2017 (12) TMI 469 - AT - Income Tax

Tribunal upholds CIT (A) orders, dismisses Revenue's appeals for assessment years. Lack of evidence highlighted.

Asstt. Commissioner of Income Tax And Dy. Commissioner of Income Tax, New Delhi Versus Rimjhim Ispat Ltd. And Vice-Versa

The Tribunal dismissed the Revenue's appeals for the assessment years 2004-05, 2005-06, and 2006-07. It upheld the CIT (A)'s orders quashing the reopening ... Validity of reassessment proceedings u/s 148 - under invoicing of sales - Held that:- No evidence whatsoever was found from the department suggesting that assessee was indulged in any kind of under invoicing of sales for the year under consideration; secondly, assessee’s name does not found place in the documents found and seized from the possession of Shri Kamlesh Gupta; thirdly, no confrontation or documents from the possession of employee Shri Kamlesh Gupta has been found nor any cross examination of Shri Kamlesh Gupta has been done; and lastly, in the case of Shri Kamlesh Gupta it has been found that these documents pertain to him and is unrelated to the assessee and adverse inference has already been drawn there against him in the appellate order which has been stated to be final. In the light of these facts on record and in view of our finding given above the aforesaid findings of the Ld. CIT (A) on the issue of quashing the notice u/s 148 and on merits cannot be tinkered with and the same is affirmed. Issues Involved:1. Validity of reopening of assessment under Section 148.2. Ownership and attribution of transactions noted in Annexure A-2.3. Alleged underbilling of sales by the assessee.4. Determination of undisclosed income based on survey findings.Detailed Analysis:1. Validity of Reopening of Assessment under Section 148:The Revenue challenged the reopening of assessment based on the report of the Assessing Officer (AO) of Shri Kamlesh Gupta. The CIT (A) held that the reopening was invalid as the AO did not independently verify the documents or apply his own mind, and merely relied on the report from ITO Jhansi. The Tribunal upheld this view, noting that there was no direct evidence linking the assessee to the documents found during the survey, and the AO failed to dispose of the objections raised by the assessee, violating the principles laid down by the Hon'ble Supreme Court in GKN Drive Shafts (India) Ltd. v. ITO.2. Ownership and Attribution of Transactions Noted in Annexure A-2:The documents in Annexure A-2, found during a survey at the premises of Shri Kamlesh Gupta, did not mention the name of the assessee company. The CIT (A) and Tribunal concluded that these documents pertained to Shri Kamlesh Gupta, who owned up the transactions. The Tribunal noted that the transactions were recorded in a pocket diary found with an employee of Shri Kamlesh Gupta, and no corroborative evidence linked these transactions to the assessee.3. Alleged Underbilling of Sales by the Assessee:The AO alleged that the assessee was involved in underbilling of sales based on the documents found during the survey. However, the CIT (A) and Tribunal found no evidence supporting this claim. The Tribunal observed that the AO did not cross-examine Shri Kamlesh Gupta or his employee, and the addition was based on assumptions without any direct or indirect evidence linking the transactions to the assessee.4. Determination of Undisclosed Income Based on Survey Findings:The AO made an addition of Rs. 5,14,88,000 as undisclosed income based on the survey findings. The CIT (A) corrected this amount to Rs. 1,19,68,500, based on the actual figures from Annexure A-2, and held that this income should be assessed in the hands of Shri Kamlesh Gupta. The Tribunal upheld this finding, noting that the entire transaction was owned by Shri Kamlesh Gupta, and there was no evidence of the assessee's involvement in any underbilling or undisclosed income.Conclusion:The Tribunal dismissed the Revenue's appeals for the assessment years 2004-05, 2005-06, and 2006-07, and upheld the CIT (A)'s orders quashing the reopening of assessment under Section 148 and deleting the additions made on account of alleged underbilling and undisclosed income. The cross objection filed by the assessee was also dismissed as infructuous. The Tribunal emphasized the lack of evidence linking the assessee to the transactions noted in the survey documents and the failure of the AO to independently verify the information received from ITO Jhansi.