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Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791


Moreover, addition was made only on statement of Sh. VK without providing copy of same ‎and without providing any opportunity to assessee to cross examine same, which was in ‎violation of principle of natural justice and against law laid down by Supreme Court of ‎India in case of Andaman Timber vs. CIT—Therefore, in present case, addition made by ‎AO on basis of statement of Sh. VK was deleted

B.P.Mundra > Income Tax > Cases Income tax > 142(1) > Moreover, addition was made only on statement of Sh. VK without providing copy of same ‎and without providing any opportunity to assessee to cross examine same, which was in ‎violation of principle of natural justice and against law laid down by Supreme Court of ‎India in case of Andaman Timber vs. CIT—Therefore, in present case, addition made by ‎AO on basis of statement of Sh. VK was deleted

admin November 16, 2019

142(1)

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ANUBHAV JAIN vs. INCOME TAX OFFICER
DELHI TRIBUNAL
H. S. SIDHU, JM.‎
ITA No. 4565/DEL/2018, 4566/DEL/2018‎
Nov 26, 2018‎ ‎(2018) 54 CCH 0273 DelTrib‎
Legislation Referred to Section 142(1), 143(2)‎
Case pertains to Asst. Year 2014-15‎
Decision in favour of:‎ Assessee

Cases Referred to
Smt. Jyoti Gupta vs. ITO ITA No. 3510/Del/2018 (AY 2014-15)
Andaman Timber Vs. CIT Civil Appeal No. 4228 OF 2006‎
Counsel appeared:‎
Pranshu Goel, CA for the Assessee.: SL Anuragi, Sr. DR. for the Revenue
ORDER
‎1. These appeals by the different assessees are preferred against the respective orders of the ‎Ld. Commissioner of Income Tax [Appeals] – 12, New Delhi both dated 13.04.2018 ‎pertaining to assessment year 2014-15. Since the grounds raised in both the appeals are ‎common and identical, hence, the appeals were heard together and are being disposed of by ‎this common order for the sake of convenience, by dealing with ITA No. 4565/Del/2018 (AY ‎‎2014-15) – Anubhav Jain vs. ITO. In both the appeals the assessee has raised as many 05 ‎grounds of appeal. But at the time of hearing, Ld. A.R. for the assessee has only argued the ‎ground no. 3.2 which is reproduced as under:-‎
‎“3.2 That the order passed by the Hon’ble CIT(A) upholding the order of the Ld. AO ‎is bad in law and liable to be quashed as the Hon’ble CIT(A) and the Ld. AO placed ‎reliance on statement of some person(s) without providing any opportunity to the ‎appellant to cross-examine the same.”‎
‎2. Brief facts of the case are that assessee filed his e-return of income on 30.6.2014 declaring ‎total income of Rs. 6,24,370/- after claiming deduction under Chapter VI-A of Rs. 1,01,196/-‎‎. This return was revised on 22.4.2015 declaring total income of Rs. 6,26,250/-. The case of ‎the assessee was selected for scrutiny through CASS for reason “Suspicion long term capital ‎gain or shares”. Notice u/s. 143(2) of the Income Tax Act, 1961 (in short “Act”) was issued ‎on 17.8.2016. Thereafter, notice u/s. 142(1) of the Act dated 14.9.2016 was issued. In ‎response to the same, the A.R. for the assessee attended the proceedings from time to time ‎and furnished various details / documents, as called for from time to time and verified it. ‎Thereafter, the AO completed the assessment u/s. 143(3) of the Act at an income of Rs. ‎‎25,73,338/-. Against the assessment order, the Assessee appealed before the Ld. CIT(A) who ‎vide his impugned order dated 13.4.2018 has dismissed the appeal of the assessee. Aggrieved ‎with the order of the Ld. CIT(A), assessee appealed before the Tribunal.‎
‎3. During the hearing, Ld. A.R. for the assessee draw my attention towards the Assessment ‎Order page no. 6 para 13 in which the AO has himself reproduced the submission of the ‎assessee submitted vide assessee’s reply dated 7.12.2016 requesting therein to allow the ‎assessee to cross examine the source on the basis of which such an opinion has been formed. ‎he further submitted that AO has not considered this point while passing the assessment ‎order. Further he draw my attention towards page no. 7 of the Ld. CIT(A)’s order para no. 13 ‎mentioning the assessee’s reply dated 7.12.2016 as made before the AO, as aforesaid, which ‎was also not considered by the Ld. CIT(A). He further draw my attention towards page no. ‎‎24 of the Ld. CIT(A)’s order wherein it was specifically mentioned that the assessee is ‎specifically asked for copies of the statements of Sh. Vikram Kayan and also seeks cross ‎examination of Sh. Vikram Kayan, but not considered the said request of the