2015 (11) TMI 402 - AT - Income Tax

Tribunal rejects uncorroborated third-party evidence, deletes Rs. 1.76 crores addition, dismisses gross profit rate application.

The Tribunal concluded that additions based on third-party evidence lacked justification without direct corroborative evidence linking the assessee to ... Addition on account of third party evidence - additions on account of unaccounted sales - search and seizure action under section 132 - assessment u/s.153A - Gross profit ratio @ 35% of unaccounted sales - Held that:- The facts of the present case are identical to the facts before Pune Bench of Tribunal in Shri Vinit Ranawat Vs. ACIT (2015 (6) TMI 608 - ITAT PUNE) and where the assessee has denied to have received any payment from M/s. DIL through Shri Sohan Raj Mehta and in the absence of any incriminating documents having been found from the residence of the assessee during the course of search on 20.01.2010 and where the assessee is not dealing with M/s. DIL in his individual capacity, the ratio laid down by the earlier decision of Tribunal as referred to in Shri Vinit Ranawat Vs. ACIT (supra) , is squarely applicable to the facts of the present case. The company Pragatiram Pvt. Ltd., in which the assessee is a director was supplying raw material to M/s. DIL and the assessee is not supplier of any items of raw material to M/s. DIL. In the above said facts and circumstances, where it is not established that name PC Jain of Mumbai written in the said document was in fact the assessee before us and in the absence of any evidence having been found to establish that the assessee before us has received the said amounts from Shri Sohan Raj Mehta on account of M/s. DIL group, we find no merit in the aforesaid addition made in the hands of the assessee. In view thereof, we set-aside the order of CIT(A) and direct the Assessing Officer to delete the addition of ₹ 1.76 crores in assessment year 2004- 05. In view of our deleting the said addition in the hands of the assessee, there is no merit in estimating any gross profit on such undisclosed receipts. Accordingly, the main objections raised by the assessee are allowed and the ground of appeal raised on alternate base is dismissed. The grounds of appeal raised by the Revenue are also dismissed. - Decided in favour of assessee. Issues Involved:1. Addition on account of third-party evidence.2. Gross profit ratio on unaccounted sales.Detailed Analysis:1. Addition on Account of Third-Party EvidenceThe primary issue revolves around the addition made by the Assessing Officer (AO) based on third-party evidence, specifically documents seized from the residence of Shri Sohan Raj Mehta, a C&F agent of M/s. Dhariwal Industries Ltd. (DIL). The AO added Rs. 26.91 crores as the assessee's undisclosed income based on these documents. The assessee contested this addition on several grounds:- No Corroborative Evidence: The assessee argued that no corroborative evidence was found in their records, and the documents were seized from a third party, not the assessee.- Retracted Statement: The statement of Shri Sohan Raj Mehta, which was the basis for the addition, was later retracted.- Opportunity to Cross-Examine: The assessee was not given an opportunity to cross-examine Shri Sohan Raj Mehta, which is against the principles of natural justice.- Judicial Pronouncements: The assessee cited various judicial pronouncements, including the case of Addl.C.I.T. Vs. Miss Lata Mangeshkar, to support their argument that additions cannot be made solely based on third-party evidence.The CIT(A) upheld the AO's addition, citing the detailed records and statements that linked the assessee with unaccounted transactions of DIL. However, the Tribunal found that the addition was not justified due to the lack of direct evidence linking the assessee to the seized documents. The Tribunal also noted that similar cases had resulted in deletions of such additions when based solely on third-party evidence without corroboration.2. Gross Profit Ratio on Unaccounted SalesThe second issue pertains to the application of a gross profit (GP) ratio of 35% on unaccounted sales by the CIT(A). The assessee argued that:- Incorrect GP Ratio: The GP ratio of 35% was erroneously applied based on manufacturing companies, whereas the assessee was a trader.- Alternative Argument: The assessee suggested that if any addition is to be made, it should be based on a net profit rate, not a gross profit rate, and cited Section 44AD, which prescribes a presumptive taxation rate of 8% of gross receipts.The Tribunal found merit in the assessee's argument, noting that the CIT(A)'s estimation of a 35% GP rate was excessive and not justified. The Tribunal emphasized that in the absence of any direct evidence of unaccounted sales, the entire sales amount should not be treated as income, and only a reasonable net profit should be considered.Conclusion:The Tribunal concluded that the additions made based on third-party evidence were not justified in the absence of corroborative evidence directly linking the assessee to the unaccounted transactions. Consequently, the addition of Rs. 1.76 crores for the assessment year 2004-05 was deleted, and the application of a 35% GP rate on unaccounted sales was dismissed. The Tribunal's decision applied similarly to the other assessment years under consideration, resulting in the appeals of the assessee being partly allowed and the appeals of the Revenue being dismissed.