ITO WARD-2(1), JAMSHEDPUR V. M/S OM PRAKASH BAJAJ, JAMSHEDPUR

ITA 162/RAN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0506 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHURYMANAV PODDAR
• Keywords: Opportunity of being heard; Opportunity of cross examination
• Section: 69; 63

Judgement Text

P A G E 1 | 12 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.162 / RAN /201 7 ASSESSMENT YEAR : 2009 - 2010 INCOME TAX OFFICER, WARD 2(1), JAMSHEDPUR VS. SHRI OM PRAASH BAJAJ, 11, GOLMURI MARKET, GOLMURI, JAMSHEDPUR PAN/GIR NO. ABOPB 7556 M (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.CHOUDHURY/MANAV PODDAR , ADV REVENUE BY : SHRI A.K.MOHANTY, JCIT DATE OF HEARING : 26 / 11 / 2018 DATE OF PRONOUNCEMENT : 29 / 11 / 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), JAMSHEDPUR , D ATED 27.4.2017 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE ASSESSE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE L CIT(A) IS JUSTIFIED IN NOT CONSIDERING THE AGREEMENT FOR SALE DATED 5.8.2008 VIDE REG. NO. 4069(D) DATED 9.11.2008 BETWEEN (1) MRS. PARUL DUTTA, W/ O LATE HM. DUTTA (2) SHRI B.N. DUTTA, S/O, LATE N.N. DUTTA AND SHRI O PRAKASH BAJAJ, S/O, LATE DEVI SAHAY BAJAJ WHERE THE SALE CONSIDERATION THE PROPERTY WAS RS. 100,00,000/ - ( HOWEVER TRANSACTION ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 2 | 12 AMOUNT DISCLOSED BY THE ASSESSEE WAS RS. 17 , 51,000/ - ). 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE LD. CIT( A) IS JUSTIFIED IN NOT CONSIDERING THE EVIDENCE OBTAINED BY THE ITO, WARD - 1( JAMSHEDPUR, DURING THE COMPLETION OF ASSES SMENT PROCEEDINGS OF SHRI B.N. DUTTA FOR ASSESSMENT YEAR 2009 - 10, WHICH WAS PROVIDED TO THE ASSESSE SHRI OM PRAKASH BAJAJ AS EV IDENCE OF TRANSACTION AMOUNT AS RS. 100,00,000/ - INSTEAD OF RS. 17,51,000/ - AS SHOWN BY ASSESSEE. 3. UNDER THE FACTS AND CIRCU MSTANCES OF THE CASE, WHETHER THE LD. CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MERELY BECAUSE FOR CROSS EXAMINATION THE SECOND PARTY DID NOT APPEAR WHILE ALL THE EVIDENCE OF TRANSACTION W PROVIDED TO THE ASSESSEE WITH SUFFICIENT OPPORTUNITY OF BEING HEARD BY ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT SHRI B.N.DUTTA WAS THE OWNER OF PREMISES NO. 34, GOLMURI MARKET, GOLMURI, JAMSHEDPUR , A SHOP - CUM RESIDENTIAL HOUSE. HE TRANSFERRED THE OWNERSHIP BY AGREEMENT OF SALE DATED 09/08/2008 FOR THE CONSIDERATION OF RS. 1,00,00,000/ - . SHRI OM PRAKASH BAJAJ, PAID THE CONSIDERATION BY FOUR CHEQUES OF IDBI BANK. THEY WERE OF RS. 1,00,000/ - DATED 05/08/2008, RS. 1,00,000/ - DATED 02/ 09/2008, RS.8,00,000/ - DATED 23/10/2008 AND RS.7,51 ,000/ - DATED 23/10/2010 AGGREGATING TO RS. 17,51,000/ - OF LATE SMT. SUSHILA DEVI BAJAJ. THE BALANCE OF PAYMENTS OF RS.47,49,000/ - WAS PAID BY CASH AND RS.35,00,000/ - THROUGH INITIAL PAYMENT OF FLAT BOOKED AT 71, NEW BARADWARI, ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 3 | 12 SAKCHI, JAMSHEDPUR. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HIMSELF HAS ACCEPTED THE PAYMENT OF CHEQUE OF RS. 17,51,000/ - BUT DENIED REGARDING ANY OTHER MODE OF PAYMENT FOR ANY AMOUNT. HE OBSERVED THAT ON THE CONTRARY , THE SELLER OF PROPERTY AT 34, GOLM URI MARKET , SHRI B.N. DUTTA CONFIRMED HAVING RECEIVED CASH OF RS.47,49,000/ - FROM SHRI OM PRAKASH BAJAJ IN LIEU OF PART PAYMENT FOR THE TRANSFER OF PROPERTY IN THE NAME OF LATE SMT. SUSHILA BAJAJ. FURTHER, SHRI B . N. DU TTA ALSO ACCEPTED THAT HAVING RECEIPT OF ONE FLAT AT 71, NEW BARADWARI, SAKCHI, JAMSHEDPUR IN ADDITION TO CHEQUE PAYMENT. THE PAYMENT OF COST OF SAID FLAT WAS MADE BY SHRI OM PRAKASH BAJAJ OF RS.35,00,000/ - . THE INFORMATION WAS GATHERED FROM THE ASSESSIN G OFFICER OF SHRI B.N.DUTTA . THE ACCEPTANCE OF RS.1,00,00,000/ - HAS BEEN CONFIRMED BY SHRI BADRI NARAYAN DUTTA THROUGH A LETTER IN SHAPE OF MONEY RECEIPT GIVEN BY SJHRI B.N. DUTTA TO SHRI OM PRAKASH BAJAJ. FURTHER, SHRI ANUP CHATERJEE, PROP. & BUILDER O F M/S. AVISHKAR , WHO HAS CONSTRUCTED THE FLAT AT NEW BARADWARI, SAKCHI, JAMSHEDPUR VIDE HIS LETTER ADDRESSED TO THE CIT(A), JAMSHEDPUR DATED 24.7.2013 CONFIRMED THAT ALL THE PAYMENTS TOWARDS THE COST OF FLAT WHICH IS TRANSFERRED TO SHRI B.N.DUTTA AT THE B EHEST OF SHRI OM PRAKASH BAJAJ, WAS ACTUALLY MATE BY SHRI OM PRAKASH BAJAJ AND AS PER HIS RECORD NO PAYMENTS WERE MADE ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 4 | 12 BY SHRI B.N.DUTTA. HE CONFIRMED THAT SHRI OM PRAKASH BAJAJ HAS REQUESTED IN WRITING FOR EXECUTION OF SALE DEED IN THE NAME OF SHRI BADRI NARAYAN DUTTA. HE HAS FULFILLED HIS DIRECTION AND INSPITE OF PAYMENTS MADE BY SHRI OM PRAKASH BAJAJ, THE PROPERTY WAS TRANSFERRED TO SHRI BADRI NARAYAN DUTTA. THEREFORE, THE ASSESSING OFFICER OBSERVED THAT IT WAS QUITE CLEAR THAT THREE DIFFERENT ARRANGE MENT WAS MADE BY SHRI OM PRAKASH BAJAJ TO MEET THE COST OF PROPERTY HE WAS BUYING AT 34, GOLMURI MARKET, GOLMURI, JAMSHEDPUR. THE ASSESSE WAS ASKED TO EXPLAIN HIS STAND WITH DETAILS AND DOCUMENTS BUT HE CONFIRMED THE PAYMENTS MADE THROUGH CHEQUES ONLY. F URTHER, THE ASSESSE REQUESTED FOR CROSS EXAMINATION OF SHRI BADRI NARAYAN DUTTA AND, ACCORDINGLY, SHRI BADRI NARAYAN DUTTAA AND SHRI OM PRAKA SH BAJAJ WERE SUMMONED ON 14.1 2.2016 FOR ATTENDING BEFORE HIM ON 19.12.2016 WITH AN INTENTION TO PROVIDE OPPORTUNI TY OF CROSS EXAMINATION REQUESTED BY SHRI OM PRAKASH BAJAJ. ON