TMI Blog2020 (3) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... T MRMBER For the Assessee : Shri N.R. Mertia (FCA) For the Revenue : Shri Abhimabnu Singh Yadav (JCIT-DR) ORDER PER R.C. SHARMA, A.M. This is an appeal filed by the assessee against the order dated 28.08.2018 of Ld. CIT(A)-I, Jodhpur for the assessment year 2009-10 in the matter of order passed U/s 143(3)/147 of the Income Tax Act, 1961 (in short, the Act), wherein the assessee has taken following grounds:- 1. That, the ld. Commissioner of Income tax (A)-1s t, Jodh. ld. CIT(A), was unjustified and has erred in law and in facts in maintaining the assessment order and the jurisdiction acquired u/s 147/148 and the by the ld. Income-tax Officer, Sirohi, (ld. AO). Hence, both the orders deserve to be quashed and cancelled. 2. That, without prejudice to the generality and comprehensiveness of the ground No. 1 above, the ld. CIT(A) was not justified and had erred in law and in facts in view of the material available on record and the written and oral submissions made with the support of the applicable judicial pronouncement during the course of the appellate and assessment order and thereby dismissing the appeal on these legal issues, which are:- i. The copy of reason did not contain date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, was also sustainable as during the course of asst. proceeding the ld. AO cause notice issued to the appellant containing only some portion of statement of the alleged seller which itself was not reflecting the name of the appellant hence the addition made is unsustainable on facts and in the eye of law. Thus, it deserved to be cancelled. The Hon'ble Bench may kindly delete the same. 6. That the impugned asst. order was unsustainable in the eye of law and on fact when the ld. AO did not provide any opportunity to cross examine the seller whose statement was used and relied upon by ld. AO against the appellant. This cross examination, amongst other, ought to have been provided by the ld. AO, particularly when the appellant had vehemently denied the allegation and had made assertions that the statement of the seller of Sh. Madan Mohan Gupta was false as the appellant did not give any additional money to seller as was alleged against the appellant. For this appellant had referred judicial supports in his written submissions to the AO which were in relation to providing of cross-examination of the witness. hence the Hon'ble Tribunal very kindly deleted the addition. 7. That t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was reopened on the basis of statement of Shri Madan Mohan Gupta recorded during the search at his business premises and also on the basis of documents found during the course of search. So far as the reopening is concerned, I found that after recording speaking reasons, the Assessing Officer concluded that the income has escaped assessment. Accordingly, I do not find any infirmity in the order of the Assessing Officer for reopening of the assessment. 4. In so far as the merit of the addition is concerned, exactly under similar facts and circumstances, the issue has been decided in the case of Dhirendra Singh Vs. ITO in ITA No. 1273/JP/2018 with two other appeals vide order dated 25/3/2019, wherein the Tribunal have deleted the addition on merit after observing as under: 6. Now I come to the merit of the addition, I found that the Assessing Officer observed at pages 2 to 15 of the order that in search at business premises of Shri Madan Mohan Gupta dated 23.05.2013, incriminating documents were found and seized which revealed that the assessee made payment of Rs.2,68,330/- and Rs.2,670/- towards boundary expenses by receipt no. 53 dated 07.07.2008 through cheque and Rs.4,66,660/- as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no privity of contract between the assessee and Shri Madan Mohan Gupta. Therefore, no question of payment of alleged on-money by the assessee to Shri Madan Mohan Gupta arises for consideration. 8. I also observe that Annexure-A-3 referred by the Assessing Officer in his order is a register where the details of the plot allotted to various persons is noted. As per this register, the name address of the person to whom the plots were allotted, the area of the plot, the amount receivable from these persons at the rate of Rs. 1,150 per sq. yard, and the amount due to them after adjusting Rs.30,000/- received from the Rajasthan Tehsildar Sewa Parishad on account of these persons is noted. Thus, this Annexure nowhere suggests that any on-money has been received by Shri Madan Mohan Gupta from the allottees of plot. At the time of possession of the plot, the final receipt is issued for the entire amount received and that receipt no. is also mentioned in this register. Thus, in these papers there is no evidence that any on-money has been paid by the assessee. Further, opportunity to cross examine Shri Madan Mohan Gupta was not provided even when specifically asked for on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,71,000/-. c. That the entire fabric being woven against the appellant for treating the alleged payment of on money go around the statement of Shri Madan Mohan Gupta. It is submitted that after thought statement carry no weight under the law and they are against the spirit of natural justice because they have no evidence value. d. That except the above statement of Shri Madan Mohan Gupta there was no supporting evidence available with the Id.AO which could corroborate that on money of Rs.4,66,660/- was paid by the appellant to Shri Madan Mohan Gupta. e. That while making the allegation the Ld.AO has relied upon the statement of Shri Madan Mohan Gupta course of search proceedings. 10. Assessee also asked before the AO to 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in the case of Ashish international in 1TA No.4299/Murn/2009 dated 22/02/2011, wherein Court held as under:- The question raised in this appeal is, -whether the Tribunal justified in deleting the addition on account of bogus purchases allegedly made by the appellant from M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. According to the revenue, the Director of M/s. Thakkar Agro Industrial Chem Supplies P.Ltd. in his statement had stated that there were no sales/ purchases but the transactions were only accommodation bills not involving any transactions. The Tribunal has recorded a finding of fact that the appellant had disputed the correctness of the above statement and admittedly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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