TMI Blog2020 (9) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... was given to the assessee and for the same, the matter is remitted back to the CIT (Appeals), we are of the view that there is no infirmity in the order of the Income Tax Appellate Tribunal and thus, we find no merit in the Tax Case appeal and the Appeal is liable to be dismissed. Since the Income Tax Appellate Tribunal has remitted back the matter to the CIT (Appeals) giving opportunity to the assessee for cross examination, and further directed the CIT (Appeals) to decide the matter, after giving opportunity of cross examination to the assessee, the substantial questions of law 1 and 2 are concerned, they are left open to the CIT (Appeals) to decide the same on merits and in accordance with law. - T.C.A.No.181 of 2018 and C.M.P.No.23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Nagar, Chennai-17, jointly held with her husband. Since no evidence had been adduced in respect of cost of renovation of ₹ 6,18,500/-, it was disallowed. The indexed cost of acquisition was reworked at ₹ 31,62,950/- as against ₹ 37,03,535/- and consequently, the long term capital gains had been assessed as ₹ 5,37,050/- as against ₹ 96,465/-. Thus, the additional long term capital gains assessed was ₹ 4,40,585/-. 2.3 Secondly, under the head of Profit on facilitating sale of property at Velacherry, since there was no supporting evidence in respect of the claim of payment/expenditure of ₹ 6,64,95,000/- adduced by the assessee, notice u/s.142(1) of the Act, dated 17.03.2015 was issued to the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es with Stephen John and the DDIT (Inv.) Kochi, had recorded a statement from Stephen John on 26.03.2015. It is stated that he was paid a cheque for ₹ 8 crores in the sale transaction and he has not received a single rupee from either Ponmani Suresh or other persons. 2.6 Therefore, the Assessing Officer, viewed that the claim of the assessee that she is a mere real estate intermediary lacks truth and is proven that she is a major beneficiary in the transaction. The Assessing Officer further viewed that the case under consideration is not an isolated issue and while undertaking assessment proceedings of assessee's spouse, K.Suresh, large scale unexplained cash deposits into bank accounts held by him were found and the baseless e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date succeeds the deposit date. Accordingly, the appeal of the assesse was dismissed. 5. Aggrieved by the said order of CIT (Appeals)-1, dated 31.03.2017, the assessee filed appeal before the Income Tax Appellate Tribunal. 6. The ITAT found that the Assessing Officer, on examination of the accounts and the veracity of the claims did not accept the nexus between the payments and the receipts and therefore, the entire expenditure relating to six parties of ₹ 4,50,00,000/- and in respect of the balance, an amount of ₹ 1,61,21,250/- was found to be ineligible as deduction and added the same to the taxable income. The ITAT found that the assessee is not the owner of the asset transferred to ITC Ltd., but had received a consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before deciding the issue. 10. The ITAT thus remitted the entire issue to the file of the CIT (Appeals) and directed the CIT (Appeals) to give an opportunity of cross examination to the assessee before deciding the issue. 11. Aggrieved by the said order of ITAT, the present Tax Case Appeal is filed by the appellant/assessee raising the following substantial questions of law:- (1) Whether the return filed on 31/03/2014 for the Assessment Year 2012-13 is a non-est return and not a return u/s.139(5) of the Income Tax Act, 1961? Consequently, whether the assessement framed u/s.143(3) based on a non-est return filed is valid in the eyes of law? (2) If the assessment based on a non-est return is invalid, whether such an invalid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the ITAT that an opportunity may be given to the assessee to cross examine Stephen John, before framing the assessment. 14. The Income tax Appellate Tribunal, after going through the entire submissions made on both sides, held as under:- In the present case, though the statement from Stephen John was recorded in the presence of the assessee's spouse, an opportunity of cross examination was not at all given to the assessee. If the CIT (Appeals)/AO collects the evidences from the parties during the remand proceedings, the CIT (Appeals)/Assessing Officer should have given an opportunity of cross examination to the assessee. Hence, in the interest of justice, we are of the opinion that the entire issues to be remitted to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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