TMI Blog2019 (5) TMI 1985X X X X Extracts X X X X X X X X Extracts X X X X ..... hoorsingh Chimansingh Rajpurohit and the orders of the CIT(A)-1, Jodhpur dated 30.7.2018 in the case of Shri Bhikam Chand Jain and other orders each dated 27.8.2018 in respect of all other assessees. 2. Since the issues involved are common and the appeals were heard together so these are being disposed off by this consolidated order for the sake of convenience and brevity. 3. At the first instance, I will deal with appeal in ITA No. 276/Jodh/2018. Following grounds have been raised in this appeal:- 1. That the Ld. CITA) has erred in law and on facts in confirming the action of AO that reopening of case by invoking the provisions Section 147 of the Act. It is submitted that while reopening of assessment u/s 147 is totally bad in law and void-ab-initio and thus the order passed by the Assessing Officer u/s 143(3) rws 147 deserves to be quashed and be set aside. 2. The Ld. CIT(A) has erred in confirming the addition made by AO of Rs 5,83,320/- on account of unexplained investment. It is submitted that the addition was made purely relying on third party statement namely Shri Madan Mohan Gupta without having any sound basis / independent findings on the part of Ld A.O. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein he had accepted and honoured on-money receipt on sale of plots in Revenue Residency scheme which was Rs. 2000/- per sq. yard as per seized documents. The Assessing Officer made the addition of the said amount in the hands of the assessee. 7. Being aggrieved, the assessee carried the matter to the Ld. CIT(A) who sustained the addition by observing in para 4.1 of the impugned order as under:- 4.1. I find that a search and seizure operation u/s 132 of the Act was carried out in the case of Sh Madan Mohan Gupta and the statements of Shri Madan Mohan Gupta were recorded. The AO noted that in the statements recorded during the search operation and during the assessment proceeding, Shri Madan Mohan Gupta had accepted receipt of on-money on sale of plots of the scheme. The AO on the basis of assessee s name appearing in one of the documents seized during the course of search, inferred that the assessee had also paid on-money of Rs. 5,83,320/- to Shri Madan Mohan Gupta, the seller for purchase of plot No. 5, Revenue Residency (Nizi Khatedar Residential Scheme) at Village Peepla Bharat Singh , Bhankarota Jaipur during the year under consideration and failed to explain the sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. It was pointed out that in the said case also, similar addition was made on the basis of the statement of the aforesaid person i.e. Shri Madan Mohan Gupta. Copy of the said order was furnished which is placed on record. 10. In his rival submissions, the Ld. Sr.DR supported the orders of the authorities below. 11. I have considered the submissions of both the parties and perused the material available on record. it is noticed that on identical issue having similar facts was a subject matter of the appeal in the case of Shri Mehtab Singh Ujjawal Vs. ITO, Ward-3 (1), Jodhpur in ITA No. 271/Jodh 2018 for the assessment year 2009-10 (supra), wherein vide order dated 18.01.2019, the similar addition was deleted by the ITAT Jodhpur Bench (SMC). The relevant finding has been given in para 5 to 14 of the order which read as under:- 5. Rival contentions have been heard and record perused. The issue under consideration is squarely covered by the decision of Tribunal in the case of Shri Deva Ram Suthar in ITA No.342/Jodh/2018 wherein exactly similar addition was deleted by the Tribunal after observing as under:- 7. Rival contentions have been considered and record perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide opportunity for the cross examination of the person on whose statement addition was made. However, no such opportunity was provided neither by the AO nor by the CIT(A). Thus, without affording cross examination, the AO has made addition on the basis of statement of Shri Madan Mohan Gupta u/s 69 being unexplained investment and added the same in assessee's income. However, there was no corroborative material available with the AO for making addition. As per our considered view, not providing opportunity of cross examination amount to violation of principle of natural justice, a serious flaw which makes the order null and void. 11. For this purpose, reliance can be placed on the decision of Hon'ble Supreme Court in the case of Andaman Timber Industries 281 CTR 241 wherein it was held that not allowing assessee to cross- examine witnesses by adjudicating authority though statements of those witnesses were made as basis of impugned order, amounted in serious flaw which made impugned order nullity as it amounted to violation of principles of natural justice. The precise observation of the Hon'ble Supreme Court was as under :- Not allowing the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the appellant was not given any opportunity to cross examine the concerned Director of M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. who had made the above statement. The appellate authority had sought remand report at that stage the genuineness of the statement has not been established by allowing cross examination of the person whose statement was relied upon by the revenue. In these circumstances, the decision of the Tribunal being based on the fact, no substantial question of law can be said to arise from the order of the Tribunal. The appeal is dismissed with no order as to costs . 13. Reliance is also placed on the decision of Bombay High Court in the case of H.R. Mehta in its order dated 07/07/2016. The Hon'ble High Court held as under:- The assessee is bound to be provided with the material used against him apart from being permitted to cross examine the deponents. The denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment order and renders it vulnerable. 14. Applying proposition of law laid down by Hon'ble Supreme Court and High Court as discussed above, I do not find any merit for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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