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TMI Blog2025 (5) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... the level of the Assessing Officer upto the Appellate Tribunal having already taken place. 4. Further, submission of Ld. AR for the appellant is that in the first round when the matter came up before this Appellate Tribunal, vide order dated 01.09.2017, the appeals filed by the Revenue were allowed for statistical purpose, whereas the cross objections filed by the assessee were dismissed, but the matter was remanded to Learned CIT(A) to examine as to the nature of transactions of loans and advances and their repayment, both in cash, leading to violation of provisions of section 269SS and 269T of the Act, without any reasonable cause. As further pointed out by Ld. AR, order of remand came to be passed when the Appellate Tribunal observed that there was no enough material on record to take a view in the matter. Ld. AR has submitted that on remand of the matter, the assessee produced before Learned CIT(A) certain additional evidence, whereupon Ld. CIT(A) called for remand report in respect thereof, but the Assessing Authority neither called the assessee to participate in remand proceedings nor issued summons or process to the concerned deponents, whose affidavits were submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by the assessee of the aforesaid persons are merely a self-serving documents prepared on afterthought for cooking up the storey of payment towards site expenses, as the assessee had first received the payments from the aforesaid persons or even there are opening balances standing at the credit some of the aforesaid persons and then repaid the same to the aforesaid persons. In some cases there are only cash receipts. Therefore, these entries in any way cannot be counted as payments made by the assessee for meeting site expenses through these persons." 10. As is available from the impugned order passed by Learned CIT(A), a copy of the remand report was made available to the assessee for rejoinder/comments. In response thereto, Ld. AR for the appellant furnished rejoinder/comments before Learned CIT(A) on 22.08.2024 and 11.11.2024. Relevant portion extracted from the said rejoinder as is available in the impugned order reads as under:- "The Ld. A.O. have not applied his statutory duties, have not verified the facts & evidences submitted by us and out rightly he has brushed aside all the evidences. That the Ld. A.O. retreated the earlier observation, whereas when the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that on calling of remand report the Ld. A.O. have not done any thing, thus the following issues are not taken up. Thus the issue is that- There is nothing on record to have verified the 13 persons by A.O. neither the Ld. A.O. cross examined to all 13 persons. Thus to meet with the requirements of order of Hon. ITAT the Ld. A.O. has to do further verification, but he has not done any thing. Hence based on his remand report no new facts are coming us then the order of Hon. CIT(A), Kota dtd. 19.12.2016 holds good. That even after your letter for remand report the Ld. A.O. directs your honour not accept the additional evidences whereas it was as per the direction of your honour and Hon. ITAT. In view of above we request your honour either the Ld. A.O. has to prepare a detailed remand report after proper verification or to hold good the order of Hon. CIT(A) Kota dtd. 19.12.2016." 11. While dealing with the aspect of the additional evidence, Learned CIT(A) observed in para 4.6 of the impugned order as under:- "4.6 Admission of additional evidence:- I have considered the additional evidences, the submissions made in this regard and also the remand report of the AO, as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alary slip, Form 16 etc. issued by the appellant to his staff was not enclosed. (iv) No documentary evidence such as employment agreement other agreement is submitted by the appellant in support of his claim that these person are their staff/contractor. (v) There is a mismatch in the name of the person in the affidavit in comparison to the name mentioned in the ledger account as the name mentioned in the ledger account has been stated to be the nickname / alias name only. Example - name mentioned in ledger is "shahsi ji" whereas in the affidavit the name mentioned is "sukhvir suman alias shashi ji". No evidence has been filed regarding the nickname/alias name. (vi) complete address like the house number etc. is not mentioned. The appellant has not filed the evidences regarding the following:- * Evidence regarding employment during the relevant period. Employment agreement, Form 16, bank transactions of salary payment etc. * Evidence regarding working on that site during the relevant period * Evidence regarding role of handling of cash in terms of earlier and later Transaction from the books of accounts * Identification details and documents of these persons * Evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger account of Sh. Mohanji, it is observed that there was payment of Rs. 500000/- on 20.04.2010 and same amount was received back on 12.05.2010. Further, on perusal of ledger account of Mishraji Baran, it is observed that there was receipt of Rs. 80000 on 18.06.2010 and payment of Rs. 80000 on 29.06.2010. Similar instances are noticed in the ledger account of the other person also. (iv) On perusal of copy of ledger account furnished by appellant as per paper book (Page No.65), in ledger account of Bharat Construction, there is credit opening balance of Rs. 6,00,000 as on 01.04.2009. Therefore, it is pertinent to mention that if these amount were for site expense why there are opening credit balance in round figure. (v) In the impounded books, there are specific entries like Lalaji/Bobby/Dagaljikejama". The transactions which are found during the course of survey were not recorded in the books of accounts of the appellant as on date of the survey. Further the entries in the ledger accounts support the case of the Addl. Commissioner regarding the levy of the penalty. These ledger accounts have been prepared by the appellant after the survey and apparently even after the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their deposition in the respective affidavit, and as regards the ledger account, only then defects pointed by Learned CIT(A) could gain any significance. By not calling upon the assessee or summoning any of the deponents of the affidavits, it can safely be said to be gross violation of one of the principles of natural justice i.e. non providing of opportunity of being heard.
Conclusion
18. In view of the above discussion and the well settled law on the point of providing of reasonable opportunity of being heard, when neither the Assessing Officer, conducting the remand proceedings nor Learned CIT(A), while seized of the appeal, provided opportunity of being heard to the assessee as regards the additional evidence/defects pointed out for rejecting the same, we are of the considered view that the impugned order passed by Learned CIT(A) upholding the penalty order deserves to be set aside.
Result
19. As a result, the appeal is allowed and the impugned order passed by Learned CIT(A), upholding the penalty order is hereby set aside.
File be consigned to the record room after the needful is done by the office.
Order pronounced in the open court on 15/05/2025. X X X X Extracts X X X X X X X X Extracts X X X X
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