2023 (2) TMI 155 - AT - Income Tax

Validity of Reopening of assessment u/s 147 - denial of principles of natural justice - addition u/s 68 - Necessity for statement of third party if relied upon by the Department to be confronted to the assessee for its comments and cross-examination - HELD THAT - Revenue has committed infringement of principles of natural justice by not confronting the copy of statement adverse to the assessee while placing reliance on such statement as printed out by the assessee. Thus, owing to similarities on facts, the findings rendered in M/s. Priya Diamonds 2022 (1) TMI 1154 - ITAT DELHI shall apply mutatis mutandis to the case of the assessee. In conclusion, objection towards lack of jurisdiction conferred under Section 147 of the Act is adjudicated against the assessee while the objection towards adjudication of merit is referred back to the Assessing Officer for de novo determination. The order of the CIT(A) is thus set aside on merits for fresh determination by the Assessing Officer. The Assessing Officer shall determine the issue on merits afresh in accordance with law keeping in mind the sacrosanct principles of natural justice. The statement of third party if relied upon by the Department, shall be necessarily confronted to the assessee for its comments and cross-examination, if demanded. The observations made in M/s. Priya Diamonds shall be adhered too. In conclusion, the matter is remitted and restored to the file of the Assessing Officer for determination of issue on merits afresh in accordance with law. Appeal of the assessee is partly allowed.

Summary

Issues:
1. Validity of initiation of reassessment proceeding and notice u/s. 147 r.w.s. 148
2. Legality of the impugned order passed u/s. 147/143(3) of the IT Act
3. Assessment order passed by the Ld. AO against principles of natural justice
4. Sustainment of an addition of Rs. 90,00,000/- as Unexplained Credit u/s. 68
5. Lack of reasonable opportunity of being heard

Issue 1: Validity of initiation of reassessment proceeding and notice u/s. 147 r.w.s. 148:
The appeal was filed against the order of the Commissioner of Income Tax concerning the assessment order dated 11.11.2016 under Section 147 r.w. Section 143(3) of the Income Tax Act, 1961. The survey operation revealed an amount of Rs. 90 lakh introduced as share capital/share premium in the assessee-company. The case was reopened after recording reasons by issuance of notice under Section 148 r.w. Section 147 of the Act. The assessment was framed, making an addition of Rs. 90 lakh towards credit entries received, deemed unsatisfactory under Section 68 of the Act.

Issue 2: Legality of the impugned order passed u/s. 147/143(3) of the IT Act:
The assessee challenged the jurisdiction assumed under Section 147 of the Act and the merits of the additions made under Section 68. The CIT(A) upheld the validity of jurisdiction assumed under Section 147 and found the case made out by the assessee to be without merits. The CIT(A) upheld the action of the Assessing Officer on both jurisdiction and factual grounds, dismissing the appeal of the assessee.

Issue 3: Assessment order passed by the Ld. AO against principles of natural justice:
The Co-ordinate Bench in a similar case granted partial relief to the assessee on merits, emphasizing the importance of providing the assessee with an opportunity to substantiate claims and cross-examine third-party statements. The Tribunal directed the Assessing Officer to grant the assessee another opportunity to substantiate the introduction of share capital/share premium, ensuring compliance with principles of natural justice.

Issue 4: Sustainment of an addition of Rs. 90,00,000/- as Unexplained Credit u/s. 68:
The addition of Rs. 90 lakh as unexplained credit under Section 68 was sustained by the CIT(A) based on the unsatisfactory nature and source of the credit entries. However, the Tribunal partially allowed the appeal, remitting the matter back to the Assessing Officer for fresh determination on merits, emphasizing adherence to principles of natural justice.

Issue 5: Lack of reasonable opportunity of being heard:
The Tribunal set aside the order of the CIT(A) on merits for fresh determination by the Assessing Officer, emphasizing the need for the Assessing Officer to determine the issue on merits afresh while adhering to principles of natural justice. The matter was remitted and restored to the file of the Assessing Officer for a fresh determination in accordance with the law.

This judgment highlights the importance of ensuring that assessment proceedings are conducted in compliance with the principles of natural justice, providing the assessee with a fair opportunity to substantiate claims and cross-examine evidence. The Tribunal's decision emphasizes the need for meticulous adherence to legal procedures and fairness in tax assessments.