2023 (3) TMI 972 - AT - Income Tax

Addition of cash payments - undisclosed payment - A.O. has relied upon the statement of third person recorded during the course of search u/s 132(4) - HELD THAT - It is well settled Law that unless the incriminating documents or statement used against the assessee are confronted to assessee and assessee have been allowed to cross-examine such statements, no such material or statement, could be read in evidence against the assessee. A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment at any stage. Tribunal in the case of Shri Manjit Singh Gahlot, Delhi ( 2022 (10) TMI 399 - ITAT DELHI and Shri Naresh Pamnani vs. ITO ( 2019 (3) TMI 1787 - ITAT DELHI no addition could be made against the assessee of the impugned amount.- Decided in favour of assessee. Penalty u/s 271(1)(c) - non compliance to notices issued by the assessee u/s 142(1) - HELD THAT - As assessee firstly did not comply with the notices issued by the assessee u/s 142(1) of the Act and, secondly, he placed explanation which was self-contradictory as, on the one hand, the assessee is harping that notices were not served on the assessee and per contra, it has been alleged that the counsel of the assessee appeared before the AO. Therefore, the ld.CIT(A) rightly held that the assessee has failed to explain his non-compliance in response to the notices issued to him u/s 142(1) of the Act. Therefore, the penalty was rightly imposed by the AO and the ld.CIT(A) was also correct in upholding the same. Accordingly, the grounds of the assessee are dismissed and the penalty u/s 271(1)(b) of the Act is hereby confirmed.

Summary

Issues:
1. Addition of Rs. 22,55,000/- upheld by CIT(A) and demand of Rs. 14,48,041/- created.
2. Validity of addition made on surmises and conjectures without granting opportunity of cross-examination.
3. Contradictions in documents relied upon by the Assessing Officer.
4. Applicability of judgments in similar cases to support deletion of addition.
5. Penalty of Rs. 10,000/- imposed under section 271(1)(b) upheld by CIT(A) for non-compliance of notices.

Analysis:
Issue 1:
The appeals filed by the assessee challenged the addition of Rs. 22,55,000/- upheld by the CIT(A) for Assessment Year 2007-08. The grounds not pressed were dismissed, and the remaining grounds were left for adjudication. The assessee relied on judgments of ITAT benches in similar cases to support the deletion of the addition. The Tribunal found the addition unjustified and deleted the entire amount based on lack of material and absence of cross-examination, in line with legal principles.

Issue 2:
The Tribunal noted that the addition made on surmises and conjectures without granting an opportunity of cross-examination was against the principles of natural justice. Referring to a specific case with similar circumstances, the Tribunal set aside the orders of the authorities below and deleted the addition of Rs. 19,75,000/-, emphasizing the importance of confronting incriminating documents or statements to the assessee for a fair assessment process.

Issue 3:
Regarding contradictions in the documents relied upon by the Assessing Officer, the Tribunal observed that the absence of material against the assessee and lack of cross-examination rendered the addition baseless. Citing legal precedents, the Tribunal deleted the addition, highlighting the necessity of providing the assessee with an opportunity to rebut incriminating evidence.

Issue 4:
The Tribunal considered the applicability of judgments in similar cases to support the assessee's position. By analyzing the facts and circumstances along with the orders in relevant cases, the Tribunal concluded that no addition could be made against the assessee. The Tribunal allowed the appeal, emphasizing the importance of consistency in decisions based on precedents.

Issue 5:
The imposition of a penalty of Rs. 10,000/- under section 271(1)(b) for non-compliance of notices was upheld by the CIT(A). The Tribunal reviewed the findings and observations of the CIT(A), noting the failure of the assessee to comply with the notices issued under section 142(1) of the Act. The Tribunal confirmed the penalty, considering the contradictory explanations provided by the assessee and upheld the decision of the authorities below.

In conclusion, the Tribunal partly allowed one appeal and dismissed the other, addressing the issues of addition upheld by the CIT(A) and the penalty imposed for non-compliance of notices under section 271(1)(b) based on detailed analysis and legal principles.