2014 (9) TMI 275 - AT - Income Tax

Tribunal dismisses Revenue's appeal due to lack of evidence and procedural flaws

The CIT(A) deleted the addition of Rs. 34,83,206/- as unexplained cash credit/deposits, citing lack of corroborative evidence and adherence to natural ... Unexplained cash credit/debits – unexplained investment - Held that:- The addition was based on certain entries reflected and retrieved from a pen- drive recovered from Shri Chetan Gupta – revenue was of the view that the seized pen-drive contains computerized accounts of hawala transactions of about 148 people including the account of the assessee, whose identity was denominated as “BIBA” & “KIRAN BIBA” - it does not stand established that the assessee has made the investment - the burden to establish the existence of investment was on the Revenue, which has not been discharged – relying upon CIT Vs. Ashwani Gupta [ 2010 (2) TMI 42 - DELHI HIGH COURT] - once there was violation of the principles of natural justice, in as much as seized material was not provided to an assessee nor was cross-examination of the person on whose statement the AO relied upon granted, then deficiencies would amount to denial of opportunity and would be fatal to the proceedings. The information received by the AO from his investigation Wing, at best, be regarded as a prima-facie material, but could not be construed as conclusive for use against the assessee to fasten any tax liability, because the same was required to be corroborated by credible and independent evidence or was required to be tested in cross-examination by the assessee, quite clearly none of these aspects have done by the Revenue in this case - the Revenue has not proved that the investment has been made by the assessee - the essential pre-requisite of Section 69 of the Act is not satisfied in this case – Decided against revenue. Issues Involved:1. Addition of Rs. 34,83,206/- as unexplained cash credit/deposits.2. Validity of evidence derived from a pen-drive recovered from a third party.3. Denial of transactions by the assessee and the third party.4. Application of Section 69 of the Income Tax Act, 1961.5. Adherence to principles of natural justice and cross-examination rights.Detailed Analysis:1. Addition of Rs. 34,83,206/- as Unexplained Cash Credit/Deposits:The primary issue in the appeal was the addition of Rs. 34,83,206/- made by the Assessing Officer (AO) as unexplained cash credits/deposits in the assessee's account. The AO based this addition on entries found in a pen-drive recovered from one Mr. Chetan Gupta, which purportedly showed credits/deposits in the accounts named 'BIBA' and 'KIRAN/BIBA,' identified as the assessee. The AO issued a notice under Section 148 of the Income Tax Act, 1961, after recording reasons and obtaining necessary approval. The assessee denied making any such deposits and argued that the onus to produce Mr. Chetan Gupta for deposition lay with the department.2. Validity of Evidence Derived from a Pen-Drive Recovered from a Third Party:The AO's addition was primarily based on data retrieved from a pen-drive seized from Mr. Chetan Gupta by the Punjab Vigilance Bureau. The assessee denied any transactions with Mr. Chetan Gupta and argued that the pen-drive, being third-party evidence, could not be relied upon without corroborative evidence. The CIT(A) noted that the pen-drive's data amounted to third-party evidence and could not be used conclusively against the assessee without corroboration. The CIT(A) referenced several judgments, including those of the Hon'ble Supreme Court and High Courts, to support this view.3. Denial of Transactions by the Assessee and the Third Party:Both the assessee and Mr. Chetan Gupta denied the transactions. Mr. Chetan Gupta, in his statements recorded under oath, denied the recovery of the pen-drive and any transactions with the assessee. The CIT(A) found that the AO did not make sufficient efforts to enforce Mr. Chetan Gupta's attendance for personal deposition, and the only material on record was the information from the Vigilance Bureau, which was not independently corroborated by the AO.4. Application of Section 69 of the Income Tax Act, 1961:The CIT(A) examined the applicability of Section 69, which pertains to unexplained investments. The CIT(A) noted that the section requires two conditions: the existence of an investment and its unexplained nature. In this case, the assessee denied making any investment, and the AO's claim was based solely on the pen-drive data without corroborative evidence. The CIT(A) concluded that the AO did not conclusively prove the impugned investment, and the addition was not justified under Section 69.5. Adherence to Principles of Natural Justice and Cross-Examination Rights:The CIT(A) emphasized the importance of adhering to the principles of natural justice, including the right to cross-examine witnesses. The CIT(A) noted that the AO did not provide the assessee an opportunity to cross-examine Mr. Chetan Gupta, whose testimony was crucial to the case. The CIT(A) referenced judgments, including those of the Hon'ble Delhi High Court, which held that failure to provide cross-examination amounts to a denial of natural justice and renders the evidence untenable.Conclusion:The CIT(A) deleted the addition of Rs. 34,83,206/- made by the AO, citing the lack of corroborative evidence and adherence to natural justice principles. The Tribunal upheld the CIT(A)'s order, referencing similar cases involving family members of the assessee, where additions based on the same pen-drive data were deleted by higher judicial authorities. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Revenue's appeal, confirming that the addition was not sustainable in the absence of credible evidence and proper procedural adherence.