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TMI Blog2018 (7) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... hese appeals are taken up together for adjudication and are disposed of vide this common order. 3. The brief facts of the case as emanating from records are: The assessee is engaged in the business of trading in building material, steel, binding wire etc. Assessments of the assessee for assessment years 2009-10, 2010-11 and 2011-12 were re-opened on the basis of information received by the department from Sales Tax Department indicating assessee's involvement in transactions with Hawala operators. Separate notices u/s.148 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') was issued to the assessee on 24.02.2014 for impugned assessment years. The assessee did not reply/ file return of income for the impugned assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the findings of the Commissioner of Income Tax (Appeal) in rejecting assessee's challenge to validity of proceedings u/s.148 of the Act as well as confirming disallowance to the extent of 25% of the alleged bogus purchases. 6. Shri Pramod Shingte appearing on behalf of assessee submitted that additions have been made at the back of assessee without affording opportunity to cross examine the parties. The ld. AR contended that the assessee could not participate in assessment proceedings on account of medical exigency. The detailed facts were narrated before the Commissioner of Income Tax (Appeal) by assessee for non appearance of the assessee before Assessing Officer. The assessee had sought an opportunity from Commissioner of Income Tax(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther decisions held that where opportunity of cross examination has not been afforded to the assessee, additions are not sustainable. 7. Per contra, Shri Ajay Modi representing the Department vehemently defended the order of Commissioner of Income Tax (Appeal) in rejecting assessee's contention challenging validity of re-assessment proceedings on the ground of not allowing an opportunity of cross examination. The ld. DR submitted that the case laws on which the assessee has placed reliance are distinguishable. In all the cases cited by the ld. AR, the assessee participated in assessment proceedings and had specifically asked for an opportunity to cross examine the witnesses. In the present case, assessee never participated in the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erators supplied by Sales Tax Department to the Income Tax Department. The Assessing Officer made addition of the entire amount of alleged bogus purchases made from hawala operators. During the proceedings before the Commissioner of Income Tax (Appeal), the assessee for the first time asked for the opportunity to cross examine the hawala operators whose statements were used for re-opening the assessment. 9. The assessee in first appeal challenged the validity of re-opening of assessment apart from assailing the addition on merits. The Commissioner of Income Tax (Appeal) rejected the assessee's objection against re-opening. However, on merits of the addition the Commissioner of Income Tax (Appeal) granted part relief to the assessee by rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never participated in the assessment proceedings, therefore, the question of asking and granting opportunity to cross examine does not arise. During First Appellate proceedings, the assessee made request to cross examine the witnesses whose statements were used for re-opening the assessments. Principles of natural justice demand that fair chance should be given to rebut the evidence used to make addition. Thus, an opportunity to cross examine the witnesses should be provided when the statements of witnesses are used against the assessee for re-opening assessment resulting into addition of income. 12 Taking into consideration entire facts of the case, we deem it appropriate to restore these appeals to the file of Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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