TMI Blog2024 (3) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... any whisper about the statement of Ms. Parul Ahluwalia that her statement is being used adversely against the assessee. It is submitted by the Ld. AR that the assessee got the knowledge of such statement only on receipt of assessment order. If that is the scenario, the question of allowing the assessee an opportunity to cross-examine Ms. Parul Ahlulwalia does not arise. In fact this has not taken place. Therefore, we are of the opinion that the statement of Ms. Parul Ahluwalia recorded during search of M/s. JBL cannot legally be adversely used against the assessee. In taking this view, we are supported by the decision of SMC Share Brokers Ltd. [ 2006 (8) TMI 110 - DELHI HIGH COURT] wherein the court held that where statement of a third person is acted upon without giving an opportunity to cross examine him, principles of natural justice has not been followed and order would not be valid. This decision was rendered in the context of order under section 158BD which is equally applicable in the case of the assessee to order passed under section 153C of the Act. As AO has used his imagination in applying the provision of section 69C for making the impugned addition in both the years tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in both the years. 3.2 Accordingly, notice under section 153C of the Act was issued on 10.06.2021 to the assessee for both the AYs. In response, the assessee filed return on 13.11.2021. Statutory notice(s) were issued and the assessee filed details on-line in compliance thereto. 3.3 It was found in search that M/s. JBL was maintaining a software called Hajir Johri in digital data. M/s. JBL was maintaining two sets of account, one in Tally Software and the other in Hajir Johri software. The Tally software entries contained the Pakka entries whereas the entries in Hajir Johri were a combination of Kaccha and Pakka entries. It was noticed that the Hajir Johri software contained various ledger accounts for number of parties which included the assessee also. 3.4 The Ld. AO noted from the Hajir Johri software ledger that M/s. JBL had received from the assessee cash aggregating to Rs. 11,45,348/- (Rs. 10,00,000/- on 26.08.2015; Rs. 1,32,000/- on 16.11.2015 and Rs. 13,348/- on 06.01.2016) during the financial year ( FY ) 2015-16 relevant to AY 2016-17. Likewise, M/s. JBL had received from the assessee cash of Rs. 10,88,000/- on 22.06.2016 i.e. in FY 2016-17 relevant to AY 2017-18. The Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee in para 6.1 to 6.4 of his appellate orders. He recorded his observation and findings in para 6.5 of his appellate orders separately based on facts emerging from the details submitted and findings made by the Ld. AO as under:- 6.5 I have considered the facts and submission of the assessee. The following facts emerges from the details submitted and findings made by the AO: a) There was a search on M/s JBL Group on 05.01.2017 where in there were two sets of accounting data pertaining to M/s JBL found. One maintained in Tally Software and the second maintained in Johri-Hajir software. b) The accounts maintained in tally software were shown in its regular books of account however, the accounts maintained in Johri Hajir software where actually completed business transactions details including transaction made in cash for purchase/ sale of Gold/ Silver which were mostly not part of the regular books of accounts. c) During the course of search the statements of relevant persons who were maintaining Johri Hajir software and updating the accounts have accepted the fact that data maintained in Hajir Johri software contained the cash as well as transaction through banking channels. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... walia, Director and former employee of M/s. JBL but in her statement she nowhere identified that the cash transactions related to the assessee and no specific questions were put to her in this regard. Since the Hajir Johri ledger account was neither maintained by the assessee nor was found from him, presumption under section 292C does not apply to the assessee. 7.1 It has emphatically been submitted by the Ld. AR that the assessee was never confronted with the statement of Ms. Parul Ahluwalia. He came to know of such a statement from the assessment order(s) only. Had the assessee been confronted with the statement of Ms. Parul Ahluwalia, he would have requested for her cross-examination. Due to lack of such an opportunity, the statement of Ms. Parul Ahluwalia cannot be used adversely against the assessee. He relied on the decisions of Hon ble Supreme Court in Andman Timber Industries vs. CCE, Kolkata-2, Civil Appeal No. 4228/2006 (SC) and Hon ble Delhi High Court in CIT vs. Harjeev Aggarwal (2016) 70, taxmann.com 95 (Del). 7.2 The Ld. AR further submitted that the impugned addition under section 69C as done by the Ld. AO cannot be sustained. Moreover, the confirmation of impugned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement only on receipt of assessment order. If that is the scenario, the question of allowing the assessee an opportunity to cross-examine Ms. Parul Ahlulwalia does not arise. In fact this has not taken place. Therefore, we are of the opinion that the statement of Ms. Parul Ahluwalia recorded during search of M/s. JBL cannot legally be adversely used against the assessee. In taking this view, we are supported by the decision of Hon ble Delhi High Court in CIT vs. SMC Share Brokers Ltd. (2007) 288 ITR 345 (Del) wherein the court held that where statement of a third person is acted upon without giving an opportunity to cross examine him, principles of natural justice has not been followed and order would not be valid. This decision was rendered in the context of order under section 158BD which is equally applicable in the case of the assessee to order passed under section 153C of the Act. 9.3 Perusal of the assessment orders would show that whereas the Ld. AO has used his imagination in applying the provision of section 69C for making the impugned addition in both the years treating the alleged cash transactions as expenditure incurred by the assessee towards purchase of gold/bullion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
