2020 (2) TMI 772 - AT - Income Tax

Appeals Partly Allowed Due to Procedural Violations

Kuber Khanpan Udyog Pvt. Ltd, Kuber Food Products India Pvt. Ltd Versus ACIT, Central Circle-30, New Delhi

Kuber Khanpan Udyog Pvt. Ltd, Kuber Food Products India Pvt. Ltd Versus ACIT, Central Circle-30, New Delhi - TMI Issues Involved:1. Violation of principles of natural justice.2. Validity of assessment under section 147/148.3. Sustaining additions under section 68.4. Applicability of section 153C.5. Levy of interest under sections 234A, 234B, and 234C.Issue-wise Detailed Analysis:1. Violation of Principles of Natural Justice:The appellants argued that the CIT(A) and AO violated the principles of natural justice by not providing the opportunity for cross-examination of the persons whose statements were relied upon. The Tribunal noted that the appellants had specifically requested cross-examination, but the AO expressed his inability to provide it. The Tribunal cited the Supreme Court's decision in Andaman Timber Industries, emphasizing that the addition based solely on third-party statements without cross-examination is not sustainable. Hence, the Tribunal found that the principles of natural justice were indeed violated.2. Validity of Assessment under Section 147/148:The appellants contended that the reopening of assessments under section 147/148 was invalid as no valid reasons were recorded by the AO. The Tribunal examined the reasons recorded for reopening and found that the AO had relied on statements and information gathered during the search and post-search investigations. However, the Tribunal observed that the AO did not independently verify the information and relied on unsubstantiated statements. The Tribunal held that the reopening of assessments was not justified due to the lack of independent application of mind by the AO.3. Sustaining Additions under Section 68:The Tribunal scrutinized the additions made under section 68 for unexplained share capital and share premium. The appellants had provided documentary evidence, including share application forms, confirmations, bank statements, and financial statements, to substantiate the transactions. The AO, however, dismissed these documents without proper verification. The Tribunal emphasized that the burden of proof shifts to the AO once the assessee provides prima facie evidence. Since the AO failed to disprove the evidence provided by the appellants, the Tribunal directed the deletion of the additions under section 68.4. Applicability of Section 153C:The appellants argued that the assessments should have been made under section 153C instead of section 147. The Tribunal examined the provisions of section 153C and noted that it applies when documents seized during a search belong to a person other than the one searched. The Tribunal found that the documents seized did not directly belong to the appellants but were related to the Kuber Group of Companies. The Tribunal held that the AO was correct in not invoking section 153C and upheld the use of section 147 for reopening the assessments.5. Levy of Interest under Sections 234A, 234B, and 234C:The appellants contended that the provisions of sections 234A, 234B, and 234C were not applicable. The Tribunal did not provide a detailed analysis on this issue, as it is consequential to the main issues discussed. The Tribunal's decision to delete the additions under section 68 would inherently affect the computation of interest under these sections.Conclusion:The Tribunal partly allowed the appeals, finding that the principles of natural justice were violated and the additions under section 68 were not justified. The Tribunal upheld the validity of reopening the assessments under section 147 but directed the deletion of the additions made by the AO. The decision emphasized the importance of independent verification by the AO and the necessity of providing cross-examination when requested by the assessee.