SHRI RAJENDRA PRASAD CHOUDHARY,JAIPUR vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, JAIPUR

The grounds taken by the assessee in both the years are common. Grounds taken by the assessee in the A.Y. 2012-13 reads as under:

2 ITA 1495 & 1496/JP/2018_ Rajendra Prasad Choudhary Vs ACIT “1. That the ld. CIT(A) has erred in law and on facts in estimating GP of the appellant @ 8.5% resulting into an addition of Rs. 4,04,772/- as against an addition of Rs. 9,83,125/- made by the ld. A.O. on account of alleged unverifiable purchases of diamonds even after the facts that the appellant had declared sufficient GP and was comparable to average historical GP rate declared. Relief may please be allowed by deleting the addition so sustained by the ld. CIT(A).” 2.1 Following additional ground was raised by the assessee:

Rival contentions have been heard and record perused. The facts in brief are that the case of the assessee was reopened on the basis of the information received from the office of the DGIT (Inv.). Mumbai that certain firms are engaged in the business of providing accommodation entries and out of such parties the appellant had also purchased goods from certain firms totaling to Rs. 1,81,71,990. Based on this information A.O. formed an opinion that income to the tune of Rs. 1,81,71,990 related to concealed income. In the assessment the Id. AO has 3 ITA 1495 & 1496/JP/2018_ Rajendra Prasad Choudhary Vs ACIT disallowed a sum of Rs. 45,42,998 being 25% of above referred sum and added the same to the income of the assessee.

By the impugned order, the ld. CIT(A) upheld the reopening of the assessment but given substantial relief by estimating profit rate at 8.5%, accordingly, against the addition of Rs. 45,42,998/-, the ld. CIT(A) has upheld addition of Rs. 15,41,042/-, against which the assessee is in further appeal before the ITAT.

At the outset, the ld AR challenged the reopening of assessment by contending that the reopening itself was not valid in so far as merely on the basis of information the A.O. has reopened the assessment and has not made any enquiry to reach to the satisfaction that there was a reason to believe that the income has escaped assessment. Our attention was also invited to the reasons recorded for reopening according to which the A.O. has reopened the assessment on the basis of information from DGIT(Inv.), Mumbai. As per the reasons so recorded by the A.O., there was no satisfaction of the A.O. with regard to any income having been escaped assessment and merely on the basis of information, he has reopened the assessment. The ld AR has further contended that the A.O. has neither supplied copy of information so received on the basis of which addition has been made nor any opportunity to cross examination was 4 ITA 1495 & 1496/JP/2018_ Rajendra Prasad Choudhary Vs ACIT provided in spite of the fact that both before the A.O. and the ld. CIT(A) the assessee has requested for supply of statement on the basis of which addition was made and also for cross examination of the persons on whose statement, the addition has been made. The ld AR has also invited our attention to the order passed by the A.O. wherein he has clearly declined for cross examination in spite of the fact that the assessee has specifically asked for the same. Our attention was also invited to the submission made before the ld. CIT(A) for providing opportunity to cross examine, wherein reliance was placed on the decision of the Hon’ble Supreme Court in the case of Andaman Timber Industries Vs CCE order dated 02/09/2015 and also the order of the Coordinate Bench of ITAT Jaipur in the case of Pramod Jain order dated 31/1/2018 wherein it was held that the requirement of producing such parties for cross examination is a right of the assessee which must be carefully fulfilled by the A.O.

