2021 (11) TMI 567 - AT - Income Tax

Assessment u/s 153A - addition on account of interest paid by the assessee on unsecured loans from Neil Industries Pvt. Ltd. - disallowing the interest is that the authorities below have held the loan creditor to be bogus and being engaged in the business of providing accommodation entries - HELD THAT - Though the Assessing Officer did issue summons to the witnesses to provide the assessee opportunity to cross examine the witnesses but witnesses did not appear whereas the counsel of the assessee was present for cross examination. The Assessing Officer without making further efforts and without ensuring the presence of witnesses, proceeded to disallow the interest ignoring all documentary evidences filed by assessee as well as by loan creditor directly. When this issue was taken before learned CIT(A), he held that there was no need to provide opportunity to the assessee for cross examination In the present case, all documentary evidences, for the claim made by the assessee, are available with the authorities for which they have not made any adverse comments. The only reason for making and upholding the disallowance of the interest is the statement recorded by the officers of the Department and that too not by the Assessing Officer himself and that too which were not made available to the assessee for cross examination and therefore, these statements cannot be utilized against the assessee. If we ignore these statements, the rest of documentary evidences well support the claim of the assessee.

Issues Involved:
1. Legality of the assessment order under section 153A in absence of incriminating material.
2. Reliance on investigation reports without confronting the assessee.
3. Validity of additions based on interest paid on unsecured loans.
4. Discharge of onus under section 68 regarding identity, genuineness, and creditworthiness of lenders.
5. Opportunity for cross-examination of witnesses.
6. Consideration of documentary evidence and adherence to principles of natural justice.

Issue-Wise Detailed Analysis:

1. Legality of the assessment order under section 153A in absence of incriminating material:
The assessee contended that the assessment under section 153A was not in consonance with the settled law as no incriminating material was found during the search. The tribunal noted that the addition was made based on entries in the books of account and not on any incriminating material found during the search. This aligns with the legal position that in the absence of incriminating material, additions under section 153A are not justified.

2. Reliance on investigation reports without confronting the assessee:
The assessee argued that reliance on investigation reports without proper confrontation vitiates the assessment. The tribunal observed that the Assessing Officer (AO) relied on statements of certain persons without providing the assessee an opportunity to cross-examine them. The tribunal emphasized the importance of cross-examination, citing the case of Balaji Betal Nuts (P) Ltd., and held that the absence of such an opportunity invalidates the reliance on these statements.

3. Validity of additions based on interest paid on unsecured loans:
The AO disallowed the interest paid on unsecured loans from Neil Industries Pvt. Ltd., labeling the creditor as bogus. The assessee provided complete documentation, including confirmed account copies, bank statements, and ITRs of Neil Industries Pvt. Ltd. The tribunal found that the AO had obtained information directly from the loan creditor without finding discrepancies, thus supporting the genuineness of the transactions.

4. Discharge of onus under section 68 regarding identity, genuineness, and creditworthiness of lenders:
The assessee claimed to have discharged the onus of proving the identity, genuineness, and creditworthiness of the lenders. The tribunal noted that the assessee had provided comprehensive documentation and that the AO had verified these details through notices under section 133(6). The absence of discrepancies in these documents further supported the assessee's claim.

5. Opportunity for cross-examination of witnesses:
The tribunal highlighted the assessee's repeated requests for cross-examination of witnesses whose statements were used against them. The AO's failure to enforce the presence of these witnesses and the CIT(A)'s dismissal of the need for cross-examination were deemed contrary to the principles of natural justice. The tribunal referenced the Supreme Court's judgment in Andman Timber Industries, underscoring the necessity of cross-examination to uphold the integrity of the assessment process.

6. Consideration of documentary evidence and adherence to principles of natural justice:
The tribunal criticized the lower authorities for ignoring the documentary evidence provided by the assessee and the loan creditor. It reiterated that the rejection of the right to cross-examine and the reliance on unverified statements were not in accordance with the law. The tribunal's decision in favor of the assessee was based on the comprehensive documentation and the procedural lapses by the AO and CIT(A).

Conclusion:
The tribunal allowed the appeal, emphasizing the importance of cross-examination and the necessity of incriminating material for additions under section 153A. The decision underscored adherence to principles of natural justice and the proper evaluation of documentary evidence.

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