2019 (1) TMI 48 - AT - Income Tax

Reopening of assessment - unexplained cash payments for purchase of immovable property - as contended that no independent enquiry was carried out by the assessing officer - denial of natural justice - non providing opportunity of cross examining - Held that - A.O. has to form a belief that certain income has escaped assessment and he does not require to verify whether the information is correct or false. Such exercise would be carried out only after issuing notice u/s 148. Hence, this contention of the assessee is rejected. Another contention of the assessee is that he was not provided opportunity of cross examining Shri Deepak Gupta and the Directors of M/s. Amrit Colonizers Pvt. Ltd. we find merit into these submissions of the assessee as the revenue has based its finding on the basis of certain documents belonging to third party where certain entry is recorded by that third party relating to the assessee. A.O. before making assessment should have granted opportunity of cross examining such person - set aside the assessment order and restore the issue of assessment to the file of the A.O. to make a de-novo assessment after providing opportunity of cross examination to the assessee. A.O. would decide on the basis of material available on record and the cross examination made by the assessee. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Legality of the reopening of assessment.
2. Cross-examination opportunity not provided to the assessee.
3. Addition of ?11,00,000 to the income.
4. Interest charged under sections 234A and 234B.

Legality of the Reopening of Assessment:
The appeal contested the legality of the assessment's reopening, arguing that it was based on information without independent verification. The appellant claimed that the assessing officer (A.O.) initiated proceedings without conducting a separate inquiry, contrary to judicial precedents. The appellant cited various case laws to support the argument. The appellant further contended that no material supported the belief of income escapement and that the A.O. should have conducted an inquiry before reopening. The lack of opportunity for cross-examination was highlighted as a procedural flaw by the appellant. In response, the Departmental Representative (D.R.) defended the A.O.'s actions, stating that the A.O. can reopen assessments based on information indicating income escapement without verifying its accuracy beforehand. The Tribunal found merit in the appellant's argument regarding the lack of cross-examination opportunity and set aside the assessment order, directing the A.O. to conduct a de novo assessment after providing the necessary cross-examination opportunity.

Cross-Examination Opportunity Not Provided:
The appellant raised concerns about not being given the chance to cross-examine certain individuals, arguing that this omission tainted the proceedings. The appellant pointed out that the revenue's findings were based on third-party documents without affording an opportunity for cross-examination, leading to prejudice. The Tribunal acknowledged the importance of cross-examination in such cases and deemed the lack of this opportunity as a procedural flaw that warranted setting aside the assessment order. Consequently, the Tribunal instructed the A.O. to conduct a fresh assessment after allowing the appellant the opportunity for cross-examination, emphasizing the principles of natural justice.

Addition of ?11,00,000 to the Income:
The case involved the addition of ?11,00,000 to the appellant's income due to unexplained cash payments for property purchase. The A.O. treated this amount as unexplained income, which the CIT(A) upheld. The appellant challenged this addition, arguing that it was unjust and arbitrary, and the CIT(A) failed to consider relevant facts, documents, and case laws presented during the appeal. The Tribunal did not delve into the merits of the case but allowed the appeal for statistical purposes, indicating a procedural flaw in the assessment process.

Interest Charged Under Sections 234A and 234B:
The appellant contested the arbitrary and erroneous charging of interest under sections 234A and 234B. However, the judgment did not provide detailed analysis or resolution regarding this issue, as the appeal was allowed for statistical purposes without delving into the interest calculation aspects.

This detailed analysis of the judgment covers the legality of the reopening of assessment, the lack of cross-examination opportunity, the addition to income, and the interest charged under sections 234A and 234B, providing a comprehensive understanding of the issues involved and the Tribunal's decision on each matter.