THE SAID DATE, SHRI OM PRAKASH BAJAJ APPEARED AND DENIED ANY TRANSACTION IN CASH AND PROPERTY RELATED TO FLAT AT M/S. AVISHKAR, NEW BARADWARI, SAKCHI, JAMSHEDPUR WITH SHRI B.N.DUTTA. IT WAS A LSO STATED THAT THE CONTENTS OF THE LETTER WRITTEN BY SHRI B.N.DUTTA ARE TOTALLY FALSE AND UNSUBSTANTIATED. THE ASSESSING OFFICER ALSO OBSERVED THAT THE SUMMON WAS SERVED BY SMT. RAKHI DUTTA, WIFE OF SHRI B.N.DUTTA, ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 5 | 12 AS SRI B.N.DUTTA WAS OUT OF STATION AND EXPECTED TO COME LAST WEEK OF JANUARY, 2017. THEREAFTER, THE ASSESSING OFFICER OBSERVED THAT SHRI B.N.DUTTA HAS ALREADY STATED OF HAVING RECEIPT OF RS.17,51,000/ - THROUGH CHEQUES AND FLAT OF RS.35,00,000/ - CONSIDERATION PAID BY SHRI OM PRAKASH BAJAJ AND CASH OF RS.47,90,000/ - . HE HAS STATED THAT MONEY RECEIPT DATED 27.10.2009 AND THE SALE DEED AGREEMENT AS CLAIMED BY HIM, THE SALE AGREEMENT DEED ENTERED BY THEM. HENCE, HE MADE ADDITION OF RS.82,49,000/ - TO THE INCOME OF THE ASSESSE UNDER SECTION 69 OF THE ACT. 4. ON APPEAL, THE CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER: 5.3. I HAVE GONE THROUGH THE ORDER OF THE LEARNED AO AS WELL AS THE WRITTEN SUBMISSION MADE BY THE APPELLANT. THE AO HAS RELIED ON THE THIRD PARTY ACCEPTANCE OF HIS RECEIPT OF CASH FROM THE ASSESSEE WHICH HE DENYING. THE AO HAS ALSO RELIED ON AN ARGUMENT W HICH HAS PURPORTEDLY BEEN MADE BY THE APPELLANT WITH THE THIRD PARTY SHRI BADRI NARAYAN DUTA FROM ALLEGED SALE AGREEMENT IT IS FOUND THAT THE AGREEMENT HAS BEEN WITH OM PRAKASH BAJAJ FOR PURCHASING IMMOVABLE PROPERTY AT GOLMURI WHICH HAS NOT BEEN PURCHASED BY HIM. THE AO HAS CONCLUDED IT THAT SHRI OM PRAKASH BAJAJ ENTERED INTO SALE AGREEMENT FOR PURCHASE OF IMMOVABLE PROPERTY AT GOLMURI IN THE NAME OF HER WIFE. WHEN HER WIFE IS SEPARATE ENTITY AND ASSESS TO TAX SEPARATELY. WHY AN AGREEMENT HAS NOT BEEN MADE WITH HER FOR SALE OF PROPERTY. THE AO IN HIS ORDER HAS OBSERVED THAT THE APPELLANT HAS ADMITTED THAT HE HAS MADE PAYMENT OF RS. 17,51,000/ - THROUGH CHEQUE DOES NOT APPEAR TO BE CORRECT AS THE PAYMENT HAS BEEN MADE THROUGH CHEQUE BY HER WILE AGAINST SALE C ONSIDERATION 'OF PROPERTY. ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 6 | 12 THE AO HAS FURTHER OBSERVED IN HIS ORDER THAT THE SELLER HAS CONFIRMED THAT HE HAS RECEIVED RS. 47,49,000/ - IN CASH FROM SHRI OM PRAKASH BAJAJ IN LIEU OF PART PAYMENT FOR THE TRANSFER OF PROPERTY IN THE NAME OF LATE SUSHILA BAJA J. FURTHER SHRI B.N. DUTTA ALSO ACCEPTED THAT HE HAS RECEIVED ONE FLAT AT 71, NEW BARADWARI, SAKCHI JAMSHEDPUR (AAVISKAR) IN ADDITION TO CHEQUE PAYMENT WHOSE CONSIDERATION WAS AT RS. 35,00,000/ - . THE AO HAS