TMI Blog2017 (10) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuance thereto is also invalid. Assessee is confronted with the adverse material in possession of the Assessing Officer, he cannot be expected to rebut them considering the fact that the from very beginning the assessee has consistently stated that he has not paid any on-money over and above the declared sale consideration. The learned Commissioner (Appeals) while deciding the issue has clearly brought out the aforesaid factual aspect in his order. Commissioner (Appeals) that once the assessee has furnished the details of transactions relating to purchase of flat and has stated that he has not paid on-money over and above the declared sale consideration, burden shifts to the AO to falsify assessee's claim by bringing cogent evidence on record. Merely, referring to certain adverse material and statement of third parties, but, without confronting them to the assessee the AO cannot make the addition. No infirmity in the order of the learned Commissioner (Appeals) in deleting the addition. Accordingly, we uphold the order of the learned Commissioner (Appeals) by dismissing the ground raised by the Revenue. - ITA no.2574/Mum./2017, C.O. no.208/Mum./2017 (Arising out of ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment order before the first appellate authority both on the legal issue of validity of re-opening under section 147 as well as on the merits of the addition made. 4. The learned Commissioner (Appeals) while upholding the exercise of power under section 147 of the Act, however, deleted the addition made by the Assessing Officer while considering the issue on merits. The learned Commissioner (Appeals) observed, during the assessment proceedings, the assessee has furnished necessary details in support of his claim that no on-money was paid other than the declared sale consideration of ₹ 1,75,45,800. He found, though, the Assessing Officer in the assessment order has observed that the addition was made on the basis of information received from Investigation Wing of the Department, however, no such information or adverse material indicating payment of on-money was either provided to the assessee or confronted to him. He observed, the Assessing Officer relied upon the statement recorded from the directors and promoters of Hiranandani Group for making the addition on account of on-money. However, he has neither provided copy of such statements to the assessee nor all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon, they were neither confronted to the assessee nor assessee was given opportunity to cross-examine them. He submitted, even though the assessee has repeatedly requested the Assessing Officer to confront / provide copy of adverse materials in his possession, however, the Assessing Officer never provided them to the assessee and has arbitrarily made the addition. He, therefore submitted, the learned Commissioner (Appeals) was justified in deleting the addition. 8. We have heard rival contentions and perused the material available on record. As far as the legal issue raised by the assessee in the cross-objection challenging the validity of re-opening of assessment under section 147 of the Act is concerned, the submissions of the assessee is two-fold. Firstly, there is no sanction / approval by the competent authority before issuance of notice under section 148 of the Act and secondly, the objection of the assessee was not dealt with independently by the Assessing Officer before completion of assessment. As far as the second contention of the assessee is concerned, we find from record that the Assessing Officer issued notice under section 148 of the Act on 30th March 2014. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Of-course, in a case where period of four years has expired from the relevant assessment year, such sanction / satisfaction has to be obtained from Principal Chief CIT or Chief CIT or Principal CIT or CIT. As per sub-section (2) of section 151 in a case which does not fall under sub-section (1) no notice shall be issued under section 148 of the Act after expiry of four years from the end of relevant assessment year by the Assessing Officer below the rank of Jt. CIT unless Joint CIT records his satisfaction / sanction for issuance of such notice. Admittedly, in the facts of the present case, sub-section (2) of section 151 is applicable as there is no assessment under section 143(3) or 147 of the Act earlier and the re-opening is after expiry of four years from the end of relevant assessment year. It is also to be noted that the authority issuing notice under section 148 is below the rank of Joint CIT. Therefore, as per the provisions of the Act, sanction / approval of the Joint CIT was essential for issuance of notice under section 148 of the Act. 10. From the notice issued under section 148, it is evident that the Assessing Officer has obtained sanction of the CIT an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided to the assessee nor confronted to him. Further, the statement recorded from third parties which were relied upon by the Assessing Officer for making the addition were neither confronted to the assessee nor the assessee was permitted to cross-examine the concerned persons. Neither in the assessment order the Assessing Officer has discussed in detail the nature of information / material available with him directly implicating the assessee for paying on-money for purchase of flat nor the learned Departmental Representative has brought on record any such material as may be available with the Assessing Officer. It is evident from the assessment order, the Assessing Officer without disclosing adverse material / information available with him to the assessee during the assessment proceedings, has simply called upon the assessee to furnish the name of persons who according to the Assessing Officer negotiated for purchase of flat between the assessee and the builder. Unless, the assessee is confronted with the adverse material in possession of the Assessing Officer, he cannot be expected to rebut them considering the fact that the from very beginning the assessee has consistently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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