9911796707
TMI Blog2018 (12) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, the ld. CIT(A) has erred both on facts and in law in confirming the addition which was made on the basis of material collected at the back of the assessee without giving his an opportunity to rebut the same in violation of the principle of natural justice." 2. Brief facts of the case are that assessee filed his e-return of income on 29.11.2014 declaring total income of Rs. 23,54,870/- and the same was processed u/s. 143(1) of the Income Tax Act, 1961 (in short "Act"). The case of the assessee was selected for scrutiny through CASS, accordingly notice u/s. 143(2) of the Act dated 28.8.2015 was issued and served upon the assessee. the assessee is a contractor and run his business under proprietorship concern names M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO is only on the basis of material collected at the back of the appellant for which no opportunity to cross examine the same was provided to the assessee and therefore, the said action of the AO is in gross violation of principle of natural justice...." She stated that the issue in dispute is squarely by the decision of the ITAT, SMC, Delhi Bench wherein the Tribunal vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014- 15) in the case of Smt. Jyoti Gupta vs. ITO has allowed the appeal of the assessee on similar facts and circumstances. Hence, requested to follow the aforesaid case and allow the appeal of the assessee. 4. Ld. DR relied upon the orders of the authorities below and relied upon the following cases laws:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he I.T. Act and now the assessee is claiming opportunity of cross examination and wrongly upheld the AO's order, which is not proper. I further note that exactly on the similar facts and circumstances the ITAT, SMC, Delhi Bench vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO wherein, the SMC Bench has considered the statement of Vikrant Kayan and has held that since the impugned addition was made on the statement of Sh. Vikrant Kayan without providing any opportunity to the assessee to cross examine the same and Ld. CIT(A) has not considered the same ground, which is in violation of principle of natural justice and against the law laid down by the Hon'ble Supreme Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal." 14. Considering the facts of the case in totality, I do not find any merit in the impugned additions. The findings of the CIT(A) are accordingly set aside. The Assessing Of ficer is directed to allow the claim of exemption u/s 10(38) of the Act." 6. Keeping in view of the facts and circumstances of the present case and respectfully following the order of the Tribunal, SMC Bench, Delhi in the case of Smt. Jyoti Gupta vs. ITO (Supra) and in view of the law settled by the Hon'ble Supreme Court of India in the case of Andaman Timber vs. CIT (Supra), on identical facts and circumstances, the addition in dispute is deleted and the appeal of the assessee is allowed. 7. In the result, the appeal filed by the assessee is allowed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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