MADE LETTER OF ANUP CHATERJEE THE BUILDER PART OF HIS ORDER. THE BUILDER AT S L NO. 4 OF HIS ORDER DATED 14.07.2013 ADDRESSED TO CIT (A) HAS MENTIONED THAT SHRI OM PRAKASH BAJAJ REQUESTED IN WRITING THAT THE SALE DEED IN RESPECT OF SAID FLAT SHOULD BE EXECUTED IN FAVOUR OF SHRI BADRI NARAYAN DUTTA. NO COP Y OF SUCH LETTER WAS FURNISHED IT SEEMS SHRI BADRI NARAYAN DUTTA WAS MANIPULATING THE WHOLE AFFAIRS VERY CLEVERLY. HE ALLEGEDLY WROTE A LETTER SENT TO AO , WARD 1(3) SEEKING SUGGESTION AS TO HOW HE CAN FILE HIS IT RETURN AS HE HAS FD AND CASH IN HAND AND IN VESTMENT RS. 25,00,000/ - (B.N. DUTTA FOLDER PAGE NO. 113 WHICH IS AS UNDER) THIS IS TO INFORM YOU THAT I HAVE ALREADY SEND YOU. TWO LETTERS ON DT - 16 CH /JUN/2009, 24 TH /JULY/2009 REGARDING MY 34,GOLMURI MARKET BUILDING. AFTER SALE OF MY SHOP AND RESIDENTIAL BUILDING ASSETS ARE CHANGE AS BELOW AND AS ON 31 ST /MARCH/2009. 1. FLAT AT BARADWARI, SAKCHI, JAMSHEDPUR, SQ FT = 1275,S.B.A. 27, NEW BARADWARI, CHANDRA KUNJ, FLAT NO - D/2,4 TH FLOOR. BY THE NAME OF MY WIFE I.E. RAKHI DUTTA, PAN - ASMPD9783B 2 9/10/1963. 2. FLAT AT BARADWARI, SAKCHI, JAMSHEDPUR, SQ FT = 1170,S.B.A. 71, NEW BARADWARI, F - L/101,IN THE 1 ST FLOOR, STILL NOW SALE DEED IS NOT MADE BY THE BUILDER COST OF THE FLAT FULLY PAID BY OM PRAKASH BAJAJ, FLAT POSSESSION HAND OVER TO MR, BADRI NARAYAN DUTTA BY THE BUILDER, AVISKAR ( ANUP CHATTERJEE) ON DT - 31/07/2009, 3. BANK FIXED DEPOSIT & CASH IN HAND, INVESTMENT 25,00,000/ - TWENTY - FIVE LACS ONLY. PLEASE SUGGEST ME HOW CAN I FILE MY IT RETURN F.Y.2008 - 2009, A.Y.2009 - 2010 AND I AM WAITING FO R YOUR SUGGESTION. ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 7 | 12 I HAVE AN OCCASION TO GO THROUGH THE APPEAL OF SHRI B.N. DUTTA ALSO WHERE HE HAS ADMITTED RECEIPT OF RS. 1 CRORE. THE REVENUE H AS NO BURDEN TO PROOF WHEN THE ASSESSE HIMSELF ADMIT HIS RECEIPT/INCOME. AS ONE CAN SEE THAT SHRI B.N. DUTTA HAS RECEIVED RS. 47,49,000/ - FROM SHRI OM PRAKASH BAJAJ. WHY HE HAS SOUGHT SUGGESTION FOR RS. 25,00,000/ - ONLY. THIS CIRCUMSTANCES EVIDENCE SHOWS THAT SHRI DUTTA IS HIDING SOMETHING WHICH HE DID NOT WANT TO DISCLOSE EVEN IN HIS LETTER HE IS SILENT RE GARDING SALE CONSIDERATION AT RS. 1 CRORE ON THE OTHER HAND SHRI BAJAJ HAS DENIED ANY PAYMENT TO SHRI B.N. DUTTA (SELLER) IN REGARD TO PURCHASE OF PROPERTY AT GOLMURI. AS HE HAS NOT MADE ANY PAYMENT, QUESTION OF INVESTMENT WHICH IS NOT RECORDED IN THE BOOK S OF ACCOUNT AND CONSEQUENTIAL ADDITION U/S 69 IS NOT JUSTIFIED THE ASSESSEE FURTHER STATED THAT HE DEMANDED CERTIFIED TRUE COPY OF EVIDENCE SUBMITTED BY SHRI B.N. DUTA. THE AO VIDE HIS NOTICE DATED 15.12.2016 PROVIDED ONLY THREE PHOTO COPY