Awdhesh U.Mishra, Ankleshwar V. The Dy.CIT.,Bharuch Circle, Bharuch

ITA 4365/AHD/2007

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9748 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-08-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 10-12-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHUBNESH KULSHRESTHA
• Assessee Lawyers: RASHESH SHAH
• Keywords: Unexplained investment; Income from undisclosed sources; Principle of natural justice; Fair market value; Corroborative evidences; Retraction
• Section: 133A; 131; 69

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M SHRI AWDHESH U. MISHRA, C/O RELIABLE SURFACE COATINGS, S- 1, RAVI KIRAN COMPLEX, GIDC, ANKLESHWAR. VS. DY. CIT, BHARUCH CIRCLE, BHARUCH. (APPELLANT) .. (RESPONDENT) APPELLANT BY:- SHRI RASHESH SHAH, A.R. RESPONDENT BY:- SHRI BHUBNESH KULSHRESTHA, DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE RAISING FO LLOWING GROUNDS :- (1) THE CIT(A) ERRED IN NOT ALLOWING THE TOTAL INTEREST ON BORROWED CAPITAL FOR THE PURPOSES OF CONSTRUCTION OF HOUSE P ROPERTY. (2) THE CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS.5, 69,200/- UNDER SECTION 69 AS UNEXPLAINED INVESTMENT. 2. GROUND NO.1 IS NOT PRESSED BY THE LD. AR AND HEN CE IT IS TREATED AS REJECTED. 3. GROUND NO.2 RELATES TO ADDITION AS UNEXPLAINED I NVESTMENT IN PURCHASE OF HOUSE PROPERTY. THE ASSESSEE IS A PARTN ER IN THE FIRM M/S RELIABLE SURFACE COATINGS. IN ADDITION TO ENJOYING 50% SHARES IN PROFIT, REMUNERATION AND INTERES FROM PARTNERSHIP FIRM, THE ASSESSEE HAS STARTED ANOTHER PROPRIETARY BUSINESS IN THE NAME AND STYLE OF RELIABLE MOTORS, A ITA NO.4365/AHD/2007 ASST. YEAR :2004-05 ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 2 LML MOTOR CYCLE SHOW ROOM DURING THIS YEAR. THE BUS INESS WAS APPARENTLY IN A PRE-OPERATIVE STAGE AS NO INCOME TH EREFROM WAS DECLARED. A SURVEY UNDER SECTION 133A WAS CARRIED O UT AT THE BUSINESS PREMISES OF THE FIRM RELIABLE SURFACE COATINGS ON 2 4.8.2005. SINCE THE ASSESSEE WAS SOLE PROPRIETOR OF RELIABLE MOTORS, SU RVEY WAS ALSO CARRIED OUT AT HIS PREMISES. DURING THE COURSE OF SURVEY IT WAS NOTICED BY THE AUTHORITIES THAT ASSESSEE HAS PURCHASED A PLOT OF L AND SITUATED AT OLD N.H.NO.8, OPP. GOVARDHAN HOSPITAL, BHOLAV, BHARUCH. THE AGREEMENT FOR THE PURCHASE OF LAND WAS EXECUTED ON 5.2.2003. THE PLOT OF LAND WAS PURCHASED FROM SHRI DEEPAKBHAI PATEL. A STATEMENT O F THE ASSESS ON OATH WAS RECORDED WHEREIN HE IT WAS STATED THAT HE HAS P URCHASED 4101 SQ.FTS. OF LAND @ RS.200/- PER SQ.FT. FOR IT HE PAID A SUM OF RS.2,51,000/- BY CHEQUE AND BALANCE IN CASH. THE RELEVANT QUESTION-A NSWERS AS REFERRED TO BY AO IN HIS ASSESSMENT ORDER ARE AS UNDER :- Q.3 PLEASE GIVE THE INVESTMENT IN PLOT OF LAND FOR LML SHOW ROOM AND