TMI Blog2017 (4) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... ging veracity of above section 161 statement. We therefore treat the same as sufficient opportunity for the assessee to contradict all the relevant information in challenging correctness of the said complainant's statements who could not have substantiated his misappropriation allegation without producing him. We thus conclude in view of all these facts that non examination of the above complainant at assessee's instance is in any way not fatal to the impugned addition. We accordingly hold that the abovestated hon'ble apex court's decision in Andaman Timber Industries vs. CIT [2015 (10) TMI 442 - SUPREME COURT] does not apply to facts of the instant case. The assessee's second plea raised in the course of hearing that neither he had appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 15,06,500/- on account of alleged unexplained investment. (2) The learned CIT (Appeals), Valsad failed to observe that the AO has acted in gross violation of the principles of natural justice by not allowing the appellant opportunity of being heard and to cross examine the third party whose statement recorded at the back of the appellant and relied upon by him and hence, the action of the AO patently in violation of the principles of natural justice as well in contravention of the provisions of law is liable to be struck down. (3) The learned CIT (Appeals), Valsad has erred in overlooking and in summarily rejecting the detailed statement of facts submitted alongwith memorandum of appeal, various documents and evidences place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4. The assessee preferred appeal. Ld. CIT(A) declines the same in the order under challenge with the following findings: 4.2 DECISION : I have carefully gone through the assessment order and the submissions made by the Id. AR. The fact of the case is that the appellant allegedly sent money to Shri. Riyazkamal Lokhandwala of M/s. Z. V. Steel, Mumbai through Angadia Company named M/s. Rameshkumar Ambalal Co. But due to the misappropriation of the same amount by one of the employees of Angadia Company named M/s. Rameshkumar Ambalal Co, the police intervention was saught and in the process the alleged amount became the subject matter of Income Tax proceeding. The main contentions of the Id. AR as submitted before me were; i. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s statement recorded on 24.05.2006. iii. The AO confronted all the materials collected from the Police Authority vide SCN dated. 26.12.2008. iv. The AO has established that the appellant has been in the know of the matter since 2005-06. 4.4 On careful consideration to the facts and circumstances, the core issue to be decided is that whether the money in question belongs to the appellant or not ? The facts originates from the police records suggests that the money belongs to the appellant as admitted by the Angadia. Two recepts were issued and one is on assessment records suggests that the Angadia has received money from the appellant for disbursing to Shri. Riyazkamal Lokhandwala of Mumbai. Before the Police Authority the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of cross examination of the above complainant before making the impugned addition in his hands. He quotes hon'ble apex court's decision in Andaman Timber Industries vs. CIT (2015) 62 taxmann.com 3 (SC) in seeking to annul the entire assessment. We however notice that page 9 of the paper book contains assessee's statement before the police authorities dated 24.05.2005 explaining his business relation with the Mumbai based party. He further appears to have supported complainant's version therein. We make it clear that this statement is in Marathi language. It was still read over to learned counsel in the course of hearing. He strongly contested the same by stating that the assessee had never appeared before the police auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the police authorities nor made any statement is also found to be devoid of merit in view of our discussion in preceding paragraphs. We further take note of Section 114(e) of the Indian Evidence Act to presume that once the assessee himself admits the above statement to have been recorded u/s.161 of the Code of Criminal Procedure it was an official act performed in due process of law in taking the assessee as a witness at the abovestated complainant's behest. We thus see no reason to interfere in well reasoned lower appellate findings extracted hereinabove. The same are confirmed. 7. This assessee's appeal is dismissed. [Pronounced in the open Court on this the 28th day of April, 2017. - - TaxTMI - TMITax - Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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