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2024 (5) TMI 1392

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.... onus of presenting the witness on to the assessee. The addition so confirmed on the basis of wrong interpretation of law is illegal and wrong. The same may very kindly be deleted. 3. That the Ld. CIT(A) erred in maintaining the addition of Rs. 30,00,000/- made by the AO by not following judicial proprietary. The order of Ld. CIT(A) being illegal and wrong. The same may very kindly be quashed. 4. That even on merits also, the addition confirmed by Ld. CIT(A) is baseless and wrong. The same may very kindly be deleted. 2. Facts in brief as culled out from the record are that the assessee is an individual and engaged in the business of T. V. Cable Operator. The case of the assessee for A.Y.2008-09 was reopened by way of issuance of notice u/s 148 of the Act and thereafter assessment u/s 143(3)/147/254 of the Income-tax Act, 1961, was framed assessing the income at Rs. 35,07,800/-. In the said reassessment proceedings, addition of Rs. 30 lakhs was made towards unexplained investment allegedly made by the assessee by way of giving cash to Mr. Nilesh Ajmera for the purpose of purchasing immovable property. The said addition was made on the basis of the information received from t....

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.... has been made on the basis of documents found and seized with the third persons and there being no corroborative and concrete evidence, which could prove that the assessee advanced the money to Nilesh Ajmera. Referring to the decision of this Tribunal in the case of ITO vs. Pukhraj Soni, in I.T.A.No. 585/Ind/2015 dated 21.09.2016, he submitted that the assessee deserves to succeed because in the case of Mr. Pukhraj Soni (supra) also and there was similar issue of addition made on account of advances made to Nilesh Ajmera and this Tribunal on finding that the ld. AO failed to bring on record any corroborative and concrete evidence against the assessee and that the addition made by the AO is merely based on suspicion, surmises and conjecture deleted the addition. Reference was also made to other judgments and decisions laying down similar ratios and the same are mentioned in the written submissions. 4. Second fold of contention by Ld. Counsel for the assessee is that the assessee sought opportunity to cross examine Nilesh Ajmera, so as to prove that the assessee has not advanced alleged sum of Rs. 30 lakhs to Mr. Nilesh Ajmera and this opportunity was to be provided by the AO but t....

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...., but denied to have paid cash amount of Rs. 30 lakhs to Nilesh Ajmera and further denied to have made any investment in Dubai Flat. In the first round, when the assessee failed to get any relief from Ld. CIT(A), he filed the appeal before this Tribunal and after examining the facts of the case, this Tribunal vide its order dated 1.12.2016, restored the matter to the AO to decide the matter de novo after providing the opportunity to assessee to cross-examine Mr. Nilesh Ajmera. The relevant finding of this Tribunal following the ratio laid down by the Hon'ble Apex Court in the case of M/s. Andaman Timber Industries vs. Commissioner of Central Excise (Civil Appeal No. 4228 of 2006, order dated September 2, 2015), reads as follows : - "7. We have heard rival contentions of both the parties and perused material available on record. Looking to the facts and circumstances, we find that the assessee disputed the correctness of the entries made in the diary and wanted to cross-examine Mr. Ajmera, but the AO did not grant this opportunity to the assessee. The Ld. CIT(A) confirmed the same on the ground that cross-examination is secondary evidence as the seized papers are primary evide....

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.... Supreme Court, we restore the present matter to the file of the AO, who will provide the opportunity to the assessee to cross- examine Mr. Ajmera and thereafter decide the matter de novo. The assessee is at liberty to file further submission/evidence, if any, support of his claim. Accordingly, grounds of appeal of the assessee are allowed for statistical purposes only." 7. From the perusal of the above finding of this Tribunal, we notice that after examining the facts of the case including the facts that details of payment by mode of cheque and cash was appearing in Diary BS-8, the matter has been restored to the ld. AO for deciding afresh after providing opportunity to assessee to cross-examine Nilesh Ajmera. So the fate of the addition was solely dependent on the outcome of the cross examination proceedings between assessee and Nilesh Ajmera. When the ld. AO carried out the proceedings in pursuance of directions of this Tribunal, the relevant observation of ld. AO appearing in the assessment order reads as under :- "4. In response to said notices, Shri S.S.Solanki, CA and authorized representative of the assessee attended the assessment proceedings from time to time as per o....

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.... Rs. 30,00,000/- was made by the AO. 4.2 Before me, the written submission has been filed. It has been argued that the appellant cannot be punished because cross- examination could not be made. Hon'ble ITAT has clearly mentioned that the denial of cross-examination amounted to violation of principle of natural justice. It has been further mentioned by the AO in the order that the A.R. of the appellant did not press for cross-examination but relied upon some another judgement of Hon'ble ITAT in the case of Shri Pukhraj Soni. 4.3 Hence, as per material available before me, the directions of Hon'ble ITAT for cross-examination has not been complied. Appellant should have produced Shri Nilesh Ajmera for cross- examination. Since, no cross-examination of Shri Nilesh Ajmera has taken place as per the directions of Hon'ble ITAT, the addition made by the AO worth Rs. 30,00,000/- is confirmed and the appeal of the appellant is dismissed. 9. Now on going through the proceedings, and the relevant observations of the lower authorities, we find that the onus of bringing Nilesh Ajmera for cross examination has been casted upon the assessee. We fail to find any merit in suc....