TMI Blog2023 (6) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... ummons and therefore, the assessment was completed on the basis of material available on record. Thus, when the person, whose statement was relied upon to make the addition in the hands of the assessee, does not appear in response to the summons, the submission of the Revenue that the assessee chose not to avail the opportunity to cross-examine the builder provided by the AO appears to be a mere empty formality. As difference in the price of the property, which was considered as on-money paid in cash is based on sale value as per the email, however, there is no evidence available on record as to between whom this email correspondence took place. Merely providing the evidence relied upon by the AO cannot substitute the fundamental r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing, the learned Departmental Representative ( learned DR ) also did not raise any objection against the condonation of the aforesaid delay. 3. In this appeal, the assessee has raised following grounds: Ground No.1: No opportunity of cross examination: 1. On the facts and in the circumstances of the case and in law, the CIT(A) impliedly erred in confirming the action of the AO of not granting the cross examination of documents relied on by him while assessing the income of the Appellant and passing the assessment order. 2. The Appellant prays that it be held that the action of the lower authorities be deleted and it be held that orders passed by themare without giving any opportunity to the Appellant to cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2017. In response to the said notice, the assessee filed a letter stating that he is working in the Merchant Navy for Fleet Mount Company, Hong Kong as Master Marine and maintaining NRE status. The assessee was asked to furnish details of payment made to M/s Runwal Homes Private Limited with documentary evidence. The assessee was also asked to explain the on-money payments made to M/s Runwal Homes Private Limited for the purchase of the flat during the year under consideration. The Assessing Officer ( AO ) also issued summons under section 131 to the assessee and the builder Mr. Subodh Runwal calling for the details and explanation in support of the on-money paid/received. However, both the assessee and the builder failed to reply to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination. 7. We have considered the rival submissions and perused the material available on record. The only grievance of the assessee, in the present appeal, is pertaining to the addition of Rs. 22,70,750 by treating the same as payment of on-money in cash. As evident from the record, the AO on the basis of information received from the Directorate of Investigation that the assessee has been identified as one of the persons who had paid on-money in cash to M/s Runwal Homes Private Limited for the purchase of property, initiated proceedings under section 147 of the Act. During the reassessment proceedings, the AO also placed reliance on the statement of Mr. Subodh Runwal recorded on oath before DDIT(Investigation), Mumbai, during the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the assessee was adversely affected. 9. Thus, merely providing the evidence relied upon by the AO cannot substitute the fundamental requirement of providing the opportunity for cross-examination. We further find that the Hon ble Supreme Court in I.C.D.S. Ltd. vs CIT, [2020] 273 Taxman 12 (SC) held that where the issue involved was about not extending an opportunity to the appellant to cross-examine witnesses relied upon by Assessing Officer, the entire matter would be considered by First Appellate Authority afresh by giving fair opportunity to both sides to espouse their claim. Therefore, in view of the above findings, we set aside the impugned order and restore the matter to the file of AO for de novo adjudication after prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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