SHRI DHIRENDRA SINGH, ALWAR V. INCOME TAX OFFICER, WARD-2-1, ALWAR

ITA 1273/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0755 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 12-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANURADHA JCIT DHK
• Keywords: Reopening of assessment; Bogus purchase; Unexplained investment; Document seized; Principle of natural justice; Opportunity of cross examination; Application of stay; Question of law; Corroborative evidences; Documents seized
• Section: 143(3); 147; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 1273/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 DHIRENDRA SINGH, 5/5, KALA KUWA HOUSING BOARD, ARAWALI VIHAR, ALWAR. CUKE VS. I.T.O., WARD 2(1), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANXPS 5004 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1330/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 RENU GOYAL, C/O- SH. KRISHAN KANHAIYA GOYAL, SWAMI DAYANAND MARG, NEAR RAILWAY STATION, ALWAR. CUKE VS. I.T.O., WARD 2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACYPG 4576 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 1320/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 VINAY KUMAR NAGAYACH, SINGH POLE GATE, DEEG, BHARATPUR. CUKE VS. I.T.O., WARD-3 BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAWPN 8585 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 2 VK;DJ VIHY LA-@ ITA NO. 1310/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 GAZALA AFROZ, W/O- SH. SHOKAT ALI, B-1, SURYA NAGAR, ALWAR. CUKE VS. I.T.O., WARD-1(2) ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AQJPA 7000 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : MS. ANURADHA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/03/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/03/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THESE ARE THE APPEALS FILED BY THE DIFFERENT ASSESS EES AGAINST THE DIFFERENT ORDERS OF THE LD.CIT(A), ALWAR DATED 25/09 /2018 FOR THE A.Y. 2009-10 IN THE MATTER ORDER PASSED U/S 143(3) READ WITH SECTION 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE FACTS AND CIRCUMSTANCES IN ALL THE CASES OF T HE ASSESSEES ARE COMMON AND SIMILAR GROUNDS HAVE BEEN RAISED BY THE ASSESSEES IN ALL THE APPEALS. HERE I DEAL WITH THE APPEAL FILED BY SHRI D HIRENDRA SINGH IN ITA NO. 1273/JP/2018 WHEREIN FOLLOWING GROUNDS HAVE BEEN TAKEN: FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: 1. UNDER THE FACTS & CIRCUMSTANCE OF THE CASE, THE ORDER PASSED U/S 147 IS ILLEGAL & BAD IN LAW. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 3 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.4,66,660/- U/S 69 OF IT ACT MADE BY AO ON ACCOUNT UNEXPLAINED INVESTMENT IN LAND BY ADOPTING THE VALU E OF PLOT ALLOTTED TO THE ASSESSEE AT RS.3,150/- PER SQ. YD.( WRONGLY MENTIONED AS SQ. MTR.) AS AGAINST THE ACTUAL VALUE OF RS. 1,150/- PER SQ. YD. PAID BY THE ASSESSEE WITHOUT BRINGING A NY MATERIAL ON RECORD THAT ASSESSEE HAS MADE ANY SUCH PAYMENT. HE HAS FURTHER ERRED IN CONFIRMING THE ADDITION MADE BY AO ON THE BASIS OF CERTAIN ALLEGED DOCUMENT FOUND FROM SHRI MADAN MOHA N GUPTA AND HIS STATEMENT WITHOUT PROVIDING SUCH DOCUMENT T O THE ASSESSEE AND OPPORTUNITY TO CROSS EXAMINE HIM EVEN WHEN SPECIFICALLY SOUGHT FOR. 3. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 4. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAS BEEN ALLOTTED A PLOT OF LAND FROM A SOCIETY NAMELY RAJASTHAN TEHSILDAR SEWA PARISHAD. ON THE BASIS OF SEARCH CONDUCTED AT THE BUSINESS PREMISES OF SHRI M ADAN MOHAN GUPTA WHEREIN CERTAIN PAPERS WERE SEIZED AND HIS STATEMENT WAS RECORDED U/S 132(4) OF THE ACT, THE ASSESSING OFFICER HAS REOPEN ED THE ASSESSMENT OF ASSESSEE BY ALLEGING THAT THE ASSESSEE HAS PAID ON MONEY FOR PURCHASE OF PLOT. THE ASSESSEE HAS ASKED FOR CROSS EXAMINATIO N OF SHRI MADAN MOHAN GUPTA WHOSE STATEMENT WAS RECORDED U/S 132(4) O F THE ACT BUT THE SAME WAS DECLINED BY THE ASSESSING OFFICER. BY T HE IMPUGNED ORDER, THE LD. CIT(A) HAS CONFIRMED THE REOPENING AS WELL AS MERIT OF THE ADDITION SO MADE. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 4 4. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT CHALLENGING THE VALIDITY OF REOPENING U/S 147 OF THE ACT AND AL SO THE MERIT OF THE ADDITION SO MADE. 5. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND CARE FULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. I SO FAR AS THE REOPENING IS CONCERNED, I AM SATISFIED THAT AFTER RECORDING THE DETAILED REASONING ON THE BASIS OF THE DOCUMENTS FOUND DURING THE SEARCH FROM SHRI MADAN MOHAN GUPTA, THE ASSESSING OFFICER HAS REASON TO BE LIEVE THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT, ACCO RDINGLY, REOPENING IS VALID AND I UPHOLD THE SAME. 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 2 3.05.2013, INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED WHICH R EVEALED THAT THE ASSESSEE MADE PAYMENT OF RS.2,68,330/- AND RS.2,670 /- TOWARDS BOUNDARY EXPENSES BY RECEIPT NO. 53 DATED 07.07.200 8 THROUGH CHEQUE AND RS.4,66,660/- AS ON-MONEY. HE REFERRED TO TH E 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 TH US, MADE ADDITION OF ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 5 RS.4,66,660/- U/S 69 OF THE ACT. BY THE IMPUGNED OR DER, THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. ON THE ISSUE OF OPPORTUNITY OF CROSS EXAMINATION, IT WAS HELD THAT S HRI MADAN MOHAN GUPTA IS NOT THIRD PARTY AS HE WAS THE OWNER OF THE P LOTS. ALL THE DOCUMENTS ON THE BASIS OF WHICH ASSESSMENT WAS MADE WE RE PROVIDED TO THE ASSESSEE. ACCORDINGLY, IT WAS HELD THAT THE CONT ENTION RAISED BY THE ASSESSEE AS TO THE DENIAL OF CROSS EXAMINATION BY T HE ASSESSING OFFICER DOES NOT CARRY MUCH WEIGHT AND THUS, CONFIRMED THE A DDITION. 7. AFTER GOING THROUGH THE ORDER PASSED BY THE LOWER AUTHORITIES, I OBSERVE THAT BOTH THE LOWER AUTHORITIES HAVE NOT PLA CED ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAD PAID ALLEGED ON-MONEY OF RS.4,66,660/-. NEITHER IN THE SEIZED DOCUMENTS FOUN D FROM SHRI MADAN MOHAN GUPTA NOR IN THE STATEMENT RECORDED U/S 132(4 ), HE ADMITTED THAT HE RECEIVED ANY AMOUNT FROM THE ASSESSEE BY WAY OF ON- MONEY. IN FACT, IN REPLY TO QUESTION NOS. 25 TO 27 OF HIS STA TEMENT U/S 132(4) WITH REFERENCE TO THE AMOUNT OF RS. 1,60,96,000/- AS REF ERRED BY THE LD. CIT(A), HE STATED THAT HE DOES NOT REMEMBER THAT WHA T IS THIS WORKING BUT IT MAY BE WITH REFERENCE TO COMMISSION WITH RESPE CT TO CERTAIN PROPERTY WHICH HE OFFERED FOR TAX. IN STATEMENT U/S 131(1) DATED 24.02.2016 AND 29.02.2016 RECORDED BY THE AO IN COU RSE OF HIS ASSESSMENT PROCEEDINGS, HE HAS CATEGORICALLY ADMITT ED THAT HE HAS SOLD ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 6 THE PLOTS TO THE RAJASTHAN TEHSILDAR SEWA PARISHAD AT THE RATE OF RS.1,150 PER SQ. YARD ON WHICH HE EARNED PROFIT OF R S.87,20,000/- WHICH HE HAS