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TMI Blog2023 (3) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining effective grounds, i.e., grounds No.3 to 5 left for adjudication read as follows:- "3. That on the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) erred in upholding the addition of Rs. 22,55,000/- and creating a demand of Rs. 14,48,041/-. 4. That the addition having been made on surmises and conjectures, without confronting the assessee with the complete statements recorded, of the persons searched and without granting an opportunity of cross examination, being against the principles of natural justice, the said assessment is bad in law, and ought to have been quashed / set aside by the Learned Commissioner of Income Tax (Appeals) 5. That there being inherent contradictions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this regard. He has submitted that Ld. CIT(A) has reproduced all the grounds in the appellate order, in which, in Ground No.6, assessee has challenged the addition of Rs.19,75,000/-. He has submitted that A.O. or the Investigation Wing have not supplied copy of the statement of Dr P Mahalingam to him for rebutting his statement and no cross - examination to his statement have been allowed at any stage, therefore, this statement cannot be read in evidence against the assessee. He has referred to the statement of assessee recorded at assessment stage, copy of which is filed on record, in which he has denied to have paid any amount to Dr P Mahalingam or the above college as capitation fees. He, therefore, submitted that since no material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or was confronted to assessee at any stage. The assessing officer did not record in the assessment order if statement of Dr. P Mahalingam recorded at the back of the assessee by the Investigation Wing, was allowed for cross examination on behalf of the assessee at any stage, therefore, statement of third party, cannot be used against the assessee unless assessee has been allowed a right to cross-examine such statement. The A.O. in the assessment order also did not mention, if any, material found during the course of search, was confronted to the assessee. Thus, assessee was justified in denying in making any cash payment to Dr. P Mahalingam at any stage. There is no material available on record to justify the addition against the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the notice dated 28.03.2014 u/s 148 of the Act, having been returned un-served on account of incomplete address, and also that no notice u/s 142(1) of the Act, having been served upon the assessee before 16.01.2015 (served in person through notice server / inspector), the levy of penalty u/s 271(l)(b) of the Act for non compliance ought to have been deleted. 3. That the notice dated 16.01.2015 u/s 142(1) of the Act for compliance on 23.01.2015, having been complied with, the levy of penalty on 18.02.2015 is bad in law and ought to have been deleted. 4. That there being inherent contradictions in the penalty order dated 18.02.2015, the action of the Learned Commissioner of Income-tax Appeals in ignoring them, are with a pre-dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs:- "7.4 I have considered the facts of the case and the submission of the Appellant. The Assessing Officer has clearly mentioned the dates of the notices u/s 142(1) and the dates of compliance. There appears to be some clerical error on the part of the Assessing Officer to mention the dates of compliance. However, such error is ignored in the interest of justice. Obviously, the notices were sent by the Assessing Officer on the given address. Had the notices been returned unserved, the Assessing Officer would have mentioned the same. The Assessee did not comply with even the notice u/s 271(1 )(b) of the Act the Ld. AR for the Appellant has given unsubstantiated oral statement that the Counsel of the Assessee appeared before the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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