TMI Blog2011 (12) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... shi, Sonia Gokani, JJ. Prakash K. Jani and Kirtikant Thaker for the Appellant Mauna M. Bhatt for the Respondent JUDGEMENT Soni Gokani: 1. The appellant-assessee, being aggrieved by the order of Income Tax Appellate Tribunal dated 9.1.2009, has preferred the present Appeal under section 260-A of the Income Tax Act, 1961, (hereinafter referred to as "the Act") proposing the following questions of law for determination of this Court: 1. Whether the ITAT is right in law and on facts in restoring the addition of Rs.30,16,000/- deleted by the CIT(A) on the ground that the addition was made on the basis of statement of third party unverified by way of cross examination, in spite of specific direction of CIT(A) in pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appellant. 3. As can be noted from the record, during the search of residential premise of Shri Hitesh R.Shah, various books of accounts and other documents were seized, one of them was a loose paper marked at annexure A-1. On the basis thereof, an addition was made by the Assessing Officer to the tune of Rs. 30,16,000/- in the income of the present appellant vide assessment order dtd. 30.03.2000. This was done on the ground that Shri Hitesh Shah and late father of present appellant had jointly signed the said document. Statement of Shri Hitesh Shah when recovered u/s. 132(4) of the I.T.Act, that revealed that he received the impugned amount from the present appellant and further revealed that the same reflected the liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the revenue vide its impugned order dated 9.1.2009, which is challenged in the present Tax Appeal proposing the aforementioned questions of law for consideration. 10. Though questions proposed are more than one, the issue essentially is of addition made to the tune of Rs.30,16,000/- to the income of the present appellant, relying on the statement of the 3 rd party as also on the basis of affidavit made by the legal heirs of the appellant who was four years old at the time of search made of the premise. 11. Learned counsel Shri Kirtikant Thaker fervently argued in support of contents of the Appeal Memo and urged that there is not a single word uttered by the Tribunal as to how the order of CIT(Appeals) is fallacious. The affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Shri Hitesh Shah and urged that no addition could be made merely on such a statement when no opportunity of cross-examination was given. Admittedly Shri Hitesh Shah did not remain present and instead his Chartered Accountant attended the proceedings. Assessing Officer however concluded that the amount of Rs.30,16,000/- needed to be treated as "unexplained investment" and the same was taxed u/s. 69 of the Act. 15. CIT (Appeals) deleted the said addition on the ground that Shri Hitesh Shah was not offered for cross-examination. Although specific direction was given by the CIT(Appeals) to the Assessing Officer while directing de novo proceedings Mr.Hitesh Shah did not remain present personally for cross-examination. On the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned AR before the CIT(A) that mere jottings and notings should not be the basis for making any addition in the returned income, more particularly when almost all seized material have been explained by incorporating the same in the form of books prepared as per the directions of the then AO, in which the assets being more the unaccounted assets and the valuable are offered to tax and source being less can not be taxed twice. We find that the assess has also submitted that in the assessment proceedings of Bhunuvijaysing, the same has been treated as an asset and taxed accordingly. However, the unaccounted assets as were found during the course of search represents the assets belonging to Bhunuvijaysingh to the extent of liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an affidavit to hold that no liability had been accepted in the affidavit filed. It is true that no elaborate reasonings are given by the Tribunal to assail the order of CIT(Appeals). However, that itself cannot be a ground for this Court to set aside the order of Tribunal. The fact remains that the entire issue is based on factual aspects and the Tribunal by giving cogent reasons deleted such an addition qua the maker of the statement while dealing with the Tax Appeal preferred by Shri Hitesh Shah by way of common order only. What has predominantly weighed with the Tribunal is the fact that the loose paper had clearly indicated the amount given by Shri Bhanuvijaysingh by way of loan. Moreover, it can be noted from the order of Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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