TMI Blog2013 (7) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 - - - Dated:- 5-7-2013 - SHRI G.C.GUPTA VICE PRESIDENT SHRI ANIL CHATURVEDI, A.M. For the Appellant : Shri Rahul Kumar,Sr. D.R. For the Respondent : Shri S.N. Soparkar A.R. ORDER PER SHRI ANIL CHATURVEDI,A.M. 1. These two appeals, one filed by the Revenue and the other filed by Assessee arise out of against the order of CIT(A)-II, Ahmedabad dated 18.08.2009 for assessment year 2006-07. 2. The facts as culled out from the order of lower authorities are as under. 3. A search and seizure action was conducted in the case of Jivraj Group on 7.03.2006 wherein certain documents related to the Assessee was seized. In the statement Shri Viren Shah disclosed unaccounted income of ₹ 2,88,00,000/-. The Assessee filed its return on income for A.Y. 2006-07 on 30.12.2006 and the case was selected for scrutiny and thereafter assessment was framed under Section 143(3) vide order dated 31.12.2007 and the total was assessed at ₹ 4,37,87,140/-. Assessee carried the matter before CIT(A). CIT(A) vide order dated 18.08.2009 granted partial relief to the assessee. Aggrieved by the aforesaid order of CIT(A) both Assessee and Revenue are in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer on account of unaccounted investment in the land. 2. The Ld. CIT(A) has erred in law and on facts that while deleting the additions he has failed to appreciate that the adjoining 2 plots of lands at Block No.444 and 446 will also fetch the same rate as admitted by the seller of plot at Block No.445 on oath and ignoring the fact that the same has been offered for taxation also. 3. The Ld CIT(A) has erred in law and on facts that he has failed to appreciate that in the Plot at Block No. 171 also one of the party was the same person who admitted the receipt of on money and offered the same for taxation. 4. The Ld CIT(A) has erred in law and on facts in deleting the additions of ₹ 1,20,84,360/- made on account of unexplained investment in land, without considering the on-money element involved in the transaction of purchase of adjoining plots to Plot No.445 in respect of which Shri Indravadan Prajapati admitted receipts of on-money and shown in his return and also in respect of addition of ₹ 25,52,780/-has been confirmed by Ld. CIT(A). 5. On the facts and in the circumstances of the case and in law, the CIT (A) ought to have upheld the order of the A.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A). 11. We have heard the rival submissions and perused the material on record. We find that the confirmation filed during the appellate proceedings was not accepted by the CIT(A) for the reason that the confirmation did not contain the complete address of the party, although it contained the PAN number of the lender. We are of the view in the interest of justice one more opportunity be granted to the Assessee to furnish the necessary evidence with respect to the receipts of loans. We therefore, remit the matter to the file of Assessing Officer and direct him to verify the evidence submitted by the Assessee and thereafter decide the issue as per law after giving a reasonable opportunity of hearing to the assessee. Thus this ground of the Assessee is allowed for statistical purposes. 12. Second addition is with respect to addition of ₹ 25,52,780/- made on account of unaccounted investment in land:- During the course of assessment proceedings, Assessing Officer noticed that Assessee has purchased six different piece of land in Village Nimlai and Parsoli in District Navsari. The description of land is as under:- S. No. Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by holding as under. 3.4 I have considered the facts and the submissions. The appellant's submissions that any finding of the inquiry conducted at the back of the assessee without confronting the finding of such inquiry with the assessee cannot be used against the assessee by the Assessing Authority for the purpose of drawing conclusions, is correct but in this case, the Assessing Officer has confronted the appellant the finding of the enquiry and asked to explain why on the basis of statement of Shri Indrawadan Intwala, the addition for on money payment be not made. Therefore, the argument of the appellant and the case laws relied on are not of any help to him. As per decision of ITAT Delhi Bench in the case of Roger Enterprises Pvt.Ltd. vs CIT 88 ITD 95, any statement of a person whose one of the party of the transactions, has evidentiary value and therefore, cannot be ignored. The appellant has purchased land from Indrawadan Intwala who is .the seller and who is accepting the receipt of 'on money'. Therefore, his statement is also has evidentiary value in the case of the appellant who is the purchaser. Shri Intwala not only accepted the receipt of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessee had purchased the land had in his statement had admitted to have received on-money on the sale of land by the Assessee and he had disclosed the unaccounted onmoney in his return of income for A.Y. 2006-07. Based on the statement of one of the seller, the Assessing Officer had made addition on account of unaccounted on-money for all the remaining 5 transactions of purchase of land. It is also a fact that the Assessee was neither given an opportunity to cross-examine the seller nor a copy of the seller s statement recorded during the course of such proceedings was given to Assessee. We therefore feel that to meet the ends of justice one more opportunity should be made available to the assessee to cross-examine the seller and for which we find support from the decision of Hon. Supreme Court in the case of ITO Vs. M.P. Choodi (supra) where in Para 3 the Hon. Apex Court has noted as under:- In this case, the High Court has set aside the order of assessment on the ground that no opportunity to cross-examine was granted, as sought by the Assessee. We are of the view that the High Court should not have set aside the entire assessment order. At the hig ..... 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