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TMI Blog2018 (10) TMI 1759X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appeal filed by the appellant has been dismissed. The dispute pertains to assessment year 2007-08. The appellant-assessee is a firm engaged in the manufacturing of diamonds. The appellant-assessee filed its return of income declaring loss of Rs. 1,60,82,698/- after claiming deduction under Section 10AA of the Act to the tune of Rs. 3,50,21,661/- being the profit and gains derived from the export made by its unit situated at SEZ, Surat. Original assessment under Section 143(3) of the Act was completed on returned income allowing deduction under Section 10AA of the Act. The Commissioner of Income Tax-I, Jaipur under Section 263 of the Act cancelled the aforesaid assessment holding that the Assessing Officer wrongly allowed deductions u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again rectified by the Assessing Officer under Section 154 of the Act because in the appeal preferred by the assessee against the de-novo assessment order, the CIT(A)-I, Jaipur vide its judgment dated 28.11.2013 passed in ITA No. 281/12-13 allowed the deductions of Rs. 3,49,54,100/- under Section 10AA of the Act, which was considered in the total income of the assessee by mistake in the re-assessment order. After rectification, the re-assessment order was finally passed for the total income of Rs. 52,36,460/-. Aggrieved by the re-assessment order dated 30.01.2015 as rectified vide order dated 27.02.2015 by which an income of Rs. 52,36,460/- was added against the non genuine purchase, the assessee preferred an appeal before the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if the entire material and primary facts were available before the Assessing Officer while passing original assessment, then reassessment cannot be made on the basis of similar material. No additional facts were made before the Assessing Officer except the confessional statement made by a third person i.e. Shri Praveen Jain during search operation at his premises. It is argued that addition could not have been made merely on the basis of uncontroverted confessional statement. The authorities below failed to consider that copy of statement of Shri Praveen Jain and other relevant persons were not provided to the appellant assessee and he was not afforded any opportunity to cross-examine him. In any case, it was the bounden duty of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 2009-2011 of 2003 decided on 18.01.2010). Mr. Anuroop Singhi, learned counsel appearing on behalf of the respondent-Revenue opposed the appeal. Learned counsel citing the judgment of Calcutta High Court in Hindustan Tobacco Company Vs. Commissioner of Income Tax, (2012) 77 DTR 0237 argued that in the present case no prejudice can be said to have been caused to the appellant for the reason that he did not have the opportunity to cross-examine Shri Praveen Jain. In any case, the appellant did not make any such prayer before the Assessing Officer or even before the CIT(A) to recall Shri Praveen Jain for cross-examination. Plea of the alleged breach of principles of natural justice was taken for the first time at the appellate stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o produce these parties with the books of accounts in order to prove the genuineness and verification of the transactions made but the assessee failed to do so. Notice send to these parties returned back unserved. The Tribunal therefore held that the assessee failed to prove the genuineness of the purchase made from these two concerns. The assessee also failed to discharge the primary onus to establish the genuineness of purchases from these concerns. The Assessing Officer made disallowance of Rs. 52,36,462/- (25% of the total purchase of Rs. 2,09,45,850/-). The CIT(A) has restricted the disallowance to the extent of 15% in view of the decision of ITAT Jaipur Bench in the case of Shri Anuj Kumar Varshney Vs. ITO and Others (ITA No. 187/JP/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks of accounts and he failed to produce them. Secondly, no such prayer was ever made by the appellant before the Assessing Officer to summon Shri Praveen Jain for his cross-examination. We may at this juncture usefully refer to the observations of the Supreme Court in The Chairman, Board of Mining Examination and Chief Inspector of Mines & Another Vs. Ramjee, (1977) 2 SCC 256 wherein concept of natural justice was succinctly summarized in the following terms: "xxxxxxxxxx Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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