2015 (7) TMI 782 - HC - Income Tax

Reopening of assessment - disallowance of expenditure incurred for receiving services from M/s Inorbit and M/s Nupur as bogus as evidenced by statement of representatives of M/s Inorbit and M/s Nupur - Held that - There has been a breach of principles of natural justice in as much as the Assessing Officer has in his order placed reliance upon the statements of representatives of M/s Inorbit and M/s Nupur to come to the conclusion that claim for expenditure made by the appellant is not genuine. Thus the appellant was entitled to cross examine them before any reliance could be placed upon them to the extent it is adverse to the appellant. This right to cross examine is a part of the audi altrem partem principle and the same can be denied only on strong reason to be recorded and communicated. The impugned order holding that it would have directed cross examination if it felt it was necessary, is hardly a reason in support of coming to the conclusion that no cross examination was called for in the present facts. This reason itself makes the impugned order vulnerable. Moreover, in the present facts, the appellant had also filed affidavit of the representatives of M/s Inorbit and M/s Nupur which indicates that they had received payment from the appellant for rendering of services to the appellant. These affidavits also have not been taken into account by any authority including the Tribunal while upholding the disallowance of the expenditure. Thus we set aside the order of the Tribunal and restore the issue to the Assessing Officer for fresh disposal after following the principles of natural justice

Summary

Issues:
Challenge to order of Income Tax Appellate Tribunal under Section 260A of the Income Tax Act, 1961 for Assessment Year 2007-08.

Analysis:

1. Breach of Principles of Natural Justice:
The appellant challenged the order of the Income Tax Appellate Tribunal on the grounds of denial of cross-examination leading to a breach of principles of natural justice. The Assessing Officer had relied on statements of representatives of two companies, M/s Inorbit and M/s Nupur, without providing an opportunity for cross-examination. The appellant contended that cross-examination could reveal the truth and emphasized the importance of this process in ensuring fairness. The appellant cited a similar case involving M/s Satellite Cable TV Network where the Tribunal set aside adverse orders due to the lack of cross-examination opportunity. The appellant argued that the same standard should be applied in their case. The High Court found merit in the appellant's argument, holding that the denial of cross-examination constituted a breach of natural justice. The Court emphasized that the right to cross-examine is a fundamental part of the audi alteram partem principle and can only be denied with strong reasons, which were lacking in this case. The Court concluded that the impugned order was vulnerable due to the failure to provide an opportunity for cross-examination.

2. Failure to Consider Evidence:
The appellant had submitted affidavits from the representatives of M/s Inorbit and M/s Nupur indicating that they had indeed provided services in exchange for payment. However, these affidavits were not considered by any authority, including the Tribunal, in upholding the disallowance of expenditure. The High Court noted this failure to consider crucial evidence as another aspect of the breach of natural justice. The Court highlighted that the appellant was not given a fair chance to present and substantiate their evidence, further reinforcing the breach of principles of natural justice.

3. Relief Granted:
In light of the identified breaches of natural justice, the High Court set aside the order of the Tribunal and remanded the issue to the Assessing Officer for fresh disposal. The Court directed that the principles of natural justice must be followed, and the assessment should be conducted in accordance with the law. The High Court clarified that the challenge to the reopening of the assessment was not pressed before them and thus stood concluded. The appeal was disposed of with no order as to costs, providing relief to the appellant based on the violations of natural justice in the proceedings.