With regard to merit of addition, it was contended by the ld AR that the assessee had maintained proper stock and had all valid proofs to justify the purchases to be genuine. The Id. AO has not made any efforts independently in this regard. She had merely relied on the information received from investigation wing, Mumbai and reached on the conclusion of purchases being bogus. Our attention was also invited to the profit rate chart for earlier and subsequent assessment years so as to indicate that 5 ITA 1495 & 1496/JP/2018_ Rajendra Prasad Choudhary Vs ACIT the profit rate declared by the assessee is comparative in all the years under consideration as under: Asstt. Year Turnover Gross Profit Profit Rate 2010-11 3,70,62,443 22,54,341 6.08% 2011-12 5,42,80,906 37,27,037 6.87% 2012-13 5,78,61,983 45,13,471 7.80% 2013-14 7,06,86,095 51,74,137 7.32% 2014-15 7,89,42,771 56,70,745 7.18% 2015-16 8,53,52,037 60,66,474 7.11% 2016-17 9,51,40,396 77,63,974 8.17% 2017-18 8,62,19,742 64,83,576 7.53% Average 56,55,46,073/- 4,16,53,655/- 7.36% Our attention was also invited to the profit of 8.91% shown in respect of transaction entered with these parties which indicated that the profit shown in respect of these purchases was better than the normal profit rate of 7.32% shown during the year under consideration. Accordingly, it was pleaded that when the profit rate in respect of such purchases is more than the normal profit rate shown by the assessee and accepted by the department, no further addition is required.

On the other hand, the ld DR has argued that the reopening was based on valid information of the Investigation Wing to the effect that the assessee has purchased goods from the Hawala dealers, accordingly, reduced its profit. He further contended that the ld. CIT(A) has already given substantial relief by reducing the profit on such bogus purchases @ 8.5% which should be upheld.

In the reasons recorded for reopening, the A.O. stated that reopening was done on the basis of information received from DGIT (Inv.), Mumbai and on the basis of such information, he found his reason to believe that the income had escaped assessment. In the reassessment order passed U/s 143(3) r.w.s. 147 of the Act, the A.O. at various instances depicted his reliance on the borrowed information received from DGIT (Inv.), Mumbai rather than his own enquiry and satisfaction. It is 7 ITA 1495 & 1496/JP/2018_ Rajendra Prasad Choudhary Vs ACIT precondition of Section 147 that the A.O. should form his own satisfaction based on credible enquiry and on the credentials of the facts of the case. He shall not act on the basis of borrowed satisfaction. However, in the present case, the A.O. has solely relied on the information forwarded by the Investigation Wing, Mumbai. For this purpose, reliance is placed on the following judgments which were decided on identical facts:

From the record we found that during the course of reassessment proceedings, the assessee had specifically requested the A.O. for copies of statement on which the A.O. was relying and an opportunity to cross examine the relevant parties. However, the A.O. ignored the same and no opportunity was provided to the assessee. In reply to the assessee’s request, the A.O. in his order has rejected the same by specifically writing that the assessee’s right to cross examination of parties is not a part of reasonable opportunity of being heard. As per our considered view, seeking opportunity for cross examination of the party on whose statement the A.O. is relying upon is a right of the assessee in view of the principles of natural justice. The Hon’ble Supreme Court in case of M/s Andaman Timber Industries vs. Commissioner of Central Excise, Kolkata-II CIVIL APPEAL NO. 4228 OF 2006 (Supreme Court) held as under:

We also found that even same request was made before the ld. CIT(A) but the same was not considered and plea of the assessee was rejected. It was also submitted by the assessee before the ld. CIT(A) that the decision relied upon by the A.O. of the Hon’ble Rajasthan High Court in the case of Rameshwar Lal Mali 256 ITR 536 was passed in the year 2002 and the Kolkata High Court in the case of Mahendra N Chatterjee (1977) Tax LR 1754 in the year 1977, however, the Hon’ble Supreme Court’s decision in the case of Andaman Timber Industries (Supra) was passed in the year 2006. Therefore, the judgment of the Hon’ble Supreme Court is hold precedent and the assessee’s right to seek an opportunity for cross examination is justified and the rejection of the same resulted into nullity of the assessment itself in view of the decision of the Hon’ble Supreme Court in the case of Andaman Timber Industries (Supra).

In the result, appeal of the assessee is allowed.

The facts and circumstances in the appeal for the A.Y. 2013-14 are pari materia, following the above reasoning passed in the appeal for the A.Y. 2012-13, the appeal of the assessee for the A.Y. 2013-14 is also allowed.