2023 (2) TMI 81 - AT - Income Tax

Scrutiny assessment - Non-issuance of statutory notice u/s 143(2) - Addition u/s 68 - certain information received from Directorate of Investigation, Kolkata regarding bogus entries of LTCG took into consideration the modus operandi and held the long term capital gain claim of assessee to be outcome of accommodation entries - assessee challenged addition as no notice u/s 143(2) of the Act was issued and not giving assessee an opportunity of hearing - HELD THAT - The bench observes that the notice u/s 143(2) were issued by Ld. AO and the service was effected through speed post. The receipts of same were on record. The presumption of truth is attached to the official records and the same is required to be rebutted by evidences. There is no evidences of the assessee to controvert the same. Thus, in regard to the issue of non-issuance of statutory notice u/s 143(2) of the act the assessee has no case. Not giving assessee an opportunity of hearing - As there appears to be substance as Ld. AO seems to have taken into cognizance the detailed investigation report of the Investigation Wing and the modus operandi providing LPCG/STCL. Certainly the assessee needed an opportunity to explain that the investments in the scrips were outcome of wisdom and financial expediency. Thus, on that basis the issue requires to be restored to the files of Ld. AO and further determination of grounds is not necessary. The issue is restored to the files of Ld. AO to give an opportunity of hearing to the assessee to explain the material with Ld. AO of the Investigation wing and explain the transactions of LTCG - assessee will also be at liberty to also take the legal question that no addition in income can be made under the provisions of Section 68 of the Act, where assessee is not maintaining any books of accounts. The appeal is allowed for statistical purposes.

Summary

Issues:
1. Non-issuance of statutory notice u/s 143(2) of the Income Tax Act.
2. Denial of opportunity of cross-examination to the assessee.
3. Addition of long term capital gain (LTCG) as accommodation entries.
4. Jurisdictional challenge to the authority of the Assessing Officer (AO).

Issue 1: Non-issuance of statutory notice u/s 143(2) of the Income Tax Act:
The appeal raised concerns about the absence of a notice under section 143(2) of the Income Tax Act. The tribunal observed that the notices were indeed issued by the AO, and service was done through speed post. The official records indicated the issuance, and the burden to refute this rested on the assessee, which they failed to do. Consequently, the tribunal found no merit in the argument regarding the non-issuance of the statutory notice.

Issue 2: Denial of opportunity of cross-examination to the assessee:
The appellant contended that they were not provided with an opportunity for cross-examination concerning the material forming the basis of the addition to their income. The tribunal acknowledged the importance of this right, especially when intricate investigations are involved. It was deemed necessary for the assessee to have a chance to explain the nature of investments and transactions in question. Therefore, the tribunal directed the issue to be sent back to the AO for a proper hearing and consideration of the assessee's explanations.

Issue 3: Addition of long term capital gain (LTCG) as accommodation entries:
The AO had added the LTCG claimed by the assessee as accommodation entries, based on information from the Directorate of Investigation. This addition was upheld by the CIT(A), leading to the current appeal. The tribunal found that the assessee should have been given an opportunity to clarify the legitimacy of the transactions, especially in light of the detailed investigation report. Therefore, the matter was remanded to the AO for a fresh assessment after providing the assessee with a proper hearing.

Issue 4: Jurisdictional challenge to the authority of the Assessing Officer (AO):
The additional grounds raised by the assessee questioned the jurisdiction exercised by the AO. The tribunal admitted these grounds, as they pertained to legal issues challenging the very jurisdiction of the AO. Upon reviewing the assessment record, the tribunal found that the AO had indeed issued the statutory notices, and the objections raised by the assessee lacked evidential support. However, the tribunal recognized the need for the assessee to have a fair opportunity to present their case, particularly regarding the nature of the transactions and the applicability of Section 68 of the Act. Therefore, the appeal was allowed for statistical purposes, and the matter was referred back to the AO for a fresh assessment.

This detailed analysis of the judgment covers all the issues raised in the appeal, providing a comprehensive overview of the tribunal's findings and directions for each matter.