2018 (12) TMI 110 - AT - Income Tax

Addition on bogus purchase bills - corroborative evidence to prove that assessee company has inflated the expenditure by passing accommodation entries - Held that - From the record we found that the Statement recorded on 21/11/2011 were duly retracted on 1/12/2011 i.e within one month. Further said retractions were conveyed to the survey team on 12/3/2012 i.e before the survey report and to the AO on 14/3/2012 i.e before any proceedings were initiated by the A.O. Hence, retraction being on affidavit was legal and valid and was not belated. Further retraction was supported by explanation of impounded documents to the Survey team. The impounded document did not contain any information which was not recorded in the books of accounts. No addition can be made merely on the basis of statement unless same is corroborated by documentary evidence. From the record we also observe that corresponding income booked by the assessee has not been disputed by lower authorities meaning thereby, income earned corresponding to the expenditure alleged to be bogus has been duly accepted by the lower authorities. Entire expenditure so incurred which is duly supported by income declared by assessee and accepted by Department cannot be declined. Taking average profit declared by the assessee in the earlier five years which is 12.99% it is very relevant to find out if any lower income has been shown by the assessee in any of the years to ascertain the additions warranted - addition can be restricted to the difference in gross profit declared by the assessee during the years under consideration as compared to the average gross profit rate of earlier five years which is 12.99%. - Decided partly in favour of assessee.

Issues Involved:
1. Validity of the notice issued under Section 148 of the IT Act.
2. Disallowance of expenditure claimed by the assessee.
3. Alleged accommodation entries from bogus entities.
4. Retraction of statements made during survey proceedings.
5. Opportunity for cross-examination and natural justice.
6. Reliance on statements without corroborative evidence.

Detailed Analysis:

1. Validity of the Notice Issued Under Section 148:
The assessee contended that the notice issued under Section 148 was invalid as there was no income chargeable to tax that had escaped assessment, and the notice was based on statements recorded during survey proceedings, which were later retracted. The Tribunal noted that the reasons recorded for reopening the assessment did not mention the approval under Section 151, which is a procedural requirement.

2. Disallowance of Expenditure:
The Commissioner of Income Tax (Appeals) [CIT(A)] disallowed the expenditure of ?11,92,65,022/- claimed by the assessee, stating that the expenses were incurred through accommodation entries from bogus entities. The assessee argued that the expenses were incurred wholly and exclusively for business purposes and provided evidence such as vendor bills, bank statements, and affidavits to support the claim.

3. Alleged Accommodation Entries from Bogus Entities:
The Assessing Officer (AO) relied on the statements made by the CFO and Managing Director during the survey, which admitted to taking accommodation entries from bogus entities. The Tribunal observed that these statements were retracted, and the AO did not provide the assessee with the opportunity to cross-examine the individuals whose statements were used against them. The Tribunal emphasized the need for corroborative evidence to support the claim of bogus entries.

4. Retraction of Statements Made During Survey Proceedings:
The assessee retracted the statements made during the survey, claiming they were made under coercion and undue pressure. The Tribunal noted that the retraction was made promptly and supported by affidavits. The Tribunal held that statements recorded under coercion have no evidentiary value unless corroborated by other evidence.

5. Opportunity for Cross-Examination and Natural Justice:
The Tribunal highlighted the importance of providing the assessee with an opportunity to cross-examine the individuals whose statements were used against them. The failure to provide such an opportunity was a violation of the principles of natural justice. The Tribunal referred to judicial pronouncements that emphasized the need for cross-examination to validate the evidence relied upon by the department.

6. Reliance on Statements Without Corroborative Evidence:
The Tribunal held that additions cannot be made merely based on statements recorded during survey proceedings without corroborative evidence. The Tribunal referred to various judicial pronouncements, including the Supreme Court and High Court decisions, which stated that statements recorded during survey proceedings have no evidentiary value unless supported by other evidence.

Conclusion:
The Tribunal concluded that no addition could be made merely based on the statements recorded during the survey without corroborative evidence. The Tribunal directed the AO to restrict the addition to the extent of the difference in gross profit declared by the assessee during the years under consideration compared to the average gross profit rate of earlier years. The appeals of the assessee were allowed in part, and the AO was directed to make the necessary adjustments as per the Tribunal's findings.

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