TMI Blog2021 (4) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier co-ordinate bench [ 2017 (7) TMI 32 - ITAT HYDERABAD] had already expressed its agreement with the department qua the impugned addition in principle. The assessee s stand before us seeks to shift his onus on the department side does not deserve to be concurred with therefore. We thus hold in these peculiar facts and circumstances that both the lower authorities have rightly reiterated the impugned long term capital gains addition in assessee s hands on account of his failure to comply with the tribunal s earlier directions and on the basis of the overwhelming supportive evidence. The assessee fails in his sole substantive grievance therefore. - I.T.A. No. 1121/HYD/2019 - - - Dated:- 15-3-2021 - Shri S.S.Godara, Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri S.Rama Rao, AR For the Revenue : Shri Rohit Mujumdar, DR ORDER PER S.S.GODARA, J.M. : This assessee s appeal for AY.2007-08 arises from the CIT(A)-6, Hyderabad s order dated 01-03-2019 passed in appeal No.10232/2017-18/A3/CIT(A)-6 in proceedings u/s. 144 r.w.s.254 of the Income Tax Act, 1961 [in short, the Act ]. Heard both the parties. Case file p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is stated to have been received ₹ 1,40,00,000/- by way of account copies maintained by the said firm and also by way of agreement entered between three parties, the statements recorded and the account copies have not been confronted to assessee. Even the order of the CIT(A) does not mention that assessee has been given an opportunity after the remand report. As seen from the copy of the account headed Aushapur land payment assessee was stated to have received ₹ 90 Lakhs- by way of DD of ₹ 20 Lakhs and balance by way of cash between 04-09-2006 to 04-12-2006. One payment on 09-11-2006 was through Shri Krishna Reddy. Balance of the amount of about ₹ 72,75,000/- was also transfer entries from Shri Krishna Reddy account. The role of Shri Krishna Reddy was not brought on record and we are not sure whether any statement has been recorded from Shri Krishna Reddy. Prima-facie there seems to be evidence in support of the Revenue contentions, but since the account copies and statements have not been confronted to assessee, considering the request made by the Ld.Counsel in the course of arguments, we are of the opinion that the matter is to be set aside to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made of ₹ 1,16,19,800/- under the head LTCG was retained. The relevant portion of the assessment order is reproduced below for ready reference: 2. During the course of survey proceedings in the case of M/s Surakshita Homes on 04-09-2008, certain documents were found and impounded, relating to the transaction of purchases of lands by the said firm. One of the transactions involved the name of the assessee, which was recovered in the form of Memorandum of Understanding dated 18-09-2006 between the land owners M/s.Sidharth Estates represented by Smt.C.Amaravathi and Mr J Vijender Reddy, i.e the assessee, the agreement holder for purchase of the lands at Aushapur from the land owners and M/s Surashita Homes, represented by Mr. Ramanjaneyulu Goud. As per the said MOU the assessee had received an amount of ₹ 40, 00, 000/- from the land owners towards the repayment of consideration received by land owners to the extent of ₹ 20,00,000/- from Mr.Viiender Reddy, vide the agreement for sale dated 13-12-2002, in addition to ₹ 1,00,000/- received from the third party Mis Sri Surakshita Homes, for consenting to not to litigate further, for having filed a Civil Sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the assessee, summons were issued to Sri K Krishna Reddy but he did not respond to the same till date. The AR was twice informed of the non compliance of Sri K Krishna Reddy and was informed that the onus to produce Sri K Krishna Reddy lies on the assessee as the documentary evidence is against the assessee. A letter dated 21-12- 2017 was also addressed to the assessee. The contents of the letter are reproduced as under: In connection with pending proceedings, Summons were issued to Sri K Krishna Reddy, Ghatkesar Mandal District. However, he has not complied to the summons. As per information available on record, payments were made to you through Sri K Krishna Reddy. Hence, it shall be treated that the payments were received by you. In case, you wish to contradict the same, you are hereby required to produce Sri K Krishan Reddy for verification of your stand that you have not received the payments. You are hereby required to produce Sri K Krishna Reddy on or before 27-12-2017, falling which it shall be presumed that you have nothing to contradict the fact of payments to you. 3.3 However, there was no compliance either from the assessee or Sri Krishna Reddy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of AO and afford the opportunity to the appellant to cross examine the witness to enable the appellant to prove his stand in the case. Any other grounds that may be urged at the time of hearing. 6.2.1 I have carefully considered the ground of appeal and contentions raised by the assessee, and examined the same in the light of the facts and circumstances of the case and documentary evidence placed on record, including the order of Hon'ble ITAT dated 31.01.2017 (supra). 6.2.2 At the outset, it is important to note that the assessee has not raised any grounds against the merits of the case with regard to assessment of a sum of ₹ 1,16,19,800/- as LTCG. On the other hand, the assessee has raised a technical issue that the AO has failed to allow an opportunity to cross-examine the witness and, therefore, requested to set-aside the impugned order. In this regard, it may be noted that the first appellate authority i.e. CIT(Appeals) has no power to set-aside the assessment order. 6.2.3 Be that as it may, as explained in the facts of the case, in the instant case, the Hon'ble ITAT has set-aside the assessment order and appellate order and directed the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of ledger a/c and statement of Sri C.R.Jagdish, Smt.C.Amaravathi, Sri B.Balaraj Gaud Sri P.Ramanjaneyulu. Copies of the same were provided immediately. They were requested to submit a note regarding their submissions and the case was adjourned to 08-12-2017. On the said date, both assessee and their AR appeared and again sought time to furnish their submissions. The AR intimated the address of Sri K Krishna Reddy. who acted as an intermediary in the receipt of the money by the assessee. On the request of the assessee. summons were issued to Sri K.Krishna Reddy, who acted as an intermediary in the receipt of the money by the assessee. On the request of the assessee, summons were issued to Sri K Krishna Reddy, who acted as an intermediary in the receipt of money by the assessee. On the request of the assessee, summons were issued to Sri K Krishna Reddy but he did not respond to the same till date. The AR was twice informed of the non compliance of Sri K Krishna Reddy and was informed that the onus to produce Sri K Krishna Reddy lies on the assessee as the documentary evidence is against the assessee. A letter dated 21-12- 2017 was also addressed to the assessee. The conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me doesn't arise. Also, as mentioned elsewhere in this order, the assessee's ground of appeal to set-aside the order of the AO with a direction to allow an opportunity of cross-examination of the witness doesn't come under the purview of the powers of the first appellate authority i.e. CIT(Appeals) u/s 251(1)(a) of the Act w.e.f. 01.06.2001 onwards. Thus, the ground of appeal filed by the assessee is treated as dismissed . 3. We have given our thoughtful consideration to the assessee s sole substantive grievance and Revenue s arguments, qua the impugned long term capital gains addition. Mr.Rama Rao s only argument during the course of hearing is that neither the Assessing Officer nor the CIT(A) have provided the assessee an opportunity to cross-examine Shri Krishna Reddy (supra) before reiterating the impugned addition. He thereafter made a very strong endeavour to rely on the tribunal s earlier remand directions dt.31-01-2017 restoring this sole issue back to the Assessing Officer. We find no merit in either of the foregoing arguments. We make it clear that this tribunal s first round remand directions had directed the Assessing Officer to offer cross-examination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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