TaxTMI 
TaxTMI 
2008 (4) TMI 357
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.... invoking the provisions of s. 153A of the IT Act. 2. That without prejudice, the learned CIT(A) has further erred in failing to appreciate that the learned AO had grossly erred in making the addition of Rs. 2,62,68,654 which addition had been made without any valid material or basis. In fact, the learned CIT(A) has completely overlooked that there was heavy burden on the Revenue to establish there was an understatement of the amount alleged to be an income, which burden had not been discharged and as such, the learned CIT(A) erred in sustaining the addition of Rs. 2,62,68,654. 3. That the learned CIT(A) has failed to appreciate that the learned AO had erred in making an addition arbitrarily of Rs. 2,62,68,654 and that too without rebutting the material evidence furnished by the assessee to establish that neither there was any understatement of an income nor the purported evidence pertained to the assessee's transactions (on the basis whereof the addition was made by the learned AO). 4. That the learned CIT(A) has failed to appreciate that the addition had been purportedly made on the basis of the documents purportedly seized from the residence of Shri Sandeep Bansal, in ....
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....supplies were made by the assessee at Jodhpur and were duly recorded in the books of account and that similarly in respect of similar supplies made in the preceding years also compared favourably with the sales rates of other manufacturers. 9. That the findings of the learned CIT(A) that, it is undisputed fact that the search was carried out on 17th Sept., 2003 at the branch office of the assessee at Jodhpur are based on misconceived facts. The aforesaid alleged fact is a disputed fact. 10. That further findings that during the course of search, it was found that were substantial payments in cash received for under-billing and payments in cash were received at Jodhpur and Mumbai and further cash from parties on account of under-billing was collected at Jodhpur and by Shri Jhala Ram at Mumbai over and above the billing amount, is also erroneous and is in disregard of the voluminous evidence furnished by the assessee to support that such allegations are entirely erroneous. There was no evidence which had been brought on record by the learned AO that the assessee had received any such sums as alleged and represented under-invoiced sale value. In fact, there was no evidence as to w....
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....n concluding that the comparability of quoting of rates with other parties is not acceptable, because in the present case quality may be better and popularity of the brand name may be different. In recording the aforesaid findings the learned CIT(A) has ignored that there is no basis for such an allegation. In fact, the assessee had duly established that neither the quality was better nor the popularly warranting the assumption of the CIT(A). In fact, evidence had been brought on record to establish that the popularity and the quality had no such similarity. The learned CIT(A) has thus erred in sustaining the addition of Rs. 2,62,68,654. 16. That the learned CIT(A) has further erred in sustaining the disallowance of Rs. 69,438 for unpaid CST." ITA No. 3481: In ITA No. 3481, only one issue is raised in 15 grounds, i.e., regarding validity or otherwise of search proceedings as well as addition on account of under-billing of invoices. The grounds raised are identical to the ground Nos. 1 to 15 of ITA No. 3480/Del/2006 except difference in figures which for asst. yr. 2004-05 is Rs. 11,59,78,180. For the sake of brevity, the grounds in ITA No. 3481/Del/2006 are not reproduced. 2. ....
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...., is issued to Shri Sandeep Bansal (name of the person) to produce, or cause to be produced, books of account or other documents which will be useful for, or relevant to, proceedings under the Indian IT Act, 1922, or under the IT Act, 1961, he would not produce, or cause to be produced, such books of account or other documents as required by such summons or notice; Sarvashri/Shri/Shrimati Shri Sandeep Bansal are/is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian IT Act, 1922, or the IT Act, 1961; And whereas I have reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable articles or things have been kept and are to be found in Depot, Jindal Strips Ltd., C-62, MIS IT Phase, Basni, Jodhpur (specify particulars of the building/place/vessel/vehicle/aircraft); This is to authorise and require you as overleaf as overleaf (name of the Dy. Director or of the Dy. CIT or of the Asstt. Director or of th....
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....e of Shri Sandeep Bansal, it cannot be stated that the search was initiated under s. 132(1) of the IT Act in the case of the assessee company. It was submitted that the provisions of s. 153A could be invoked in the case of the person where the search is initiated under s. 132, or books of account or other documents or any assets are requisitioned under s. 132A after 31st May, 2003. It was submitted that search was initiated against Sandeep Bansal and no search was initiated against the assessee. It was also submitted that registered office of the assessee which is situated at Delhi Road, Hissar, would have been searched and the warrant would have been issued by the concerned authority having jurisdiction over the assessee, whereas the warrant is issued in the case of Shri Sandeep Bansal under s. 132 by the Director General of IT (Inv.), Jaipur. It was submitted that proceedings initiated under s. 153A are without jurisdiction and notices issued for asst. yrs. 1998-99 to 2001-02 were untenable. It was further requested that the statement of Shri Sandeep Bansal has been extracted in the notice issued to the assessee and from the notice it is apparent that adverse inference is intende....
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....ificate was enclosed with the said letter, AO inferred that said Shri Sandeep Bansal does not want to appear before him for verification of the affidavit submitted by him to the company which has been rejected by the AO on the ground that the same is an afterthought. AO rejected the affidavit also on the following grounds: 1. The statement given at the time of search was recorded under s. 132(4)/131 of the Act was on oath and was given voluntarily without any pressure and in full senses. 2. From the seized documents and files found from the residence of said Shri Sandeep Bansal, it is evident that all the entries have been made in the handwriting of said Shri Sandeep Bansal and thereafter month-wise cash collection is summarized in computer sheet. 3. Said Shri Sandeep Bansal has not only maintained the above record but he has also maintained record of expenditure incurred by him on account of office rent, house rent, TDS, or any other expenditure in the summarized sheet from January to September. 4. The account maintained by the branch manager of the assessee is a perfect record of cash collection and payment thereof which is maintained in a systematic way and it was admitt....
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.... account of under-billing on sales of SS flats and since all the expenditure was debited in the books of account the entire receipt on account of under-billing was the concealed income of the assessee. It is in this manner the AO made the addition. 6. Before CIT(A) the main issues raised by the assessee to contest the assessment framed and addition were as under: (i) Whether the AO was justified in initiating proceedings under s. 153A of the IT Act?; and (ii) Whether the AO was justified in making addition on account of under pricing in the sales shown in the books of account? 7. With regard to the issue that whether the AO was justified in initiating proceedings under s. 153A; it has been observed by CIT(A) that Shri A.P. Garg, senior vice president and company secretary (Authorised Representative of the assessee company) has preferred not to make any submission. Taking into account such fact and also taking into account that there is a specific mention of search action in the assessment order itself which is at the branch office at the assessee company, and relying on the findings recorded in the para 7 of the assessment order, learned CIT(A) has held that proceedings under....
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.... account of cash collection at Jodhpur was maintained by Shri Bansal at Jodhpur and by Shri Jhala Ram at Bombay which was over and above billing amount of SS flats. A statement under s. 132(4) of said Shri Bansal was recorded in which seized material was confronted to him and said Shri Sandeep Bansal has given a clear and unambiguous statement confirming month-wise cash collection of the material sold by assessee company and recording cash collection on behalf of the assessee company. Modus operandi of cash collection at different places and finally destination of the said unaccounted cash collection were explained in the statement. As per para 9 of the assessment order, the assessee was confronted with the photocopy of the seized document found from the office premises as well as from the residence of branch manager were made available to the assessee. The AO has explained in the assessment order after verification of seized material vis-a-vis entries in the books of account that the entries in cash collection in those seized documents were genuine and it was an actual state of affairs and cash collection was not recorded in the books of account. The veracity and correctness of en....
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....laborating his arguments, it was pleaded by learned Authorised Representative that assessments made by the AO under s. 153A on the basis of documents seized from the residential premises of disgruntled employ without allowing opportunity of cross-examination are void ab initio and are liable to be cancelled. He pleaded that in the process of framing assessment, the Department has deliberately ignored the most relevant evidence in the shape of seized books of account which were found at the business premises of the company and also the statements of various employees, namely, Shri Jhala Ram, Shri Shanti Saxena and Shri Vikram Jindal, etc. recorded by Dy. Director of IT (Inv.) which unequivocally falsify the allegation of under-billing against the assessee. It was contended that search conducted on 13th Sept., 2003 under s. 132A was in the case of Shri Sandeep Bansal who was the branch manager of the assessee company at Jodhpur branch. In pursuance of search warrants two premises, namely, residence of Shri Sandeep Bansal i.e. A-38, Shastri Nagar, Jodhpur, and branch office premises i.e. C-62, MIA, Phase-II, Basni, Jodhpur, were searched. Panchnamas were drawn for both the premises wh....
