2023 (1) TMI 1215 - AT - Income Tax

Addition u/s 40A - Cash purchases - assessee argued addition made relying on third party statement without giving opportunity to the assessee to rebut such statement - HELD THAT - It is stated by the assessee that requisite sale was duly reflected in the statutory return filed before the Excise and Sales-tax authorities. The assessee has stated that sales are duly supported by the requisite evidences. The fact that the sale was made and it is supported by the evidences, is required to be verified by the assessing authority. Therefore, the issue is restored to the file of the Assessing Officer to verify the correctness of the claim of the assessee that he had sold the material to M/s Haryana Traders and also reflected the sales in Excise/WAT returns. The Assessing Officer will verify from the record of the assessee whether such return was filed related to the transactions in question and other supporting evidences. This ground of the assessee s appeal is allowed for statistical purpose.

Issues Involved:

1. Reliance on third-party statements without corroborative evidence.
2. Validity of reasons recorded for reopening assessment under Section 147/143(3).
3. Disregard of cash transactions in the unorganized scrap trading sector.
4. Non-restoration of the returned income by the assessee.
5. Violation of principles of natural justice and lack of opportunity for cross-examination.

Detailed Analysis:

1. Reliance on Third-Party Statements Without Corroborative Evidence:

The assessee contended that the entire assessment was based on third-party statements without corroborating them with relevant evidence. The Tribunal noted that the Assessing Officer (AO) made additions based on statements from M/s Sudhir Metals & Alloys, M/s Vasu Steels, and M/s Haryana Traders without providing the assessee an opportunity to rebut these statements. The Tribunal referenced several judicial precedents, including the Kolkata High Court in *Bangodaya Cotton Mills Ltd.*, the Supreme Court in *V.C. Shukla*, and the Delhi High Court in *Lata Mangeshkar*, which emphasized that sole reliance on third-party statements is insufficient without corroborative evidence. Consequently, the Tribunal restored the issue to the AO for verification of the assessee's claims and supporting evidence, particularly regarding sales reflected in statutory returns.

2. Validity of Reasons Recorded for Reopening Assessment Under Section 147/143(3):

The assessee argued that the reasons for reopening the assessment were based on borrowed satisfaction and lacked independent application of mind. The Tribunal observed that the reasons recorded did not establish a clear nexus between the alleged income escapement and the assessee's transactions. The Tribunal emphasized the need for the AO to independently verify the reasons before proceeding with reopening the assessment. However, the Tribunal did not provide a specific ruling on this issue, as it was intertwined with the reliance on third-party statements, which was already addressed.

3. Disregard of Cash Transactions in the Unorganized Scrap Trading Sector:

The assessee claimed that the AO disregarded the nature of the scrap trading business, which primarily involves cash transactions. The Tribunal acknowledged that the scrap trading sector is unorganized and cash-intensive. The Tribunal directed the AO to consider the nature of the business and verify the transactions accordingly, particularly in light of the assessee's claim that sales were supported by statutory returns and other evidence.

4. Non-Restoration of the Returned Income by the Assessee:

The assessee argued that the CIT(A) erred in not restoring the returned income declared by the assessee. The Tribunal noted that the CIT(A) had partly allowed the appeal by deleting the ad hoc disallowance of 1/10th of the expenditure but confirmed other additions. The Tribunal restored the issue of sales discrepancy to the AO for verification, which could impact the returned income. Therefore, the Tribunal did not provide a conclusive ruling on this issue, pending further verification by the AO.

5. Violation of Principles of Natural Justice and Lack of Opportunity for Cross-Examination:

The assessee contended that the assessment was made in violation of principles of natural justice, as no opportunity for cross-examination was provided. The Tribunal emphasized the importance of providing the assessee an opportunity to rebut third-party statements and directed the AO to verify the assessee's claims and supporting evidence. This directive implicitly addressed the issue of natural justice by ensuring that the assessee is given a fair opportunity to present its case.

Separate Judgments Delivered:

The Tribunal did not mention separate judgments delivered by different judges. The order was pronounced by Shri Kul Bharat, Judicial Member, on behalf of the Tribunal.

Conclusion:

The Tribunal partly allowed the appeal, restoring certain issues to the AO for further verification and upholding other findings of the CIT(A). The Tribunal emphasized the need for corroborative evidence when relying on third-party statements and directed the AO to consider the nature of the scrap trading business and verify the transactions accordingly. The Tribunal's directives aim to ensure a fair and just assessment process, addressing the assessee's concerns regarding natural justice and the validity of the assessment proceedings.

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