TMI Blog2019 (1) TMI 1465X X X X Extracts X X X X X X X X Extracts X X X X ..... produced the plea of the Assessee that while making the addition of ₹ 11,78,216/- the AO has relied on statement of Sh. Vikrant Kayan without providing opportunity to the assessee for cross examination of such person. In view of above, there is no doubt that assessee has raised the ground of providing opportunity of cross examination of Sh. Vikrant Kayan before the CIT(A) and also by way of revised/additional ground before the Tribunal. See SMT. JYOTI GUPTA VERSUS THE I.T.O, DELHI [2018 (11) TMI 1353 - ITAT NEW DELHI] and ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [2015 (10) TMI 442 - SUPREME COURT] - Decided in favour of assessee - ITA No. 3261/Del/2018 - - - Dated:- 24-1-2019 - Sh. H.S. Sidhu, Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw as well as on facts in not providing opportunity to cross examination Sh. Vikrant Kayan, on whose statement Ld. AO has relied for treating the exempt Long Term Capital Gain claimed u/s. 10(38) of the Income Tax Act, 1961 of ₹ 11,78,216/- as undisclosed income. 3. On the contrary, Ld. DR strongly opposed the admission of additional/ revised ground raised by the assessee. 4. After hearing both the parties as well as perusing the additional ground alongwith the orders passed by the Revenue Authorities, I find considerable cogency in the contention of the ld. counsel for the assessee has raised ground no. 3 (wrongly mentioned as 5 ) i.e. The AO erred in fact and law as well by not providing reasonably opportunity of being hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is against the principle of natural justice and against the settled law. She further 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 exactly on similar facts and circumstances. Hence, she requested to follow the aforesaid case and allow the appeal of the assessee. 6. On the other hand, Ld DR has strongly relied on the orders of lower authorities and stated that assessee has been given opportunity of being heard, but the assessee has not availed the same. 7. I have heard both the parties and perused the records, esp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the assessee to cross examine the same, 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 Of ficer. The first appel late authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 which is mentioned in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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