TMI Blog2023 (3) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... f Ld. CIT(A)-3, Jaipur dated 04.06.2019. The assessee has raised following grounds of appeal:- 1. That the order passed by the Assessing Authority and sustained by the Commissioner of Income Tax (Appeals) is illegal and against the law. 2. That the Order is illegal in view of the fact that the Commissioner of income Tax (Appeals) as well as the Assessing Authority fails to cross-examine the deponent of the affidavits submitted before the CIT(A). In view of judgment of Hon'ble Supreme Court delivered in the case of M/s. Mehta Parekh Co., the contents of the affidavit should have been accepted. 3. That the Commissioner of Income Tax (Appeals) should have accepted the submission and evidence submitted before CIT(A) during the course of hearing. 4. That the Assessing Officer as well as the Commissioner of Income Tax (Appeals) committed the legal mistake in respect of making/ sustain the addition when the proof of payment of consideration was made in the immediately preceding year. Hence, the addition made and sustain during the year is not in accordance with the law. 5. That the entire amount was explained but rejected without assigning any reason. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Spinning Weaving Mills vs. CIT (supra) at 282 the Bombay High Court has observed that : The officer's right under the proviso to s. 13 arises only after a finding is recorded as to the unacceptability of the method and irregularity of the accounts kept. In the absence of such a finding recorded by the authorities, the book results cannot be ignored or brushed aside. The mere fact that the percentage of dead loss of cotton is high in a particular year cannot lead to an inference that thereby there has been a suppression of the production in a spinning mill. On the above observations, the Hon'ble High Court has allowed the appeal of the assessee. 6.2. In case of CIT vs. Maharaja Shree Umaid Mills Ltd. (1991) 192 ITR 565 (Raj), the Hon'ble Rajasthan High Court has held that the Tribunal was justified in holding that since books of accounts had not been rejected, the mere fact that there had been a fall in the g.p. rate would not lead to the inference that the expenditure had been inflated. 6.3. In case of CIT vs. Padamchand Ram Gopal (1970) 76 ITR 719 (SC), the Hon'ble Supreme Court has held that no addition is justified if the books of accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invariably accept the same. In case of Dr. Prakash Rathi reported in 36 Tax World Page 1 the Hon'ble Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur (Jurisdictional Tribunal) accepted that if the Assessing Officer fails to cross examine the deponent, the fact mentioned in the affidavit cannot be discarded. In case of the assessee the assessee was not confronted and affidavit was submitted therefore the addition is arbitrary and illegal. As regards Ground number 3 It is that the Commissioner of Income Tax summary partly allowed the appeal; the appeal has been decided by adopting the mode of cut and paste and even ignoring the binding nature judgment of even Supreme Court. it will be worthwhile to submit and draw your attention that the assessee categorically stated in the statement recorded before the A.D.I. that he is maintaining books of account and also produce the balance sheet thereof before the ADI and CIT(A). The statement of assessee is at page 14 to 16 and the version in respect of maintenance of books is at page 20 of the said statement. The books of accounts are being maintained and the assessing officer mention that assessee is not maintaining the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are at page 14-16, as per the law the investment of the previous year cannot be treated as income of the subsequent Year. No law of land is permeating but the Commissioner of Income Tax appeals as well as the income tax officer committed mistake in the law you are therefore requested that order passed may kindly be declared as illegal. Addition of Rs. 2, 00,000 sustain by the Commissioner of Income Tax is also without any bases. The assessee explains the source therefore even otherwise the entire amount is explained. You are therefore requested that the order may kindly be declared as illegal. Thanking you. 4. On the other hand, Ld. JCIT DR opposed these submissions and supported the orders of the authorities below. 5. We have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. We find that Ld. CIT(A) in para 6.3 of the impugned order has decided the issue as under:- 6.3. I have carefully consider the observation made by the Assessing Officer in the assessment order, submission and additional evidences filed by the A/R of the appellant, remand report of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Assessing Officer ( AO ) did not opt for cross-examining the assessee. Therefore, in view of the judgement of the Hon ble Supreme Court rendered in the case of Mehta Parikh Co. Vs CIT [1956] 30 ITR 181 (SC), the Ld.CIT(A) ought to have deleted the addition treating the contents of the affidavit as true and correct. It is also brought to our notice that under the identical facts, the Tribunal in the case of Ashok Kumar Banthia vs. DCIT in ITA No.297/Jodh/2019 [Assessment Year 2012-13] order dated 06.09.2021, has held as under:- 10. Although, the assessee had also filed an affidavit in support of his contention but he was never cross examined by the AO Therefore, the averments contained in duly sworn affidavit are to be accepted as a correct unless the same are rebutted by the evidence. On this proposition, we found support from the decision of Hon'ble Supreme Court in the case of Mehta Parikh Company vs. CIT (1956) 30 ITR 181 (SC), Dr. Prakash Rathi vs. ITO 36 TW 1 (Jodh-Trib), ITO vs. Doctor Tej Gopal Bhatnagar 20 TW 368 (Jodh-Trib.), Labh Chand Bohra vs. ITO (2008) 219 CTR (Raj) 571 : (2008) 8 DTR (Raj) 44, Shrikumar vs. ITO (1990) 36 TTJ (Jp) 538, Smt. Savitri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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