DOCUMENTS ON WH ICH A DETAILS SUBMISSION WAS MADE. THE ASSESSEE'S FURTHER SUBMISSION THAT (COPY OF AGREEMENT OF SALE) WAS NOT PROVIDED BY THE AO ON WHICH HE RELIED AS EVIDENCE BUT DENIED COPY OF THE SAME. THE ASSESSEE IN HIS SUBMISSION ALLEGED THAT COPY SUBMITTED BY SHRI B.N. DUTTA IS MORPHED AND FABRICATED. THE AO WITHOUT ESTABLISHING ITS GENUINESS TREATED AS EVIDENCE. THE ASSESSEE HAS FURTHER QUOTED THE EVIDENCE ACT AS UNDER. THIS IS CONTRARY TO THE PROVISION OF THE EVIDENCE ACT SINCE PHOTO COPY OF THE DOCUMENTS CAN ONL Y BE TREATED AS EVIDENCE WHEN THEY HAVE BEEN COMPARED WITH THE ORIGINAL AND GENUINE NE SS IS ESTABLISH. THE DOCUMENT RELIED UPON BY THE AO CANNOT BE TREATED EITHER AS PRIMARY OR SECONDARY EVIDENCE AS PER SECTION 62/63 OF THE EVIDENCE ACT, THEREFORE RELIANCE PRESSED ON SUCH DOCUMENT IS MISPLACED/ ILLEGAL AND CONTRARY TO THE PROVISION OF THE EVIDENCE ACT. THE ASSESSEE FURTHER SUBMITS THAT HE WISHED TO PLACE RELIANCE OF THE FOLLOWING JURIDICAL PRONOUNCEMENTS. AIR (2007) HC 1721 SMT J. YASODA VS. K. SHOBHA RANI WHEREIN IT HAS BEEN HELD SECONDARY EVIDENCE ONLY WHEN THE COPY MADE FROM OR COMPARED WITH THE ORIGINAL ARE CERTIFIED COPY OR SUCH OTHER DOCUMENTS AS ENUMERATED IN SECTION 63 OF THE EVIDENCE ACT. ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 8 | 12 SECONDARY EVIDENCE OF THE CONTENTS OF THE DOCUMENT CANNOT BE ADMITTED WITHOUT NONE PRODUCTION OF ORIGINAL BEING FIRST ACCOUNTED FOR IN SUCH A MANNER AS TO BRING IT WITHIN ONE OR OTHER CONDITION AS PROVIDED FOR IN THIS SECTION. AIR (1999) DELHI 280 MS ARTI BHARGAWA VS. SHRI KAVI KUMAR WHEREIN IT WAS HELD THAT GENUI NE NE SS OF THE PHOTO COPY CANNOT BE GUARANTEED AND UNLESS THERE IS EVIDENCE THAT SOMEONE HAD COMPARE THE PHOTO COPIES WITH THE ORIGINAL HAD OB TAINED THE PHOTO COPY FROM THE ORIGINAL, PHOTO COPIES ARE INADMISSIBLE IN EVIDENCE IN ABSENCE OF THE OR IGINAL. 2007 SCC (CRT) 122 SUBHASH LODHA VS. STATE OF MAHARASTRA WHEREIN IT HAS BEEN HELD THAT IF THE RELEVANT DOCUMENT ARE NOT PRODUCE OR THE DOCUMENT PRODUCED ARE NOT PROVED, THE CONTENTS THEREOF WOULD BE WHOLLY INADMISSIBLE IN EVIDENCE. 2001 SCC (CRT ) 1501 UNITED INDIA INSURANCE LTD. VS. AMBANI & OTHERS IT WAS HELD THAT PRODUCTION OF THE PHOTO COPY OF DOCUMENT WAS NOT SUFFICIENT TO PROVE THE GENUINE NE SS OF THAT DOCUMENT WHERE IT WAS CHALLENGE AND HENCE ITS GENUINE NE SS WAS NOT ADMITTED. I N THE INSTANT CASE THE AO RELIED ON SECONDARY EVIDENCE AS PER SECTION 63 OF INDIAN EVIDENCE ACT 1852 HE DID NOT CALLED FOR PRIMARY EVIDENCE FROM THE WITNESS AND THEREFORE THE SAME IS NOT AN ADMISSIBLE EVIDENCE AS IT HAS BEEN C HALLENGED BY THE APPELLANT, NOT ONLY THAT T HE APPELLANT REQUESTED THE