2017 (6) TMI 589 - AT - Income Tax

Reopening of assessment - accommodation entries - person non confronted by assessee on whose statement additions made - Held that - As during the course of search conducted upon the Shri Mukesh Choksi group, statement of Shri Mukesh Choksi was recorded and in his statement he has admitted that he was providing accommodation entries to those who were interested to earn capital gain. As find that there is no finding with regard to the supply of statement of Shri Mukesh Choksi to the assessee. Moreover, nothing is available on record, wherefrom it could be inferred that assessee was ever allowed to cross-examine Mr. Mukesh Choksi. It is settled position of law that statement or the evidence which is being relied upon by the AO for making the addition in the hands of assessee, the same should be confronted to the assessee and the assessee should be allowed to cross-examine the witness in this regard. AO was not justified in making addition in the hands of assessee, without allowing the assessee to crossexamine Mr. Mukesh Choksi, whose statement was relied upon for making the above additions. Thus set aside the order of CIT(Appeals) and restore the matter to the file of AO. Appeal of assessee allowed for statistical purposes.

Issues:
Challenging order of CIT(Appeals) on various grounds, reopening of assessment, violation of natural justice, treating purchase consideration as unexplained expenditure, taxing purchase consideration as income, fraudulent transactions in shares, accommodation entries, liability to pay interest.

Analysis:

1. Challenging Order of CIT(Appeals): The appellant challenged the order of CIT(Appeals) on multiple grounds, including errors in passing the order and lack of compliance with legal formalities. The appellant argued that the order was void ab-initio and should be quashed. Additionally, the appellant contended that the order violated principles of natural justice and fair play, emphasizing the absence of cross-examination of relevant persons. The appellant also raised concerns regarding the order's conformity with the jurisdictional High Court's dictum.

2. Reopening of Assessment: The appellant asserted that the conditions precedent for issuing notice under section 148 of the Act were absent, rendering the reopening of assessment legally flawed. The appellant highlighted the importance of complying with legal formalities under section 147 of the Act, emphasizing that the failure to do so rendered the order invalid.

3. Violation of Natural Justice: The appellant argued that the order was passed in violation of the principles of natural justice and fair play, particularly due to the lack of cross-examination of individuals whose statements were relied upon by the Assessing Officer. The appellant contended that such procedural deficiencies rendered the order legally unsustainable.

4. Treating Purchase Consideration as Unexplained Expenditure: The assessing officer treated a sum paid as purchase consideration for shares as unexplained expenditure under section 69C of the Act. The appellant disputed this treatment, asserting that it lacked legal support and was contrary to the available facts and evidence. The appellant sought the rejection of this treatment.

5. Taxing Purchase Consideration as Income: The authorities below taxed the purchase consideration paid for shares as income under the head "other sources," alleging fraudulent transactions and accommodation entries without basis. The appellant argued that these conclusions were erroneous, lacked factual and legal support, and should be disregarded. The appellant further contended that the observations and conclusions made by the authorities were unfounded and should be rejected.

6. Liability to Pay Interest: The appellant denied the liability to pay interest, claiming that the interest was erroneously levied and should be deleted. The appellant sought the removal of the interest levied.

In the judgment, the Tribunal found that the Assessing Officer had erred in making additions without allowing the appellant to cross-examine a key witness whose statement was relied upon. The Tribunal set aside the order of CIT(Appeals) and directed the Assessing Officer to confront the statement to the appellant and allow for cross-examination. Consequently, the appeal of the assessee was allowed for statistical purposes, emphasizing the importance of adhering to procedural fairness and the principles of natural justice in tax assessments.

← Previous Next →