ALREADY OFFERED FOR TAX AND THE REMAINING PR OFIT OF RS. 1,60,96,000/- IS NOT HIS PROFIT BUT PROFIT OF THE P ARISHAD BUT TO PURCHASE PEACE OF MIND, HE HAS SURRENDERED THIS AMOUNT IN HI S HAND. THUS, FROM THE READING OF THE STATEMENT OF SHRI MADAN MOHAN GU PTA AND THE PAPERS FOUND FROM HIM, IT IS EVIDENT THAT THERE IS NOTHING TO SUGGEST THAT ALLOTTEES OF THE PLOT HAVE PAID ANY ON-MONEY ON P URCHASE OF THE PLOT. IN FACT, THE ASSESSEE HAS NOT PURCHASED ANY PLOT FROM SHRI MADAN MOHAN GUPTA RATHER HE WAS ALLOTTED THE PLOT BY THE RAJASTH AN TEHSILDAR SEWA PARISHAD AND THUS, THERE IS NO PRIVITY OF CONTRACT BETWEEN THE ASSESSEE AND SHRI MADAN MOHAN GUPTA. THEREFORE, NO QUESTION O F PAYMENT OF ALLEGED ON-MONEY BY THE ASSESSEE TO SHRI MADAN MO HAN 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. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 7 THUS, THIS ANNEXURE NOWHERE SUGGESTS THAT ANY ON-MON EY HAS BEEN RECEIVED BY SHRI MADAN MOHAN GUPTA FROM THE ALLOTTE ES OF PLOT. AT THE TIME OF POSSESSION OF THE PLOT, THE FINAL RECEIPT I S ISSUED FOR THE ENTIRE AMOUNT RECEIVED AND THAT RECEIPT NO. IS ALSO MENTIO NED 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 A SSESSEE HAS NOT PURCHASED ANY PLOT FROM HIM RATHER IT IS THE RAJAST HAN 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/20 18 VIDE ORDER DATED 18/01/2019 WHEREIN EXACTLY SIMILAR ADDITION WA S DELETED BY THE TRIBUNAL AFTER OBSERVING AS UNDER: 5. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED BY THE DECISION O F TRIBUNAL IN THE CASE OF SHRI DEVA RAM SUTHAR IN ITA NO.342/JODH/2018 WHE REIN EXACTLY SIMILAR ADDITION WAS DELETED BY THE TRIBUNAL AFTER OBSERVING AS UNDER:- 7. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND RECO RD PERUSED. I HAD ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THE IR RESPECTIVE ORDERS AS WELL AS CITED BY LEARNED AR AN D DR DURING THE COURSE OF HEARING BEFORE US IN THE CONTE XT OF FACTUAL MATRIX OF THE CASE. FROM THE RECORD I FOUND THAT THE ASSESSEE HAD PURCHASED PLOT NO. 84 MEASURING 23 3.33 SQ.YARDS ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 8 IN THE RESIDENTIAL PROJECT 'REVENUE RESIDENCY' AT V ILLAGE PEEPLA BHARATSING, (JAISINGHPURA-MUHANA ROAD), BHANKROTA, TEHSIL- SANGANEER, JAIPUR DEVELOPED BY SHRI MADAN MOHAN GUP TA IN F.Y.2008-09 RELEVANT TO A.Y.2009-10 FOR TOTAL PURCH ASE CONSIDERATION OF RS.2,68,330/- FOR PLOT AND RS.2,67 0/- FOR BOUNDARY TOTAL RS.2,71,000/- (RS.1150/-PERSQ.YARD). THUS, TO TAL INVESTMENT BY ASSESSEE IS RS.2,71,000/- OUT OF THIS AMOUNT RS. 1,90,000/- WAS PAID THROUGH BANK BY TAKING PERSONAL LOAN AND BALAN CE RS.81,000/- WAS GIVEN IN THE FINANCIAL YEAR 2007-08. 8. IN THE ASSESSMENT ORDER, THE AO ALLEGED THAT THE ASSESSEE HAS PAID TO THE SELLER SHRI MADAN MOHAN GUPTA ON MONEY OF RS .4,66,660/- FOR THE PURCHASE OF PLOT NO.84 HAVING TOTAL AR EA OF 233.33 SQ.YARDS 9. IN REPLY TO THE SAME, ASSESSEE SUBMITTED AS UNDE R:- A. THAT THE ALLEGATION OF THE ID.AO IS BASELESS AN D IMAGINARY AND NOT MAINTAINABLE. B. THE ID.AO HAS RELIED UPON THE STATEMENT OF SHRI MADAN MOHAN GUPTA RECORDED BY THE I.T. AUTHORIT IES ON 23.05.2013 DURING THE COURSE OF SEARCH. BUT FROM READING THE REPLY GIVEN BY SHRI MADAN MOHAN GUPTA IN THE STATEMENT, IT IS CLEARLY CONVEYED THAT SHRI MADAN MOHAN GUPTA SOLD THE LAND FOR RS.1150/- PER SQ.YARD. AND THE APPELLANT PAID AS PURCHASE CONSIDERATION TO THE SEL LER MADAN MOHAN GUPTA A SUM OF RS.2,71,000/-. 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 SUBMI TTED THAT AFTER THOUGHT STATEMENT CARRY NO WEIGHT UNDER THE L AW AND THEY ARE AGAINST THE SPIRIT OF NATURAL JUSTICE BECA USE THEY HAVE NO EVIDENCE VALUE. D. THAT EXCEPT THE ABOVE STATEMENT OF SHRI MADAN M OHAN GUPTA THERE WAS NO SUPPORTING EVIDENCE AVAILABLE WI TH THE ID.AO WHICH COULD CORROBORATE THAT ON MONEY OF RS.4,66,660/- WAS PAID BY THE APPELLANT TO SHRI MAD AN MOHAN GUPTA. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 9 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 T HE CIT(A). THUS, WITHOUT AFFORDING CROSS EXAMINATION, THE AO HAS MADE ADDITION ON THE BASIS OF STATEMENT OF S HRI MADAN MOHAN GUPTA U/S 69 BEING UNEXPLAINED INVESTMENT AND ADDED THE SAME IN ASSESSEES INCOME. HOWEVER, THERE WAS NO C ORROBORATIVE 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 INDUSTR IES 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 ORDE R, AMOUNTED IN SERIOUS FLAW WHICH MADE IMPUGNED ORDER NULLITY A S 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 W ITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUC H AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUST ICE BECAUSE OF WHICH THE APPELLANT WAS ADVERSELY AFFECTED. IT IS T O BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED U PON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE APPELLANT DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDICATING AUTHO RITY DID NOT GRANT THIS OPPORTUNITY TO THE APPELLANT. IT WOULD B E PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUD ICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH A N OPPORTUNITY WAS SOUGHT BY THE APPELLANT. HOWEVER, NO SUCH OPPOR TUNITY WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WI TH BY THE ADJUDICATING AUTHORITY. APPELLANT HAD CONTESTED THE TRUTHFULNESS ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 10 OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANT ED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINATION. THAT APART, THE A DJUDICATING AUTHORITY SIMPLY RELIED UPON THE PRICE LIST AS MAIN TAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEV Y OF EXCISE DUTY. WHETHER THE GOODS WERE, IN FACT, SOLD TO THE SAID DEALERS/WITNESSES AT THE PRICE WHICH IS MENTIONED I N THE PRICE LIST ITSELF COULD BE THE SUBJECT MATTER OF CROSS-EX AMINATION. THEREFORE, IT WAS NOT FOR THE ADJUDICATING AUTHORIT Y TO PRESUPPOSE AS TO WHAT COULD BE THE SUBJECT MATTER O F THE CROSS- EXAMINATION AND MAKE THE REMARKS AS MENTIONED ABOVE .' 12. RELIANCE CAN ALSO BE PLACED ON THE ON THE DECIS ION OF BOMBAY HIGH COURT IN THE CASE OF ASHISH INTERNATION AL IN 1TA NO.4299/MURN/2009 DATED 22/02/2011, WHEREIN COURT H ELD AS UNDER:- 'THE QUESTION RAISED IN THIS APPEAL IS, -WHETHER T HE 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 S UPPLIES P.LTD. IN HIS STATEMENT HAD STATED THAT THERE WERE NO SALES/ PURCHASES BUT THE TRANSACTIONS WERE ONLY ACCOMMODA TION BILLS NOT INVOLVING ANY TRANSACTIONS. THE TRIBUNAL HAS RE CORDED A FINDING OF FACT THAT THE APPELLANT HAD DISPUTED THE CORRECTNESS OF THE ABOVE STATEMENT AND ADMITTEDLY THE APPELLANT WA S NOT GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE CONCERNE D DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. WHO HAD MADE THE ABOVE STATEMENT. THE APPELLATE AUTHORITY H AD SOUGHT REMAND REPORT AT THAT STAGE THE GENUINENESS OF THE STATEMENT HAS NOT BEEN ESTABLISHED BY ALLOWING CROSS EXAMINAT ION OF THE PERSON WHOSE STATEMENT WAS RELIED UPON BY THE REVEN UE. IN THESE CIRCUMSTANCES, THE DECISION OF THE TRIBUNAL B EING BASED ON THE FACT, NO SUBSTANTIAL QUESTION OF LAW CAN BE SAI D 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 BOMB AY HIGH COURT IN THE CASE OF H.R. MEHTA IN ITS ORDER DATED 07/07 /2016. THE HONBLE HIGH COURT HELD AS UNDER:- ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 11 THE ASSESSEE IS BOUND TO BE PROVIDED WITH THE MATE RIAL USED AGAINST HIM APART FROM BEING PERMITTED TO CROSS EXA MINE THE DEPONENTS. THE DENIAL OF SUCH OPPORTUNITY GOES TO R OOT OF THE MATTER AND STRIKES AT THE VERY FOUNDATION OF THE AS SESSMENT ORDER AND RENDERS IT VULNERABLE. 14. APPLYING PROPOSITION OF LAW LAID DOWN BY HONBL E SUPREME COURT AND HIGH COURT AS DISCUSSED ABOVE, I DO NOT FIND ANY MERIT FOR THE ADDITION MADE BY AO MERE LY ON THE BASIS OF STATEMENT, WHEN THERE IS NO CORROBORATIVE MATERIAL WITH AO SUGGESTING THE ALLEG ED ADDITION, WITHOUT ALLOWING ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE THE PERSON ON WHOSE STATEMENT ADDITIO N WAS MADE. ACCORDINGLY, AO IS DIRECTED TO DELETE THE ADDITION SO MADE. 15. BEFORE PARTING WITH THE MATTER, I OBSERVE THAT LD. AR HAD PLACED ON RECORD ORDER OF ITAT JAIPUR BENCH IN THE CASE OF NAVRTATTAN KOTHARI VS. ACIT IN ITA NO.425/JP/2017 IN WHICH PROCEEDINGS INITIATED U/S.1 48 WAS QUASHED. HOWEVER, THE FACTS OF THIS CASE ARE ENTIRELY DISTINGUISHABLE FROM THE FACTS OF INSTANT CASE, IN SO FAR AS IN THE CASE OF NAVRATTAN KOTHARI (SUPR A) REOPENING OF ASSESSMENT AFTER FOUR YEARS OF ASSESSM ENT FRAMED U/S.143(3) / 153 WAS QUASHED, WHEREAS IN THE INSTANT CASE, NO ASSESSMENT WAS FRAMED U/S.143(3) A ND ONLY RETURN WAS PROCESSED U/S.143(1). ACCORDINGLY, IT IS NOT GOING TO HELP THE ASSESSEE IN ANY MANNER. 16. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED IN TERMS INDICATED HEREINABOVE. S.A.NO.07/JODH/2018 17. AS I HAVE ALREADY DISPOSED ASSESSEES APPEAL ON MERIT, THE STAY APPLICATION FILED BY THE ASSESSEE BECOME INFRUCTUOUS. 18. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLO WED IN TERMS INDICATED HEREINABOVE AND STAY APPLICATION IS DISMISSED AS INFRUCTUOUS. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 12 9. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, I D O NOT FIND ANY MERIT IN THE ADDITION SO MADE BY THE ASSESSING OFFI CER AND CONFIRMED BY THE LD. CIT(A), HENCE, THE ASSESSING OFFICER IS DIRE CTED TO DELETE THE SAME. 10. THE FACTS AND CIRCUMSTANCES IN THE CASES OF ALL THE THREE ASSESSEES ARE SAME, THEREFORE, FOLLOWING THE REASONING GIVEN H EREINABOVE, I DO NOT FIND ANY MERIT FOR THE ADDITION SO MADE BY THE ASSE SSING OFFICER AND CONFIRMED BY THE LD. CIT(A). 11. IN THE RESULT, ALL THE FOUR APPEALS OF THE DIFF ERENT ASSESSEES ARE ALLOWED IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 25/03/2019. SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 TH MARCH, 2019. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- (I) SHRI DHIRENDRA SINGH, ALWAR. (II) SMT. RENU GOYAL, ALWAR. (III) SHRI VINAY KUMAR NAGAYACH, BHARATPUR. (IV) SMT. GAZALA AFROZ, ALWAR. 2. IZR;FKHZ @ THE RESPONDENT- (I) I.T.O., WARD 2(1), ALWAR. (II) I.T.O., WARD 2(2), ALWAR. (III) I.T.O., WARD-3, BHARATPUR. ITA 1273, 1330, 1320 & 1310/JP/2018 DHIRENDRA SINGH & 3 ORS. VS ITO 13 (IV) I.T.O., WARD-1(2), ALWAR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1273,1330, 1320 & 1310/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR