TMI Blog2015 (3) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... Share Brokers Ltd. (2008 -TMI - 3387 - DELHI HIGH COURT) to concluded that once there was violation of the principles of natural justice, in as much as seized material was not provided to an assessee nor was cross-examination of the person on whose statement the Assessing Officer relied upon granted, then such deficiencies would amount to denial of opportunity and would be fatal to the proceedings. Thirdly Shri Chetan Gupta has denied recovery of the pen-drive and also the impugned transactions in the statement recorded by the Assessing officer on 16.11.2009, so however, even if it is accepted that the pen-drive was recovered from shri Chetan Gupta, then, it only amounts to a third-party evidence and could not be straightaway relied upon without being tested in cross-examination or on the basis of any corroborative evidence. For the aforesaid proposition, we are fortified by the judgment of Hon’ble Delhi High court in SMC Share Brokers Ltd. (supra) and S.M. Aggarwal (supra) and also Chiranjil Lal Steel Rolling Mills (1970 (11) TMI 30 - PUNJAB AND HARYANA High Court). The information received by the Assessing officer from his investigation Wing, at best, be regarded as a prima-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from said Sh. Chetan Gupta. It was also informed that the names of certain persons appearing in the data of the said pen-drive were found and deciphered. As per the information, one name that appeared in the printout of the data on pen-drive was N.S. the identity of which was deciphered as Natwar Singh, the assessee. From the printout of the ledger account in which the name N.S. was entered into, which was made available to the AO from the data of the said seized pen-drive, the AO noticed that there were credits/ deposits in the account of N.S. aggregating to ₹ 25 lakhs + ₹ 5.50 lakhs as interest. The details contained in the printout of the ledger account of N.S. were as under:- 17 INT/MAR 1,00,000.00 Apr 28 APR 1,00,000.00 May 31 NS M/O MAY 1,00,000.00 Jun 30 NS M/O JUN 1,00,000.00 Jul 31 JUL 1,00,000.00 Aug 31 NS/AUG 1,00,000.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation of the assessee and made the addition of ₹ 30,50,000/- to the declared income of ₹ 5,98,230/-, thus totaling ₹ 36,48,230/-. 9. On appeal, the ld CIT(A) has deleted the addition by holding as under:- 22. Now coming to merits of the aforesaid additions as made by the learned assessing officer, I find that there is no evidence which have been brought on record by the learned A. O. that the assessee had made an investment and such an investment stated to be credited in the books of accounts of third party namely Shri Chetan Gupta has been established to be the investment of appellant In my opinion it was the burden on the ACIT to establish that credits in the books of accounts of Shri Chetan Gupta which were in the shape of a pen drive, a print out of which was placed on record, were the investments made by the appellant. In the instant case the learned A.O. has not recorded any statement of Shri Chetan Gupta who could have deposed that the credits in the pen drive were of the assessee. Further, the learned A.O. has also not been able to bring any material whatsoever to support that credits in the pen drive were that of the appellant. 23. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of CIT vs Raninder Singh (a parallel and identical case found from List in Pen drive) wherein the High Court in its judgement observed as under:- there is no evidence in the possession of the revenue authorities to prove that the assessee ever paid cash to Shri Chetan Gupta except the so called report of ADIT Investigation, Ludhiana, which in turn is based on the report of Superintendent of Police, Ludhiana. However, neither the report of the SP, Ludhiana is available to the assessing officer much less to the assessee nor any statement was recorded by ADIT (Investigation) from Sh.Chetan Gupta to corroborate that any cash was paid by the assessee to Sh. Chetan Gupta on his deposition before the Assessing Officer clearly denied having received any cash. Shri Chetan Gupta also denied having given any statement admitting receipt of cash. Therefore, in absence of any evidence on record, the addition was not sustainable. It is strange to note that the assessing officer having recorded the statement of Shri Chetan Gupta chosen to remain silent. This proves that in the statement of Sh.Chetan Gupta was no adverse factor affecting the tax liability of the assessee. 27. Thus in my o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the revenue authorities to prove that the assessee over paid cash to Shri Chetan Gupta except the so called report of ADIT (Investigations), Ludhiana, which in turn is based on the report of Superintendent of Police, Ludhiana. However, neither the report of SP, Ludhiana is available to the Assessing officer much less to the assessee nor any statement was recorded by ADIT (Investigation) from Sh. Chetan Gupta. On the contrary Sh. Chetan Gupta on his deposition before the Assessing Officer clearly denied having received any cash. Shri Chetan Gupta also denied having given any statement admitting receipt of cash. Therefore, in absence of any evidence on record, the addition was not sustainable. It is strange to note that the Assessing Officer having recorded the statement of Sh. Chetan gupta chosen to remain silent. This proves that in the statement of Shri Chetan Gupta there was no adverse factor affecting the tax liability of the assessee. Accordingly, the addition was rightly deleted by the learned CIT(A). 13. The aforesaid order was affirmed by the Hon ble High Court of Delhi on 28.02.2011, wherein, the Hon ble High Court held as under:- A pen drive of one Mr. Cheta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 13. Therefore, respectfully following the decision of Hon'ble High Court of Delhi which was rendered Vide order dated 28.02.2011 on identical facts and circumstances in the case of Sh. Raninder Singh, Hon'ble ITAT, Chandigarh 'B' Bench Vide order dated 30.06.2010 in the case of Maharaja Sh. Amarinder Singh in IT Act, 1961 No. 505/CHD/2009 for assessment year 2001-02 passed on identical facts and circumstances, CIT(A) XXX, New Delhi Vide order dated 26.03.2013 passed in appeal nos. 1181 and 1152/2012-13 for assessment years 2003-04 and 2004-05, in case of Sh. K. Natwar Singh, appellant's husband, I hold that the impugned addition made by the Assessing Officer is liable to be deleted on similar facts and circumstances. Accordingly, the addition of ₹ 34,83,206/- made by the Assessing Officer is therefore deleted. This ground of appeal is therefore, allowed. 14. Furthermore, even in the case of Capt. Amrinder Singh, the co-ordinate Bench of this Tribunal had examined this matter and vide order dated 30th June 2010 deleted the additions. In the said order the bench had referred to the statement of Shri Chetan Gupta and noted as under:- The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady denied the recording of any pen-drive. Therefore, no question of explaining the above entries arises. 13. From the aforesaid replies, it is evident that Shri Chetan Gupta has denied any transactions with the assessee, and in fact Q.No.3 reproduced above, covers the period under our consideration. 15. In the light of the aforesaid statement, the c-ordinate Bench of the Tribunal was pleased to order as under:- 14. Considering the aforesaid factual matrix. In our considered opinion, it does not stand established that the assessee has made the impugned investment. We say so for the reason that the burden to establish the existence of impugned investment was on the Revenue, which, in the present case has not been discharged. Firstly, assessee denied the impugned transaction. Secondly, the claim of the Assessing Officer is based on the alleged evidence found on Shrl Chetan Gupta, and quite clearly said witness has not been confronted to the assessee at any stage during the course of assessment, although the same was specifically pleaded by the assessee. The said person is the witness of the revenue because it is on the basis of his testimony, It has been held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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