EXPLAIN THE SOURCES THEREOF? A.3 THE PLOT WAS PURCHASED IN FY 2003-04 FROM SHRI DEEPAKBHAI NARAYANBHAI PATEL, BHOLAV, BHARUCH FOR RS.2,50,000/ - APPROX. Q.4 WHETHER ANY ON MONEY WAS PAID FOR THE PURCHASE OF SAID PLOT TO SHRI DEEPAKBHAI PATEL? A.4 THE PLOT WAS PURCHASED @ RS.200/- PER SQ.FT. FR OM SHRI DEEPAKBHAI N. PATEL. THE AMOUNT REFLECTED IN SALE D EED WAS PAID THROUGH CHEQUES. THE REMAINING AMOUNT WAS PAID BY M E IN CASH TO SHRI DEEPAKBHAI PATEL AGAINST FULL & FINAL SETTLEME NT. THE AREA OF PLOT IS APPROX.4000 SQ.FT. Q.5 PLEASE EXPLAIN THE SOURCE OF INVESTMENT IN PLOT OF LAND ? A.5 THE INVESTMENT IN PLOT OF LAND IS OUT OF MY WIT HDRAWALS FROM FIRM AND OTHER AMOUNT OF MONEY LYING WITH ME, WHICH WERE NOT REFLECTED IN BOOKS. THE EXACT BIFURCATION WILL BE SUBMITTED W ITH 3-4 DAYS AFTER VERIFICATION OF RECORDS. ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 3 4. SIMULTANEOUSLY STATEMENT OF SHRI DEEPAKBHAI N. P ATEL, THE LAND OWNER WAS ALSO RECORDED UNDER SECTION 131 ON 24.8.2 005 IN WHICH HE CATEGORICALLY ADMITTED TO HAVE RECEIVED FROM SHRI A WDHESH MISHRA A PRICE OF RS.200 PER SQ.FT. AND THUS RECEIVED FULL A MOUNT OF RS.8,40,000/- AS SALE CONSIDERATION OF LAND. THE RELEVANT QUESTIO N-ANSWERS AS REFERRED TO BY THE AO IN HIS ASSESSMENT ORDER ARE AS UNDER :- Q.2 PLEASE GIVE DETAILS OF SALE OF LAND FOR LML SH OW ROOM TO RELIABLE MOTORS, PROP. SHRI AWDHESH MISHRA? A.2 THIS PLOT IS APPROXIMATELY 4000 TO 4200 SQ.FT. WHICH WAS SOLD TO SHRI AWDHESH MISHRA BEFORE TWO YEARS AND IN WHICH H E HAD MADE LML SHOW ROOM. Q.3 PLEASE GIVE DETAILS OF MONEY RECEIVED FOR SALE OF THIS LAND ? A.3 THIS PLOT OF LAND WAS SOLD TO AWDHESHBHAI MISHR A @ RS.200/- (RUPEES TWO HUDRED) PER SQ.FT. ACCORDINGLY THE SALE PRICE COMES TO RS.8,40,000/-. THIS AMOUNT IS TOTALLY RECEIVED BY M E. OUT OF THIS, SOME AMOUNT RECEIVED IN CASH AND SOME AMOUNT THROUG H CHEQUE. WHATEVER AMOUNT RECEIVED THROUGH CHEQUE IS MENTIONE D IN THE DOCUMENT AND REMAINING AMOUNT RECEIVED IN CASH FROM SHRI AWDHESHBHAI MISHRA. 5. THE DETAILS OF PAYMENTS BY CHEQUES WERE GIVEN TO THE AO AS UNDER:- RS.51,000/- CHEQUE NO.222907 DATED 10/04/2 003 OF ORIENTAL BANK OF COMMERCE, ANKLESHWAR. RS.2,00,000/- CHEQUE NO.469695 DATED 04/06/2 003 OF ORIENTAL BANK OF COMMERCE, ANKLESHWAR. ----------------- RS.2,51,000/- ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 4 FROM THESE TWO STATEMENTS THE AO INFERRED THAT A S UM OF RS.5,69,200/- HAS BEEN PAID IN CASH AS PART OF TOTAL SALE CONSID ERATION OF THE LAND BEING RS.8,20,200/- AT A RATE OF 200/- PER SQ.FT. FOR 4, 101 SQ.FT. FROM TOTAL SALE CONSIDERATION CHEQUE AMOUNT OF RS.2,51,000/- IS RED UCED. HE TREATED THIS SUM OF RS. 5,69,200/- AS UNDISCLOSED INCOME OF THE ASSESSEE INVESTED IN PURCHASE OF PLOT. 6. HOWEVER, VIDE HIS LETTER DATED 15.9.2006 THE ASS ESSEE SOUGHT TO RETRACT THE STATEMENT GIVEN DURING THE COURSE OF SU RVEY IN FOLLOWING TERMS:- THE STATED ADMISSION AS REFERRED TO PARA-4 OF YOUR S QUESTIONNAIRE ABOUT HAVING PAID AS AMOUNT OF RS.5,69,200/- OUT OF UNDIS CLOSED MONEY FOR PURCHASES OF PLOT OF LAND BY MY CLIENT WAS RECORDED UNDER PRESSURE AS THE MENTAL CONDITION OF MY CLIENT WAS NOT STABLE AS HIS BLOOD PRESSURE WAS RUNNING HIGH BECAUSE OF TENSE SITUATION DURING OF S URVEY. THE PLOT OF LAND AS REFERRED WAS PURCHASED AT AN AG REED PRICE OF RS.2,51,000/- FOR WHICH OWNERSHIP AGREEMENT WAS EXE CUTED. THE SALE PRICE INDICATED IN THE AGREEMENT IS A MARKET PRICE FOR WHICH GOVT.APPROVED VALUER AND COMPETENT PREVIOUS VALUATI ON REPORT IS AVAILABLE. THIS CLARIFY AND SPECIFICALLY ESTABLISH THAT NO UNDER HAND DEALING WAS MADE FOR THE PURCHASE OF PLOT NOR ANY U N-ACCOUNTED & UNDISCLOSED MONEY WAS PAID. THE STATEMENT OF AO THA T UNDISCLOSED MONEY AMOUNTING RS.5,69,200/- FOR PURCHASE OF PLOT OF LAND WAS PAID IN HIS OWN CONCLUSION AND NOT TENABLE AND MAINTAINABLE . MOREOVER NO RECOURSE TO THE SAME WAS RECORDED WHEN MY CLIENTS MENTAL CONDITION WAS TENSE. THE AO, HOWEVER, REJECTED THIS LETTER AND TREATED T HE SUM OF RS.5,69,200/- AS PAID OUT OF UNDISCLOSED SOURCE AND ADDED IT IN T HE TOTAL INCOME. 7. THE LD. CIT(A) CONFIRMED THE ADDITION BY OBSERVI NG AS UNDER :- 6.1.2 THE ASSESSEE SUBMITTED IN ASSESSMENT PROC EEDINGS THAT THE ADMISSION IN STATEMENT WAS UNDER PRESSURE AND THE P LOT OF LAND WAS PURCHASED AT AN AGREED PRICE OF RS.2,51,000/- AND T HE SALE PRICE IN THE ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 5 AGREEMENT IS THE MARKET PRICE AS PER GOVT. APPROVED VALUERS REPORT AND NO ADDITION SHOULD BE MADE. THE AO DID NOT ACCEPT T HE ASSESSEES CONTENTION AS CONVINCING AS AFTER A GAP OF ONE YEAR HE HAD STATED THAT THE STATEMENT WAS RECORDED UNDER PRESSURE. MOREOVER, SH RI DEEPAKBHAI N. PATEL HAD ADMITTED IN HIS STATEMENT U/S 131 OF THE ACT THAT HE HAD RECEIVED THE SALE CONSIDERATION @ RS.200/- PER SQ.F T. THE AO THEREFORE ADDED RS.5,69,200/- UNDER SECTION 69 BEING UNEXPLAI NED INVESTMENT IN PLOT OF LAND. 6.2 IN APPEAL IT IS SUBMITTED THAT DURING THE TIME OF SURVEY THE APPELLANT WAS UNDER TREMENDOUS MENTAL PRESSURES AND HIS BLOOD PRESSURE WAS ALSO HIGH AND UNDER CONFUSED STATE OF MIND HE H AD GIVEN THE STATEMENT U/S 133A. THE APPELLANT FURTHER SUBMITTED REGISTERED SALE DEED OF THE PROPERTY AND STATED THAT THE SAID DOCUMENT I S AN EVIDENCE OF FAIR MARKET VALUE AS THE SAME WAS ACCEPTED BY JOINT SUB- REGISTRAR, BHARUCH WITHOUT LEVY OF ADDITIONAL STAMP DUTY. 6.3 I HAVE GONE THROUGH THE CONTENTIONS OF THE APPE LLANT AND THE ARGUMENTS OF THE AO. IT IS NOTED THAT ALL REPLIES B Y THE PARTNER DURING THE COURSE OF SURVEY AND STATEMENT RECORDED ON 29.8.200 7 ARE CONSISTENT AND TILL APPELLATE PROCEEDINGS THERE WAS NOT A WHISPER THE STATEMENT WAS RECORDED UNDER PRESSURE OR COERCION. THE PLEA OF AP PEALLANT IS THUS NOT TENABLE AND IS DISMISSED. AO WAS JUSTIFIED IN ADDIN G RS.5,69,200/- UNDER SECTION 69 AS UNEXPLAINED INVESTMENT. 8. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT OPPORTUNITY TO CROSS EXAMINE SHRI DEEPAKBHAI PATEL HAS NOT BEEN PR OVIDED. SECONDLY THERE IS NO MATERIAL EXCEPT THE STATEMENT OF THE AS SESSEE TO SHOW THAT ASSESSEE HAS PAID UNACCOUNTED INCOME. THIRDLY LD. A R SUBMITTED THAT ASSESSEE HAD NO OTHER SOURCE OF INCOME EXCEPT THE S HARE INCOME FROM THE FIRM. THEREFORE, WHATEVER ASSESSEE HAS RECEIVED WAS IN FACT PROFIT FROM THE FIRM. FURTHER FIRM HAS ALSO MADE CERTAIN DISCLO SURE DURING THE COURSE OF SURVEY PROCEEDINGS. THE SAME WAS ALSO RETRACTED IN THE SAME FASHION. THE TRIBUNAL IN THE CASE OF THE FIRM DID NOT ACCEPT THE DISCLOSURE MADE IN THE CASE OF THE FIRM BUT MADE AN ADDITION ON ACCOUN T OF GP. THE ASSESSEE IF AT ALL HAD INVESTED ANY SUM OVER AND ABOVE THE C HEQUE AMOUNT WAS OUT ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 6 OF THE SHARE RECEIVED FROM SUCH UNDISCLOSED ADDITIO N. THE LD. AR REFERRED TO PAGE 23 OF THE PAPER BOOK WHICH CONTAINED THE AM OUNT OF ADDITION SUSTAINED BY THE TRIBUNAL IN THE CASE OF THE FIRM. THE ADDITION SO SUSTAINED BY THE TRIBUNAL IN THE CASE OF THE FIRM A RE AS UNDER :- SL.NO. ASST. YEAR DIFFERENCE (ADDITION) 1. 1999-2000 +155044.17 2. 2000-01 -247044.17 3. 2001-02 +284648.24 4. 2002-03 +309317.02 5. 2003-04 +549590.23 6. 2004-05 +19817 FOURTHLY THE LD. AR SUBMITTED THAT ASSESSEE HAS RET RACTED THE STATEMENT, THEREFORE, IT SHOULD NOT BE GIVEN ANY CREDENCE. 9. AGAINST THIS, LD. DR SUBMITTED THAT ASSESSEE HAS NOT TAKEN ANY PLEA IN THE PAST BEFORE THE AO OR BEFORE THE LD. CIT(A) THAT UNACCOUNTED PAYMENT FOR PURCHASE OF LAND WAS OUT OF SHARE OF PR OFITS RECEIVED FROM INTANGIBLE ADDITION CONFIRMED BY THE TRIBUNAL IN TH E CASE OF THE FIRM. THEREFORE, THIS PLEA SHOULD NOT BE ACCEPTED. SECOND LY, THE STATEMENT WAS RECORDED DURING THE SURVEY ON OATH THEREFORE, IT HA S EVIDENTIARY VALUE. FURTHER THE STATEMENT WAS CORROBORATED BY THE RECIP IENT OF THE MONEY I.E. THE LAND OWNER WHO SOLD THE PLOT TO THE ASSESSEE. T HEREFORE, THE STATEMENT GIVEN BY THE ASSESSEE IS NOT IN THIN AIR. FINALLY L D. DR SUBMITTED THAT RETRACTION HAS NO VALUE BECAUSE IT IS GIVEN AFTER O NE YEAR OF THE ORIGINAL STATEMENT. FURTHER THE ASSESSEE NEVER DEMANDED ANY CROSS EXAMINATION OF SHRI DEEPAKBHAI N. PATEL. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW STATEMENT RECORDE D UNDER SECTION 133A ON OATH HAS EVIDENTIARY VALUE BECAUSE LAW GIVES POW ER TO THE AUTHORITY TO ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 7 RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USE FUL FOR OR RELEVANT TO ANY PROCEEDINGS UNDER THE ACT. FOR THE SAKE OF CONV ENIENCE WE REPRODUCE SECTION 133A(3)(III) AS UNDER :- 133A(3)- AN INCOME-TAX AUTHORITY ACTING UNDER THIS SECTION MAY - (I).. (IA) (II).. (III) RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT. IF WE HOLD THAT STATEMENT RECORDED UNDER SECTION 13 3A IS A NULLITY IN ALL CIRCUMSTANCES THEN PROVISIONS OF SECTION 133A(3) WO ULD BECOME OTIOSE AND WILL NOT HAVE ANY RELEVANCE, SIGNIFICANCE OR IM PORTANCE WHILE EXECUTING INCOME-TAX ACT OR CARRYING OUT INVESTIGAT ION AND COLLECTING MATERIAL EVIDENCE FOR THE PURPOSE OF ASSESSMENT. SE CTION 133A ENABLES THE AUTHORITIES TO CARRY OUT CERTAIN BASIC TASKS AT THE BUSINESS PREMISES OF AN ASSESSEE. THESE BASIC TASKS INCLUDE CHECKING OF STOCK, CASH, DOCUMENTS AND THEN RECORDING THE STATEMENT OF ANY PERSON IN C ONNECTION WITH THE SURVEY AND DURING SURVEY. NOT ONLY SURVEY OFFICERS CAN RECORD THE STATEMENT DURING SURVEY BUT THEY CAN ALSO RECORD SU CH STATEMENT AFTER SURVEY UNDER SECTION 131 IF ANY PROCEEDINGS ARE PEN DING AGAINST THE ASSESSEE BEFORE THEM. WE CANNOT HOLD FOR THE SAKE O F ACCEPTING THE ARGUMENT OF LD. AR THAT ANY STATEMENT RECORDED UNDE R SECTION 133A IS A NULLITY IF THERE IS NO OTHER MATERIAL TO SUPPORT TH E CONTENTS OF THE STATEMENT. UNLESS A STATEMENT SO GIVEN IS RETRACTED FORTHWITH SAY WITHIN SHORT SPAN OF 2-3 DAYS FROM THE DATE OF CARRYING OU T SURVEY AND REALLY THERE IS NO OTHER EVIDENCE TO SUPPORT SUCH STATEMEN T AND AO DOES NOT ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 8 BRING ON RECORD ANY OTHER EVIDENCE TO SHOW THAT RET RACTION IS MALA FIDE ,THE STATEMENT UNDER SECTION 133A LOSES SIGNIFICANC E AND CANNOT BECOME THE ONLY BASIS FOR MAKING ADDITION. BUT IF RETRACTI ON IS MADE MUCH AFTER THE DATE OF RECORDING OF THE STATEMENT LIKE AFTER O NE YEAR AS IN THE PRESENT CASE, THEN RETRACTION HAS NO SIGNIFICANCE AND IT IS FOR THE ASSESSEE TO BRING EVIDENCE ON RECORD TO SHOW THAT WHAT WAS STATED DUR ING THE COURSE OF SURVEY WAS OUT OF IGNORANCE OR MISCONCEPTION. THE A SSESSEE AUGHT TO HAVE BROUGHT ON RECORD IMMEDIATELY AFTER SURVEY, AF FIDAVITS OF ALL THE CONCERNED, THAT TRANSACTION HAD IN FACT BEEN CARRIE D OUT AT THE DECLARED PRICE AND NO MONEY IN CASH HAD IN FACT CHANGED HAND S. HAVING NOT DONE SO, WE ARE UNABLE TO ACCEPT THE RETRACTION AND REJE CT IT FORTHWITH. 11. IN THE PRESENT CASE STATEMENT OF THE ASSESSEE RECORDED UNDER SECTION 133A IS NOT STANDING ALONE BY ITSELF. IT I S SUPPORTED BY STATEMENT OF THE LAND OWNER, WHO HAS ALSO CONFIRMED TO HAVE R ECEIVED THE MONEY IN CASH AS STATED BY THE ASSESSEE TO HAVE BEEN PAID B Y HIM. THERE IS NO SUCH RETRACTION OF THE LAND OWNER. IT IS NOT POSSIBLE TO BELIEVE THAT THE TWO PERSONS, THE SELLER AND THE PURCHASER, BOTH WOULD B E SO CONFUSED OR WOULD BE UNDER PRESSURE, NOW ALLEGED BY THE ASSESSEE, S O AS TO GIVE STATEMENT AGAINST THEIR INTEREST. WE REJECT THE ARGUMENT OF T HE ASSESSEE THAT STATEMENT WAS GIVEN UNDER PRESSURE. NOTHING PREVENT ED THE ASSESSEE OR THE LAND OWNER TO IMMEDIATELY WRITE TO THE COMMISSI ONER AND THE CHIEF COMMISSIONER THAT STATEMENT HAS BEEN TAKEN FORCIBLY . HAVING NOT DONE SO AND THERE BEING A SUPPORTING EVIDENCE IN THE FORM O F STATEMENT ON OATH OF THE LAND OWNER THAT HE HAS SOLD THE LAND AT THE PRI CE ADMITTED BY THE ASSESSEE, IT CANNOT BE SAID THAT THERE WAS ANY PRES SURE OR FORCE EXERCISED BY THE AUTHORITIES. THE STATEMENT GIVEN BY THE ASSE SSEE IS VERY WELL SUPPORTED BY ANOTHER STATEMENT ON OATH AND, THEREFO RE, IT IS NOT A BALD STATEMENT. ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 9 12. THERE ARE ONLY TWO TECHNICAL DEFICIENCIES IN TH E ENTIRE WORK ONE IS THAT AO HAS NOT GIVEN OPPORTUNITY TO THE ASSESSEE T O CROSS EXAMINE SHRI DEEPAKBHAI N. PATEL. EVEN WHERE ASSESSEE DOES NOT D EMAND CROSS EXAMINATION OF A PERSON WHOSE TESTIMONY IS RELIED BY THE A.O. AND OSTENSIBLY HE IS NOT THE WITNESS OF THE ASSESSEE, T HE A.O. IS DUTY BOUND TO OFFER SUCH PERSON FOR CROSS EXAMINATION. THE LAW O F EXAMINATION OF WITNESS IS NOW SETTLED. WHERE A PERSON IS PRESENTED BY THE ASSESSEE AS HIS WITNESS, HE CAN ONLY CARRY OUT EXAMINATION IN-CHIE F OF HIS WITNESS AND DOES NOT GET ANY VESTED RIGHT TO CROSS EXAMINE HIS OWN WITNESS. THE RIGHT OF CROSS EXAMINATION OF ASSESSEES WITNESS IS VESTE D IN THE A.O. THEREAFTER THE ASSESSEE GETS RIGHT TO RE EXAMINE B UT ONLY WHEN SUCH RIGHT IS DEMANDED. IF THE A.O. DOES NOT OFFER RE EXAMINAT ION NO FAULT CAN BE FOUND IN THE ACT OF THE A.O. WHEN A PERSON IS A WIT NESS OF THE A.O. I.E. SUCH PERSON IS NOT PRODUCED BY THE ASSESSEE AND A. O. RECORDS THE EVIDENCE FROM HIM AGAINST THE ASSESSEE THEN A.O. IS LEGALLY REQUIRED TO OFFER SUCH PERSON TO THE ASSESSE FOR CROSS EXAMINA TION OTHERWISE IT WILL BE A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE TH E OTHER ASPECT IS THE CLAIM OF THE ASSESSEE THAT UNACCOUNTED INVESTMENT, IF ANY, HAS COME OUT OF SHARE OF PROFIT RECEIVED FROM THE INTANGIBLE ADD ITION CONFIRMED BY THE TRIBUNAL. THIS HAS ALSO NOT BEEN EXAMINED. FOR THE ABOVE TWO PURPOSES WE RESTORE THE MATTER BACK TO THE FILE OF AO. THE A PPEAL OF THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. ITA NO.4365/AHD/2007 ASST. YEAR 2004-05 10 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN OPEN COURT ON 17/9/10. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD, DATED : 17/9/10. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 17/8/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER ..