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2018 (9) TMI 419 - AT - Income TaxAssessment u/s 153A - AO estimated commission on the basis of statement of the assessee wherein it was stated that the commission received was Re. 1 per kg - Held that:- There is no material determining the commission at Re. 1 per kg., particularly when the assessee has explained the basis of the figure of 0. 50 paise per kg which has not been shown to be incorrect and is also higher than admitted to have been paid by Shri Pawan Dua. A surrender was made by the assessee vide letter dated 24. 6. 2014 on the basis of the entire seized documents and the statement was recorded to said effect u/s 132(4). The amount as surrendered by the assessee stands duly offered and assessed to tax. There is no retraction to the said extent. Accept the claim that in absence of any material or evidence to reject the basis given by the assessee of 0.50 paisa per kg, the addition made by adopting the commission rate of Re. 1 per kg. is untenable and, therefore, liable to be deleted. Violation of principles of natural justice - Addition on account of commission income from MCX dabba trading - Not allowing the assessee to cross examine the witness - Held that:- Not allowing the assessee to cross examine the witness by the adjudicating authority, though statements of those witnesses were made the basis of the impugned order, amounted to a serious lapse which makes the order a nullity as it amounted to violation of principles of natural justice. Also in the case of Kishanichand Chellaram v. CIT [1980 (9) TMI 3 - SUPREME COURT] it was held that any material collected at the back of the assessee and the assessee not being confronted with the same and no opportunity having been given the assessee to cross-examine, such material cannot be relied upon against the assessee. Addition to be deleted - Decided in favour of assessee Addition on account of unexplained receipts in respect of commission received from Sh. Sushil Kumar - Held that:- Income from commission from MCX trading has been declared and assessed separately and having so done, in our opinion there is no material to independently tax the figure of ₹ 10 lacs. There is no material brought on record to state that this sum ₹ 10 lacs was received over and above the figure of commission of MCX trading separately estimated by the revenue. This estimation is done on the basis of pages 1 to 10, 13 and 15 of Annexure A-27 (Exhibit 5 from Flat 1-B Pocket-A, Near Satyawati College, Ashok Vihar, New Delhi and statement of Sh. Sushi Kumar recorded u/s 132(4) of the Act. It is noted that that the assessee, on the said basis and documents, had estimated the commission from MCX trading. Thus, once the said documents have already been considered as part of the estimation of commission, no separate addition is called for. - Decided in favour of assessee
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