TMI Blog2023 (3) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... y cash payment at any stage. Tribunal in the case of Shri Manjit Singh Gahlot, Delhi ( 2022 (10) TMI 399 - ITAT DELHI] and Shri Naresh Pamnani vs. ITO ( 2019 (3) TMI 1787 - ITAT DELHI] no addition could be made against the assessee of the impugned amount.- Decided in favour of assessee. Penalty u/s 271(1)(c) - non compliance to notices issued by the assessee u/s 142(1) - HELD THAT:- As assessee firstly did not comply with the notices issued by the assessee u/s 142(1) of the Act and, secondly, he placed explanation which was self-contradictory as, on the one hand, the assessee is harping that notices were not served on the assessee and per contra, it has been alleged that the counsel of the assessee appeared before the AO. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the documents relied upon by the Assessing Officer, the Learned Commissioner of Income Tax (Appeals) ought to have deleted the addition. 3. The learned counsel of the assessee pressing into service judgment of ITAT SMC Bench dated 04.10.2022 in the case of Shri Manjit Singh Gahlot vs. ITO in ITA 219/Del/2020 for A.Y. 2013-14 submitted that the issue is squarely covered in favour of the assessee by said order of co-ordinate bench. Therefore the addition made by the AO may kindly be deleted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 has been confronted to assessee, therefore, no addition could be made against the assessee. 6. On the other hand, Ld. D.R. relied upon orders of the authorities below. 7. After considering the rival submissions, I am of the view that addition on merit is wholly unjustified. It is well settled Law that unless the incriminating documents or statement used against the assessee are confronted to assessee and assessee have been allowed to cross-examine such statements, no such material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial 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 assessee on merits. In the absence of any material on record against the assessee and in the absence of cross examination to the statement of Dr P Mahalingam on behalf of the assessee, such material cannot be used against the assessee so as to make the impugned addition. I, accordingly, set aside the Orders of the authorities below and delete the addition of Rs.19,75,000/-. 7. Considering the totality of the facts and circumstances of the case noted above in the light of material on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied 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-determined intention to uphold penalty and the order by Learned Commissoner of Income-tax Appeals is bad in law. 5. That the Learned Commissioner of Income-tax Appeals ought to have held that the notice issued on a person of unsound mind, is bad in law and void ab-inito. 6. That the Appellant craves leave to add, alter, modify, vary, delete any ground of appeal before or at the time of hearing. 10. The ld. AR submitted that the authorities below have i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Assessing Officer but his presence was not recorded. This is self contradictory in as much as the service of the notices has been denied on one hand and the appearance of the Ld. Counsel before the Assessing Officer. The sum of the facts are that Appellant has failed to explain his non compliance in response to the notices issued u/s 142(1) of the Act. The mention of Section 271(1 )(c) of the Act on the Notice of Demand instead of 271(1 )(b) is again clerical ..... X X X X Extracts X X X X X X X X Extracts X X X X
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