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TMI Blog2020 (3) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. ii. The notice u/s 148 was served on 03.04.2016 i.e. after the stipulated date. iii. Reasons were recorded on the basis of vague, nonspecified and irrelevant material. iv. The AO completing the assessment had no jurisdiction over assessee's case. The Hon'ble Tribunal may very kindly allow the appeal by deciding these issues correctly and as per law. 3. That, the ld. CIT(A) erred in law and in fact in not deciding the above issue No. ii relating to service of notice after prescribed time limit u/s 148(1) of the Act. Hence the impugned order under appeal is erroneous and bad in law. (2015) 53 taxmann.com 108 (Mad.)- Gitsons Engineering Co. Vs. CIT. 4. The without prejudice to the generality of the ground No. 1 & 2above. It is alternatively urged that in the facts and circumstances of the case, the impugned reopening of the asset invoking Sec. 147 to 151 was without jurisdiction and contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the ld. CIT(A) erred in law and facts in rejection the appellant's ground of appeal in relating to levy of interest by relying on the decision of the Hon'ble Supreme Court in the case of CIT vs. Anjum M.H.Ghaswala and others (2001) 252 ITR 1 (SC) and other decision, by holding that the levy of interest was automatic whereas the ground of the appeal of the appellant was totally different and the appellant was denying his liability of interest u/s 234B because no interest was leviable u/s 234B91), consequentially Sec. 234B(3) was also in applicable. 8. The appellant craves leave to add, alter, substitute withdraw, modify or amend any of the ground of appeal here in above taken on or before the hearing. 9. The appellant prays that his appeal may kindly be allowed, cancelling the impugned sustained action of ld. AO by CIT(A)." 2. Rival contentions have been he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 'on-money'. He referred to the relevant extract of the statement of Shri Madan Mohan Gupta u/s 132(4) reproduced at pages 10-13 of the order to conclude that assessee made 'on-money' payment at the rate of Rs.2,000 per sq. yard and thus, made addition of Rs.4,66,660/- u/s 69 of the Act. By the impugned order, the ld. CIT(A) has confirmed the action of the Assessing Officer. On the issue of opportunity of cross examination, it was held that Shri Madan Mohan Gupta is not third party as he was the owner of the plots. All the documents on the basis of which assessment was made were provided to the assessee. Accordingly, it was held that the contention raised by the assessee as to the denial of cross examination by the Assessing Officer does not carry much weight and thus, confirmed the addition. 7. After going through the order passed by the lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 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 that he is not a third party ignoring that assessee has not purchased any plot from him rather it is the Rajasthan Tehsildar Sewa Parishad who have allotted the plot to the assessee under the scheme framed by them. The Jodhpur Bench of the Tribunal in the case of Shri Mehtab Singh Ujjawal Vs. ITO in ITA No. 271/Jodh/2018 vide order dated 18/01/2019 wherein exactly similar addition was deleted by the Tribunal after observing 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. I had also deliberated on the judicial pronouncements r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 to cross-examine the witnesses by the Adjudicating Authority though the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 addition made by AO merely on the basis of statement, when there is no corroborative material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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