Sh. Prince Sagar, Ludhiana V. DCIT, Ludhiana

ITA 1127/CHANDI/2011

• Counselvise Citation: 112721514 RSA 2011
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-03-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 24-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: NARESH KUMAR
• Keywords: Income from undisclosed sources; Principle of natural justice; Opportunity of cross examination; Additional evidence
• Section: 131; 148; 143(3); 142(1); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: CHANDIGARH BE NCH A BEFORE SHRI H.L. KARWA, VP AND SHRI MEH AR SINGH, AM ITA NO. 1127/CHANDI/2011 ASSESSMENT YEAR 2003-04 PRINCE SAGAR V. D.C.I.T.C-VII, LUDHIANA 1, FLOWER DALE COLONY BAREWAL ROAD, LUDHIANA ADTPS 7553 C ITA NO. 1128/CHANDI/2011 ASSESSMENT YEAR 2003-04 RAJEEV KUMAR V. D.C.I.T.C-VII, LUDHIANA 5, FLOWER DALE COLONY BAREWAL ROAD, LUDHIANA ACBPK 3740 J ITA NO. 1129/CHANDI/2011 ASSESSMENT YEAR 2003-04 SANJEEV KUMAR V. D.C.I.T.C-VII, LUDHIANA 31, FLOWER DALE COLONY BAREWAL ROAD, LUDHIANA ACBPK 3739R ITA NO. 1130/CHANDI/2011 ASSESSMENT YEAR 2003-04 SUNIL KUMAR V. D.C.I.T.C-VII, LUDHIANA 4, FLOWER DALE COLONY4 BAREWAL ROAD, LUDHIANA ACFPK 9775 K (APPELLANTS) (RESPONDENT) APPELLANT BY : SHRI NARESH KUMAR RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING: 7.3.2012 DATE OF PRONOUNCEMENT: 13 .3.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEALS, FILED BY THE ASSESSEES FOR ASS ESSMENT YEAR 2003-04 ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, 2 LUDHIANA DATED.29.9.2011 PASSED U/S 250(6) OF INCO ME-TAX ACT (HEREIN AFTER REFERRED TO IN SHORT THE ACT). 2. THE ASSESSEES RAISED SIMILAR GROUNDS OF APPEAL H AVING SIMILAR FACTS AND CIRCUMSTANCES IN ALL THESE APPEAL S. THEREFORE AS ILLUSTRATIVE CASE THE GROUNDS OF APPEAL RAISED IN I TA NO. 1127/CHD/2011 IN THE CASE OF PRINCE SAGAR, BAREWAL ROAD, LUDHIANA ARE REPRODUCED HEREUNDER:- 1 THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT AND CONFIRMING THE ADDITION OF RS. 61,82,781/- MADE BY THE AO IN RESPECT OF AMOUNT OF GROSS RECEIPT OF SALE OF SHARES AND WHICH IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E ASSESSEE WAS AFFORDED THE REASONABLE OPPORTUNITY TO CROSS EXAMINE SHRI NARAIN DUTT AND WHEREAS, ON THE CONTRA RY, NO OPPORTUNITY, WHATSOEVER, WAS AFFORDED TO THE ASSESS EE TO CROSS EXAMINE, SHRI NARAIN DUTT AND THE FACTS AS BR OUGHT IN THE SWORN AFFIDAVIT GIVEN TO THE LD. CIT(A) HAS TOT ALLY BEEN IGNORED BY HIM. 3. THAT THE LD. CIT(A) HAS ALSO ERRED IN NOT ADMITT ING THE ADDITIONAL EVIDENCE IN THE FORM OF STATEMENT OF SHR I NARAIN DUTT AND AS ALSO THE CONTENTS OF THE AFFIDAVIT OF S HRI SANJEEV KUMAR, BROTHER OF THE APPELLANT AND WHICH OTHERWIS E ALSO PROVES THE FALSITY OF CLAIM OF SHRI NARAIN DUTT THA T HE WASS SHIFTED TO ALMORA AND, WHEREAS, ON THE OTHER HAND A S PER HIS STATEMENT, HE HAS BEEN CONTINUOUSLY WORKING WITH M/ S SUNRISE STOCK SERVICE PVT LTD AS A REGULAR EMPLOYEE FOR THE PAST 11 YEARS AT LUDHIANA. 