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.... accounted for in the books of account of the branch office. Thus, it was pointed out and submitted that no incriminating material! evidence was found at the business premises of assessee at Jodhpur. 14. Referring to the facts relating to search of residential premises of said Shri Sandeep Bansal, it was submitted by learned Authorised Representative that the search operation commenced at 7.40 AM and statement of Shri Sandeep Bansal was recorded 10 minutes later at 7.50 AM. Thus, it was pleaded that it is quite intriguing to note that within 10 minutes' time, the authorized office had called the witnesses, carried out the search of the residential premises of Shri Sandeep Bansal and prepared the annexures of the seized documents and papers. To support, reference was made to the search papers and the statement of Shri Sandeep Bansal in which reference has been made to the documents listed in Annex. A1. It was submitted that it is quite significant to note that in the very initial stage of his statement, Shri Sandeep Bansal has happily volunteered the story to the authorised officer that he has been receiving cash payments on under-billing of the sale of SS flats at Jodhpur. In ....
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....n the said letter that said Shri Sandeep Bansal may be produced for cross-examination in order to enable the assessee to rebut the purported statement which admittedly has made by him to cause financial loss to the assessee company on the basis of fabricated material. The said affidavit was submitted by said Shri Sandeep Bansal during the course of the in-house enquiry conducted by the assessee company and the copy of affidavit was also given to AO along with the abovementioned letter. Though the AO had issued the summon to said Shri Sandeep Bansal for appearance on 21st Feb., 2006, but a letter was filed by the witness to seek an adjournment for a week on the ground that he was unwell. It was not justified that AO has proceeded to frame the assessment without enforcing attendance of the witness for cross-examination demanded by the assessee simply on the basis that affidavit filed by the assessee is an afterthought. Learned CIT(A) also has upheld the validity of action of AO solely on the basis that onus was on the assessee to produce said Shri Sandeep Bansal particularly when AO had issued summon to the said witness. It was pleaded that such conclusions and findings reached by CI....
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....be confronted with it and must be given an opportunity to controvert it. Reference was made to the decision of Hon'ble Supreme Court in the case of Union of India vs. T.R. Verma (1958) SCR 499 (507), wherein it has been observed by their Lordships that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no material should be relied on against him when he has not been given an opportunity of explaining them. 20. Reference was also made to the decision of Hon'ble Supreme Court in the case of C. Vasantlal & Co. vs. CIT (1962) 45 ITR 206 (SC) in which it has been held that the ITO is not bound by any technical rules of the material to facilitate assessment even by private enquiry but if he desires to use the material so collected, the assessee must be given an adequate opportunity of explaining it. Reference was also made to the decision of Hon'ble Supreme Court in the case of Kalra Glue Factory vs. Sales-tax Tribunal & Ors.....
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.... with which the records were passed on to the search party by said Shri Sandeep Bansal and inventorized and recording of his statement being within 10 minutes of the commencement of search depict a very unusual and intriguing picture. The false story of under-billing was spun out by said Shri Bansal before the authorized officer in impatient hurry in the very beginning of the statement before any specific question be put to him. Such fabricated documents cannot be the sole foundation for building a case of over-billing and on-money against the assessee. Reliance was placed on the decision of Tribunal in the case of Asstt. CIT vs. Dalamal & Sons Investment Co. (1993) 46 TTJ (Bom) 143 to contend that note book written by a disgruntled employee found at the business premises of the assessee cannot be the basis for proving charging of on-money in the real estate business. It was pleaded that the facts of the present case are on much stronger ground in favour of the assessee as the documents on the basis of which the addition is made were found from the residence of the employee and not from the business premises of the assessee. 23. Further reliance was placed on the decision of Hon&#....
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....tatement given by assessee's daughter was held not relevant or admissible against the assessee since no opportunity was provided to assessee to cross-examine her and it was found that even from the statement no conclusion could be drawn that the entries made in the seized document belong to the assessee and represented his undisclosed income. Following observations were quoted: "It is well-settled that the only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof. So unless and until the contents of the document are proved against a person, the possession of the document or handwriting of that person on such document by itself cannot prove the contents of the document." 26. It was pointed out that in that case the seized documents were recovered from the premises of the assessee himself and even then it was held by Hon'ble, High Court that CIT(A) and Tribunal were right in deleting the addition on the ground that the writer of the document has not been subjected to the examination. Reliance was also placed on following decisions to raise similar contentions: (1) Mohd. Usif AIR 1968 Bombay 112; (2) Ramji Das Daya ....
