Shri Bhoorsingh Chimansingh Rajpurohit , Jodhpur V. ITO, Ward, Barmer

ITA 276/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5783 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL TOLATI
• Keywords: Reopening of assessment; Unexplained investment; Search and seizure; Document seized; Principle of natural justice; Opportunity of cross examination; Question of law; Corroborative evidences; Third party statement; Documents seized; Set aside
• Section: 143(3); 147; 132; 10; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO. 276/JODH/2018 (ASSESSMENT YEAR-2009-10) SHRI BHOORSINGH CHIMANSINGH RAJPURPHIT, B-98, SARASWATI NAGAR, BASNI IST PHASE, BHAGAT KI KOTHI, JODHPUR-342005 VS THE ITO, WARD - BARMER (APPELLANT) (RESPONDENT) PAN: ACTPR7945Q REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY SHRI SUNIL TOLATI, CA ITA NO. 418/JODH/2018 (ASSESSMENT YEAR-2009-10) SHRI BHIKAM CHAND JAIN, IMARTIYA BERA, POATA C ROAD, JODHPUR VS THE ITO, WARD-1(2) JODHPUR (APPELLANT) (RESPONDENT) PAN: ADCPJ8179Q ITA NO. 483/JODH/2018 (ASSESSMENT YEAR-2009-10) SHRI PARDEEP KUMAR CHARAN, VILLAGE POST PANCHETIYA, MARWAR JUNCTION, DISTT. PALI VS THE ITO, WARD-3 PALI (APPELLANT) (RESPONDENT) PAN: ADCPJ8179Q 2 ITA NO. 471/JODH/2018 (ASSESSMENT YEAR-2009-10) SMT. PUSHPA PANWAR, PUSHPA KUNJ, FULAD ROAD, SOJAT ROAD, DISTRICT PALI VS THE ITO, WARD-3 PALI (APPELLANT) (RESPONDENT) PAN: ABHPP8811G & ITA NO. 470/JODH/2018 (ASSESSMENT YEAR-2009-10) SHRI INDA RAM MEGHWANSI, 18/566, CHOPSNI HOUSING BOARD, JODHPUR VS THE ITO, WARD-1 PALI (APPELLANT) (RESPONDENT) PAN: AAWPM5904B REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY SHRI AMIT KOTHARI CA DATE OF HEARING 07.05.2019 DATE OF PRONOUNCEMENT 09.05.2019 O R D E R THESE APPEALS BY THE DIFFERENT ASSESSEES ARE DIRECT ED AGAINST THE ORDER OF CIT(A)-2, JODHPUR DATED 7.3.2018 IN THE CASE OF SHRI BHOORSINGH CHIMANSINGH RAJPUROHIT AND THE ORDERS OF THE CIT(A) -1, JODHPUR DATED 3 30.7.2018 IN THE CASE OF SHRI BHIKAM CHAND JAIN AND OTHER ORDERS EACH DATED 27.8.2018 IN RESPECT OF ALL OTHER ASSESSEES. 2. SINCE THE ISSUES INVOLVED ARE COMMON AND THE APP EALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CO NSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. AT THE FIRST INSTANCE, I WILL DEAL WITH APPEAL I N ITA NO. 276/JODH/2018. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- 1. THAT THE LD. CITA) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE ACTION OF AO THAT REOPENING OF CASE BY INVOKING THE PROVISIONS SECTION 147 OF THE ACT. IT IS SUBMITTED THAT WHILE REOPENING OF ASSESSMENT U/S 147 IS TOTAL LY BAD IN LAW AND VOID-AB-INITIO AND THUS THE ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) RWS 147 DESERVES TO BE QUASHED AND BE SET ASIDE. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION MADE BY AO OF RS 5,83,320/- ON ACCOUNT OF UNEXPLAIN ED INVESTMENT. IT IS SUBMITTED THAT THE ADDITION WAS M ADE PURELY RELYING ON THIRD PARTY STATEMENT NAMELY SHRI MADAN MOHAN GUPTA WITHOUT HAVING ANY SOUND BASIS / INDEPENDENT FINDINGS ON THE PART OF LD A.O. IT IS THEREFORE SUBMITTED TH AT THE INCORRECT AND ILLEGAL ADDITION CONFIRMED OF RS 5,83 ,320/- DESERVES TO BE DELETED. THE SAME BE HELD NOW. 3. THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITI ON OF RS 5,83,320/- ON BASIS OF STATEMENT RECORDED OF SHR I MADAN MOHAN GUPTA WITHOUT PROVIDING COPY OF THAT STATEMEN TS RECORDED TO THE ASSESSEE AND WITHOUT PROVIDING OPPO RTUNITY OF CROSS-EXAMINATION. IT IS THEREFORE SUBMITTED THAT T HE ORDER PASSED BY LD AO IS COMPLETELY INCORRECT, ILLEGAL AN D UNLAWFUL AND THUS THE ENTIRE ADDITION MADE OF RS 5,83,320/- ON ACCOUNT OF UNEXPLAINED INVESTMENT KINDLY BE DELETED. 4 4. THE LD CIT(A) HAS ERRED IN CONFIRMING THE ADDITI ON MADE OF RS. 5,83,320/- WITHOUT APPRECIATING FACTS A ND VARIOUS EVIDENCE AVAILABLE ON RECORD INCLUDING LEASE DEED, PAYMENT RECEIPT , POSSESSION LETTER ETC. IT IS SUBMITTED TH AT THE ORDER PASSED APPEARS TO BE PREDETERMINED ORDER WITHOUT CONSIDERING THE MATERIALS AND EVIDENCES PROVIDED AN D NOT PROVIDING THE OPPORTUNITY OF CROSS EXAMINATION OF T HE PERSON ON WHICH THE DEPARTMENT RELIED UPON IS TOTALLY INCO RRECT AND ILLEGAL AND THE ENTIRE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS 5,83,320/- KINDLY BE D ELETED. 5. THE ORDER PASSED BY LD. CIT(A) IS BAD IN LAW AND CONTRARY TO THE PROVISIONS OF LAW AND FACTS TO THE EXTENT OF ABOVE GROUNDS OF APPEAL. IT IS SUBMITTED THAT THE S AME BE HELD SO NOW. 6. YOUR APPELLANT CRAVES LEAVE TO ADD, ALTER AND / OR AMEND ALL OR ANY OF THE GROUNDS BEFORE FINAL HEARIN G. 4. GROUND NO.1 WAS NOT PRESSED, SO IT DOES NOT REQU IRE ANY COMMENT ON MY PART. 5. ALL OTHER GROUNDS ARE CO-RELATED WHICH RELATES T O THE SUSTENANCE OF ADDITION OF RS. 5,83,320/- MADE BY THE ASSESSING OF FICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PURCHASE OF LAND ON T HE BASIS OF STATEMENT OF ONE SHRI MADAN MOHAN GUPTA. 6. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER ON THE BASIS OF INFORMATION AVAILABLE DURING THE COURSE OF ASSESSM ENT PROCEEDINGS OBSERVED THAT THE ASSESSEE PURCHASED ONE PLOT MEASURING 291 .66 SQUARE YARDS IN THE RESIDENTIAL PROJECT 'REVENUE RESIDENCY' (NIZI KHATE DAR RESIDENTIAL SCHEME) 5 AT VILLAGE BHARATSINGH, JAISINGPURA - MUHANA ROAD, BHANKROTA TEH. SANGANER, JAIPUR. THE SAID SCHEME WAS DEVELOPED AND SOLD BY S HRI MADAN MOHAN GUPTA IN WHOSE CASE SEARCH AND SEIZURE WAS CARRIED OUT ON 23.5.2013 AND DURING THE COURSE OF SEARCH HIS STATEMENT WAS RECORDED WHEREIN HE HAD ACCEPTED AND HONOURED ON-MONEY RECEIPT ON SALE OF PLOTS IN REVEN UE RESIDENCY SCHEME WHICH WAS RS. 2000/- PER SQ. YARD AS PER SEIZED DO CUMENTS. THE ASSESSING OFFICER MADE THE ADDITION OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE. 7. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION BY OBSERVING IN PARA 4.1 OF THE IMPUGNED ORDER AS UNDER:- '4.1. I FIND THAT A SEARCH AND SEIZURE OPERATION U /S 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF SH MADAN MOH AN GUPTA AND THE STATEMENTS OF SHRI MADAN MOHAN GUPTA WERE RECORDED. THE AO NOTED THAT IN THE STATEMENTS RECOR DED DURING THE SEARCH OPERATION AND DURING THE ASSESSME NT PROCEEDING, SHRI MADAN MOHAN GUPTA HAD ACCEPTED REC EIPT OF ON-MONEY ON SALE OF PLOTS OF THE SCHEME. THE AO ON THE BASIS OF ASSESSEES NAME APPEARING IN ONE OF THE DO CUMENTS SEIZED DURING THE COURSE OF SEARCH, INFERRED THAT T HE ASSESSEE HAD ALSO PAID ON-MONEY OF RS. 5,83,320/- TO SHRI MA DAN MOHAN GUPTA, THE SELLER FOR PURCHASE OF PLOT NO. 5, REVENUE RESIDENCY (NIZI KHATEDAR RESIDENTIAL SCHEME) AT VIL LAGE PEEPLA BHARAT SINGH , BHANKAROTA JAIPUR DURING THE YEAR UNDER CONSIDERATION AND FAILED TO EXPLAIN THE SOURC E OF THE SAME. ACCORDINGLY, THE AO MADE THE ADDITION OF RS. 5,83,320/- U/S. 69 TREATING IT AS UNEXPLAINED INVES TMENT. THE APPELLANT HAS VEHEMENTLY CONTESTED THIS ACTION OF T HE AO BY SUBMITTING THAT THE AO MERELY ON THE BASIS OF STATE MENT OF THIRD PARTY AND WITHOUT GIVING PROPER OPPORTUNITY O F CROSS- EXAMINATION HELD THAT THE ASSESSEE HAD PAID ON- MON EY 6 TOWARDS PURCHASE OF PLOT. IT WAS CLAIMED BY THE APP ELLANT THAT IT HAD DULY PRODUCED ALL THE RELEVANT EVIDENCE S SO AS TO DISCHARGE BURDEN AS LAID DOWN IN SEC. 69 OF THE ACT . THE APPELLANT THEREFORE, REQUESTED THAT THE ADDITION MA DE BY THE AO MAY BE DIRECTED TO BE DELETED. UPON DUE CONSIDER ATION OF FACTS AND APPELLANT'S SUBMISSIONS, I AM NOT INCL INED TO AGREE WITH THE APPELLANTS CONTENTION THAT IN THE I NSTANT CASE, THE ADDITION WAS MADE MERELY ON THE BASIS OF STATEMENT OF THIRD PARTY IN FACT, IN THE INSTANT CASE, THE AO ON THE BASIS OF CORROBORATIVE EVIDENCE IN SHAPE OF SEIZED DOCUME NTS (ANNEXURE AS (UNIQUE ACCOUNT BOOK REGISTER) INFERRE D THAT ASSESSEE HAD MADE INVESTMENT OUTSIDE BOOKS OF ACCOUNTS AGAINST THE PURCHASE OF PLOT NO. 5 IN THE RESIDENTI AL PROJECT REVENUE RESIDENCY'. THESE DOCUMENTS SEIZED BY THE INVESTIGATION WING, JAIPUR WERE NOT SIMPLY PIECE OF PAPERS, IN FACT, THEY CONTAINED SPECIFIC NOTINGS REGARDING SALE/PURCHASE OF PLOTS IN REVENUE RESIDENCY 1 , PER SQUARE RATE, AND AMOUNT ACTUALLY RECEIVED. THE APPELLANT C ONTENDED THAT NO ADDITION COULD BE MADE ON THE BASIS OF THIR D PARTY STATEMENT. HOWEVER, I FIND NO FORCE IN APPELLANT'S CASE. THIS THIRD PARTY WAS NOT UNKNOWN TO THE ASSESSEE, THE AS SESSEE AND SH. MADAN MOHAN GUPTA HAD EXECUTED THE PURCHASE/SALE DEED, DOCUMENTS WHICH WERE SEIZED SPECIFICALLY REFLECTED ASSESSEES NAME FROM WHOM SH . MADAN MOHAN GUPTA HAD ACCEPTED ON-MONEY ON SALE OF PLOTS OF THE SCHEME. IN FACT, THERE IS PLETHORA OF DECISIONS, RA TIO OF WHICH HOLDS THAT STATEMENT OF THIRD PARTY CAN BE USED AGA INST THE ASSESSEE WHERE SEIZED DOCUMENTS DULY REFLECTED ASSE SSEES NAME AND EVIDENT OR DIRECT LINK WITH THE THIRD PART Y.' 8. NOW, THE ASSESSEE IS IN APPEAL. 9. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET STATED THAT A SIMILAR ISSUE HAVING IDENTICAL FACTS HAS ALREADY BEEN DISPO SED OFF BY THIS BENCH OF THE TRIBUNAL IN THE CASE OF SHRI MEHTAB SINGH UJJAW AL VS. ITO, WARD-3 (1), JODHPUR IN ITA NO. 271/JODH 2018 FOR THE ASSESSMENT YEAR 2009-10 VIDE 7 ORDER DATED 18.1.2019. IT WAS POINTED OUT THAT IN THE SAID CASE ALSO, SIMILAR ADDITION WAS MADE ON THE BASIS OF THE STATEMENT OF THE AFORESAID PERSON I.E. SHRI MADAN MOHAN GUPTA. COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD. 10. IN HIS RIVAL SUBMISSIONS, THE LD. SR.DR SUPPORT ED THE ORDERS OF THE AUTHORITIES BELOW. 11. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOTICED THAT O N IDENTICAL ISSUE HAVING SIMILAR FACTS WAS A SUBJECT MATTER OF THE APPEAL IN THE CASE OF SHRI MEHTAB SINGH UJJAWAL VS. ITO, WARD-3 (1), JODHPUR IN ITA NO. 271/JODH 2018 FOR THE ASSESSMENT YEAR 2009-10 (SUPRA), WHEREIN VIDE O RDER DATED 18.01.2019, THE SIMILAR ADDITION WAS DELETED BY THE ITAT JODHPU R BENCH (SMC). THE RELEVANT FINDING HAS BEEN GIVEN IN PARA 5 TO 14 OF THE ORDER WHICH READ AS UNDER:- '5. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PE RUSED. THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED BY THE DECI SION OF TRIBUNAL IN THE CASE OF SHRI DEVA RAM SUTHAR IN ITA NO.342/JODH /2018 WHEREIN EXACTLY SIMILAR ADDITION WAS DELETED BY THE TRIBUNA L 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 THEIR RESPECTIVE ORDERS AS WEL L AS CITED BY LEARNED AR AND DR DURING THE COURSE OF HEARING BEFO RE US IN THE CONTEXT OF FACTUAL MATRIX OF THE CASE. FROM THE REC ORD I FOUND THAT THE ASSESSEE HAD PURCHASED PLOT NO. 84 MEASURING 23 3.33 SQ.YARDS IN THE RESIDENTIAL PROJECT 'REVENUE RESIDE NCY' AT VILLAGE PEEPLA BHARATSING, (JAISINGHPURA-MUHANA ROAD), BHAN KROTA, TEHSIL- SANGANEER, JAIPUR DEVELOPED BY SHRI MADAN M OHAN 8 GUPTA IN F.Y.2008-09 RELEVANT TO A.Y.2009-10 FOR TO TAL PURCHASE CONSIDERATION OF RS.2,68,330/- FOR PLOT AND RS.2,67 0/- FOR BOUNDARY TOTAL RS.2,71,000/- (RS.1150/-PER SQ.YARD) . THUS, TOTAL 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 BALANCE 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 AREA 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. AUTHORITIES ON 23.05.201 3 DURING THE COURSE OF SEARCH. BUT FROM READING THE REPLY GIVEN BY SHRI MADAN MOHAN GUPTA IN THE STATEMENT, IT IS CLEARLY CONVEYE D THAT SHRI MADAN MOHAN GUPTA SOLD THE LAND FOR RS.1150/- PER S Q.YARD. AND THE APPELLANT PAID AS PURCHASE CONSIDERATION TO THE SELLER MADAN MOHAN GUPTA A SUM OF RS.2,71,000/-. C. THAT THE ENTIRE FABRIC BEING WOVEN AGAINST THE A PPELLANT FOR TREATING THE ALLEGED PAYMENT OF ON MONEY GO AROUND THE STATEMENT OF SHRI MADAN MOHAN GUPTA. IT IS SUBMITTED THAT AFT ER THOUGHT STATEMENT CARRY NO WEIGHT UNDER THE LAW AND THEY AR E AGAINST THE SPIRIT OF NATURAL JUSTICE BECAUSE THEY HAVE NO EVID ENCE VALUE. D. THAT EXCEPT THE ABOVE STATEMENT OF SHRI MADAN MO HAN GUPTA THERE WAS NO SUPPORTING EVIDENCE AVAILABLE WITH THE ID.AO WHICH COULD CORROBORATE THAT ON MONEY OF RS.4,66,660/- WA S PAID BY THE APPELLANT TO SHRI MADAN MOHAN GUPTA. E. THAT WHILE MAKING THE ALLEGATION THE LD.AO H AS RELIED UPON THE STATEMENT OF SHRI MADAN MOHAN GUPTA COURSE OF S EARCH PROCEEDINGS. 10. ASSESSEE ALSO ASKED BEFORE THE AO TO PROVIDE OP PORTUNITY FOR THE CROSS EXAMINATION OF THE PERSON ON WHOSE STATEMENT ADDITI ON WAS MADE. 9 HOWEVER, NO SUCH OPPORTUNITY WAS PROVIDED NEITHER B Y THE AO NOR BY THE CIT(A). THUS, WITHOUT AFFORDING CROSS EXAMINATION, THE AO HAS MADE ADDITION ON THE BASIS OF STATEMENT OF SHRI MADAN MO HAN GUPTA U/S 69 BEING UNEXPLAINED INVESTMENT AND ADDED THE SAME IN ASSESSEE'S INCOME. HOWEVER, THERE WAS NO CORROBORATIVE MATERIAL AVAILA BLE WITH THE AO FOR MAKING ADDITION. AS PER OUR CONSIDERED VIEW, NOT PR OVIDING 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 C ROSS- EXAMINE WITNESSES BY ADJUDICATING AUTHORITY THOUGH STATEMENTS OF THOS E WITNESSES WERE MADE AS BASIS OF IMPUGNED ORDER, AMOUNTED IN SERIOUS FLA W WHICH MADE IMPUGNED ORDER NULLITY AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE PRECISE OBSERVATION OF THE HON'BLE SUP REME COURT WAS AS UNDER :- 'NOT ALLOWING THE APPELLANT TO CROSS-EXAMINE THE WI TNESSES 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 INASMUCH 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. EV EN WHEN THE APPELLANT DISPUTED THE CORRECTNESS OF THE STATEMENT S AND WANTED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NO T GRANT THIS OPPORTUNITY TO THE APPELLANT. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHO RITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE APPELLANT. HOWEVER, NO SUCH OPPORTUNITY WAS GRA NTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE AD JUDICATING AUTHORITY. APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DIS CREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINATION. THAT APART, THE ADJUDICATING AUT HORITY SIMPLY RELIED UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEVY OF EXCI SE DUTY. 10 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-EXAMINA TION. 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 INTERNATIONAL IN 1TA NO .4299/MURN/2009 DATED 22/02/2011, WHEREIN COURT HELD AS UNDER:- 'THE QUESTION RAISED IN THIS APPEAL IS, -WHETHER TH E TRIBUNAL JUSTIFIED IN DELETING THE ADDITION ON ACCOUNT OF BO GUS PURCHASES ALLEGEDLY MADE BY THE APPELLANT FROM M/S. THAKKAR A GRO INDUSTRIAL CHEM SUPPLIES P. LTD. ACCORDING TO THE R EVENUE, THE DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPL IES P.LTD. IN HIS STATEMENT HAD STATED THAT THERE WERE NO SALE S/ PURCHASES BUT THE TRANSACTIONS WERE ONLY ACCOMMODATION BILLS NOT INVOLVING ANY TRANSACTIONS. THE TRIBUNAL HAS RECORD ED A FINDING OF FACT THAT THE APPELLANT HAD DISPUTED THE CORRECT NESS OF THE ABOVE STATEMENT AND ADMITTEDLY THE APPELLANT WAS NO T GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE CONCERNED DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. WHO H AD MADE THE ABOVE STATEMENT. THE APPELLATE AUTHORITY HAD SO UGHT REMAND REPORT AT THAT STAGE THE GENUINENESS OF THE STATEME NT HAS NOT BEEN ESTABLISHED BY ALLOWING CROSS EXAMINATION OF T HE PERSON WHOSE STATEMENT WAS RELIED UPON BY THE REVENUE. IN THESE CIRCUMSTANCES, THE DECISION OF THE TRIBUNAL BEING B ASED ON THE FACT, NO SUBSTANTIAL QUESTION OF LAW CAN BE SAID 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. T HE HON'BLE HIGH COURT HELD AS UNDER:- '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 11 MATTER AND STRIKES AT THE VERY FOUNDATION OF THE AS SESSMENT ORDER AND RENDERS IT VULNERABLE.' 14. APPLYING PROPOSITION OF LAW LAID DOWN BY HON'BL E SUPREME COURT AND HIGH COURT AS DISCUSSED ABOVE, I DO NOT FIND ANY ME RIT FOR THE ADDITION MADE BY AO MERELY ON THE BASIS OF STATEMENT, WHEN T HERE IS NO CORROBORATIVE MATERIAL WITH AO SUGGESTING THE ALLEG ED ADDITION, WITHOUT ALLOWING ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE T HE PERSON ON WHOSE STATEMENT ADDITION WAS MADE. ACCORDINGLY, AO IS DIR ECTED TO DELETE THE ADDITION SO MADE.' 12. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERR ED TO ORDER DATED 18.1.2009 IN ITA NO. 271/JOPDH/2018 IN THE CASE OF SHRI MEHTAB SINGH UJJAWAL VS. ITO, WARD-3 (1), JODHPUR, THE IMPUGNED ADDITION IS DELETED. IN ALL OTHER APPEALS OF THE DIFFERENT ASSESSEES, THE F ACTS ARE IDENTICAL, EVEN THE RIVAL CONTENTIONS WERE SIMILAR, THEREFORE, THE FIND INGS GIVING IN THE FORMER PART OF THIS ORDER IN CASE OF SHRI BHOORSHING CHIMA NSINGH RAJPURPHIT, BHAGAR KI KOTHI, JODHPUR VS. ITO, WARD- BARMER IN ITA NO. 276/JODH/2018 FOR THE ASSESSMENT YEAR 2009-10 SHALL APPLY MUTATIS MUTAND IS IN THE CASE OF ALL OTHER ASSESSEES. 13. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 09.05.2019) SD/- (N.K. SAINI) VICE PRESIDENT DATED :09.05.2019 .. 12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ' , % / DR, ITAT, JODHPUR 6. ( / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR