Shri Jitendra Ojha , Sirohi V. ITO, Sirohi

ITA 484/JODH/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2198 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 23-10-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABHIMABNU SINGH YADAV J
• Assessee Lawyers: N R MERTIA
• Keywords: Bogus purchase; Unexplained investment; Search and seizure; Document seized; Principle of natural justice; Opportunity of cross examination; Application of stay; Question of law; Corroborative evidences; Documents seized
• Section: 234B; 13; 153; 153C; 147; 69; 148; 132; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI R.C.SHARMA, ACCOUNTANT MRMBER ITA NO. 484/JODH/2018 (ASSESSMENT YEAR-2009-10) SHRI JITERNDRA OJHA S/O SH. MANGI LAL OJHA , CHHOTI BRAHMPURI, SIROHI. VS THE ITO, SIROHI. (APPELLANT) (RESPONDENT) PAN: AADPO9124C ASSESSEE BY SHRI N.R. MERTIA (FCA) REVENUE BY SHRI ABHIMABNU SINGH YADAV (JCIT-DR) DATE OF HEARING 16/03/2020 DATE OF PRONOUNCEMENT 19 /03/2020 O R D E R PER R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 28.08.2018 OF LD. CIT(A)-I, JODHPUR FOR THE A SSESSMENT YEAR 2009-10 IN THE MATTER OF ORDER PASSED U/S 143( 3)/147 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT), WHERE IN THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS:- '1. THAT, THE LD. COMMISSIONER OF INCOME TAX (A)-1 ST , JODH. LD. CIT(A), WAS UNJUSTIFIED AND HAS ERRED IN LAW AN D IN FACTS IN MAINTAINING THE ASSESSMENT ORDER AND THE JURISDICTION ACQUIRED U/S 147/148 AND THE BY THE LD . INCOME-TAX OFFICER, SIROHI, (LD. AO). HENCE, BOTH T HE ORDERS DESERVE TO BE QUASHED AND CANCELLED. 2 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO 2. THAT, WITHOUT PREJUDICE TO THE GENERALITY AND COMPREHENSIVENESS OF THE GROUND NO. 1 ABOVE, THE LD . CIT(A) WAS NOT JUSTIFIED AND HAD ERRED IN LAW AND I N FACTS IN VIEW OF THE MATERIAL AVAILABLE ON RECORD A ND THE WRITTEN AND ORAL SUBMISSIONS MADE WITH THE SUPPORT OF THE APPLICABLE JUDICIAL PRONOUNCEMENT DURING THE COURSE OF THE APPELLATE AND ASSESSMENT ORDER AND THEREBY DISMISSING THE APPEAL ON THESE LE GAL ISSUES, WHICH ARE:- I. THE COPY OF REASON DID NOT CONTAIN DATE. II. THE NOTICE U/S 148 WAS SERVED ON 03.04.2016 I. E. AFTER THE STIPULATED DATE. III. REASONS WERE RECORDED ON THE BASIS OF VAGUE, NON- SPECIFIED AND IRRELEVANT MATERIAL. IV. THE AO COMPLETING THE ASSESSMENT HAD NO JURISDICTION OVER ASSESSEE'S CASE. THE HON'BLE TRIBUNAL MAY VERY KINDLY ALLOW THE APP EAL BY DECIDING THESE ISSUES CORRECTLY AND AS PER LAW. 3. THAT, THE LD. CIT(A) ERRED IN LAW AND IN FACT I N NOT DECIDING THE ABOVE ISSUE NO. II RELATING TO SERVICE OF NOTICE AFTER PRESCRIBED TIME LIMIT U/S 148(1) OF T HE ACT. HENCE THE IMPUGNED ORDER UNDER APPEAL IS ERRONEOUS AND BAD IN LAW. (2015) 53 TAXMANN.COM 108 (MAD.)