2020 (2) TMI 1042 - AT - Income Tax

Undisclosed income - violation of principle of natural justice - not providing opportunity to assessee of cross-examining M/s Tinka Stone therefore the addition of INR 10 Lacs as made by AO should be deleted - HELD THAT - Set-aside proceedings and the matter was earlier set-aside by the Tribunal with a specific direction to provide cross-examination of M/s Tinka Stones to the assessee company. Both the lower authorities having acknowledged this fact have failed to follow the specific direction and thus it is not just a case of judicial indiscipline but also a violation of principle of natural justice where liability has been fastened on the assessee merely based on confirmation filed by a concern without providing an opportunity of cross examination. It is not a case where the whereabouts of M/s Tinka Stones was not known to the Revenue as apparent from commission of enquiry conducted through ACIT Mumbai on such entity or anything on record to suggest that there was any practical difficulty in arranging the cross-examination. On merits we find that the assessee has already written off the said amount in its financial statements for the financial year ended 31.03.2019 and has offered the amount to tax in its return of income filed for AY 2019-20. Therefore where the undisputed facts are that the amount of advance written off has already been offered to tax the same amount cannot be brought to tax again. Addition so made is directed to be deleted and the sole ground taken by the assessee is allowed.

Summary

Issues:
1. Violation of principle of natural justice and specific directions by AO in passing the order under section 143(3) of the Act.
2. Sustainment of addition of Rs. 10,00,000 by CIT(A) being arbitrary, illegal, and void.
3. Failure to appreciate evidence provided by the appellant by CIT(A).
4. Failure to follow specific directions issued by ITAT for cross-examination of M/s Tinka Stone by AO.
5. Failure to provide opportunity for cross-examination of M/s Tinka Stone by AO.
6. Violation of principle of natural justice by not providing opportunity for cross-examination.
7. Failure to follow the direction of ITAT by AO and CIT(A).
8. Double taxation of the same amount due to failure to delete the addition of Rs. 10,00,000 made by AO.
9. Failure to delete the addition of Rs. 10,00,000 despite the amount being written off and offered to tax in the subsequent financial year.

Analysis:
1. The appeal was filed against the order passed by CIT(A) for A.Y. 2005-06, where the appellant raised concerns regarding the violation of natural justice and specific directions by the Assessing Officer (AO). The appellant contended that no opportunity for cross-examination of M/s Tinka Stone was provided, as directed by ITAT Jaipur Bench in a previous order. The AO made an addition of Rs. 10,00,000 as undisclosed income without following the directions, which was upheld by CIT(A).

2. The appellant challenged the addition of Rs. 10,00,000 made by the AO, arguing it was arbitrary, illegal, and void. The appellant claimed to have provided all requisite evidence to prove genuineness, which the AO failed to rebut. Despite the appellant's efforts, the AO did not provide an opportunity for cross-examination, leading to the sustainment of the addition by CIT(A.

3. The AO issued a notice under section 133(6) of the Act to Tinka Stone to confirm the outstanding balance in the appellant's books of accounts. Tinka Stone claimed that the advance given to the appellant was returned through bank transactions, which the appellant disputed with evidence. The appellant requested cross-examination of Tinka Stone, but the AO cited time constraints for not providing the opportunity, resulting in the addition of Rs. 10,00,000 as undisclosed income.

4. The ITAT Jaipur Bench had set aside the case with directions for cross-examination, which the AO failed to comply with in the subsequent order. The appellant emphasized the importance of following judicial discipline and respecting higher appellate authorities' judgments. The failure to provide cross-examination opportunity led to a violation of natural justice principles.

5. The appellant contended that the AO and CIT(A) disregarded the ITAT's direction for cross-examination, leading to a violation of natural justice. The appellant's efforts to gather evidence and cooperate were highlighted, emphasizing the importance of adhering to higher authorities' decisions.

6. The appellant argued that the AO's failure to follow ITAT's directions and provide cross-examination opportunity resulted in the addition of Rs. 10,00,000, which should be deleted. The appellant also pointed out that the amount in question had been written off and offered to tax in a subsequent financial year, leading to potential double taxation if not deleted.

7. The Tribunal found that the failure to provide cross-examination opportunity was a violation of natural justice and specific directions, leading to the deletion of the addition of Rs. 10,00,000. The Tribunal emphasized the importance of following higher authorities' judgments and respecting principles of natural justice.

8. The Tribunal concluded that the addition of Rs. 10,00,000 should be deleted as the amount had already been written off and offered to tax in a subsequent financial year. The failure to provide cross-examination opportunity and follow ITAT's directions led to a violation of natural justice and judicial discipline, warranting the deletion of the addition.