AO TO PERMIT HIM TO CROSS EX AMINE THE WITNESS BUT THE WITNESS DID NOT APPEAR MEANING THEREBY THERE MUST BE SOME ISSUES WHICH WOULD NOT SUPPORT THE CLAIM OF WITNESS. IT HAS HELD IN THE CASE OF MOHAN LAI VS. ITO (2006) 99 TTJ (J ODHPUR TRIBUNAL) THAT ASSESSEE HAS CLAIM HAVING PAID SALARY TO ONE OF ITS EMPLOYEE WHICH WAS CREDITED TO HIS ACCOUNT. THE SAID EMPLOYEE WAS EXAMINE AND HE STATED THAT HE WAS PAID SALARY RS. 3,000/ - PER MONTH AND HE WITHDREW RS. 1500/ - PER MONTH AND THE BAL ANCE AMOUNT REMAINED CREDITED TO HIS ACCOUNT WITH THE ASSESSEE. ON THE OTHER HAND THE ASSESSEE EXPLAINED THAT OUT OF RS. 36,000/ - THE ASSESSEE HAS WITHDRAWN RS. 5,000/ - AND THE BALANCE AMOUNT REMAINED AS CREDIT IN HIS ACCOUNT WHICH WAS NOT COVERED U/S 68. ADMITTEDLY THE IDENTITY OF THE PAYEE AND THE PAYMENT OF SALARY AT A CERTAIN RATE WAS NOT IN DISPUTE. THE ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 9 | 12 DISPUTE WAS AS TO WITHDRAWAL OF AMOUNT BY THE PAYEE WHICH COULD HAVE BEEN RESOLVED BY AO BY ALLOWING THE ASSESSEE TO CROSS EXAMINE THE EMPLOYEE. AS NOT HING OF THAT SOUGHT WAS DONE BY AO, THEREFORE CLAIM OF THE ASSESSEE HAS RIGHTLY BEEN ALLOWED BY THE COMMISSIONER (APPEALS). HERE IN APPELLANT CASE DESPITE REQUEST FROM ASSESSEE TO ALLOW HIM TO CROSS EXAMINE FROM THE WITNESS, THOUGH THE APPELLANT APPEARED ON THE DATE FIXED FOR CROSS EXAMINATION, THE WITNESS DID NOT APPEAR. HENCE RELYING ON THE HON'BLE TRIBUNAL DECISION IN ABOVE CASE CITED SUPRA, I HEREBY ALLOW THE APPEAL OF THE A SSESSEE AND ADDITION MADE FOR RS. 82,49,000/ - IS HEREBY DELETED. 5. LD DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, LD AUTHORISED REPRESENTATIVE SUPPORTED THE ORDER OF THE CIT(A) ON THE GROUND THAT THE ASSESSING OFFICER HAS NOT ALLOWED OPPORTUNITY OF CROSS EXAMINATION OF SHRI BADRI NARAYAN DUTTA TO THE ASSESSE AND HENCE, THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT S USTAINABLE IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ANADMAN TIMBER INDUSTRIES VS COMMISSIONER OF CENTRAL EXCISE, KOLKATA - II, (2015) 62 TAXMANN.COM 3 (SC). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIE S AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER HAS MADE ADDITION OF RS.82,49,000/ - BY INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT. ON THE OTHER HAND, LD CIT(A) HAS DELETED THE SAID ADDITION ON THE GROUND THAT ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 10 | 12 THERE W AS NO RELIABLE AND ADMISSIBLE MATERIAL TO SHOW THAT THE ASSESSE HAS ACTUALLY MADE INVESTMENT OF RS.82,49,000/ - DURING THE YEAR UNDER CONSIDERATION. WE FIND THAT THE ASSESSING OFFICER HAS RELIED UPON A COPY OF THE AGREEMENT DATED 5.8.2008 