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TMI Blog2019 (3) TMI 1540X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made u/s. 68 without considering the facts that the assessee has fulfilled the conditions of section 68 is totally wrong, bad in law and needs to be quashed. 4. That the notice u/s. 148 issued after the period of four years without mentioning in the recorded reasons that the escapement of chargeable income from tax was due to omission or failure on the part of the assessee to disclose fully and truly all material facts necessarily for assessment is invalid, bad in law and needs to be quashed. 5. That the order of the Ld. CIT(A) in confirming addition of Rs. 12,500/- as commission paid without bringing any evidence is wrong and needs to be deleted. 6. The above grounds of appeal are without prejudice to one another and assessee prays permission to add, delete or amend one or more grounds of appeal. 7. That the assessee assures unstinted cooperation in all proceedings before your goodself. 2. The brief facts of the case are that assessee original assessment was completed u/s. 143(3)/148 of the Income Tax Act, 1961 (in short "Act") on 27.2.2013 at Rs. 3,62,900/- against the returned income of Rs. 1,00,400/-. The assessee filed an appeal before the Ld. CIT(A) who vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the order of the Ld. CIT(A) in confirming addition of Rs. 12,500/- as commission paid without bringing any evidence is wrong and needs to be deleted. In support of the aforesaid contention, the Ld. counsel for the assessee has filed a Paper Book containing pages 1-60 in which he has attached the copy of written submissions before the Ld. CIT(A); copy of reasons provided for issuing notice u/s. 148 dated 4.8.2018 with tracking report; copy of reasons provided for issuing notice u/s. 148 dated 29.11.2012; copy of letter dated 14.7.2016, 26.7.2016, 1.9.2016 and 29.9.2016 to AO regarding cross examination of Sh. Neeraj Jain; copy of letter dated 21.6.2017 to CIT(A) for Remand Report; copy of letter dated 21.7.2017 to AO & CIT(A) for remand report; copy of letter dated 8.2.2013 to AO; copy of acknowledgement of return, computation and balance sheet of AY 2005-06; copy of acknowledgement of return and balance sheet of AY 2004-05; copy of acknowledgement of return of Sh. Neeraj Jain; copy of pass book of Assessee and copy of letter dated 22.3.2018 to CIT(A) and relied upon the ITAT decision dated 3.3.2016 passed in the case of VS Capital Services Pvt. Ltd. in ITA No. 6162/Del/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The appellant filed first letter before the AO on 14.07.2016 requisitioning the cross-examination of Mr. Niraj Jain owner of Pooja Expo Inc. in person. The AO summoned Mr. Niraj Jain, but Mr. Jain did not appear before the AO for the purpose of crossexamination. The AO then requisitioned the appellant to prove the identity, credit worthiness and genuineness of the transaction and fixed the matter to November 21, 2016. However, again no one appeared on November 21, 2016 nor any communication was received from the assessee in this regard. AO placing reliance on the previous order passed, made the addition under Section 68 of the Act amounting to Rs. 2,50,000 and further added a sum amounting to Rs. 12,500/- on account of commission paid to obtain the above mentioned entry. Before the AO at the time of original assessment, the appellant's stand was that the amount of Rs. 2,50,000 was received back on account of the advance of Rs. 3,00,000 paid in cash by the appellant to Mr. Niraj Jain for purchase of property. However, the deal could not materialise and Mr. Niraj Jain only returned Rs. 2,50,000/- and forfeited Rs. 50,000/-. Before me the appellant raised two grounds of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submission of the appellant and the order passed by the AO, it is noticed that no such contention was ever raised by the appellant before the AO. Further, the appellant never raised any such contention in the first round of appeal before any of the authority be it CIT(A) or Hon'ble Tribunal. Ramesh Chander Garg (HUF) Appeal No. 187/16-17, AY: 2005-06 However, considering the principles of natural justice, the additional grounds of appeal raised by the appellant are considered. Before me the appellant has furnished a written submission dated 05.05.2017 and at the outset stated that the initiation of reassessment proceedings is barred by limitation as notice issued under Section 147 of the Act was not served within the prescribed time limits. In this regard, firstly no such ground of appeal is raised by the appellant, further no additional ground of appeal is also raised by the appellant on such issue. However, having considered so, even on merits, it is worth taking note that as per the provisions of Section 147/148 of the Act, the AO has to issue the notice within the prescribed timelines and it is not necessary that the order is served to the assessee within the said time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t granting any opportunity to cross- examine the same, in view of the principles of natural justice. Here, it is important to note that though the authorised representative for and on behalf of the appellant has made lengthy submission before me, but again no ground of appeal was raised on the said contention before me, thus the submissions of the appellant cannot be considered as no such ground of appeal is raised before me and nor even any application for additional ground of appeal was filed on such contention. Any judicial authority or quasi-judicial authority, can render its decision only on the ground of appeal raised before the said authority. The authority cannot go beyond the grounds raised. Ground Number 1 Now, considering the ground number 1 raised by the appellant, a bare perusal of the same would reveal that it appears to be a statement of fact rather than a ground of appeal. However, from perusal of the same, one could gather that the contention of the appellant is that no addition could be made in the absence of any evidence on record. In this regard, I have taken note of the order passed The AO gave ample opportunity to the appellant to prove the identity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it never shifts. The burden of evidence may shift constantly as evidence is introduced by one side or the others. In this case, once the evidence that assessee has obtained accommodation entry was introduced by the AO, the burden of evidence shifted to the assessee.. During the assessment proceeding and even during the appellate proceeding, the assessee has failed to produce any evidence to prove that the transaction in question was genuine. It has also been contested by the appellant that the assessee was not provided with opportunity to cross examine the persons/witness who according to revenue was an accommodation entry provider, 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. The Hon'ble Supreme Court has held in the case of State of J&K vs Bakshi Gulam Mohd. AIR 1967 (SC) 122, and in the case of Nath International Sales vs. UOI AIR 1992 Del 295 that the right of hearing does not include a right to cross examine. The right to cross examine must depend upon the circumstances of each case and also on the statute concerned. In the case of T. Devasahaya Nadar vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant, the appellant returned the original receipt to Mr. Niraj Jain, the appellant must have kept a photocopy of the same for records, further the appellant must be aware of the property for which such advance was given, furthermore, there should have been some MOU and Agreement to Sale disclosing the total consideration of the property at that time and other terms and conditions. However, nothing was placed on record by the appellant. Here, it is also worth noting that the Hon'ble Tribunal in its order dated 06.08.2015 at Para 7 of the order has clearly quoted that "The Assessee is also directed to furnish all the evidences before the AO to substantiate his case." However, in view of the above, it is obvious that the appellant has failed to furnish even a single document on record to substantiate its stand. In such a scenario, considering the submission and the grounds raised, this ground of appeal is rejected, and the addition of Rs. 2,50,000/- is sustained. Findings on Ground Number 2 The appellant has also raised a ground with regard to addition on account of expenses of commission at the rate of 5% amounting to Rs. 12,500 made under Section 69C of the Act. The grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss examination of Sh. Niraj Jain is concerned, assessee's counsel argued that AO as well as Ld. CIT(A) has not granted opportunity to cross examine Sh. Niraj Jain, therefore, the assessment in dispute may be quashed. After going through the orders passed by the revenue authorities as well as arguments advanced by the Ld. Counsel for the assessee on the issue involved in ground no. 2, I am of the considered view that assessee has not taken any specific ground before the Ld. CIT(A) and therefore, the Ld. CIT(A) has rightly rejected the request of the assessee for cross examination of Sh. Niraj Jain. Therefore, no interference is required on my part in the well reasoned order of the Ld. CIT(A) on this issue, hence, I uphold the action of the Ld. CIT(A) on this issue and dismiss the ground raised by the Assessee. 5.3 As regards ground no. 4 relating to issue of notice u/s. 148 of the Act after the period of four years without mentioning in the recorded reason that the escapement of chargeable income from tax was due to omission or failure on the part of the assessee to disclose fully and truly all material facts necessarily for assessment is invalid, bad in law and needs to be quash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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