opportunity to the assessee. 4. Validity of the assessment based on third-party statements and lack of independent evidence. Issue-wise Detailed Analysis: 1. Sustaining the Addition of ?32,50,000 Out of ?6,49,99,999 on Account of Bogus Purchase: The assessee filed a return of income for AY 2013-14, which was later scrutinized due to suspicious transactions involving bogus purchases amounting to ?6,49,99,999 from two benami companies, M/s. Marine Gems Pvt. Ltd. and M/s. Parshwanath Gems Pvt. Ltd., controlled by the Gautam Jain Group. The AO made an addition of ?6,61,40,170 under section 69 of the Act. The CIT(A) restricted the addition to 5% of the impugned purchases, which amounted to ?32,50,000, relying on the jurisdictional High Court's decision in the case of M/s. Mayank Diamonds. The Tribunal noted that the AO failed to provide concrete evidence and did not allow cross-examination of the directors of the seller companies, whose statements were retracted. The Tribunal found that the AO did not bring any independent material to substantiate the allegation of bogus purchases. 2. Rejection of Book Results by Invoking Provisions of Section 145(3) of the Act: The AO rejected the books of accounts under section 145(3) due to the alleged bogus purchases and completed the assessment under section 143(3) r.w.s. 145(3). The Tribunal observed that the assessee provided substantial documentary evidence, including purchase bills, stock registers, and bank statements, showing payments through banking channels. The AO did not find any discrepancies in the sales records, which were accepted in terms of quantity and amount. The Tribunal held that the AO's rejection of the books of accounts was not justified as there was no independent evidence proving the purchases were bogus. 3. Denial of Cross-Examination Opportunity to the Assessee: The Tribunal noted that the AO did not provide an opportunity for the assessee to cross-examine the directors of the seller companies, which is against the principles of natural justice. The Hon'ble Supreme Court in the case of Andaman Timber Industries vs. Commissioner of Central Excise Kolkata and the Hon'ble Gujarat High Court in the case of Praful Chunilal Patel vs. M.J. Makwana emphasized the necessity of cross-examination when adverse material is used against an assessee. The Tribunal found that the denial of cross-examination invalidated the AO's reliance on third-party statements. 4. Validity of the Assessment Based on Third-Party Statements and Lack of Independent Evidence: The Tribunal highlighted that the AO relied heavily on statements from third parties, which were later retracted, without providing any corroborative evidence. The Tribunal referred to several judicial pronouncements, including the Hon'ble Supreme Court's decision in Kishanchand Chellaram V/s. CIT, which held that adverse inferences cannot be drawn from third-party statements without corroborative evidence. The Tribunal concluded that the AO failed to bring any independent material to prove the purchases were bogus and relied solely on the investigation wing's report. Conclusion: The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal by sustaining an alternative addition of ?14,99,663, as worked out by the CIT(A). The Tribunal emphasized that when two views are possible, the one favorable to the assessee should be adopted, as per the Hon'ble Supreme Court's decision in Vegetable Products Ltd. The Tribunal directed the Department to recover taxes based on the sustained addition of ?14,99,663, following the due process of law.
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