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2022 (10) TMI 399 - ITAT DELHIUndisclosed payment to the Institution - assessee has paid a sum towards capitation fee/donation for admission of his daughter - addition on the basis of statement recorded of Chairman/Director of Santosh Medical College Group recorded during the course of search and seizure operation - as argued no opportunity have been provided to him to cross-examine the person on the basis of whose statement the allegations have been made against the assessee - HELD THAT:- It is not brought on record if his statement was ever supplied to assessee or subjected to cross-examination on behalf of assessee. There is no other material available on record to justify the addition made against the assessee. The assessee since beginning of the re-assessment proceedings have denied to have paid any amount to the Medical College. The assessee in his explanation has affirmed that he has not paid any amount for admission of his daughter to MBBS Course. Thus, no material is available on record to prove that assessee made any payment on behalf of his daughter for admission to the MBBS Course. Since the Revenue alleged that the amount in question is paid by assessee for admission of his daughter to the Medical Course, therefore, the burden is very heavy upon Revenue to prove by positive evidence that assessee has in fact made the payment to the Medical College for admission for his daughter. However, no evidence is available on record to prove such contention and initial denial of the assessee itself supports the explanation of assessee that no amount is paid by assessee for admission of his daughter in Medical Course. As decided in Shri Naresh Pamnani, Delhi [2019 (3) TMI 1787 - ITAT DELHI] assessing officer did not record in the assessment order if statement recorded at the back of the assessee by the Investigation Wing, was allowed for cross examination on behalf of the assessee at any stage, therefore, statement of third party, cannot be used against the assessee unless assessee has been allowed a right to cross-examine such statement. A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment at any stage. There is no material available on record to justify the addition against the assessee on merits. In the absence of any material on record against the assessee and in the absence of cross examination to the statement of Dr P Mahalingam on behalf of the assessee, such material cannot be used against the assessee so as to make the impugned addition Addition on merit is wholly unjustified. It is well settled Law that unless the incriminating documents or statement used against the assessee are confronted to assessee and assessee have been allowed to cross-examine such statements, no such material or statement, could be read in evidence against the assessee. Thus no addition could be made against the assessee of the impugned amount - Assessee appeal allowed.
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