2023 (8) TMI 1012 - AT - Income Tax

Validity of the assessment order passed u/s 153C r.w.s.143(3) - addition for undisclosed cash payments - assessee submitted that except the so called ledger account seized from a third party, no other evidence was collected by the AO to corroborate the entries in the ledger account - HELD THAT - Admittedly, the incriminating material was not seized from the assessee. On further perusal of the incriminating material i.e. the ledger copy, it is observed that it depicts certain payments in cheque and in cash. The cheque payments mentioned in the ledger copy are through Kotak Bank and AXIS Bank. It is observed, from the stage of assessment proceedings itself the assessee has flatly denied its involvement in the transactions recorded in the ledger copy seized from the third party. The assessee has specifically submitted that the bank accounts mentioned in the ledger copy do not belong to him or his wife. It is the specific case of the assessee from the very beginning that he had purchased the flat for a consideration of Rs. 40 lacs and has paid it entirely through banking channel from his bank account held with State Bank of India and ICICI Bank and bank account standing in the name of his wife held with Bank of India. Surprisingly, no statement has been recorded from the third party from whom the incriminating material was seized with regard to the entries in the ledger copy. There is nothing on record to suggest that the third party from whom the ledger copy was seized admitted of having received the cash payment from the assessee. This is so because neither the AO nor learned CIT(A) have referred to any such statement or admission by Shri Viral K. Patel with reference to the seized material. Merely because the payments made by cheque appearing in the ledger copy and actually made by the assessee tallied, it cannot lead to the conclusion that the assessee has also made the cash payments. More so, when from the very beginning the assessee has vehemently denied of having made the cash payments. Thus, in my considered opinion, in absence of any clinching evidence to show that the assessee had made the cash payments, the addition of so called cash payment could not have been made - Appeal of the assessee stands allowed.

Summary

Issues involved:
The issues involved in this case include the confirmation of addition of Rs. 17,00,000 in the income of the appellant, the lack of opportunity for cross-examination of key persons involved, the objection regarding the recording of satisfaction note by the Assessing Officer, the denial of cross-examination of a builder whose statement was recorded, and the lack of independent application of mind by the Assessing Officer.

Confirmation of Addition:
The appellant challenged the addition of Rs. 17,00,000 under section 69 of the Income Tax Act, 1961, and the validity of the assessment order passed under section 153C read with section 143(3) of the Act. The case involved a retired IPS Officer who was a salaried employee, and a search & seizure operation revealed cash payments towards purchase of a flat. The Assessing Officer added the amount to the appellant's income based on seized documents, despite the appellant's denial. The CIT(A) upheld the addition, but the Tribunal found no evidence to corroborate the entries in the seized ledger account, leading to the direction to delete the addition.

Opportunity for Cross-Examination:
The appellant contended that no other evidence besides the seized ledger account was collected by the Assessing Officer to support the addition. The appellant was not given the chance to cross-examine the party from whom the incriminating materials were seized, which was crucial for establishing the validity of the cash payments. The lack of opportunity for cross-examination raised doubts about the reliability of the evidence used for the addition.

Recording of Satisfaction Note:
The appellant raised objections regarding the recording of satisfaction note as required under section 153C of the Act. Specific dates mentioned in the satisfaction notes of the Assessing Officers raised questions about the timing and validity of the satisfaction recorded. The Tribunal found inconsistencies in the satisfaction notes, indicating a lack of proper recording of satisfaction as mandated by the Act, which rendered the assessment order invalid.

Independent Application of Mind:
The Tribunal highlighted the lack of independent application of mind by the Assessing Officer in recording satisfaction notes under section 153C of the Act. The mechanical recording of satisfaction without proper consideration of the appellant's objections and evidence presented led to the invalidity of the assessment order. Legal precedents were cited to support the argument that the assessment order lacked a valid basis due to the absence of proper satisfaction recording.

In conclusion, the Tribunal allowed the appeal of the appellant, directing the Assessing Officer to delete the addition of Rs. 17,00,000 from the appellant's income. The decision was based on the lack of substantial evidence, failure to provide opportunities for cross-examination, and the invalidity of the assessment order due to the improper recording of satisfaction notes as required by law.