TMI Blog2019 (10) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... -examination to the assessee for her rebuttal, the assessment order passed by the AO suffers from principles of natural justice and hence addition made by the AO cannot be sustained. Hence, we are of the view that the appeal filed by the assessee needs to go back to the file of the AO for fresh consideration. In so far as the arguments of the learned DR in light of the decision of Suman Poddar [ 2019 (7) TMI 1514 - ITAT DELHI] and Pooja Ajmani [ 2019 (4) TMI 1665 - ITAT DELHI] we find those cases were decided on merits on the issues without considering the aspect violation of principles of natural justice, whereas, in the case of Devichand Kothari [ 2015 (2) TMI 1383 - KARNATAKA HIGH COURT] has restored the matter back to the file of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In any case the order passed in gross violation or the principles of natural justice and lair play, especially in the absence of the cross examinations or the persons whose averments arc sought to be relied upon by the Assessing Officer while passing the order. makes the order totally bad in law and liable to be cancelled. 2 In any case and without prejudice, the learned Assessing Officer had erred in making addition of Rs. 1.02.68,954/ - being sale proceeds of shares to the income of the appellant and the learned CIT (A) -5 has erred in confirming the same. The addition to the income is bad both in law and on facts and is liable to be deleted in entirety. 3. The learned Assessing Officer has not properly appreciated the [acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the notice, the AR appeared from time to time and filed various details as called for. During the course of assessment proceedings, the AO noticed that the assessee has disclosed income from long term capital gain in respect of transfer of equity shares of M/s. SRK Industries Ltd, therefore, called upon the assessee to file necessary evidences including contract notes for sale of shares and bank statements. In response, the assessee has filed complete details including contract notes, bank statements and other details. The AO, on the basis of the information filed by the assessee and also taking note of the fact that the Investigation Wing of Kolkata has undertaken investigation into 84 penny stocks and M/s. SRK Industries Ltd., being one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the issue in light of the claim of the assessee that the statement and information relied upon by the AO was not confronted to the assessee. The AR has also relied upon the decision of the ITAT Bengaluru Bench, in the case of Ramesh Kumar Shah Vs. ACIT in ITA No.595/Bang/2018. 5. The learned DR, on the other hand strongly supporting the order of the AO as well as the learned CIT(A) submitted that this case is not squarely covered by the decision of the Hon ble Karnataka High Court in the case of DevichandKotheri (supra), because in that case in spite of request from the assessee, the AO was not given opportunity of cross examination and also the statements which were relied upon for making the addition and hence the Hon ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnataka High Court, in the Said case held that in absence of opportunity of hearing by providing copy of the statement and related detailed regarding the alleged share amount, the additions made by the AO cannot be sustained. We further noted that the ITAT Bengaluru A Bench in the case of Ramesh Kumar Shah (supra) has considered identical issue and after considering the facts and also the decision of ITAT in the case of Aravind KumarMoochand in ITA No.509/Bang/2017, set aside the issue to the file of the AO to decide the issue afresh after giving opportunity of hearing to the assessee and also after making available all statements and other related documents relied upon by the AO to make additions to the assessee for rebuttal. In this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the case laws relied upon by the learned DR has no application to the facts of the present case and hence not considered. 7. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that order passed by the AO suffers from principles of natural justice and hence, we restore the appeal to the file of the AO for denovo consideration of the issue after making available to the assessee for rebuttal all documents including statements, investigation reports, etc., relied upon by the AO for making additions towards amount received from sale of shares under section 68 of the Income Tax Act, 1961 and also to provide adequate opportunity for cross-examination of persons whose statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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