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....ng the years under reference and the company has sales depots in various cities all over the country, namely, Delhi, Mumbai, Chennai, Calcutta, Hyderabad, Ahmedabad and Jodhpur. While making the impugned assessments for asst. yrs. 2003-04 and 2004-05, the AO has accepted the sales turnover as shown in the books of the company as correct except in the Jodhpur branch for the limited period from 1st Jan., 2003 to 13th Sept., 2003 treating Shri Bansal's books as, gospel truth totally ignoring the fact that the same methodology of marketing its products is followed by the company at various branches including Jodhpur and the marketing strategies as well as policies and procedures for sale are controlled and monitored by its policy planning and control department at the head office. If the company is not indulging in under-billing at any of its sale depots all over the country, there is no earthly reason to imagine that the company would resort to under-billing at the newly opened branch at Jodhpur particularly when the sales rates shown by the assessee are admittedly higher than the market rates of other manufacturers. No charge of under-billing has been made by the AO in the preced....
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....sh, not even a small amount, has been found or seized by the authorized officer from Shri Bansal's residence or the branch office. (vi) It is significant to mention here that the false allegation regarding under-billing has been made by Shri Bansal in his statement at his house recorded at the back of the assessee and no such allegation has been made before the search party at the office premises of the company even though the Panchnama prepared in the case of Shri Bansal for search at the office premises of the company at Jodhpur makes a mention that a statement of Shri Bansal was recorded. (vii) The action of the AO in denying opportunity of cross-examining Shri Bansal, despite repeated requests made by the assessee company, has vitiated the legality of the impugned assessments. In the absence of opportunity of cross-examination, it is legally impermissible to rely on the seized documents. The binding decision of jurisdictional High Court i.e. Delhi High Court, in the case of CIT vs. S.M. Aggarwal is a direct authority on the issue as discussed above. A similar proposition which lays down the law of the land and hence is binding has been enunciated by the Supreme Court in....
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.... and seizure was conducted in the premises under the control of Shri Sandeep Bansal who is the employee (branch manager of the assessee company). There is no dispute with regard to the employment of Shri Sandeep Bansal with the assessee company. The documents/papers seized clearly established the fact of under-billing of sales made from time-to-time leading to the escape of income and thus, escaped income under such conditions could be added in the hands of the assessee since Shri Sandeep Bansal has never carried out business of manufacturer and sale of stainless steel/slabs, flats, coils, bladed steel, black coin, etc. 32. It was pleaded that it is a technical plea of the assessee that provisions of s. 153A could not be invoked and the same is not correct. The assessments have been made after validly initiated search and seizure operation in the case of the employee of the assessee company and not of any third person unrelated to the assessee company. The whole exercise of search and seizure action is aimed at the exposing of the clandestine activities of earning income etc. outside the books of account by resorting to the under-billing as discussed by the AO and approved by the ....
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.... was pleaded by learned Departmental Representative that assessee company was put on sufficient notice by the AO with regard to his intention to tax the assessee company on unaccounted income earned by it in terms of under-billing thus, on technical grounds such addition could not be deleted. 35. It was further pleaded that collection of taxes should not be bogged down on account of technical considerations. Being an enactment aimed at collecting revenue, the legislature did not intend collecting revenue to be bogged down on account of technical plea of jurisdiction. Reference was made to decision of Allahabad High Court in the case of Hindustan Transport Co. vs. IAC (1991) 189 ITR 326 (All). 36. It was pleaded that Department cannot be made worst of by conducting the search and seizure of operations as the additions which could have been made in the regular assessments stand unaddressed, the moment the assessments made under s. 153A are held to be null and void on technical grounds and for venial breach of law. The AO has rightly acquired the jurisdiction over the assessee to tax the unaccounted income after search and seizure operations were conducted in one business premises o....
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....d that learned Authorised Representative heavily relied on the observance of principle of natural justice for which there cannot be two opinions and lower authorities have given sufficient and reasonable opportunity to the assessee to defend its case therefore, the grounds of reasonable and sufficient opportunity should also be dismissed. 41. Learned Departmental Representative further pleaded that it has been the contention of learned Authorised Representative that other offices of assessee company were not subjected to search and seizure operation. Learned Departmental Representative pleaded that no assessee can dictate to the Department as to which place is to be searched. It depends on various factors and circumstances of the case and information available with the Department. 42. Reference was made to the decision of Bombay High Court in the case of Gordhandas Hargovandas & Anr. vs. CIT (1979) 12 CTR (Bom) 19 : (1980) 126 ITR 560 (Bom) in which it has been held that though in isolation each piece of evidence may appear to be of little weight, on an overall appreciation, it would be permissible to consider their cumulative effect and decide one way or the other. 43. Concludi....
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.... not in the name of the assessee company but were in the name of Shri Sandeep Bansal but learned Departmental Representative wanted time to produce such warrant to support his arguments that warrants are in the name of branch office of the assessee. This case was argued by both the parties on 25th Feb., 2008 and after completing argument learned Departmental Representative sought one month's time to produce copy of search warrants. Similar time was earlier sought by learned Departmental Representative. However, keeping in view the interest of justice further time was given to learned Departmental Representative and the appeals were adjourned to 17th March, 2008 when learned Departmental Representative produce the copies of search warrants, the relevant portion of which has already been reproduced in the above part of this order. There also the search warrant are in the name of Shri Sandeep Bansal only and are not in the name of the assessee company. Thus, prerequisite condition of search being initiated in the case of assessee is not fulfilled. However, here, it may be the contention of the Revenue that the place where search is conducted is place possessed by the assessee comp....
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.... account or other documents or any assets were requisitioned under s. 132A, then, the books of account, other documents or assets seized or requisitioned shall be handed over to the AO having jurisdiction over such other person and that AO shall proceed under s. 158BC against such other person and the provisions of this chapter shall apply accordingly. 153C. (1) Notwithstanding anything contained in s. 139, s. 147, s. 148. s. 149, s. 151 and s. 153, where the AO is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in s. 153A, then the books of account or documents or assets seized or requisitioned shall be handed over to the AO having jurisdiction over such other person and that AO shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of s. 153A: Provided that in case of such other person, the reference to the date of initiation of the search under s. 132 or making of requisition under s. 132A in the second proviso to s.....
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.... and these have draconian consequences and such proceedings can be initiated only if search is conducted because when these provisions are attracted legal presumptions are raised against the assessee and burden also shifts on the assessee. In view of these observations, it will be incorrect to say that non-fulfilment of conditions precedent for invoking provisions of s. 153C is merely a technical defect which can be cured. Reference here also can be made to the decision of Hon'ble Calcutta High Court in the case of Sunrolling Mills (P) Ltd. vs. ITO (1986) 54 CTR (Cal) 268 : (1986) 160 ITR 412 (Cal), wherein the AO had proceeded on the basis of s. 147(b) and AO sought to justify the proceedings at the time of reassessment as if they were taken under s. 147(a). There is a difference between these two sections as under s. 147(b) the requirement is that the information should come to the AO subsequent to the making of original assessment, whereas s. 147(a) requires that escapement of income has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. It was observed by their Lordships as under....
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.... ground that the section under which return was filed namely that s. 14(1), 14(2) or s. 17 was not made clear as none of three sections was struck off in the notice. It was held that same did not affect the validity of notice under s. 18(2) as assessee had understood the notice and also complied with the same by giving the explanation for the delay in filing the return. It was also admitted by the assessee that he did not file return under s. 14(1) but he filed belated return and thus, it was held that s. 42C attracted and notice was valid. In that case there was some mistake in the issue of notice as irrelevant sections were not struck off and assessee had complied with the notices, therefore, it was held that it was a mere mistake ,covered by the provisions of s. 42C of WT Act (similar to s. 292B of the IT Act). It may be mentioned here that assessee in the present case right from the beginning had put a protest to the AO to contend that no search operation has been conducted under s. 132(1) of the Act in the case of assessee, therefore, provisions of s. 153A are not applicable and this protest was placed on record vide letter dt. 17th Feb., 2005, a copy of which is placed at pp.....
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....us IT authorities and the various IT authorities are of co-ordinate jurisdiction and it was observed that such a defect arising from allocation of functions is a mere irregularity which does not effect the resultant action. In our considered opinion, no support can be drawn by Revenue from the said decision to uphold the validity of assessment framed under s. 153A in the present case as non-fulfilment of conditions laid down in ss. 153A and 153C is neither a procedural defect nor administrative defect but it relates to jurisdictional defect. 55. In view of above discussion it is held that the assessments framed in the present case under s. 153A are invalid and are quashed. 56. Though it has been held by us that assessment framed are invalid but for the sake of completeness we also decide the other issues raised in these appeals. 57. The assessment, as contended by learned Authorised Representative, is also bad on account of non-observance of principles of natural justice. Vide letter dt. 22nd Dec., 2005 submitted to AO it was mentioned in para 10 of the said order that AO is drawing adverse inference from the statement of Shri Sandeep Bansal which was recorded during the search ....
