2010 (9) TMI 1182 - AT - Income Tax

Tribunal rejects revenue's appeal due to lack of cross-examination, evidence under Section 69C.

The Income Tax Officer, Wad 1 (1), Surat Versus M/s. Abhishek Ispat Pvt. Ltd.

The Income Tax Officer, Wad 1 (1), Surat Versus M/s. Abhishek Ispat Pvt. Ltd. - TMI Issues Involved:1. Whether the learned CIT (A)-I, Surat erred in allowing the appeal on the ground that Shri Amratbhai P. Prajapati negated his statement.2. Whether the learned CIT (A)-I, Surat erred in deleting the addition of Rs. 76,14,067/- made by the Assessing Officer under Section 69C of the IT Act on account of unexplained expenses.Detailed Analysis:1. Whether the learned CIT (A)-I, Surat erred in allowing the appeal on the ground that Shri Amratbhai P. Prajapati negated his statement:The Assessing Officer (AO) received information that the assessee had purchased goods from Bhagyodaya Enterprises and Bhavna Trading Co., both proprietary concerns of Shri Amratbhai P. Prajapati, who issued bogus sale bills. The AO reopened the assessment under Section 147 of the IT Act and issued a notice under Section 148. The AO noted that Shri Prajapati had admitted to issuing accommodating bills without actual business transactions and that the cheque payments were returned in cash after deducting a small commission.The assessee argued that the purchases were genuine, supported by confirmations, PAN details, and bank statements showing payments by account payee cheques. The AO, however, insisted that the purchases were bogus, as Shri Prajapati did not have adequate facilities to support the sales and had admitted to issuing bogus bills. The AO also noted that the assessee failed to produce Shri Prajapati for cross-examination despite repeated requests.The learned CIT (A) disagreed with the AO, noting that the statement of Shri Prajapati could not be treated as evidence since it was negated by his confirmation of accounts under Section 133(6). The CIT (A) emphasized that the assessee was not given an opportunity to cross-examine Shri Prajapati, making the statement inadmissible as evidence. The CIT (A) relied on several judicial precedents, including CIT vs. SMC Share Brokers Ltd. and CIT vs. Arjundas Surinder Kumar & Co., which established that statements not subjected to cross-examination could not be used against the assessee.2. Whether the learned CIT (A)-I, Surat erred in deleting the addition of Rs. 76,14,067/- made by the Assessing Officer under Section 69C of the IT Act on account of unexplained expenses:The AO added Rs. 76,14,067/- as unexplained expenses under Section 69C, arguing that the purchases from Bhagyodaya Enterprises and Bhavna Trading Co. were bogus. The assessee contended that the purchases were genuine, supported by quantitative details, confirmations, and bank statements. The AO, however, dismissed these arguments, citing Shri Prajapati's statement and the lack of supporting evidence such as transportation charges, weighing slips, and delivery challans.The learned CIT (A) found that the AO did not provide sufficient evidence to support the addition. The CIT (A) noted that the assessee maintained complete quantitative records, and the purchases were properly recorded in the books of accounts. The CIT (A) also highlighted that the AO failed to prove that the cash withdrawn by Shri Prajapati was returned to the assessee. The CIT (A) relied on the decision of the Gujarat High Court in Adinath Industries, which held that additions based on mere presumptions without evidence could not be sustained.The CIT (A) concluded that the statement of Shri Prajapati had no evidentiary value and that the AO's addition was based on conjecture and surmises. The CIT (A) emphasized that the assessee's books of accounts were correct, and the purchases were genuine. The CIT (A) deleted the addition, allowing the assessee's appeal.Conclusion:The Tribunal upheld the findings of the learned CIT (A), confirming that the statement of Shri Prajapati could not be used as evidence against the assessee without cross-examination. The Tribunal also agreed that the AO failed to provide sufficient evidence to support the addition under Section 69C. The appeal of the revenue was dismissed, and the deletion of the addition by the learned CIT (A) was confirmed.