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TMI Blog2019 (1) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... both on facts and in law in relying on the report of the Investigation Wing made at the back of the assessee without giving an opportunity of cross examination." 2. Brief facts of the case are that assessee filed his return of income on 27.9.2014 declaring a total income of Rs. 6,30,390/-. The case of the assessee was selected for scrutiny through CASS in order to examine "suspicion long term capital gain on shares (inputs from investigation wing)" under the scope complete scrutiny. Notice u/s. 143(2) of the Income Tax Act, 1961 (in short "Act") was issued on 12.4.2016 and in response to the same notices issued u/s. 143(2) and 142(1) of the Act, the A.R. for the assessee appeared from time to time and furnished the information called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination must be provided to the appellant as all the materials were gathered at the back of the appellant." He further draw my attention towards page no. 28, para no. 6.11 of the impugned order wherein it has been mentioned that "It has also been contested by the appellant that the assessee was not provided with any adverse report and no opportunity was provided to cross examine the persons/witness whose statements have been used against the appellant. I find that such right as held in various decisions, is not an absolute right and depends not only the circumstances of the case but also on the statute concerned." He stated that the issue in dispute is squarely by the decision of the ITAT, SMC, Delhi Bench wherein the Tribunal vide its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India in the case of Andaman Timber vs. CIT decided in Civil Appeal No. 4228 of 2006. For the sake of convenience, I am reproducing the relevant portion of 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 as under:- "13. Merely on the strength of statement of third party i.e. Shri Vikrant Kayan cannot justify the impugned additions. Moreso, when specific request was made by the assessee for al lowing cross examination was denied by the Assessing Officer. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wanted to cross-examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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