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TMI Blog2006 (10) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing questions of law : "(i )whether on the facts and in the circumstances of the case, the Tribunal is legally justified in holding the initiation of proceeding under section 148 valid without mentioning the reasons recorded for the initiation of the proceeding and without giving any reason? (ii)whether in view of the fact that the reasons recorded has not been communicated to the appellant which appellant had a right to get, Tribunal is legally justified in holding that there was violation of the principles of natural justice in this regard without adjudicating the real issue? (iii)whether the Tribunal is legally justified in confirming the addition under section 69C relying upon the statement of Sri Mohd. Shamim Khan which was taken at the back of the appellant without giving opportunity of cross examination? (iv)whether the observation of the Tribunal with regard to cross examination of Sri Mohd. Shamim Khan is legally correct and in accordance with law? (v)whether the statement of Sri Mohd. Shamim Khan which was taken on the back, the appellant could be relied upon against the appellant without giving opportunity of cross examination? (vi)whether the obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of these credits were on account of clearing of cheques of local Banks as such Punjab National Bank, Shahid Ganj, Saharanpur and Allahabad Bank, Saharanpur. Enquiries from these banks revealed that the cheques from Allahabad Bank were issued from Saving bank account No. 3896/18 in the joint names of Smt. Farhat Khanam (w/o appellant) & Mohd. Shamim Khan (appellant). The cheques from P.N.B. were issued out of Saving Bank account No. 39112 in the name of the appellant himself. (c )A perusal of these Savings account revealed that the cash has been deposited in these accounts and the money has been transferred to the account from which gifts have been made by clearing cheques e.g., cash of ₹ 2,30,000 has been deposited in Saving Bank account No. 39112 on 27-1-1995 of Mohd. Shamim Khan and a sum of ₹ 2,00,000 has been transferred to the above mentioned account on 31-1-1995. Similarly, cheques have been issued from the other accounts after depositing cash in the same. (d)Summons were issued to Sh. Mohd. Shamim Khan and his statement was recorded by the Assessing Officer on 12-12-1997. He stated on oath that his family consisted of himself, his wife, one widow mother and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants in the form of a show-cause notice. The appellants were required to prove the genuineness of the credit entry. It may be mentioned here that the appellants had not maintained books of account and they had filed the affidavit of the donor and the genuineness was being claimed with reference to the same. 6. The Assessing Officer examined the statement of Sri Mohd. Shamim Khan, which was recorded under section 131 of the Act, and concluded on the basis of the said statement that it was a case of Hawala receipt. The gift cheques were purchased by paying equal amount in cash and a commission of 10 per cent over and above that amount. As expenditure was incurred in purchase of the same NRI gifts, the source of which was not proved, provisions of section 69C of the Act were found to be attracted. The Assessing Officer vide letter dated 26-2-1998 had given an opportunity to the appellants to attend his office on 5-3-1998 at 3-00 P.M. for cross-examination of the donor Sri Mohd. Shamim Khan which was adjourned to 9-3-1998. The appellants instead of cross-examining the donor, submitted their reply on 9-3-1998 raising legal issues seeking adjournment. The Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appellants cannot be said to have suffered any prejudice; more so when the proceedings under section 147/148 have not been challenged by them. According to him, the Assessing Authority had informed the appellant about the date and time for cross-examination of Sri Mohd. Shamim Khan, which was initially fixed for 5-3-1998 at 3-00 P.M. subsequently adjourned to 9-3-1998 and instead of cross-examining the said person, the appellants for reasons best known to them did not avail of the opportunity and filed legal objections. Thus, it cannot be said that the opportunity of cross-examination was not afforded to the appellants. The additions made under section 69C of the Act have been justified. 10. We have given our anxious consideration to the various pleas raised by the learned counsel for the parties and find that the appellants have not challenged the initiation of proceedings under section 147/148 of the Act and their only grievance is that they were not supplied the full reasons which had been recorded by the Assessing Authority for forming his belief. It is not in dispute that the gist of the reasons had been supplied by the Assessing Authority in the form of show-cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to him to cross examine the witness, he did not avail this opportunity. The deposition recorded under section 131 of the Act was relied upon in framing the assessment. The statement was recorded under oath. Therefore, it is a valid piece of evidence and, in our opinion Revenue authorities rightly considered the same for the purpose of deciding the issue." 12. From the order of the Tribunal reproduced above, we find that despite sufficient opportunity having been given to the appellants to cross examine the witness they did not avail of this opportunity. Sri Mohd. Shamim Khan had given an affidavit in support of the appellants' claim which subsequently on statement being recorded under section 131 of the Act did not inspire confidence. The opportunity to cross examine on 9-3-1998 was provided to the appellants which they did not avail of and, therefore, the appellants have no cause to complain The question Nos. 4, 5 and 6, thefore, cannot be said to be substantial questions of law. In the case of Indian Card Clothing Co. (P.) Ltd. (supra), the question before the Bombay High Court was whether under section 15C of the Indian Income-tax Act, 1922, machinery and plant used ..... X X X X Extracts X X X X X X X X Extracts X X X X
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