TMI Blog2023 (11) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) TMI 233 - DELHI HIGH COURT] also has taken a similar view under the provisions of 1961 Act wherein the statements of one Maheshwari had been recorded wherein he had denied that he had nothing to do with the bank account from which the cheques were issued to the assessee. Resultantly, the order of the Tribunal had been upheld on the ground that the said person had not been cross-examined and no opportunity was granted by the Assessing Officer and there was violation of principles of natural justice. Facts herein are similar as noticed above. A perusal of the order of Commissioner of Income Tax would go on to show the Commissioner had noticed that the Assessing Officer without bringing any record or evidence had made the addition on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise, (2015) 81 CTR (SC) 241, judgment of the Delhi High Court in Commissioner of Income Tax Vs. Dharam Pal Prem Chand Ltd. (2007) 295 ITR 106; Commissioner of Income Tax Vs. Rajesh Kumar (2008) 306 ITR 27 (Delhi) and judgment of the Madhya Pradesh High Court in Prakash Chand Nahta Vs. Commissioner of Income Tax (2008) 301 ITR 1354, it allowed the above said appeals. 3. The following substantial questions of law are sought to be raised:- 3.1 Whether on the facts and circumstances of the case, the Hon'ble ITAT has erred in allowing relief regarding the addition of Rs. 14,70,900/- made by applying net profit (declared by the assessee) @ 3.12% on suppressed sales, ignoring the fact that the said bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information received from law enforcement agencies that the assessee company had been allegedly suppressing its turn over to the Income Tax Department by way of not accounting for the sales by under invoicing the sales. 5. We are of the firm opinion that no substantial question of law is made out as contended. The factual background of the case would go on to show that on an information being received from the Directorate General of GST Intelligence, Ludhiana Zonal Unit, who had conducted a search on 05.08.2016 on the assessee company and its related parties on alleged suppression of turnover on account of unaccounted sales as well as under-invoicing of sales. Apparently from the premises of Shri Sanjay Dhawan 225 invoices were recovered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no requirement for giving any such opportunity. Resultantly, the Tribunal came to the conclusion that the impugned additions had been made on the basis of statements recorded behind the back of the assessee and without giving any proper opportunity to the assessee to rebut the same by cross-examination. Therefore, the cardinal principle having been violated for providing adequate opportunity for rebuttal evidence was the ground which prevailed with the Tribunal. 7. The fact that Sanjay Dhawan was an Ex-President of the company and there were criminal proceedings pending against him at an earlier point of time was a reason with the Tribunal to allow the appeal by holding that merely relying on the invoices as evidence which, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pressure and he was not agreed with its contents. Resultantly, a finding was recorded that the Assessing Officer did not make any independent inquiry prior to making the impugned additions but simply relied on the third party evidence without bringing on record any corroborative further evidence. The fact that the e-mail print out was for June, 2015, the bill numbers were running into series of 200, whereas as per the regular books of account the serial numbers of the invoices for the month of June, 2015 were in the series of 700, which was also a contradiction which was noticed by the Tribunal and it was in such circumstances the appeals have been allowed. 9. Counsel for the appellant has vehemently submitted that the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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