- GITSONS ENGINEERING CO. VS. CIT. 4. THE WITHOUT PREJUDICE TO THE GENERALITY OF THE GROUND NO. 1 & 2ABOVE. IT IS ALTERNATIVELY URGED THAT IN T HE FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPUGNED REOPENING OF THE ASSET INVOKING SEC. 147 TO 151 WAS WITHOUT JURISDICTION AND CONTRARY TO THE LEGAL PROVISIONS CONTAINED IN SEC. 153C READ WITH SEC. 15 3A & 153B BECAUSE THE MATERIAL USED WERE EMANATED FROM A SEARCH CARRIED OUT U/S 132 OF THE ACT AND SUCH MATERIAL ALLEGEDLY HAD BEEN SENT TO THE LD. A.O., T HEN IN THAT CASE THE LD. AO OUGHT TO HAVE PROCEEDED ONL Y U/S 153C OF THE ACT, READ WITH OTHER SECTION LIKE S EC. 3 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO 153A,153B &153D. IN NOT DOING SO THE LD. AO HAD INCORRECTLY AND UNLAWFULLY ACQUIRED JURISDICTION U/ S 147 OF THE ACT BY OVERLOOKING THE MANDATORY PROVISION O F SEC. 153 WHICH STARTS WITH NON-OBSTANTE CLAUSE I.E. :- ' NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 13 9, SECTION 147, SECTION 148, SECTION 149, SECTION, WHE RE THE ASSESSING OFFICER IS SATISFIED THAT ' ......... ...... SINCE THE LD. AO HAD NOT PROCEEDED AS PER THE MANDATORY PROVISION OF LAW, HENCE THE LD. CIT(A) ER RED IN MAINTAINING THE IMPUGNED ASST. ORDER. THE SAME M AY KINDLY BE CANCELLED AND QUASHED. SUCH ACTION AND DECISION OUGHT TO HAVE BEEN SUE-MOTO TAKEN BY THE L D. CIT(A)IN THE FACTS AND CIRCUMSTANCES OF THE CASE AN D OUGHT TO HAVE ALLOWED THE APPEAL OF THE APPELLANT I N THE INTEREST OF JUSTICE, EVEN IF THE APPELLANT COUL D NOT RAISE A GROUND FOR THE SAME. THE HON'BLE ITAT MAY KINDLY ALLOW THIS LEGAL GROUND. 5. THAT WITHOUT PREJUDICE TO THE LEGAL GROUNDS TAK EN ABOVE IT IS FURTHER URGED THAT IN THE FACTS AND IN CIRCUMSTANCES OF THE CASE LD. CIT(A)ERRED IN LAW AN D FACTS IN MAINTAINING THE ADDITION MADE U/S 69 OF TH E ACT BY THE AO IN THE RETURNED INCOME OF THE APPELLA NT WHICH AMONGST OTHER, WAS ALSO SUSTAINABLE AS DURING THE COURSE OF ASST. PROCEEDING THE LD. AO CAUSE NOT ICE ISSUED TO THE APPELLANT CONTAINING ONLY SOME PORTIO N OF STATEMENT OF THE ALLEGED SELLER WHICH ITSELF WAS NO T REFLECTING THE NAME OF THE APPELLANT HENCE THE ADDI TION MADE IS UNSUSTAINABLE ON FACTS AND IN THE EYE OF LA W. THUS, IT DESERVED TO BE CANCELLED. THE HON'BLE BENC H MAY KINDLY DELETE THE SAME. 6. THAT THE IMPUGNED ASST. ORDER WAS UNSUSTAINABLE IN THE EYE OF LAW AND ON FACT WHEN THE LD. AO DID NOT PROV IDE ANY OPPORTUNITY TO CROSS EXAMINE THE SELLER WHOSE STATEMENT WAS USED AND RELIED UPON BY LD. AO AGAINS T THE APPELLANT. THIS CROSS EXAMINATION, AMONGST OTHE R, OUGHT TO HAVE BEEN PROVIDED BY THE LD. AO, PARTICUL ARLY WHEN THE APPELLANT HAD VEHEMENTLY DENIED THE ALLEGATION AND HAD MADE ASSERTIONS THAT THE STATEME NT 4 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO OF THE SELLER OF SH. MADAN MOHAN GUPTA WAS FALSE AS THE APPELLANT DID NOT GIVE ANY ADDITIONAL MONEY TO SELLER AS WAS ALLEGED AGAINST THE APPELLANT. FOR TH IS APPELLANT HAD REFERRED JUDICIAL SUPPORTS IN HIS WRI TTEN SUBMISSIONS TO THE AO WHICH WERE IN RELATION TO PROVIDING OF CROSS-EXAMINATION OF THE WITNESS. HENC E THE HON'BLE TRIBUNAL VERY KINDLY DELETED THE ADDITI ON. 7. THAT THE LD. CIT(A) ERRED IN LAW AND FACTS IN R EJECTION THE APPELLANT'S GROUND OF APPEAL IN RELATING TO LEV Y OF INTEREST BY RELYING ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ANJUM M.H.GHASWALA AND OTHERS (2001) 252 ITR 1 (SC) AND OTHER DECISION, BY HOLDING THAT THE LEVY OF INTERES T WAS AUTOMATIC WHEREAS THE GROUND OF THE APPEAL OF THE APPELLANT WAS TOTALLY DIFFERENT AND THE APPELLANT W AS DENYING HIS LIABILITY OF INTEREST U/S 234B BECAUSE NO INTEREST WAS LEVIABLE U/S 234B91), CONSEQUENTIALLY SEC. 234B(3) WAS ALSO IN APPLICABLE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBST ITUTE WITHDRAW, MODIFY OR AMEND ANY OF THE GROUND OF APPEAL HERE IN ABOVE TAKEN ON OR BEFORE THE HEARING . 9. THE APPELLANT PRAYS THAT HIS APPEAL MAY KINDLY BE ALLOWED, CANCELLING THE IMPUGNED SUSTAINED ACTION O F LD. AO BY CIT(A).' 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A SALARIED EMPLOYEE AND ALSO DERIVED INCOME FROM OTHER SOURCES. THE A.O. RE CEIVED INFORMATION WHICH INDICATED THAT THE DURING THE YEA R UNDER CONSIDERATION, THE ASSESSEE HAD PURCHASED A PLOT ADMEASURING 200 S Q. YARDS IN THE RESIDENTIAL PROJECT REVENUE RESIDENCY' (NIZI KHATE DAR RESIDENTIAL SCHEME) AT VILLAGE BHARATSINGH, JAISINGPURA-MUHANA ROAD, BHANKROTA, TEH. SANGANER, JAIPUR. THIS RESIDENTIAL SCHEME WAS DEVELOPED AND SOLD 5 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO BY SH. MADAN MOHAN GUPTA IN F.Y. 2008-09 RELEVANT T O AY 2009-10 IN WHOSE CASE SEARCH AND SEIZURE OPERATION WERE CARRIE D OUT ON 23-05- 2013. DURING THE COURSE OF SEARCH AND SEIZURE, STAT EMENT OF SH. MADAN MOHAN GUPTA WERE RECORDED WHEREIN HE HAD ACCEPTED A ND HONOURED ON- MONEY RECEIPT ON SALE OF PLOTS IN REVENUE RESIDENCY SCHEME WHICH WAS RS. 2000/- PER SQ. YARDS AS PER THE SEIZED PAPERS. THE NAME OF THE ASSESSEE WAS ALSO APPEARING IN THE LIST OF SUCH PUR CHASERS FOR AFORESAID PLOTS, WHO ALLEGED HAD GIVEN RS. 2000/- PER SQ. YAR DS AS ON MONEY I.E. RS. 4,00,000/- (200 SQ. YARDS X RS. 2000/-) TO SH. MADAN MOHAN GUPTA FOR PURCHASE OF THE ALLEGED PLOT. THE ASSESSEE CLAI MED BEFORE THE AO THAT HE ONLY INVESTED RS. 2,46,000/- TOWARDS PURCHA SE OF PLOT. HOWEVER, THE AO DID NOT FIND ANY SUBSTANCE IN ASSESSEE'S CLA IM AND ADDED RS. 4.00 LACS IN ASSESSEES INCOME. BY THE IMPUGNED ORDER, T HE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE A.O., AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE ITAT. 3. IN THIS CASE, THE ASSESSMENT WAS REOPENED ON THE BASIS OF STATEMENT OF SHRI MADAN MOHAN GUPTA RECORDED DURING THE SEARCH AT HIS BUSINESS PREMISES AND ALSO ON THE BASIS OF DOCUMENT S FOUND DURING THE COURSE OF SEARCH. SO FAR AS THE REOPENING IS CONCER NED, I FOUND THAT AFTER RECORDING SPEAKING REASONS, THE ASSESSING OFFICER C ONCLUDED THAT THE INCOME HAS ESCAPED ASSESSMENT. ACCORDINGLY, I DO NO T FIND ANY INFIRMITY IN THE ORDER OF THE ASSESSING OFFICER FOR REOPENING OF THE ASSESSMENT. 6 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO 4. IN SO FAR AS THE MERIT OF THE ADDITION IS CONCER NED, EXACTLY UNDER SIMILAR FACTS AND CIRCUMSTANCES, THE ISSUE HAS BEEN DECIDED IN THE CASE OF DHIRENDRA SINGH VS. ITO IN ITA NO. 1273/JP/2018 WITH TWO OTHER APPEALS VIDE ORDER DATED 25/3/2019, WHEREIN THE TRI BUNAL HAVE DELETED THE ADDITION ON MERIT AFTER OBSERVING AS UNDER: 6. NOW I COME TO THE MERIT OF THE ADDITION, I FOUN D 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 23.05.2013 , INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED WHICH REVEALED THAT THE ASSESSEE MADE PAYMENT OF RS.2,68,330/- AND RS.2,670/- TOWARD S BOUNDARY EXPENSES BY RECEIPT NO. 53 DATED 07.07.2008 THROUGH CHEQUE AND RS.4,66,660/- AS ON-MONEY. HE REFERRED TO THE REL EVANT EXTRACT OF THE STATEMENT OF SHRI MADAN MOHAN GUPTA U/S 132(4) REPR ODUCED 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 THUS, MADE ADDITION OF 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 SHRI MADAN MOHAN GUPTA IS NOT THIRD PARTY AS HE WAS THE OWNER OF THE PLOTS. ALL THE DOCUMENTS ON THE BASIS OF WHICH ASSESSMENT WAS MADE WERE PROVIDED TO THE ASSESSEE. ACCORDINGLY, IT WAS HELD THAT THE CONTENTION RAISED BY THE ASSESSEE AS TO THE DENIAL OF CROSS EXAMINATION BY THE ASSESSING OFFICER DOES NOT CARRY MUCH WEIGHT AND THUS, CONFIR MED THE ADDITION. 7. AFTER GOING THROUGH THE ORDER PASSED BY THE LOWE R AUTHORITIES, I OBSERVE THAT BOTH THE LOWER AUTHORITIES HAVE NOT PLACED ANY MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAD PAID ALLEGED ON-MONE Y OF RS.4,66,660/-. NEITHER IN THE SEIZED DOCUMENTS FOUND FROM SHRI MAD AN MOHAN GUPTA NOR IN THE STATEMENT RECORDED U/S 132(4), HE ADMITT ED THAT HE RECEIVED 7 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO ANY AMOUNT FROM THE ASSESSEE BY WAY OF ON- MONEY. IN FACT, IN REPLY TO QUESTION NOS. 25 TO 27 OF HIS STATEMENT U/S 132(4) WITH REFERENCE TO THE AMOUNT OF RS. 1,60,96,000/- AS REFERRED BY THE LD. CIT(A), HE STATED THAT HE DOES NOT REMEMBER THAT WHAT IS THIS WORKING BUT IT MAY BE WITH REFERENCE TO COMMISSION WITH RESPECT TO CERTAIN PRO PERTY WHICH HE OFFERED FOR TAX. IN STATEMENT U/S 131(1) DATED 24.0 2.2016 AND 29.02.2016 RECORDED BY THE AO IN COURSE OF HIS ASSE SSMENT PROCEEDINGS, HE HAS CATEGORICALLY ADMITTED THAT HE HAS SOLD THE PLOTS TO THE RAJASTHAN TEHSILDAR SEWA PARISHAD AT THE RATE OF RS .1,150 PER SQ. YARD ON WHICH HE EARNED PROFIT OF RS.87,20,000/- WHICH H E HAS ALREADY OFFERED FOR TAX AND THE REMAINING PROFIT OF RS. 1,6 0,96,000/- IS NOT HIS PROFIT BUT PROFIT OF THE PARISHAD BUT TO PURCHASE P EACE OF MIND, HE HAS SURRENDERED THIS AMOUNT IN HIS HAND. THUS, FROM THE READING OF THE STATEMENT OF SHRI MADAN MOHAN GUPTA 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 PURCHASE OF THE PLOT. I N FACT, THE ASSESSEE HAS NOT PURCHASED ANY PLOT FROM SHRI MADAN MOHAN GU PTA RATHER HE WAS ALLOTTED THE PLOT BY THE RAJASTHAN TEHSILDAR SE WA PARISHAD AND THUS, THERE IS NO PRIVITY OF CONTRACT BETWEEN THE A SSESSEE AND SHRI MADAN MOHAN GUPTA. THEREFORE, NO QUESTION OF PAYMEN T OF ALLEGED ON-MONEY BY THE ASSESSEE TO SHRI MADAN MOHAN GUPT A ARISES FOR CONSIDERATION. 8. I ALSO OBSERVE THAT ANNEXURE-A-3 REFERRED BY TH E ASSESSING OFFICER IN HIS ORDER IS A REGISTER WHERE THE DETAILS OF THE PLOT A LLOTTED 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 PL OT, 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 THE SE PERSONS IS NOTED. THUS, THIS ANNEXURE NOWHERE SUGGESTS THAT AN Y ON-MONEY HAS BEEN RECEIVED BY SHRI MADAN MOHAN GUPTA FROM THE AL LOTTEES OF PLOT. 8 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO AT THE TIME OF POSSESSION OF THE PLOT, THE FINAL RE CEIPT IS ISSUED FOR THE ENTIRE AMOUNT RECEIVED AND THAT RECEIPT NO. IS ALSO MENTIONED IN THIS REGISTER. THUS, IN THESE PAPERS THERE IS NO EVIDENC E THAT ANY ON-MONEY HAS BEEN PAID BY THE ASSESSEE. FURTHER, OPPORTUNITY TO CROSS EXAMINE SHRI MADAN MOHAN GUPTA WAS NOT PROVIDED EVEN WHEN S PECIFICALLY ASKED FOR ON THE GROUND THAT HE IS NOT A THIRD PART Y IGNORING THAT ASSESSEE HAS NOT PURCHASED ANY PLOT FROM HIM RATHER IT IS THE RAJASTHAN 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 IT A NO. 271/JODH/2018 VIDE ORDER DATED 18/01/2019 WHEREIN EXACTLY SIMILAR ADDITION WAS DELETED BY THE TRIBUNAL AFTER OBSERVING 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 W AS DELETED BY THE TRIBUNAL AFTER OBSERVING AS UNDER:- 7. RIVAL CONTENTIONS HAVE BEEN CONSIDERED AND REC ORD 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 MEASURI NG 233.33 SQ.YARDS IN THE RESIDENTIAL PROJECT 'REVENUE RESIDE NCY' AT VILLAGE PEEPLA BHARATSING, (JAISINGHPURA-MUHANA ROA D), BHANKROTA, TEHSIL-SANGANEER, JAIPUR DEVELOPED BY SH RI MADAN MOHAN GUPTA IN F.Y.2008-09 RELEVANT TO A.Y.2009-10 FOR TOTAL PURCHASE CONSIDERATION OF RS.2,68,330/- FOR PLOT AN D RS.2,670/- FOR BOUNDARY TOTAL RS.2,71,000/- (RS.1150/-PERSQ.YA RD). THUS, TOTAL INVESTMENT BY ASSESSEE IS RS.2,71,000/- OUT O F THIS AMOUNT RS. 1,90,000/- WAS PAID THROUGH BANK BY TAKING PERS ONAL LOAN AND BALANCE RS.81,000/- WAS GIVEN IN THE FINANCIAL YEAR 2007-08. 8. IN THE ASSESSMENT ORDER, THE AO ALLEGED THAT T HE 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 9 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO 233.33 SQ.YARDS 9. IN REPLY TO THE SAME, ASSESSEE SUBMITTED AS UND ER:- A. THAT THE ALLEGATION OF THE ID.AO IS BASELESS A ND 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 23.05.2013 DURING THE COURSE OF SEARCH. BUT FROM RE ADING THE REPLY GIVEN BY SHRI MADAN MOHAN GUPTA IN THE STATEMENT, IT IS CLEARLY CONVEYED THAT SHRI MADAN M OHAN 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 SUBMITTE D 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 MOHAN 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. E. THAT WHILE MAKING THE ALLEGATION THE LD.AO HAS 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 ADDITION WAS MADE. HOWEVER, NO SUCH OPPORTUNITY WAS PROVIDED NEITHER BY THE AO NOR BY THE CIT(A). THUS, WITHOUT AFFORDIN G CROSS EXAMINATION, THE AO HAS MADE ADDITION ON THE BASIS OF STATEMENT OF SHRI MADAN MOHAN GUPTA U/S 69 BEING UNEXPLAINED INVESTMENT AND ADDED THE SAME IN ASSESS EES INCOME. HOWEVER, THERE WAS NO CORROBORATIVE MATERIA L AVAILABLE WITH THE AO FOR MAKING ADDITION. AS PER OUR CONSIDE RED VIEW, NOT 10 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO PROVIDING OPPORTUNITY OF CROSS EXAMINATION AMOUNT T O VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, A SERIOUS FLAW WHI CH 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 INDUSTRIES 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 B ASIS OF IMPUGNED ORDER, AMOUNTED IN SERIOUS FLAW WHICH MADE IMPUGNED ORDER NULLITY AS 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 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 NULLI TY INASMUCH AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE APPELLANT WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEMENTS G IVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE APPEL LANT DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANT ED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NOT G RANT THIS OPPORTUNITY TO THE APPELLANT. IT WOULD BE PERT INENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFICALLY MENTIONE D THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE APPELLANT. HOWEVER, NO SUCH OPPORTUNITY WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE ADJUDI CATING 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 AVAI L THE OPPORTUNITY OF CROSS EXAMINATION. THAT APART, THE ADJUDICATING AUTHORITY SIMPLY RELIED UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETHER THE GOODS W ERE, IN FACT, SOLD TO THE SAID DEALERS/WITNESSES AT THE PRI CE WHICH IS MENTIONED IN THE PRICE LIST ITSELF COULD BE THE SUB JECT MATTER OF CROSS-EXAMINATION. THEREFORE, IT WAS NOT FOR THE 11 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COU LD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATION AND MAK E THE REMARKS AS MENTIONED ABOVE.' 12. RELIANCE CAN ALSO BE PLACED ON THE ON THE DECI SION OF BOMBAY HIGH COURT IN THE CASE OF ASHISH INTERNATIONAL IN 1 TA NO.4299/MURN/2009 DATED 22/02/2011, WHEREIN COURT H ELD AS UNDER:- 'THE QUESTION RAISED IN THIS APPEAL IS, -WHETHER TH E TRIBUNAL JUSTIFIED IN DELETING THE ADDITION ON ACCO UNT OF BOGUS PURCHASES ALLEGEDLY MADE BY THE APPELLANT FRO M M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPLIES P. LTD. ACCORDING TO THE REVENUE, THE DIRECTOR OF M/S. THAK KAR AGRO INDUSTRIAL CHEM SUPPLIES P.LTD. IN HIS STATEME NT HAD STATED THAT THERE WERE NO SALES/ PURCHASES BUT THE TRANSACTIONS WERE ONLY ACCOMMODATION BILLS NOT INVO LVING ANY TRANSACTIONS. THE TRIBUNAL HAS RECORDED A FINDI NG OF FACT THAT THE APPELLANT HAD DISPUTED THE CORRECTNES S OF THE ABOVE STATEMENT AND ADMITTEDLY THE APPELLANT WAS NO T GIVEN ANY OPPORTUNITY TO CROSS EXAMINE THE CONCERNE D DIRECTOR OF M/S. THAKKAR AGRO INDUSTRIAL CHEM SUPPL IES P. LTD. WHO HAD MADE THE ABOVE STATEMENT. THE APPELLAT E AUTHORITY HAD SOUGHT REMAND REPORT AT THAT STAGE TH E GENUINENESS OF THE STATEMENT HAS NOT BEEN ESTABLISH ED BY ALLOWING CROSS EXAMINATION OF THE PERSON WHOSE STAT EMENT WAS RELIED UPON BY THE REVENUE. IN THESE CIRCUMSTAN CES, THE DECISION OF THE TRIBUNAL BEING BASED ON THE FAC T, NO SUBSTANTIAL QUESTION OF LAW CAN BE SAID TO ARISE FR OM 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 07/07/201 6. THE HONBLE HIGH COURT HELD AS UNDER:- THE ASSESSEE IS BOUND TO BE PROVIDED WITH THE MAT ERIAL USED AGAINST HIM APART FROM BEING PERMITTED TO CROS S EXAMINE THE DEPONENTS. THE DENIAL OF SUCH OPPORTUNI TY GOES TO ROOT OF THE MATTER AND STRIKES AT THE VERY FOUNDATION OF THE ASSESSMENT ORDER AND RENDERS IT VULNERABLE. 12 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO 14. APPLYING PROPOSITION OF LAW LAID DOWN BY HONBL E SUPREME COURT AND HIGH COURT AS DISCUSSED ABOVE, I DO NOT FIND AN Y MERIT FOR THE ADDITION MADE BY AO MERELY ON THE BASIS OF STAT EMENT, WHEN THERE IS NO CORROBORATIVE MATERIAL WITH AO SUG GESTING THE ALLEGED ADDITION, WITHOUT ALLOWING ASSESSEE AN OPPO RTUNITY TO CROSS EXAMINE THE PERSON ON WHOSE STATEMENT ADDITIO N WAS MADE. ACCORDINGLY, AO IS DIRECTED TO DELETE THE ADD ITION 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 PRO CEEDINGS INITIATED U/S.148 WAS QUASHED. HOWEVER, THE FACTS O F THIS CASE ARE ENTIRELY DISTINGUISHABLE FROM THE FACTS OF INST ANT CASE, IN SO FAR AS IN THE CASE OF NAVRATTAN KOTHARI (SUPRA) REO PENING OF ASSESSMENT AFTER FOUR YEARS OF ASSESSMENT FRAMED U/S.143(3)/153 WAS QUASHED, WHEREAS IN THE INSTANT CASE, NO ASSESSMENT WAS FRAMED U/S.143(3) AND ONLY RETURN WA S 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 O N MERIT, THE STAY APPLICATION FILED BY THE ASSESSEE BECOME INFRUCTUOU S. 18. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLO WED IN TERMS INDICATED HEREINABOVE AND STAY APPLICATION IS DISMI SSED AS INFRUCTUOUS. 9. IN VIEW OF THE ABOVE FACTS AND CIR CUMSTANCES, I DO NOT FIND ANY MERIT IN THE ADDITION SO MADE BY TH E ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A), HENCE, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE SAME. 5. AS THE FACTS AND CIRCUMSTANCES OF THE CASE ARE EXACTLY SAME FOR THE CASE STATED ABOVE, THEREFORE, RESPECTFULLY FOLL OWING THE ORDER OF THE TRIBUNAL AS STATED ABOVE, I DO NOT FIND ANY MERIT I N THE ADDITION SO MADE 13 ITA 484/JODH/2018 SH. JITENDRA OJHA VS ITO BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. C IT(A), HENCE, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE SAME. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D IN PART IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH, 2020. SD/- [R.C. SHARMA] ACCOUNTANT MEMBER DATED : 19/03/2020 *RANJAN COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR 6. GUARD FILE (ITA NO. 484/JODH/2018) ASSISTANT REGISTRAR JODHPUR BENCH