PURPORTEDLY AGR EEMENT OF SALE OF PROPERTY SITUATED AT 34, GOL MURI MARKET, GOLMURI, JAMSHEDPUR ENTERED ON 5.8.2008 BETWEEN THE ASSESSE ON ONE HAND AND SMT PARUL DUTTA AND SHRI B.N.DUTTA ON THE OTHER HAND. 8. THE CIT( A) OBSERVED THAT THIS AGREEMENT HAS NO EVIDENTIARY VALUE BECAUSE FIRSTLY, THE ASSESSE HAS DENIED EXECUTION OF THE AGREEMENT, SECONDLY, ORIGINAL OF THE AGREEMENT WAS NOT AVAILABLE AND THEREBY SHRI B.N.DUTTA WHO ALLEGEDLY CLAIMED THAT THIS AGREEMENT IS GENUI NE AND CORRECT COULD NOT BE MADE AVAILABLE FOR CROSS EXAMINATION BY THE ASSESSE IN SPITE OF SPECIFIC REQUEST BY THE ASSESSE FOR CROSS EXAMINATION. 9. FURTHER, THE ASSESSING OFFICER HAS ALSO RELIED UPON A LETTER OF SHRI ANUP CHATERJEE FOR AN AMOUNT OF RS.3 5,00,000/ - WHICH WAS NOT ACCEPTED BY THE CIT(A) AS THE ASSESSE HAS DENIED THE TRUTHFULNESS OF THE SAID LETTER AND NO MATERIAL WAS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO TREAT THE SAID LETTER AS SACROSANCT. WE FIND LD DEPARTMENTAL REPRESENTATIVE COU LD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE CIT(A). FURTHER, ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 11 | 12 THE AGREEMENT OF SALE DEED DATED 5.2.2008 EVEN IF PRESUMED AS GENUINE AND CORRECT, THE SAME AT BEST IS A MATERIAL FOR INVESTMENT OF RS.1.21,000/ - . THERE IS NO DETAILS MENTIONED IN T HAT AGREEMENT OF THE ACTUAL DATE OF PAYMENT OF BALANCE AMOUNT OF RS.98,79,000/ - . FROM THIS DOCUMENT ALONE, NO PER SON CAN DECIPHER THAT REMAINING AMOUNT OF RS.98,79,000/ - WAS INVESTED BY THE ASSESSE DURING THE YEAR UNDER CONSIDERATION. 10. THE LETTER OF SH RI ANUP CHATERJEE EVEN IF ASSUMED AS TRUE AND CORRECT, WE FIND THAT THERE IS NO DETAILS OF THE DATES OF ALLEGED INVESTMENT OF RS.35,00,000/ - AND THUS, IT CANNOT BE CONCLUDED THAT RS.35,00,000/ - WAS INVESTED DURING THE YEAR UNDER CONSIDERATION. THEREFORE, EVEN OTHERWISE, THE PRE - CONDITION FOR INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT WAS NOT SATISFIED IN THIS CASE. THEREFORE, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE CIT(A), WHICH IS HEREBY CONFIRMED AND GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 11. IN TH E RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 29 / 11 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER RANCHI ; DATED 29 / 11 /2018 ITA NO.162 / RAN/ 2017 ASSESSMENT YEAR : 2009 - 10 P A G E 12 | 12 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, RANCHI ON TOUR 1. THE APPELLANT: INCOME TAX OFFICER, WARD 2(1), JAMSHEDPUR 2. THE RESPONDENT. SHRI OM PRAASH BAJAJ, 11, GOLMURI MARKET, GOLMURI, JAMSHEDPUR 3. THE CIT(A) - JAMSEHDPUR 4. PR.CIT - JAMSHEDPUR 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//