TMI Blog2021 (11) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... n to entertain the claim of the assessee. Accordingly, these grounds are dismissed. Mistake in the reasons recorded to reopen the assessment - We notice that the reasons were communicated to the assessee and the assessee also understood and participated in the assessment proceedings. Once again the assessing officer has made the typographical error in the concluding para of the notice. It does not change any material outcome, as long as it communicates the reasons for reopening the assessment, mere typographical error without having any material impact on the assessment, these can be considered as simple mistakes and rectifiable. Addition merely on the basis of statement of third parties and rejecting the appellant's request to provide opportunity of cross examination of said parties - HELD THAT:- It is requirement of the principles of natural justice to give a proper opportunity to the assessee for cross examination before making any addition or completing the assessment. In the given case we notice that assessee was consistently requesting the assessing officer for the opportunity. But the assessing officer only insisted upon the assessee to bring the parties before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of flat A 504, A Wing building at Malad East, Mumbai 97. Accordingly show cause notice was issue to the assessee with regard to payment of such on money payment. In response assessee wide letter dated 20.12.2017 submitted that no cash payment was made for purchase of the said flat and the amount paid through cheque based on agreement are the true and correct price for the purchase of such said flat. In the same letter assessee also requested to provide opportunity for cross examination with Shah Housecon Private Limited. The assessing officer served letter dated 20.12.2017 asking the assessee to produce the parties before him in case of any objections with regard to payment of on money. In response assessee submitted that the transaction with the builder is over and being a small person buying flat from large builder, she does not have control over them with regard to bringing the parties before assessing officer. Since no response from the seller Shah Housecon Private Limited, assessing officer rejected the contentions of the assessee. 3. On the reopening the assessment, assessing officer supplied the relevant information to the assessee that it is reopened based on the info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in her name, does not amount to un-escaped income and re-assessment proceedings should not be done. In this regard we rely on following decisions:- 1. CIT Vs. Lata Mangeshkar 97 ITR 2. CIT Vs. M. K. Brothers 53 CTR 228 (163 IT 249) 3. ACIT Vs Prabhat Oil Mill 52 TTJ 533 4. CBI VS V. C. Shukla3 SCC 410 In all these cases, it has been held that mainly because some loose papers or noting found out from thethird party mentioned the name of the assessee, additions cannot be made unless there are concreie corroborative evidence available showing the assessee having made such investment or received such unaccounted income. It has been held in all these cases that the A O must bring on record some corroborative material to M/s. Trident Creation Pvt. Ltd. Vs DCIT, CC- 1(1), Ahmedabad. Without prejudice to the above we further like to state that Section 147 postulates that the AO has a reason to believe that there is an escapement of income and he has to record reasons under section 148(2) before issuing a notice under section 148. The general statement made by a third party before an altogether different authority, namely, the Income tax authority, to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. KUWER Fibers Pvt. Ltd. (2017) TIOL 30 HC the Hon ble Delhi High Court held as under. 'Additions made on the basis of Director's statement recorded during the course of search proceedings is sustainable where the statement recorded are duly corroborated by evidences on record. 4.1.3 The facts of the case clearly reveal that the on the basis of incriminating documents found during the course of survey action from the cabin of Shri Binesh Balkrishnan, the Director of M/s Shah Housecon Put Lid Shri Binesh Balkrishnan senior Accountant admitted to having accepted part payment in cash towards sale of various properties in which the appellant's name is mentioned along with the exact amount received in cash from the appellant This is a concrete evidence of cash payments made by the appellant which has been affirmed and confirmed under oath by the responsible persons to whom these payments have been made. 4.1.4 Section 101 of the Indian Evidence Act, 1872 states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that facts exists. When a person is bound to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of assessment by Assessing Officer without any tangible material and merely on surmises and conjectures and without any application of mind on the information received from DCIT, Central Circle- 5(1). The reopening is based on borrowed satisfaction and hence not valid. 5. In the facts and circumstances of the case and in law, the Learned CIT (A) has erred in confirming the action of Assessing officer in making an addition of ₹ 10,00,000/- merely on the basis of statement of third parties and rejecting the appellant's request to provide opportunity of cross examination of said parties. The Assessment order passed is bad in law being in violation of the principles of natural justice as held by Supreme court in Kishanchand Chellaram v. CIT (1980) 125 ITR 713 and Andaman Timber Industries v. Commissioner of Central Excise (Civil Appeal No. 4228 of 2006). 6. In the facts and circumstances of the case and in law, the Learned CIT (A) has erred in confirming the addition of ₹ 10,00,000/- made by Assessing officer disregarding the factual matrix of the case. 7. The appellant craves leave to add, alter, delete or modify all or any of the above grounds of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hands of the assessee but the assessing officer did not give proper opportunity of cross examination. He submitted that the assessment order passed is bad in law being in violation of the principles of natural justice as held by the Hon ble Supreme Court in the case of Kishanchand Chellaram versus CIT (1980) 125 ITR 713 and Andaman Timber Industries versus Commissioner of Central Excise (Civil Appeal No. 4228 of 2006). He further submitted that there is no evidence with the assessing officer to make the addition and only on uncorroborated evidence. Ld. AR submitted that Ld. CIT(A) has concluded, it is on assessee to prove that assessee has not paid any on money and he submitted that this conclusion is not proper. Since the tax authorities who has initiated the proceedings and it is on their part to prove the same. It is not on assessee. 11. On the other hand, Ld. DR agreed that there is no power on the assessing officer to review his own order and he submitted that the para No. 4 of the assessment order is inconclusive due to typographical error and he submitted that every point relating to addition made by the assessing officer is already discussed in the assessment order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the assessee. Accordingly, these grounds are dismissed. 12.1 With regard to mistake in the reasons recorded to reopen the assessment, we notice that the reasons were communicated to the assessee and the assessee also understood and participated in the assessment proceedings. Once again the assessing officer has made the typographical error in the concluding para of the notice. It does not change any material outcome, as long as it communicates the reasons for reopening the assessment, mere typographical error without having any material impact on the assessment, these can be considered as simple mistakes and rectifiable. 12.2 With regard to ground No. 5, we notice from the various communication exchanged between the parties, we noticed that the assessing officer completely relied on the statements given by the officials of SHPL during survey proceedings. It is not relevant whether they accepted the on money received from various parties and paid the relevant taxes. It is requirement of the principles of natural justice to give a proper opportunity to the assessee for cross examination before making any addition or completing the assessment. In the given case we n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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