2022 (7) TMI 1136 - AT - Income Tax

Reopening of assessment u/s 147 - Addition u/s 68 - unsecured loans treated as unexplained cash credits - HELD THAT - The basis of reopening is the statement of Shri Praveen Kumar Jain albeit the said statement was retracted by him subsequently. In this background, we are of the view that the AO at the same time of issue of notice under section 148 of the Act was having fresh tangible material in the form of information supplied by investigation wing which is sufficient to form a reasonable belief of escapement of income. AO need not prove the escapement of income at the time of initiation of reassessment of proceedings and instead what is required is some tangible material which suggest escapement of income. The information received from investigating wing constitutes a fresh material which is sufficient to form a basis for escapement of income. Therefore, we are of the considered view that reopening as done by the AO is legally tenable and accordingly dismiss the ground taken by the Appellant challenging the reopening of the assessment as well as proceedings as completed under section 147 of the Act. Addition u/s 68 - Appellant has duly proved the genuineness of the transactions by submitting various details as also mentioned at Page 12 and 13 of Ld. CIT (Appeals) order. Taking it into consideration entire facts and circumstances of the case and the ratio of the decision relied upon by the Ld. AR, we set aside the order passed by the Ld. CIT (Appeals) and direct the AO to delete the additions so made under section 68 of the Act in both the assessment years in the impugned appeals. Both the appeals of the assessee are allowed.

Summary

Issues Involved:
1. Legality of reopening assessment under section 148 and consequent order under section 147 of the Income Tax Act.
2. Confirmation of additions under section 68 of the Income Tax Act.
3. Violation of natural justice principles due to denial of cross-examination of Shri Praveen Kumar Jain.

Detailed Analysis:

Issue 1: Legality of Reopening Assessment Under Section 148
The Appellant contended that the reopening of the assessment under section 148 and the consequent order under section 147 were bad in law. The Tribunal noted that the Assessing Officer (AO) had reopened the assessment based on information from the investigation wing, suggesting that the Appellant was a beneficiary of accommodation entries provided by companies controlled by Shri Praveen Kumar Jain. The Tribunal held that the AO had fresh tangible material sufficient to form a reasonable belief of escapement of income, thus making the reopening legally tenable. The Tribunal dismissed the Appellant's challenge to the reopening of the assessment.

Issue 2: Confirmation of Additions Under Section 68
The Tribunal examined whether the additions under section 68, treating unsecured loans as unexplained cash credits, were justified. The Appellant argued that it had provided sufficient evidence, including income tax returns, repayment details, balance sheets, and other documents, to justify the genuineness of the loans. The Tribunal referred to prior judgments, including those in the cases of Axykno Enterprises Pvt. Ltd. and Calvin Properties, where similar additions were deleted. It was noted that the AO had relied solely on the statement of Shri Praveen Kumar Jain, which was later retracted, and had not conducted any independent inquiries to verify the transactions. The Tribunal concluded that the Appellant had discharged its initial burden by providing necessary documents to prove the identity, genuineness, and creditworthiness of the creditors. Consequently, the Tribunal directed the AO to delete the additions made under section 68 for both assessment years.

Issue 3: Violation of Natural Justice Principles
The Appellant argued that the assessment order violated principles of natural justice as it was not given an opportunity to cross-examine Shri Praveen Kumar Jain, whose statement was relied upon by the revenue. The Tribunal observed that the AO had not provided the Appellant with a copy of the statement or an opportunity to cross-examine Shri Praveen Kumar Jain. The Tribunal emphasized that reliance on statements without providing an opportunity for cross-examination is impermissible. This lack of opportunity to cross-examine was a significant factor in the Tribunal's decision to delete the additions under section 68.

Conclusion:
The Tribunal allowed the appeals of the Appellant, holding that the reopening of the assessment was legally tenable but the additions under section 68 were not justified. The Tribunal directed the AO to delete the additions for both assessment years, emphasizing the importance of providing an opportunity for cross-examination to uphold principles of natural justice. The decision was pronounced in the open court on 28/06/2022.