2022 (11) TMI 892 - AT - Income Tax

Addition u/s 68 - bogus accommodation entry - HELD THAT - The name of the party and PAN number in the information received is totally different that of the assessee. Hence, by no stretch of imagination, it can be said that it is a curable defect. In our considered opinion, the defect is fatal. Assessee s objections have not been disposed off. This is another flaw which is fatal and the assessment is liable to be quashed on that count. As regards the merits of addition the only case of the Revenue is that these persons have earned small amount so they are not capable of giving loans - these persons have given confirmation and no adverse material is available with the Revenue. There is no presumption that the people having smaller income cannot make small savings. Moreover, there is no linkage on record of these persons with White Collar Management Pvt. Ltd., the company allegedly providing bogus entries. Hence, on merits also, the addition is totally on hypothesis which is not sustainable in law. Appeal filed by the assessee stands allowed.

Issues involved:
Challenging assessment order validity, validity of notice issued, errors in assessment, legality of reopening, creditworthiness of parties, addition of unexplained credit, addition of unexplained expenditure, lack of reply to objections, legality of assessment based on incorrect reasons, legality of assessment based on incorrect name, legality of assessment based on different party name, legality of assessment based on different PAN number, legality of assessment based on presumption, legality of assessment based on hypothetical sum, legality of assessment based on lack of adverse material.

Analysis:

1. Validity of Assessment Order:
The appeal challenged the assessment order for being bad in law and against the facts of the case. The appellant contended that the Assessing Officer (AO) erred by making assessments on non-existent grounds and improving upon reasons recorded under section 148 of the Income Tax Act. The appellant cited legal precedents to support their argument that incorrect reasons can vitiate the notice and assessment. The appellant specifically disputed the addition of Rs. 26,95,000 as unexplained credit in the books of account.

2. Validity of Notice Issued:
The appellant argued that the notice was void ab initio as the reasons to believe did not pertain to the assessee. They contended that the AO proceeded with the assessment without addressing objections raised and ignoring the affidavit submitted. The appellant highlighted discrepancies in the information received and the actual transactions of the assessee, raising doubts about the validity of the notice issued under section 148 of the Act.

3. Legality of Reopening:
The legality of the reopening of the assessment was questioned by the appellant, emphasizing that the reasons to believe did not accurately relate to the assessee. The appellant pointed out that the AO referred to a different party and PAN number in the information received, creating a fatal defect in the reopening process. The appellant argued that the use of a different name was not a curable defect and that the objections raised were not disposed of properly, further challenging the legality of the reopening.

4. Creditworthiness of Parties and Additions:
The AO made additions totaling Rs. 26,95,000 based on unexplained credits in the books of account. The appellant contested the lack of creditworthiness of the parties providing the loans and the basis for assuming that these parties were intermediaries for entry operators. The appellant argued that the additions were made on hypothetical grounds without substantial evidence linking the parties to the alleged bogus entries. The appellant highlighted that no adverse material was available to support the AO's conclusions, emphasizing the lack of a legal basis for the additions.

5. Legality of Assessment Based on Incorrect Information:
The ITAT found fatal flaws in the assessment process, noting discrepancies in the information received and the actual transactions of the assessee. The ITAT emphasized that the incorrect name and PAN number used in the information rendered the defect incurable. The ITAT also criticized the failure to address the objections raised by the assessee, deeming it another fatal flaw in the assessment process. The ITAT concluded that the additions made by the AO were based on unfounded presumptions and lacked legal merit, ultimately allowing the appeal filed by the assessee.

This detailed analysis covers the various issues raised in the legal judgment, providing a comprehensive overview of the arguments presented and the ITAT's decision on each matter.

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