assessee. ‎Further, it was submitted that vide ground no. 5 raised before the Ld. CIT(A) assessee has ‎challenged the order of the AO by stating that the addition made by the AO is untenable in ‎the eyes of law having been made without providing opportunity to cross examine the persons ‎on the basis of whose statements the allegations have been made against the assessee and ‎without following the principle of natural justice. He further submitted that Ld. CIT(A) has ‎not adjudicated this ground and summarily dismissed the appeal of the assessee by upholding ‎the assessment order. He further submitted that Finally, he submitted that this addition in ‎dispute has been made only on the statement of Sh. Vikrant Kayan without providing any ‎opportunity to the assessee to cross examine the same, which is violation of principle of ‎natural justice. He further submitted that exactly on the similar facts and circumstances the ‎ITAT, SMC, Delhi Bench vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 ‎‎(AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO the SMC Bench, Delhi has considered ‎the statement of Vikrant Kayan and has held that impugned addition was made on the ‎statement of Sh. Vikrant Kayan without providing any opportunity to the assessee to cross ‎examine the same and Ld. CIT(A) has not considered the same, which is in violation of ‎principle of natural justice and against the law settled in the decision rendered by the Hon’ble ‎Supreme Court of India in the case of Andaman Timber vs. CIT decided in Civil Appeal No. ‎‎4228 of 2006. Hence, he requested to follow the SMC Bench decision in the case of Jyoti ‎Gupta (Supra) and allow the appeals of the assessee.‎
‎4. Ld. DR relied upon the orders of the authorities below.‎
‎5. I have heard both the parties and perused the records, especially the assessment as well as ‎impugned order and the reply filed by the assessee before the AO in response to the show ‎cause notice. I find from the Assessment Order page no. 6 para 13 in which the AO has ‎himself reproduced the submission of the assessee submitted vide assessee’s reply dated ‎‎7.12.2016 requesting therein to allow the assessee to cross examine the source on the basis of ‎which such an opinion has been formed which was not considered by the AO while passing ‎the assessment order. I further note from the order of the Ld. CIT(A)’s in para no. 13 wherein ‎the assessee’s reply dated 7.12.2016 as made before the AO, as aforesaid was reproduced and ‎also not considered by the Ld. CIT(A). I further find that at page no. 24 of the Ld. CIT(A)’s ‎order, it was mentioned that the assessee was specifically asked for copies of the statements ‎of Sh. Vikram Kayan and also seeks cross examination of Sh. Vikram Kayan, but not ‎considered the said plea of the assessee, despite request. I further find that in ground no. 5 ‎raised before the Ld. CIT(A), wherein the assessee has challenged the order of the AO by ‎stating that the addition made by the AO is untenable in the eyes of law having been made ‎without providing opportunity to cross examine the persons on the basis of whose statements ‎the allegations have been made against the assessee and without following the principle of ‎natural justice. I note that Ld. CIT(A) has also not adjudicated the ground no. 5 raised before ‎him and summarily dismissed the appeal of the assessee by upholding the assessment order. ‎Moreover, the addition has been made only on the statement of Sh. Vikrant Kayan without ‎providing the copy of statement of Sh. Vikrant Kayan and without providing any opportunity ‎to the assessee to cross examine the same, which is in violation of principle of natural justice. I ‎further note that exactly on the similar facts and circumstances the ITAT, SMC, Delhi Bench ‎vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the case ‎of Smt. Jyoti Gupta vs. ITO wherein, the SMC Bench has considered the statement of ‎Vikrant Kayan and has held that since the impugned addition was made on the statement of ‎Sh. Vikrant Kayan without providing any opportunity to the assessee to cross examine the ‎same and Ld. CIT(A) has not considered the same ground, which is in violation of principle ‎of natural justice and against the law laid down by the Hon’ble Supreme Court of India in the ‎case of Andaman Timber vs. CIT decided in Civil Appeal No. 4228 of 2006. For the sake of ‎convenience, I am reproducing the relevant portion of the ITAT, SMC, Delhi Bench vide its ‎order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the case of Smt. ‎Jyoti Gupta vs. ITO as under:-‎
