TMI Blog2019 (4) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER These appeals have been filed by the separate assessees against the respective orders both dated 15.05.2018 passed by Ld. CIT(A)-30, New Delhi relevant to assessment year 2014-15 by raising as many as 08 grounds in each appeal, but at the time of hearing, Ld. counsel for the assessee has only argued the ground no. 3 which is reproduced as under:- 3. That the Ld. CIT(A) mechanically addressed the concern of the assessee that Ld. AO had passed the assessment order in violation of principles of natural justice and relied upon the material collected at the back of the assessee without offering an opportunity to cross examine. 1.1 Since common legal ground has been raised by the assessees in both the appeals, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience, by dealing with facts and circumstances of ITA No. 4992/Del/2018 (AY 2014-15) Shobhit Gupta vs. ACIT, CC-20, New Delhi and the result thereof will apply mutatis mutandis to other appeal of Smt. Rachna Gupta vs. ACIT, CC-20, New Delhi - ITA No. 4993/Del/2018 (AY 2014-15). 2. Brief facts of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares within 15 days of dematerialization. AO further in order to enquire more, the daily trade date of the company available in the public domain on the website www.bseindia.com was analyzed and the daily trade data of the company for the period December, 2012 to December, 2015 as obtained from the website of Bombay Stock Exchange is given at page no. 2 to 23 of the assessment order. After analysizing the data and considering the various decisions and the replies of the assessee, the AO observed that the claim of capital gain claimed by the assessee is not genuine and a colouring device through which the assessee has introduced through which the assessee has introduced its unaccounted money in the books and the amount of ₹ 18,57,743/- (capital gain of ₹ 12,47,743/- plus ₹ 6,10,000/- invested) was added back to the income of the assessee under section 68 of the Act by assessing the income at ₹ 35,50,730/- u/s. 143(3) of the Act vide order dated 27.12.2016. Against the above addition, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 15.05.2018 has dismissed the appeal of the assessee. Aggrieved with the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustainable in the eyes of law. Therefore, he submitted that the issue argued vide ground no. 3 is squarely covered 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 exactly similar facts and circumstances. Hence, he 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 reiterated the contents mentioned by the Assessing Officer in his order and relied upon the case laws cited by the AO. But he could not controvert as to why the Ld. CIT(A) has not adjudicated the legal ground no. 5(d) raised before him i.e. No statement (back material referred in paragraph no. 20.6 onwards till 20.9) is confronted to the assessee much less offered for cross examination, which also lacks independent corroboration from any incriminating material. 5. I have heard both the parties and perused the records, especially the assessment order as well as impugned order and forming a negative inference s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely covered 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 wherein, the Tribunal has allowed the appeal of the assessee on exactly similar facts and circumstances. I am of the considered view that assessee has considerable cogency that addition was made on the statement (back material referred in paragraph no. 20.6 onwards till 20.9) is confronted to the assessee much less offered for cross examination, which also lacks independent corroboration from any incriminating material, which ground was also raised before the Ld. CIT(A), who did not adjudicate the same, which is against the settled law. I 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, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opinion tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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