4. THAT BY NOT ADMITTING THE ADDITIONAL EVIDENCE, T HE LD. CIT(A) HAS BRUSHED ASIDE THE JUDGMENT OF THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. MUK TA METAL WORKS AS REPORTED IN 336 ITR 555 IN WHICH, IT HAS B EEN HELD THAT IF THE ADDITIONAL EVIDENCE IS AUTHENTIC AND NE CESSARY FOR THE DECISION THE SAME DESERVES ADMISSION. 5. THAT THE LD. CIT(A) HAS ALSO ERRED IN NOT CONSID ERING THE SUBMISSIONS THAT THE AO DID NOT INFORM ABOUT THE PU RPOSE OF CALLING THE ASSESSEE ON 23.11.2010 AND ON 1.12.2010 AND ALSO FAILED TO MARK THE PRESENCE OF THE ASSESSEE ON THE APPOINTED DATE ON SOME FLIMSY GROUND. 6. THAT THE LD. CIT(A) HAS FAILED TO CONSIDER THE F ACT THAT EVEN SHRI HARVINDER SINGH, DIRECTOR OF M/S SUNRISE STOCK SERVICE PVT LTD ON WHOSE STATEMENT, THE ADDITION W AS MADE BY THE AO HAD NOT BEEN PRODUCED BEFORE THE APPELLAN T AND 3 THUS, THE PRINCIPLES OF NATURAL JUSTICE HAVING NOT ADHERED TO AND NO RELIANCE CAN BE MADE ON SUCH STATEMENT RECOR DED AT THE BACK OF THE ASSESSEE AND THUS, ANY ADDITION BAS ED ON SUCH STATEMENT DESERVES TO BE DELETED. 7. THAT SINCE NO REASONABLE OR PROPER OPPORTUNITY H AVE BEEN AFFORDED TO CROSS EXAMINE SHRI NARAIN DUTT, TH E RELIANCE ON THE STATEMENT OF SHRI NARAIN DUTT IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. NOTWITHSTANDING THE ABOVE SAID FACTS, EVEN ON ME RITS THE LD. CIT(A) HAS ERRED IN IGNORING THE DOCUMENTAR Y EVIDENCE IN THE SHAPE OF TRANSACTIONS BY ACCOUNT PA YEE CHEQUE, DEMATE ACCOUNT AND EVIDENCE OF RATES OF SHA RES AS PER RATES OF THE STOCK EXCHANGES IN INDIA AND THE A DDITION HAS BEEN MADE ON SURMISES AND CONJECTURES AND RATHE R NO DOUBT HAS BEEN CAST ON THE DOCUMENTARY EVIDENCES AN D DETAILED SUBMISSIONS OF THE APPELLANT. 9. THAT THE LD. CIT(A) HAS ALSO ERRED IN CONSIDER T HAT THE ASSESSEE HAD DULY DISCLOSED LONG TIME CAPITAL GAIN ON SALE OF SHARES OF M/S COUNTRY CREDIT CAPITAL LTD. IN HIS RE TURN FILED AND ALSO PAID TAX THEREON. 10. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEAR D OR DISPOSED OFF. 3. THE FACTS OF THE CASE AS CULLED OUT FROM THE REL EVANT RECORD ARE THAT A SURVEY U/S 133A WAS CONDUCTED ON 15.6.20 04 AT THE BUSINESS PREMISES OF SHRI PURI, A PARTNER OF SHIV P URI & COMPANY, SUNRISE STOCK SERVICES PVT LTD; AND SURVEY SCRIPTS PVT LTD. IN THE COURSE OF SURVEY, CERTAIN PERSONS GAVE CONFESSIONAL STATEMENTS THAT THEY WERE INVOLVED IN GIVING ADJUSTMENT ENTRIE S AGAINST RECEIPT OF CASH AND IT WAS REVEALED THAT THE LONG TERM CAPI TAL GAIN DECLARED BY THE ASSESSEE WAS NOT EARNED ON ACCOUNT OF ANY AC TUAL SALE AND PURCHASE OF SHARES BUT WAS A MERE ACCOMMODATION ENT RY PROCURED IN LIEU OF PAYMENT IN CASH OUTSIDE THE ACCOUNT BOOK S. FOR THIS AO RECORDED THAT SUCH INCOME HAD ESCAPED ASSESSMENT, H ENCE THE ISSUANCE OF NOTICE U/S 148 OF THE ACT. IN THE ASSE SSMENT FRAMED SUBSEQUENTLY, ASSESSEE WAS CONFRONTED WITH THE CONF ESSIONAL STATEMENTS OF SHRI HARVINDER SINGH, DIRECTOR OF M/S SUNRISE STOCK SERVICES PVT LTD. THROUGH WHOM THE SHARES IN QUESTI ON WERE 4 TRANSACTED. AFTER CONSIDERING THE STAND OF THE ASS ESSEE, THE AO HAS HELD THAT THE LONG TERM CAPITAL GAINS OF RS. 58 ,38,750/- DECLARED ON THE SALE/PURCHASE OF SHARES OF THE COMP ANY WAS A BOGUS TRANSACTION. ACCORDING TO THE AO, THE ASSESS EE HAD FAILED TO SUBSTANTIATE HIS CLAIM THAT THE INCOME WAS EARNE D FROM LONG TERM CAPITAL GAIN ON SALE/PURCHASE OF SHARES. ACCO RDING TO THE AO THE ALLEGED TRANSACTION ARE A SHAM. ACCORDINGLY AO HAD BROUGHT TO TAX THE SALE PROCEEDS OF THE SHARES OF RS. 60,61 ,550/- AS INCOME FROM UNDISCLOSED SOURCES. ADDITIONALLY, A SUM OF R S. 1,21,231/- WAS ALSO TAXED ON THE GROUND THAT THE ASSESSEE WOU LD HAVE PAID PREMIUM TO THE BROKER FOR OBTAINING THE ACCOMMODATI ON ENTRY OF RS. 60,61,550/-. AS A RESULT, A TOTAL ADDITION OF R S. 61,82,781/- WAS MADE TO THE RETURNED INCOME AS UNDISCLOSED INCOME. 4. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) DELETED THE ADDITIONS MADE BY THE AO HOLDING THAT THE AO HAS FAILED TO MAKE PROPER ENQUIRIES TO ESTABLISH BE YOND REASONABLE DOUBT THAT THE SHARE TRANSACTIONS ENTERED INTO BY T HE ASSESSEE ARE SHAM. THE LD. CIT(A) ALSO HELD THAT THE AO HAS NOT ALLOWED AN OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE PE RSONS WHOSE STATEMENT WERE RELIED ON BY HIM WHILE MAKING THE AD DITIONS. 5. THE DEPARTMENT FILED SECOND APPEAL BEFORE HON'BL E ITAT. HON'BLE ITAT HELD THAT AFTER THE ASSESSEE HAVING BE EN MADE AWARE OF THE CONFESSIONAL STATEMENTS OF THE PERSONS RELIE D BY THE AO, THERE IS NO CONFIRMATION OBTAINED BY THE ASSESSEE F ROM SUCH PERSONS IN SUPPORT OF SUCH TRANSACTIONS WHICH COULD CONSTITUTE AN EFFECTIVE DENIAL OF THE CHARGE MADE OUT AGAINST HIM AND FURTHER THE QUALITY OF THE ANSWERS GIVEN BY THE ASSESSEE DURING THE 5 EXAMINATION BY THE AO DOES NOT INSPIRE CONFIDENCE. IT WAS ALSO HELD BY HELD BY THE HON'BLE ITAT THAT THE APPROACH OF LD. CIT(A) IN RELYING ON THE ADDITIONAL EVIDENCE TO DELETE THE AD DITION WITHOUT SUBJECTING THE SAME TO VERIFICATION OR ENQUIRY IS N OT JUSTIFIED. HENCE HON'BLE ITAT HAD SET ASIDE THE CASE TO THE FI LE OF AO WITH DIRECTION THAT AO SHALL ALLOW THE ASSESSEE AN OPPOR TUNITY TO CROSS EXAMINE THE PERSONS WHOSE STATEMENTS ARE TO BE USED AGAINST HIM. THE AO SHALL CONSIDER ALL SUCH EVIDENCE AND MATERIA L AS THE ASSESSEE MAY BRING FORTH IN SUPPORT OF THE TRANSACT ION IN QUESTION. 6. THE RELEVANT OBSERVATIONS OF THE ITAT IN ITA NOS . 745-757 PERTAINS TO THESE ASSESSEES FOR AY 2003-04 WHICH IS CONTAINED IN PARA 19. THE BENCH HAD SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORED THE SAME TO THE FILE OF AO FOR THE PURPOSE OF AFFORDING OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAMINE THE PE RSONS WHO STATEMENTS ARE USED AGAINST THE ASSESSEE FOR THE P URPOSE MAKING ADDITION AND ALSO TO ADJUDICATE THE ISSUE AFRESH AF TER CONSIDERING THE SUBMISSIONS FILED BY THE ASSESSEE AND RELEVANT MATERIAL OF RECORD IN ACCORDANCE WITH RELEVANT PROVISIONS OF TH E ACT. THE RELEVANT PART OF THE HON'BLE ITAT ORDER IS REPRODUC ED HEREUNDER:- 19 CONSIDERING THE AFORESAID DISCUSSION, IN OUR VI EW, IT WOULD BE IN THE FITNESS OF THINGS THAT THE ORDER OF THE LD. CIT(A) IS SET ASIDE. WE DO SO. THE ISSUE IS SET A SIDE TO THE FILE OF THE AO TO BE ADDRESSED AFRESH. THE AO SHAL L ALLOW THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE THE PERSON S WHOSE STATEMENTS ARE TO BE USED AGAINST THE HIM. THE AO SHALL CONSIDER ALL SUCH EVIDENCE AND MATERIAL AS THE ASSE SSEE MAY BRING FORTH IN SUPPORT OF THE TRANSACTION IN QUESTI ON. AT THIS STAGE, IT IS ALSO PERTINENT TO MENTION THAT OUR ACT ION OF SETTING ASIDE THE ORDER OF THE LD. CIT(A) MAY NOT BE CONSTR UED AS ANY REFLECTION ON THE MERITS OF THE ADDITION, WHICH WE HAVE NOT ADDRESSED FOR THE PRESENT. THE AO SHALL CONSIDER T HE SUBMISSIONS OF THE ASSESSEE AND OTHER THE MATERIAL ON RECORD AND PASS AN ORDER AFRESH IN ACCORDANCE WITH LAW. T HUS, FOR STATISTICAL PURPOSES, THE APPEAL OF THE REVENUE IN ITA NO. 755/CHANDIGIARH/07 IS ALLOWED. 6 7. IN THE COURSE OF APPELLATE PROCEEDINGS, THE LD ' AR' FOR THE ASSESSEE REFERRED TO VARIOUS PAGES OF THE PAPER BOO K INCLUDING THE ORDER SHEET ENTRY MADE BY THE AO. HE ALSO REFERRED TO NOTICES ISSUED U/S 143(2) OF THE ACT BY THE AO. THE LD 'AR ' FOR THE ASSESSEE VEHEMENTLY ARGUED AND CONTENDED THAT IN TH E ASSESSMENT PROCEEDINGS ALSO THE AO DID NOT AFFORD T HE EFFECTIVE AND PROPER OPPORTUNITY TO THE ASSESSEE FOR THE PURP OSE OF CROSS- EXAMINATION OF THE PERSONS ON THE BASIS OF WHOSE S TATEMENT, THE ADDITION WAS MADE. THEREFORE THE DIRECTIONS OF THE ITAT FOR SETTING ASIDE THE CASE TO AO WAS NOT COMPLIED WITH BY THE A O. THE LD 'AR' FOR THE ASSESSEE, FURTHER, CONTENDED THAT NON-COMPL IANCE WITH THE CONCEPT OF NATURAL JUSTICE, GOES TO THE ROOTS OF TH E CASE OF ASSUMPTION OF JURISDICTION. HE ALSO FILED A COPY O F NOTICE U/S 143(2) OF THE ACT ISSUED BY THE AO, THUS, EVIDENCIN G NO SPECIFIC OPPORTUNITY WAS AFFORDED TO THE ASSESSEE-APPELLANT, FOR THE PURPOSE OF CROSS-EXAMINATION OF THE SAID PERSONS. FINALLY, THE LD 'AR', FOR THE ASSESSEE PRAYED FOR SETTING ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORING THE CASE, TO THE FILE OF AO, F OR THE PURPOSE OF ALLOWING PROPER AND REASONABLE OPPORTUNITY TO CROSS -EXAMINE THE TWO PERSONS NAMELY MR. HARVINDER SINGH, DIRECTOR OF SUNRISE STOCK SERVICE PVT LTD AND MR. NARAIN DUTT S/O SHRI DHANI RAM, MANAGER, SUNRISE STOCK SERVICES PVT LTD. AS DIRECTED BY THE BENCH, WHILE RESTORING THE CASE TO THE FILE OF AO EARLIER. 8. THE LD 'DR' FOR THE REVENUE PLACED RELIANCE ON T HE ORDER OF LOWER AUTHORITIES. 9. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE, RIVAL SUBMISSIONS AND RELEVANT RECORD. THE MOOT POINT IN THESE APPEALS 7 ARE NON-COMPLIANCE WITH THE DIRECTIONS GIVEN BY THE TRIBUNAL TO THE AO WHILE RESTORING THE CASE AS IS EVIDENT IN PARA 1 9 OF THE SAID ORDER REPRODUCED ABOVE. WE HAVE PERUSED THE PAPER BOOK PAGES 32 TO 37 INDICATING VARIOUS OPPORTUNITIES AFFORDED TO THE ASSESSEE. THE ASSESSEE HAS ALSO PRODUCED COPY OF NOTICE U/S 1 43(2) OF THE ACT ISSUED BY THE AO ON 16.11.10 AND 29.11.10. THE RELEVANT EXTRACT OF THE ORDER SHEER ENTRY ARE REPRODUCED HER EUNDER:- 24.12.2009 PRESENT SHRI PRINCE SAGAR REQUESTED FOR ADJOURNMENT OF CASE AND ADJOURNMENT FOR 151.10 15.1.10 SHRI SANJEEV KUMAR ATTENDED AND REQUESTED FOR ADJOU RNMENT. CASE ADJOURNED FOR 16.2.10. 16.2.10 SRHI SANJEEV KUMAR ATTENDED THE CASE ADJOURNED FOR 8.3.10. 8.3.10 SHRI SANJEEV KUMAR ATTENDED THE CASE, ADJOURNED FOR 12.4.10 12.4.10 PRESENT SHRI PRINCE SAGAR, CASE ADJOURNED FOR 21.4. 10 PRESENT SHRI PRINCE SAGAR CASE, ADJOURNED FOR 14.5. 10. 28.5.10 SHRI SANJEEV KUMAR ATTENDED, CASE ADJOURNED 1.1110 SHRI K.J. SHALLEY, ADVOCATE WHO IS THE COUNSEL FOR M/S SUNRISE STOCK SERVICES PVT LTD, HAS BEEN REQUESTED TO TRACE SHRI NARAIN DUTT WHO WAS WORKING AS MANAGER IN THE COMPANY. HE HAS ASSUMED TO LOCATE HIM AND GIVE HIS WHERE ABOUTS WITHIN FEW DAYS. 8.11.10 SHRI K.J. SHALLEY, ADVOCATE HAS INFORMED THAT SHRI NARAIN DUTT IS PRESENTLY IN ALMORA (UTTRAKHAND) AND WOULD LBE COMING TO LUDHIANA AFTER 20.11.10. ACCORDINGLY, SH RI K.J. 8 SHALLEY HAS BEEN REQUESTED TO PRODUCE HIM ON 23.11. 10 AT 11.00 AM. 16.11.10 NOTICIE U/S 143(2) OF THE IT ACT ISSUED TO SHRI PRI NCE SAGAR. CASE FIXED ON 23.11.10 AT 11.00 AM. 23.11.10 PRESENT SHRI NARAIN DUTT AND SHRI K.UJ. SHALLY, ADV OCATE. SHRI PRINCE SAGAR DID NOT ATTEND THE PROCEEDINGS. SHRI NARAIN DUTT HAS INFORMED THAT HE IS IN LUDHIANA AND WOULD APPEAR. 29.11.10 SHRI NARAIN DUTT CAME AND INFORMED THAT HE WOULD LE AVING FOR ALMORA IN A DAY OR TWO. HE HAS BEEN REQUESTED TO A DJOURN HIS DEPARTURE FOR 2-3 DAYS TO WHICH HE HAS AGREED. KEEPING IN VIEW THE URGENCY, FRESH NOTICE U/S 142(2) OF IT ISSUED TO SHRI PRINCE SAGAR CASE FIXED ON 1.12.10 AT 10.30 AM . 1.12.10 PRESENT SHRI NARAIN DUTT FOR THE CASE. SHRI PRINCE SAGAR HAS NOT COME AND DID NOT COMPLY WITH NOTICES ISSUED U/S 143(2) OF THE IT ACT INSPITE OF OPPORTUNITY GIVEN TO SHRI PRINCE SAGAR FOR CROSS EXAMINATION OF TO DO SO. SHRI NARAIN DUT T HAS ALSO FILED A WRITTEN REPLY WHICH IS PLACED ON FILE. 6.12.10 SUMMON U/S 131 (IA) ISSUED TO HARBINDER SINGH SON O F SHRI GURDEV SINGH ON ALL THREE ADDRESSES AVAILABLE AS PE R REMARKS: I) 467, LSE BUILDING, FEROZE GANDHI MARKET, LUDHIAN A II) 109, VPO DHANOWALI, DISTT. JALANDHAR II) 488/2, RAJGURU NAGAR, LUDHIANA 10.12.10 NONE APPEARED 20.12.10 SINCE M/S SUNRISE STOCK SERVICES (P) LTD HAS INFOR MED (REFERENCE RAJEEV KUMAR CASE) THAT T HEY ARE UNABLE TO COLLECT INFORMATION ABOUT PRESENT ADDRESS OF SHRI H ARVINDER SINGH, FRESH SUMMONS ISSUED TO HARVINDER SINGH SON OF SHRI GURDEV SINGH, 109/VPO DHANOWALI, JALANDHAR CASE F IXED ON 24.12.10. 9 24.12.10 NONE APPEARED. CASE DISCUSSED. 27.12.10 ORDER U/S 143(3) ALONG WITH NOTICE U/S 271(1)(C) IS SUED. 10. THE FINDINGS OF THE LD. CIT(A) ON THE ISSUE ARE REPRODUCED HEREUNDER: 16 I HAVE CONSIDERED THE DETAILED SUBMISSIONS OF T HE APPELLANT AND ALSO GONE THROUGH THE ASSESSMENT ORDE R AND ALSO COPY OF THE ORDER SHEET ENTRIES AND OTHER DETA ILS AS CONTAINED IN THE PAPER BOOK FILED BEFORE ME BY THE APPELLANT. FROM THE ORDER SHEET ENTRIES, THOUGH IT IS CLEAR TH AT THE ASSESSEE HAD APPEARED BEFORE THE AO FROM 24.12.2009 TO 28.5.10 BUT THEN WHEN THE ASSESSEE WAS CALLED SRI N ARAIN DUTT ON 23.11.10 AND 1.12.10, THE APPELLANT DID NO T APPEAR BEFORE THE AO AND, AS SUCH, ON TWO CONSECUTIVE OCCA SIONS, HE FAILED TO AVAIL THE OPPORTUNITY FOR CROSS EXAMIN ATION. THE HON'BLE TRIBUNAL HAD SET ASIDE THE MATTER TOTEH FI LE OF THE AO FOR ALLOWING THE REASONABLE OPPORTUNITY TO THE ASSE SSEE FOR CROSS EXAMINE SHRI NARAIN DUTT AND SHRI HARVINDER S INGH AND THE AO HAD MADE ALL EFFORTS BY CONTACTING THE PARTY CONCERNED BY USING HIS GOOD OFFICES AFTER A LAPSE O F MANY YEARS AND, THUS, NO FAULT COULD BE FOUND WITH THE A O FOR NOT GIVING THE OPPORTUNITY TO THE ASSESSEE FOR CROSS EX AMINING THE WITNESSES. 