‎“13. Merely on the strength of statement of third party i.e. Shri Vikrant Kayan cannot ‎justify the impugned additions. Moreso, when specific request was made by the ‎assessee for allowing cross examination was denied by the Assessing Officer. The first ‎appellate authority also did not consider it fit to allow cross-examination. This is in ‎gross violation of the principles of natural justice and against the ratio laid down by the ‎Hon’ble Supreme Court in the case of Andaman Timber Vs. CIT Civil Appeal No. 4228 ‎OF 2006 wherein it has been held as under:‎
‎“According to us, not allowing the assessee to cross-examine the witnesses by ‎the Adjudicating Authority though the statements of those witnesses were made ‎the basis of the impugned order is a serious flaw which makes the order nullity ‎inasmuch as it amounted to violation of principles of natural justice because of ‎which the assessee was adversely affected. It is to be borne in mind that the ‎order of the Commissioner was based upon the statements given by the ‎aforesaid two witnesses. Even when the assessee disputed the correctness of the ‎statements and wanted to cross-examine, the Adjudicating Authority did not ‎grant this opportunity to the assessee. It would be pertinent to note that in the ‎impugned order passed by the Adjudicating Authority he has specifically ‎mentioned that such an opportunity was sought by the assessee. However, no ‎such opportunity was granted and the aforesaid plea is not even dealt with by ‎the Adjudicating Authority. As far as the Tribunal is concerned, we find that ‎rejection of this plea is totally untenable. The Tribunal has simply stated that ‎cross-examination of the said dealers could not have brought out any material ‎which would not be in possession of the appellant themselves to explain as to ‎why their ex-factory prices remain static. It was not for the Tribunal to have ‎guess work as to for what purposes the appellant wanted to cross-examine ‎those dealers and what extraction the appellant wanted from them. As ‎mentioned above, the appellant had contested the truthfulness of the statements ‎of these two witnesses and wanted to discredit their testimony for which purpose ‎it wanted to avail the opportunity of cross-examination. That apart, the ‎Adjudicating Authority simply relied upon the price list as maintained at the ‎depot to determine the price for the purpose of levy of excise duty. Whether the ‎goods were, in fact, sold to the said dealers/witnesses at the price which is ‎mentioned in the price list itself could be the subject matter of cross-‎examination. Therefore, it was not for the Adjudicating Authority to presuppose ‎as to what could be the subject matter of the cross-examination and make the ‎remarks as mentioned above. We may also point out that on an earlier occasion ‎when the matter came before this Court in Civil Appeal No. 2216 of 2000, ‎order dated 17.03.2005 was passed remitting the case back to the Tribunal with ‎the directions to decide the appeal on merits giving its reasons for accepting or ‎rejecting the submissions. In view the above, we are of the opinion that if the ‎testimony of these two witnesses is discredited, there was no material with the ‎Department on the basis of which it could justify its action, as the statement of ‎the aforesaid two witnesses was the only basis of issuing the Show Cause. We, ‎thus, set aside the impugned order as passed by the Tribunal and allow this ‎appeal.”‎
‎14. Considering the facts of the case in totality, I do not find any merit in the impugned ‎additions. The findings of the CIT(A) are accordingly set aside. The Assessing Officer is ‎directed to allow the claim of exemption u/s 10(38) of the Act.”‎
‎6. Keeping in view of the facts and circumstances of the present case and respectfully ‎following the order of the Tribunal, SMC Bench, Delhi in the case of Smt. Jyoti Gutpa vs. ‎ITO (Supra) and in view of the law settled by the Hon’ble Supreme Court of India in the case ‎of Andaman Timber vs. CIT (Supra), on identical facts and circumstances, the addition in ‎dispute is deleted and the appeal of the assessee is allowed.‎
‎7. Following the consistent view as taken in ITA No. 4565/Del/2018 (AY 2014-15) in the ‎case of Anubhav Jain vs. ITO, as aforesaid, the addition involved in ITA No. 4566/Del/2018 ‎‎(AY 2014-15) in the case of Ashish Jain vs. ITO is also deleted and this appeal is also ‎allowed.‎
‎8. In the result, both the appeals filed by the different assesses are allowed.‎
The order pronounced on 26.11.2018.‎

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