ANIS AHMED ABDUL RASHID SIDDIQUI, MUMBAI V. ACIT 21(3), MUMBAI

ITA 2256/MUM/2010

• Counselvise Citation: 225619914 RSA 2010
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Opportunity of cross examination
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER, A ND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 2256/MUM./2010 (ASSESSMENT YEAR : 2004-05 ) MR. ANIS AHMED ABDUL RASHID SIDDIQUI C/O M/S. N.S. VIRANI & CO., C.AS 28, BHANUSHALI BUILDING 35, MIND ROAD, MUMBAI 400 001 PAN AACPS5488E .. APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-21(3), PRATYAKSHAKAR BHAVAN C-11, BANDRA KURLA COMPLEX MUMBAI 400 051 .... RESPONDENT ASSESSEE BY : DR. K. SHIVARAM REVENUE BY : MR. P.K.B. MENON DATE OF HEARING 15.11.2011 DATE OF ORDER 25.11.2011 O R D E R PER J. SUDHAKAR REDDY, A.M. THIS APPEAL FILED BY THE ASSESSEE, IS DIRECTED AGA INST THE IMPUGNED ORDER DATED 12 TH FEBRUARY 2010, PASSED BY THE COMMISSIONER (APPEALS )- XXXII, MUMBAI, FOR ASSESSMENT YEAR 2004-05. 2. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THE AD DITIONS IN QUESTION WERE MADE UNDER SECTION 68 OF THE INCOME TAX ACT, 1 961 (FOR SHORT THE ACT ) BY THE ASSESSING OFFICER VIDE PARA-10 OF HIS ORDE R, WHICH READS AS FOLLOWS:- MR. ANIS AHMED ABDUL RASHID SIDDIQUI ITA NO. 2256/MUM./2010 2 10. THEREFORE, AT THIS JUNCTURE THERE IS NO REASON TO DISBELIEVE THE ORIGINAL STATEMENT GIVEN BY NISAR AHMED KHAN ON 20. 12.07. THIS PROVES BEYOND DOUBT THAT THE CREDIT OF RS.11.00 LAC S APPEARING IN THE BOOKS ARE NOTHING BUT CASH CREDITS WITHIN THE MEANI NG OF SECTION 68 AND THAT THE ASSESSEE HAS NOT DISCHARGED HIS ONUS T O PROVE THE GENUINENESS OF THE UNSECURED LOAN. THE PERSON GIVIN G HIM THE LOAN I.E NISAR AHMED KHAN, IS DENYING THE TRANSACTION AND HE IS ALSO STATING THAT THE SIGNATURE HAS BEEN FRAUDULENTLY OBTAINED A S PER STATEMENT DATED 20.12.07. IF THIS IS NOT CLEAR DENIAL OF GIVI NG A LOAN THEN WHAT IS. I AM ALSO SATISFIED THAT THE ASSESSEE CONCEALED THE PARTICULARS OF HIS INCOME AND ALSO FURNISHED INACCURATE PARTICULAR OF INCOME, THEREFORE, PENALTY PROCEEDINGS U/S. 271(1)(C) READ WITH EXPLAN ATION 1 OF THE I T ACT, 1961 ARE ALSO BEING INITIATED SEPARATELY. 3. THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER TO GIVE HIM AN OPPORTUNITY OF CROSS EXAMINATION. THE ASSESSEE ALSO PRODUCED MR. NASIR AHMED KHAN, BEFORE THE ASSESSING OFFICER. DESPITE T HIS, NEITHER THE ASSESSING OFFICER NOR THE COMMISSIONER (APPEALS) GR ANTED OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE MR. NASIR AHMED KHAN. IT IS WELL SETTLED THAT WHEN THE REVENUE RELIES ON A STATEMENT OF A WITNESS WHICH IS TAKEN BEHIND THE BACK OF THE ASSESSEE, THEN THE ASSESSEE HAS A R IGHT TO CROSS EXAMINE THE WITNESS OF THE REVENUE. AS NO CROSS EXAMINATION HAS BEEN ALLOWED, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FO R ADJUDICATION AFRESH WITH A DIRECTION THAT HE SHOULD ENSURE THE PRESENCE OF REV ENUES WITNESS AND ALLOW THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE THE WI TNESS. IN CASE, NO SUCH OPPORTUNITY IS GRANTED, THE REVENUE CANNOT RELY ON THE STATEMENT OF SUCH WITNESS. WITH THESE OBSERVATIONS, WE RESTORE THE IS SUE BACK TO THE FILE OF ASSESSING OFFICER. 4. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH NOVEMBER 2011 SD/- V. DURGA RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI, DATED: 25 TH NOVEMBER 2011 MR. ANIS AHMED ABDUL RASHID SIDDIQUI ITA NO. 2256/MUM./2010 3 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A), MUMBAI, CONCERNED; (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, A BENCH, ITAT, MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT, MUMBAI BENCHES, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 16.11.2011 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 17.11.2011 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 22.11.2011 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 22.11.2011 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 22.11.2011 SR.PS 6. DATE OF PRONOUNCEMENT 25.11.2011 SR.PS 7. FILE SENT TO THE BENCH CLERK 25.11.2011 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER