2017 (6) TMI 284 - AT - Income Tax

Addition u/s 68 - addition in respect of sundry creditors representing the amount advanced by them as trade advance - respective parties had chosen not to respond to summons issued by the AO, where the assessee responded and the parties have denied advancing money - Held that - From a perusal of the assessment order, it is clear that the AO had not confronted the assessee with the material gathered by him by exercise power of commission u/s 131. The AO, no doubt, gathered information by issuing summons to the AO of the party in case of Shri Prashanth. Shri Prashanth, though admitted having purchased timber from the assessee, had denied having lent any advance in the financial year 2010-11. But the principles of natural justice demands that the assessee should be given an opportunity of rebutting this evidence which the AO has failed to do so. In case of other party i.e. K.B.Ramakrishna, he appeared in response to summons issued by the AO but denied having advanced many of ₹ 3 lakhs. But this information was also not put to the assessee for rebuttal. Thus, these two additions have been made by the AO in gross violation of the principles of natural justice. Recently in the case of Andaman Timber Industries 2015 (10) TMI 442 - SUPREME COURT held that not granting of opportunity to cross examine witness whose statement were relied upon in making assessment is a serious flaw which makes the order nullity inasmuch as it amounts violation of principles of natural justice. Because of which assessee was adversely affected. Thus we hold that addition made in respect of Prashanth and K.B.Ramakrishna should be deleted. As regards addition of ₹ 5 lakhs standing in the name of B.Krishappa, AO made addition simply because he has not responded to the inquiry instituted against him. The AO had chosen not to seek further seek further from the assessee to enforce attendance of creditors is enforced. See CIT. CENTRAL III Versus CHANDELA TRADING CO. (P) LTD. 2014 (11) TMI 409 - CALCUTTA HIGH COURT - Decided in favour of assessee.

Summary

Issues Involved:
Appeal against CIT(A) order for assessment year 2010-11 - Addition under section 68 of the Income-tax Act - Natural justice principles violation - Trade advances received from various parties - Opportunity to cross-examine not provided - Addition challenged for lack of evidence and confrontation - Deletion of additions sought - AO's reliance on statements without opportunity for rebuttal - Disallowance of trade advances - Assessment order challenged before ITAT Bangalore.

Detailed Analysis:

Issue 1: Addition under Section 68 of the Income-tax Act
The appeal was against the CIT(A) order for the assessment year 2010-11, challenging the addition of amounts under section 68 of the Income-tax Act. The appellant contended that the amounts received from various parties were trade advances and, therefore, no addition could be made under section 68. The AO had not confronted the assessee with the material gathered, violating principles of natural justice. The ITAT noted that the AO failed to provide an opportunity for the appellant to rebut the evidence gathered, as exemplified in the case of Shri Prashanth and K.B.Ramakrishna. Citing the Andaman Timber Industries case, the ITAT held that the additions should be deleted due to the violation of natural justice principles.

Issue 2: Addition of Trade Advances
The AO made additions of trade advances based on lack of response from the parties and failure to file confirmation letters. The ITAT observed that the AO did not seek further information from the assessee to enforce the attendance of the creditors. Referring to the case law of CIT vs. Chandela Trading Co. P. Ltd., the ITAT emphasized that mere failure of creditors to present themselves does not automatically lead to the conclusion that the credits lack identity. Consequently, the ITAT deleted the addition made in respect of B.Krishappa, as the revenue could not contradict the explanation furnished by the assessee.

Conclusion:
The ITAT allowed the appeal filed by the assessee, deleting the additions made under section 68 of the Income-tax Act. The judgment highlighted the importance of natural justice principles and the necessity for providing the assessee with an opportunity to rebut evidence before making additions based on statements of third parties. The ITAT's decision focused on upholding fairness and due process in tax assessments, ensuring that assessments are conducted in compliance with legal standards and principles of natural justice.

This comprehensive analysis captures the key issues addressed in the judgment, including the challenges against the addition under section 68 of the Income-tax Act and the violations of natural justice principles in the assessment process.