2018 (4) TMI 182 - AT - Income Tax

Reopening of assessment - whether AO has issued the said notice on the basis of information received from third party and without application of mind? - non-allowance of cross-examination - AO has not summarily rejected the objections raised against reasons recorded for the notice issued u/s. 148 by speaking order - information received from the Sales Tax Department in respect of parties who had issued sale bills but had not paid sales tax 0 addition on account of bogus purchases - Held that - Where the assessee had sought cross-examination of the witnesses at the earliest stage i.e. while objecting to the reasons recorded for reopening the assessment, which duly has been acknowledged by the Assessing Officer in his order disposing of objections raised by the assessee against reopening of assessment. But the Assessing Officer though asked the assessee to collect the statement but failed to allow cross-examination though he admitted that the same would be allowed in due course of time. On a later date, AO concludes that the letters sent under section 133(6) of the Act to the dealer were returned back. But the same cannot be reason for denying cross-examination. In the absence of allowing cross-examination of witnesses used against the assessee, where the addition was made in the hands of assessee on the basis of aforesaid statements recorded by the Sales Tax Department, we hold that no addition on account of bogus purchases can be made in the hands of assessee. The assessee had also established factum of trail of goods. Accordingly, we delete the addition made on account of bogus purchases. - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of notice issued under section 148.
2. Validity of re-assessment proceedings under section 147.
3. Disallowance of 25% of purchases deemed as inflated.
4. Non-allowance of cross-examination of witnesses.
5. Addition on account of bogus purchases.

Issue-wise Detailed Analysis:

1. Validity of Notice Issued Under Section 148:
The assessee challenged the validity of the notice issued under section 148, arguing that it was based on information from a third party without the application of mind by the Assessing Officer (AO). The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the notice's validity, referencing the Supreme Court's decision in ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500 (SC).

2. Validity of Re-assessment Proceedings Under Section 147:
The re-assessment proceedings were initiated based on information from the Sales Tax Department regarding hawala transactions. The AO issued notices under sections 133(6), 142(1), and 143(1) to verify the genuineness of purchases. The CIT(A) upheld the validity of these proceedings, noting that the AO had applied his mind and had a belief that income chargeable to tax had escaped assessment.

3. Disallowance of 25% of Purchases Deemed as Inflated:
The AO disallowed 25% of the purchases, considering them inflated, as the assessee failed to produce original bills, transport, and octroi receipts. The CIT(A) supported this disallowance, stating that the purchases were from bogus parties and the consumption details did not verify the genuineness of the purchases. The AO was directed to restrict the disallowance to 25% of the purchases.

4. Non-Allowance of Cross-examination of Witnesses:
The assessee requested cross-examination of the witnesses whose statements were used against them. The AO agreed to provide this opportunity but failed to do so. The Tribunal held that the non-allowance of cross-examination was a serious flaw, making the order nullity as it violated the principles of natural justice. This was in line with the Supreme Court's decision in M/s. Andaman Timber Industries Vs. Commissioner of Central Excise.

5. Addition on Account of Bogus Purchases:
The AO added the total amount of ?9,33,075/- to the assessee's income, considering the purchases as bogus. The Tribunal, however, held that without allowing cross-examination, the addition could not be sustained. The Tribunal deleted the addition, emphasizing that the assessee had established the trail of goods and payments were made through banking channels.

Separate Judgments:
The Tribunal's decision applied mutatis mutandis to all related appeals, including those of Trimurti Furnace Pvt. Ltd., where similar issues of non-allowance of cross-examination and addition on account of bogus purchases were raised.

Conclusion:
All appeals by the assessee were allowed, with the Tribunal emphasizing the necessity of allowing cross-examination to uphold the principles of natural justice and deleting the additions made on account of bogus purchases.