17. IT IS ALSO A FACT THAT THE APPELLANT HAS NOT CH ALLENGED THE SERVICE OF NOTICE, DATED 16.11.10 FOR 23.11.10 AND ANOTHER NOTICE U/S 143(2), DATED 29.11.10FOR 1.12.1 0 AND, AS SUCH, THE APPELLANT HAVING FAILED TO AVAIL SUCH OPP ORTUNITIES ANY BY WAY OF SUBMISSIONS, THE APPELLANT IS TRYING TO RAISE CERTAIN ISSUES WHICH ARE NOT RELEVANT, AT ALL. THE AFFIDAVIT WHICH HAS BEEN FILED BEFORE ME IS SELF SERVING EVID ENCE AND NO RELIANCE CAN BE PLACED ON SUCH FACTS AND THE ADD ITIONAL EVIDENCE WHICH HAS BEEN FILED BEFORE ME IN THE FORM OF STATEMENT OF SHRI NARAIN DUTT CANNOT BE ADMITTED NO W AFTER A LAPSE OF MANY YEARS AND AFTER THE ASSESSEE HAD GIVE N AMPLE AND REASONABLE OPPORTUNITY TO CROSS EXAMINE THE DEPARTMENTAL WITNESSES, SHRI NARAIN DUTT AND SHRI N ARAIN DUTT HAS CLEARLY STATED IN HIS LETTER TO THE AO, DA TED 1.12.10 MENTIONING, THAT HE WOULD NOT APPEAR AGAIN BEFORE T HE AO BECAUSE FOR THE PAST ONE WEEK HE HAS BEEN STAYING A T LUDHIANA, WITH LOT OF DIFFICULTY AND HE HAS ALSO ME NTIONED THAT HE IS STILL STANDS BY HIS EARLIER STATEMENT. AS RE GARDS THE OTHER WITNESS SHRI HARVINDER SINGH IS CONCERNED, HE HAS SINCE RESIGNED FROM THE DIRECTORSHIP OF THE COMPANY AND ALSO IT IS NOT POSSIBLE THAT THE DEPARTMENT TO KEEP TRAC K OF THE WITNESS AFTER ELAPSE OF MANY YEARS AND THUS, SINCE THE ASSESSEE HAS FAILED TO AVAIL THE REASONABLE AND DUE OPPORTUNITY AFFORDED TO HIM BY THE AO, AND ALSO SHR I NARAIN 10 DUTT HAS CONFIRMED HIS EARLIER STATEMENT, THE REQUI REMENT OF NATURAL JUSTICE AS CLAIMED BY THE APPELLANT IS THER EFORE, NOT CORRECT. 11. WE HAVE PERUSED THE FINDINGS OF THE LD. CIT(A) AND FOUND THAT THE LD. CIT(A) HAS HELD THAT PROPER AND REASONABLE OPPORTUNITY WAS AFFORDED TO THE ASSESSEE FOR CROSS-EXAMINATION OF T HESE TWO PERSONS AND HENCE THE CONTENTION OF NON-COMPLIANCE WITH THE DIRECTION OF ITAT FOR AFFORDING OPPORTUNITY FOR CRO SS-EXAMINATION AS RAISED BY THE ASSESSEE IS NOT CORRECT. A PERUSAL O F THE ORDER SHEET ENTRIES AND THE ISSUANCE OF NOTICE U/S 143(2) AS PR ODUCED BY THE LD 'AR', FOR THE ASSESSEE, REVEALS THAT THE AO MERELY ISSUED SUCH NOTICES FOR THE PURPOSE OF ENSURING ATTENDANCE OF T HE ASSESSEE. THE NOTICE U/S 143(2) ARE ISSUED FOR THE PURPOSE OF ENABLING THE ASSESSEE TO ADDUCE EVIDENCE IN SUPPORT OF HIS RETUR N OF INCOME. NOTICE U/S 142(1) IS ISSUED BY THE AO, FOR THE PURP OSE OF MAKING ENQUIRY, BEFORE THE ASSESSMENT AND TO DIRECT THE AS SESSEE TO PRODUCE NECESSARY INFORMATION AND EVIDENCE AS CALLE D FOR BY THE AO. THEREFORE, THERE IS A FUNDAMENTAL AND CONCEPTU AL DIFFERENCE, FOR THE PURPOSE OF ISSUE OF THESE TWO NOTICES. THE AO ISSUED VARIOUS NOTICES U/S 143(2) OF THE ACT, BUT WITHOUT SPECIFYING THE PURPOSE OR OBJECT OF SUCH NOTICES. IN THE ABSENCE O F SUCH SPECIFIC INTIMATION, TO THE ASSESSEE, IT IS INCONCEIVABLE FO R HIM TO COMPREHEND THAT SUCH NOTICES WERE ISSUED, FOR THE P URPOSE OF ALLOWING THEM OPPORTUNITY, TO CROSS EXAMINE, SUCH P ERSONS. THEREFORE, THERE IS COMPLETE FAILURE, ON THE PART O F THE AO, TO INFORM THE ASSESSEE, BY WAY OF ANY COMMUNICATION IN CLUDING THE NOTICE