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....tain assumed figures on the basis of which he could allege that the company had received money by under invoices of the sale bills and also he intended to handover the said fabricated record to any Government authority with an intention to cause damage to the company if his request for increment in salary and for other benefits would not have been favorably accepted. 59. In view of above-mentioned repeated requests, the AO was under legal obligation to provide the assessee with an effective opportunity to cross-examine said Shri Sandeep Bansal for keeping observance to the principles of natural justice. Mere sending the summons to said Shri Sandeep Bansal for which the adjournment sought cannot be said to be an effective opportunity. It is not the case of the Revenue that whereabouts of said Shri Sandeep Bansal were unknown to the Department; as when the summons were issued to him he sought adjournment for a week from the Department and this fact is recorded in the assessment order itself. The summon issued to said Shri Sandeep Bansal was for appearance on 21st Feb., 2006 on which he sought adjournment for a week on the ground that he was not feeling well. The assessment has been ....
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....e held justified on the basis of documents found from the residential premises of said Shri Sandeep Bansal unless positive material is brought on record by the Revenue that the assessee in fact had received any extra money on account of over-billing. There is complete absence of such material. 60. The reliance by learned Departmental Representative on the decision in the case of Atul Traders vs. ITO is also misplaced as in the said case it was observed by their Lordships that the assessee was given opportunity of hearing. It was further observed that object of giving notice was to inform a person concerned with the matter and if that person receives information/notice by any source and, thus, had opportunity of defending him, then, the mere fact that notice as per statutory provisions, or in a particular mode prescribed under law, has not been given, will not vitiate the action/decision for the reason that purpose of giving notice was achieved and no prejudice is caused to the concerned on this score. But, the facts in the present case are totally different. In the present case, the assessee has been demanding the cross-examination of the person on the basis of whose statement add....
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.... an affidavit which remains uncontroverted must invariably be accepted as true and reliable, the facts in the present case are totally different. Neither the statement of the said Shri. Sandeep Bansal has undergone a test nor affidavit submitted by him has undergone a test. Therefore, nothing conclusive can be inferred either from statement or from affidavit. The question in the present case is that whether there was any evidence which has been put to test to establish that there was any collection by the assessee on account of under-billing in respect of sales made by it? Therefore, the case of CIT vs. Durga Prasad More has no relevance for deciding the present case. 64. The decision of Hon'ble Bombay High Court in the case of Gordhandas Hargovandas & Anr. was relied upon by learned Departmental Representative to contend that each piece of evidence though may appear to be of little weight, but taking an overall appreciation, it will be permissible to consider their cumulative effect for deciding a matter one way or the other. Such contention of learned Departmental Representative has no relevance for deciding the present case as the so-called evidence on the basis of which ad....
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....amount was paid to N. The AO treated the said amount as income of the assessee from undisclosed sources. It was held by Hon'ble Supreme Court that such addition was not justified. The burden of proof was on the Revenue to prove that amount belonged to the assessee. Letters of the bank manager, in absence of same being supplied to the assessee, could not be used against the assessee as manager was also not examined by the Department and there was no positive evidence for the conclusion that such amount belonged to the assessee. 69. In the case of CIT vs. SMC Share Brokers Ltd., Hon'ble Delhi High Court has held that in the absence of the third party being made available for cross-examination despite repeated requests by the assessee, his statement could not be relied upon to the detriment of the assessee and Tribunal was held justified in setting aside the block assessment. In the said case the statement of Shri Manoj Aggarwal was recorded on the basis of which addition was made in the case of assessee in block assessment proceedings. Said Shri Manoj Aggarwal was a third party. The assessee made repeated requests to cross-examine said Shri Manoj Aggarwal. It was observed by....
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....here is an allegation of having receipt extra consideration, and it is denied by the assessee by producing sufficient evidence to contend that such allegation of having received extra consideration is not supported by surrounding facts, the said evidence cannot be rejected on the face of it without making verification in this regard. The evidence submitted by the assessee was documentary evidence containing all necessary particulars which included name of the seller, name of the buyer, type of commodity, its quantity and rate. The parties between whom these transactions were made were also identifiable from where relevant enquiries could be made. Such evidence could not be rejected merely on the ground. that the statement of said Shri Sandeep Bansal has more evidentiary value than the evidence produced by the assessee. It has already been pointed out that the said statement did not have any evidentiary value unless the same was put to the test of cross-examination. Learned CIT(A) also could not find any defect in the submissions of the assessee that the rate charged by it was comparable with the rates charged for similar goods by the other manufacturers. Though it has been observed....