2017 (5) TMI 1680 - AT - Income Tax

Addition u/s 68 - statement of Mr. Mukesh Choksi was relied on for making the addition - HELD THAT - The course of search conducted upon the Shri Mukesh Choksi group statement of Shri Mukesh Choksi was recorded and in his statement he has admitted that he was providing accommodation entries to those who were interested to earn capital gain. On a careful perusal of the assessment order find that there is no finding with regard to the supply of statement of Shri Mukesh Choksi to the assessee. Nothing is available on record wherefrom it could be inferred that assessee was ever allowed to cross-examine Mr. Mukesh Choksi. It is settled position of law that statement or the evidence which is being relied upon by the AO for making the addition in the hands of assessee the same should be confronted to the assessee and the assessee should be allowed to cross-examine the witness in this regard. It is quite evident that statement of Mr. Mukesh Choksi was relied on for making the addition but assessee was never allowed to cross-examine him. AO was not justified in making addition in the hands of assessee without allowing the assessee to cross-examine Mr. Mukesh Choksi whose statement was relied upon for making the above additions. Set aside the order of CIT(Appeals) and restore the matter to the file of AO with a direction to first confront the statement of Mr. Mukesh Choksi to the assessee and allow him to cross-examine Mr. Mukesh Choksi to dig out the truth in this regard. - Appeal of assessee is allowed for statistical purposes.

Summary

Issues:
1. Validity of assessment order passed by Assessing Officer and confirmed by CIT(Appeals).
2. Legality of re-opening of assessment under section 148 of the Act.
3. Violation of principles of natural justice and fair play in the assessment process.
4. Treatment of sale consideration received on sale of shares as 'Income from other sources'.
5. Taxation of entire sale consideration as income under 'other sources', denial of long term capital gain exemption, and allegations of fraudulent transactions.
6. Recognition of capital gain earned on sale of shares.
7. Denial of liability to pay interest.

1. Validity of Assessment Order:
The appellant challenged the order of the Assessing Officer and CIT(Appeals) as being bad in law and void ab-initio. The grounds included errors in passing the order and lack of compliance with legal formalities. The appellant argued that the orders were required to be quashed due to these reasons.

2. Re-opening of Assessment:
The appellant contended that the conditions precedent for issuing notice under section 148 of the Act were absent, rendering the re-opening of assessment bad in law. Additionally, it was argued that the order passed without complying with legal formalities under section 147 was also invalid.

3. Violation of Natural Justice:
The appellant alleged gross violation of the principles of natural justice and fair play, specifically citing the absence of cross-examination of relevant persons by the Assessing Officer. It was argued that this lack of opportunity to cross-examine rendered the order bad in law and liable to be canceled.

4. Treatment of Sale Consideration:
The Assessing Officer treated the sale consideration received on the sale of shares as 'Income from other sources', which was contested by the appellant. The appellant argued that this action had no legal support, was contrary to facts and evidence, and should be rejected.

5. Taxation Issues:
The authorities were criticized for taxing the entire sale consideration as income under 'other sources', not recognizing the long term capital gain exemption, and making allegations of fraudulent transactions. The appellant argued that these conclusions were erroneous, lacked basis in facts and law, and should be disregarded.

6. Recognition of Capital Gain:
The appellant maintained that the capital gain earned on the sale of shares should be accepted as such, emphasizing that the shares were sold through a demat account.

7. Denial of Interest Liability:
The appellant denied the liability to pay interest, asserting that the interest levied was erroneous and should be deleted.

The Tribunal found that the Assessing Officer had made additions in the appellant's hands based on the statement of another individual without affording the appellant the opportunity to cross-examine that individual. The Tribunal held that the failure to allow cross-examination rendered the additions unsustainable in the eyes of the law. Consequently, the Tribunal set aside the order of CIT(Appeals) and directed the Assessing Officer to confront the statement to the appellant and allow for cross-examination, emphasizing the importance of following due process and principles of natural justice in such matters.