U/S 143(2) OR 142(1) OF THE ACT, FOR THE PUR POSE OF ALLOWING OPPORTUNITY FOR CROSS EXAMINING OF SUCH PERSONS. T HESE PARTIES ARE WITNESS OF THE REVENUE. MERE ISSUING OF BALD NO TICES U/S 143(2) 11 OF THE ACT IS NOTHING BUT AFFORDING VAGUE OPPORTUNI TIES TO THE ASSESSEE WHICH IS NOTHING BUT AN EMPTY-RITUAL. THE CONCEPT OF NATURAL JUSTICE EMBODIES THE PROPOSITION THAT JUSTI CE SHOULD BE RENDERED AND MIS-CARRIAGE OF JUSTICE SHOULD BE PREV ENTED. THE CORE OF ALL THE RULES IS FAIRNESS IN DECISION MAKIN G PROCESS AND DIRECT COMPLIANCE WITH THE CONCEPT OF NATURAL JUSTI CE. THE NATURAL JUSTICE IS A POTENT WEAPON FOR SECURING JUSTICE, WH ICH IS NOT FETTERED BY TECHNICALITY, GRAMMATICAL PEDANTRY OR L OGICAL PREVARICATION. THE DOCTRINE OF NATURAL JUSTICE AND ITS FIRST PRINCIPLE WAS FIRST PLANTED IN THE GARDEN OF EDEN. NATURAL J USTICE MEANS FAIR PLAY IN ACTION COUPLED WITH AGE OLD MAXIM THAT NONE SHOULD BE CONDEMNED UNHEARD. SUCH PRINCIPLES ARE INGRAINED I NTO THE CONSCIENCE OF MAN. A QUASI-JUDICIAL OR ADMINISTRATI VE DECISION RENDERED IN VIOLATION OF THE AUDI ALTERAM PARTEM RU LE IS NULL AND VOID. IT IS A PART OF PUBLIC POLICY AND IS A GUARA NTEE FOR JUSTICE TO THE CITIZENS. THE RULE OF NATURAL JUSTICE MUST BE READ INTO THE STATUTORY PROVISIONS UNLESS EXPRESSLY EXCLUDED. 12. THE HON'BLE APEX COURT CLEARLY HELD IN THE FOLL OWING CASES THAT THE ADDITION BASED ON THE STATEMENT OF THIRD P ARTY, WITHOUT ALLOWING OPPORTUNITY OF CROSS EXAMINATION, TO THE A SSESSEE CANNOT BE SUSTAINED. THE DECISIONS ARE: I) KISHAN CHAND CHELLA RAM V. CIT, 124 ITR 713 (SC ) II) KALRA GLUE FACTORY V. SAELS TAX TRIBUNAL & OTHE RS, 167 ITR 498 (SC) III) CIT, PATIALA V. M/S RADHEY SHAM SITA RAM, 22 I TR 667 (P&H) 13. HAVING REGARD TO THE ABOVE LEGAL AND FACTUAL DI SCUSSIONS, WE ARE OF THE CONSIDERED OPINION THAT THE AO HAS FAILE D TO AFFORD PROPER, ADEQUATE AND EFFECTIVE OPPORTUNITIES, TO TH E ASSESSEE, FOR 12 THE PURPOSE TO CROSS-EXAMINATION OF THE SAID PARTIE S. THEREFORE THERE IS A FAILURE, ON THE PART OF THE AO FOR COMP LIANCE WITH THE DIRECTIONS GIVEN BY THE TRIBUNAL IN PARA 19 OF ITS ORDER, AS REPRODUCED ABOVE. ACCORDINGLY, WITH A VIEW TO MEET THE ENDS OF JUSTICE, THE CASE(S) IS AGAIN RESTORED TO THE FILE OF AO, TO COMPLY WITH THE DIRECTIONS ISSUED BY THE TRIBUNAL, IN ITS EARLIER ORDER, AS REPRODUCED ABOVE. 14. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEES ARE RESTORED TO THE FILE OF AO AND THE SAME ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. . ORDER PRONOUNCED ON 13 .3.2012 SD/- SD/- (H.L. KARWA) (MEHAR SING H) VICE PRESIDENT ACCOUNANT MEMBER CHANDIGARH, THE 13 .3.2012 SURESH COPY TO: THE APPELLANT.THE RESPONDENT.THE CIT.THE CIT(A)/THE DR