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TMI Blog2013 (12) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment was completed u/s. 144/143(3) r.w. section 147 of the Act on 24.3.1994 determining total income at Rs. 4,58,41,900/-. This assessment order travelled up to the Tribunal. The Tribunal vide its order dt. 13.5.2004 in ITA No. 949/Mum/2002 considered it fit to set aside the matter back to the files of the CIT(A) to decide the issue afresh. 5.1. During the course of the appellate proceedings, the assessee furnished several details from time to time including books of account. A remand report was called from the AO. The contents of the remand report called from the AO are exhibited at para 4.3 of the order of the Ld. CIT(A). The remand report was sent vide letter dt. 23.10.2011, in response to which the assessee filed his reply dt. 31.10.2011. The entire issue revolves around the books of account of the assessee. It is an undisputed fact that books of accounts were not produced before the AO during the course of the assessment proceedings. The books of accounts were furnished for the first time before the Ld. CIT(A) with a request for their admission as additional evidence under Rule 46A. 5.2. After considering the entire facts brought during the course of the assessment proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration, hence the assessee was not required to get his books audited. 7. The Ld. Departmental Representative strongly supporting the findings of the Ld. CIT(A) submitted that the assessee was notified as a notified person in the Harshad Mehta group cases on 8.6.1992 whereas the impugned financial year ended on 31.3.1991 much before the date when the assessee was notified as a notified person. The Ld. DR further submitted that the books of accounts were not found during the course of search and seizure operation in 1992. It is the say of the Ld. DR that it would be a futile exercise in accepting the book results when the entries do not tally with the seized documents. 8. We have carefully considered the rival submissions and perused the orders of the lower authorities and the relevant material evidences brought on record. Before proceeding further, it would be pertinent to consider the decision of the Tribunal in the case of M/s. Fortune Holdings Pvt. Ltd (supra) exhibited at pages 306 to 309 of the paper book wherein the Tribunal at para-5 on page-3 held as under: "We have heard the rival contention. We have also perused the paper book containing 170 pages filed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, therefore, confirm his order and dismiss the appeal." 9. In another order of the Tribunal which is very much relevant on the facts of the case is a consolidated order in respect of 11 cases of Shri Harshad Mehta group pertaining to different person where one of the party is the assessee in the present case. This order is exhibited at pages 310 to 315 of the paper book wherein the Tribunal has held inter alia as under: "All these facts and circumstances indicate that it was not possible for the assessee to complete assessee's books of account in response to summons issued u/s. 131(1) of the Act. Therefore, there is no force in the contention of Ld. Departmental Representative that assessee could prepare their books of account by click of mouse. Thus, the Ld. CIT(A) was right in coming to the conclusion that assessee had reasonable cause. The Tribunal finally concluded that the assessee was prevented by reasonable cause for not complying with the summons and revenue's appeal was accordingly dismissed." The reason for delay in preparation of the books of account has been admitted by the Tribunal. We do not find any reason why the same were rejected as being non admitted by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee also asked for granting inspection and copies of the materials relied upon by the AO. It was strongly contended that reliance on materials collected behind the back of the assessee is grossly in violation of the principles of natural justice and no addition can be made on the addition can be made on the basis of such evidences. The Ld. CIT(A) was not convinced with these submissions of the assessee and confirmed the additions made by the AO. 14. Before us, the Ld. Counsel for the assessee reiterated what has been submitted before the lower authorities and strongly submitted that additions in violation of the principles of natural justice cannot be sustained. 15. Per contra, the Ld. Departmental Representative submitted that since the assessee was shareholders in various companies. The assessee himself should have obtained the letter from the company directly. We do not agree with the submission of the Ld. DR. One of the basic principles of natural justice is that no evidence collected behind the back of the assessee could be used against the assessee unless an opportunity is given to the assessee to rebut the same. As the Revenue authorities have grossly erred in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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