Rachna Gupta, New Delhi V. ACIT, Central Circle-29, New Delhi

ITA 4993/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8031 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Principle of natural justice; Set aside
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 4992/DEL/2018 ASSESSMENT YEAR: 2014-15 SHOBHIT GUPTA C/O RAVI GUPTA, ADVOCATE E-6A, KAILASH COLONY, NEW DELHI 48 (PAN: AAPPG5076K) VS. ACIT, CENTRAL CIRCLE-29, NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 4993/DEL/2018 ASSESSMENT YEAR: 2014-15 RACHNA GUPTA C/O RAVI GUPTA, ADVOCATE E-6A, KAILAH COLONY, NEW DELHI 48 (PAN: AAPPG5076K) VS. ACIT, CENTRAL CIRCLE-29, NEW DELHI (APPELLANT) (RESPONDENT) ORDER THESE APPEALS HAVE BEEN FILED BY THE SEPARATE ASSES SEES AGAINST THE RESPECTIVE ORDERS BOTH DATED 15.05.2018 PASSED BY LD. CIT(A)-30, NEW DELHI RELEVANT TO ASSESSMENT YEAR 2014-15 BY RAISI NG AS MANY AS 08 GROUNDS IN EACH APPEAL, BUT AT THE TIME OF HEARING, LD. COUNSEL FOR THE ASSESSEE HAS ONLY ARGUED THE GROUND NO. 3 WHICH IS REPRODUCED AS UNDER:- 3. THAT THE LD. CIT(A) MECHANICALLY ADDRESSED TH E CONCERN OF THE ASSESSEE THAT LD. AO HAD PASSED THE ASSESSME NT ASSESSEE BY SH. P.C. YADAV, ADV. & SMT. MANJU BALA , ADV. DEPARTMENT BY SH. S.L. ANURAGI, SR. DR. 2 ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND RELIED UPON THE MATERIAL COLLECTED AT THE BACK OF T HE ASSESSEE WITHOUT OFFERING AN OPPORTUNITY TO CROSS EXAMINE. 1.1 SINCE COMMON LEGAL GROUND HAS BEEN RAISED BY TH E ASSESSEES IN BOTH THE APPEALS, HENCE, THE APPEALS WERE HEARD TOG ETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE, BY DEALING WITH FACTS AND CIRCUMSTANCES OF ITA NO. 4992/DEL/2 018 (AY 2014-15) SHOBHIT GUPTA VS. ACIT, CC-20, NEW DELHI AND THE RE SULT THEREOF WILL APPLY MUTATIS MUTANDIS TO OTHER APPEAL OF SMT. RACHNA GUPTA VS. ACIT, CC-20, NEW DELHI - ITA NO. 4993/DEL/2018 (AY 2014-1 5). 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HAS FI LED ITS E-RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 ON 30.07.200 4 DECLARING A TAXABLE INCOME OF RS. 29,40,730/-. THE CASE OF THE ASSESSEE WAS PICKED UP FOR LIMITED SCRUTINY UNDER CASS AND ACCORDINGLY, NOTICE U/S. 143(2) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) WAS ISSUE D ON 28.8.2015. DETAILED QUESTIONNAIRE ALOGNWITH NOTICE U/S. 142(1) OF THE ACT WERE ISSUED ON 14.6.2016 AND 4.11.2016. IN RESPONSE THERETO, TH E AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILE D NECESSARY DETAILS / INFORMATION/DOCUMENTS, ETC. AS REQUIRED. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE DERIVES INCOME CHARGEABLE TO TAX UNDER THE HEAD INCOME FROM SALARY, INCOME FROM HOUSE PROPERTY, INC OME FROM CAPITAL GAIN AND INCOME FROM OTHER SOURCES. DURING THE CO URSE OF SCRUTINY PROCEEDINGS IN ASSESSEES CASE FOR THE ASSESSMENT Y EAR 2014-15, AO 3 NOTED THAT THE ASSESSEE HAS EARNED CAPITAL GAIN AMO UNTING TO RS.12,47,743/- FROM SALE OF 20,000 NOS. OF SHARES O F M/S CCL INTERNATIONAL LTD., THE DETAILS THEREOF IS AT PAGE NO. 1 OF THE ASSESSMENT ORDER. ON PERUSAL OF THE CALCULATION SUBMITTED BY THE ASSESSEE, AO NOTICED THAT THE ASSESSEE HAS EARNED WINDFALL GAIN OF MORE THAN 3 TIMES WITHIN A SHORT SPAN OF TIME OF SIX MONTHS THAT TOO WITH THE INVESTMENT IN RELATIVELY UNKNOWN COMPANY. AO FURTHER NOTED THAT T HE AVERAGE ANNUAL RETURN FROM THE INVESTMENT IN SHARE MARKET DURING T HE YEAR 2011-12, 2012-13 AND 2013-14 REMAINED AT -9.11%, 6.86% AND 1 0.75% RESPECTIVELY. SURPRISINGLY, AS PER AVAILABLE INFORM ATION IN THE PUBLIC DOMAIN, WHEN ANNUAL AVERAGE RETURN FROM SHARE MARKE T RANGED BETWEEN - 9.11% AND 10.75%, SHARE OF A RELATIVELY UNKNOWN COM PANY LIKE M/S CCL INTERNATIONAL LTD. HAS GIVEN RETURN OF MORE THAN 30 0% WITHIN A HALF YEAR DURING THE PERIOD WHEN THE SHARE MARKET GAVE AROUND 10.75% IN FY 2013-14. AO FURTHER OBSERVED THAT THE ASSESSEE PU RCHASED 20,000 NOS. OF SHARES OF M/S CCL INTERNATIONAL LTD. ON DATED 17 .4.2013. THE INITIAL PAYMENT OF RS. 20,000/- WAS MADE IN CASH ON 17.4.20 13 AND THE REST AMOUNT OF RS. 5,90,000/- WAS PAID THROUGH CHEQUE CL EARED ON 25.11.2013. THE SHARES WERE PURCHASED FROM ONE CLOS ELY HELD COMPANY M/S COMFORT DEALCOM (P) LTD. ADDRESSED KOLKATA THRO UGH OFF MARKET IN PHYSICAL FORM MEANS THROUGH TRANSFER OF SHARE CER TIFICATE. THE SHARES WERE DEMATERIALIZED ON 25.11.2013 AND ASSESSEE SOL D ALL SHARES WITHIN 15 DAYS OF DEMATERIALIZATION. AO FURTHER IN ORDER T O ENQUIRE MORE, THE DAILY TRADE DATE OF THE COMPANY AVAILABLE IN THE PU BLIC DOMAIN ON THE 4 WEBSITE WWW.BSEINDIA.COM WAS ANALYZED AND THE DAILY TRADE DATA OF THE COMPANY FOR THE PERIOD DECEMBER, 2012 TO DECEMBER, 2015 AS OBTAINED FROM THE WEBSITE OF BOMBAY STOCK EXCHANGE IS GIVEN AT PAGE NO. 2 TO 23 OF THE ASSESSMENT ORDER. AFTER ANALYSIZING THE DA TA AND CONSIDERING THE VARIOUS DECISIONS AND THE REPLIES OF THE ASSESSEE, THE AO OBSERVED THAT THE CLAIM OF CAPITAL GAIN CLAIMED BY THE ASSESSEE IS NOT GENUINE AND A COLOURING DEVICE THROUGH WHICH THE ASSESSEE HAS INT RODUCED THROUGH WHICH THE ASSESSEE HAS INTRODUCED ITS UNACCOUNTED M ONEY IN THE BOOKS AND THE AMOUNT OF RS. 18,57,743/- (CAPITAL GAIN OF RS. 12,47,743/- PLUS RS. 6,10,000/- INVESTED) WAS ADDED BACK TO THE INCO ME OF THE ASSESSEE UNDER SECTION 68 OF THE ACT BY ASSESSING THE INCOME AT RS. 35,50,730/- U/S. 143(3) OF THE ACT VIDE ORDER DATED 27.12.2016 . AGAINST THE ABOVE ADDITION, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 15.05.2018 HAS DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE IMPUGNED ORDER DATED 15.5.2018, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) MECHANICALLY ADDRESSED THE CONCERN OF T HE ASSESSEE THAT LD. AO HAD PASSED THE ASSESSMENT ORDER IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND RELIED UPON THE MATERIAL COLLECTED AT T HE BACK OF THE ASSESSEE WITHOUT OFFERING AN OPPORTUNITY TO CROSS EXAMINE. HE DRAW MY ATTENTION TOWARDS PAGE NO. 50 VIDE PARA NO. 21 & 21.3 OF THE ASSESSMENT ORDER WHEREIN IN THE LAST THREE LINES, THE AO HAS OBSERV ED ..IN ORDER TO SUSTAIN A COMPLAINT OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE 5 GROUND OF ABSENCE OF OPPORTUNITY OF CROSS EXAMINATI ON, IT HAS TO BE ESTABLISHED THAT PREJUDICE HAS BEEN CAUSED TO THE A PPELLANT BY THE PROCEDURE FOLLOWED.. THERE HAS BEEN IN THE FAC TS AND CIRCUMSTANCES OF THE CASE, NO INFRACTION OF ANY PRINCIPLE OF NATU RAL JUSTICE BY THE ABSENCE OF A FORMAL OPPORTUNITY OF ORAL CROSS EXAMINATION. NEITHER CROSS EXAMINATION OF A FORMAL OPPORTUNITY OR ORAL. NEITHE R CROSS EXAMINATION NOR THE OPPORTUNITY TO LEAD EVIDENCE IS AN INTEGRAL OF ALL QUASI-JUDICIAL ADJUDICATIONS. HE FURTHER STATED ASSESSEE HAS RAISED GROUND NO . 5(D) BEFORE THE LD. CIT(A) VIZ. NO STATEMENT (BACK MATERIAL REFERRED IN PARAGRAPH NO. 20.6 ONWARDS TILL 20.9) IS CONFRONTED TO THE ASSESSEE MUCH LESS OFFERED FOR CROSS EXAMINATION, WHICH ALSO LACK S INDEPENDENT CORROBORATION FROM ANY INCRIMINATING MATERIAL. HE FURTHER SUBMITTED THAT ASSESSEE VIDE HIS REPRESENTATION DATED 14.5.2018 MA DE BEFORE THE LD. CIT(A) AT PAGE NO. 77 OF THE PB HAS SUBMITTED THAT THAT THE STATEMENT CANNOT BE USED BY THE AO WITHOUT GIVING AN OPPORTUN ITY TO CROSS EXAMINATION AS PER APEX COURT IN ANDAMAN CASE. HE FURTHER DRAW MY ATTENTION TOWARDS THE REPRESENTATION DATED 14.5.20 18 MADE BEFORE THE LD. CIT(A) AT PAGE NO. 83 WHEREIN IT HAS BEEN RAIS ED THAT THERE IS GROSS AND FLAGRANT VIOLATION OF PRINCIPLE OF NATURAL JUST ICE TO CONFRONT THE BACK MATERIAL AND TO OFFER AND PROVIDE CROSS EXAMINATION OF REVENUE WITNESS. BUT DESPITE THAT THE LD. CIT(A) HAS NOT ADJUDICAT ED THE GROUND NO. 5(D). IN VIEW OF ABOVE, HE SUBMITTED THAT THE ADDITION IN DISPUTE WAS MADE AND NO STATEMENT IS CONFRONTED TO THE ASSESSEE MUCH LES S OFFERED FOR CROSS EXAMINATION WHICH ALSO LACKS OF INDEPENDENT CORROBO RATION FROM ANY 6 INCRIMINATING MATERIAL, WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, HE SUBMITTED THAT THE ISSUE ARGUED VIDE GROUND NO. 3 IS SQUARELY COVERED BY THE DECISION OF THE ITAT, SMC, DELHI BENCH WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 06.11.2018 PASSED IN ITA NO. 3510/DEL/2018 (AY 2014-15) IN THE CASE OF SMT. JYOT I GUPTA VS. ITO HAS ALLOWED THE APPEAL OF THE ASSESSEE ON EXACTLY SIMI LAR FACTS AND CIRCUMSTANCES. HENCE, HE REQUESTED TO FOLLOW THE A FORESAID CASE AND ALLOW THE APPEAL OF THE ASSESSEE. 4. LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW AND REITERATED THE CONTENTS MENTIONED BY THE ASSESSING OFFICER IN HIS ORDER AND RELIED UPON THE CASE LAWS CITED BY THE AO. BUT HE COULD NOT CONTROVERT AS TO WHY THE LD. CIT(A) HAS NOT ADJUDICATED THE LE GAL GROUND NO. 5(D) RAISED BEFORE HIM I.E. NO STATEMENT (BACK MATERIAL REFERRED IN PARAGRAPH NO. 20.6 ONWARDS TILL 20.9) IS CONFRONTED TO THE AS SESSEE MUCH LESS OFFERED FOR CROSS EXAMINATION, WHICH ALSO LACKS INDEPENDENT CORROBORATION FROM ANY INCRIMINATING MATERIAL. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE ASSESSMENT ORDER AS WELL AS IMPUGNED ORDER AND FORMING A NEGATIVE INFERENCE SOLELY ON THE BASIS OF EXTRACTS OF STATEM ENT WHICH WAS NOT CONFRONTED TO THE ASSESSEE MUCH LESS OFFERED FOR CR OSS EXAMINATION. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE H AS SUBMITTED THAT LD. CIT(A) MECHANICALLY ADDRESSED THE CONCERN OF THE A SSESSEE THAT LD. AO HAD PASSED THE ASSESSMENT ORDER IN VIOLATION OF PR INCIPLES OF NATURAL JUSTICE AND RELIED UPON THE MATERIAL COLLECTED AT T HE BACK OF THE ASSESSEE 7 WITHOUT OFFERING AN OPPORTUNITY TO CROSS EXAMINE. I FIND THAT AT PAGE NO. 50 VIDE PARA NO. 21 & 21.3 OF THE ASSESSMENT ORDER THE AO HAS OBSERVED THAT ..IN ORDER TO SUSTAIN A COMPLAINT OF VIOLATION OF PRINCIPLES OF NATURAL JUSTICE ON THE GROUND OF ABSENCE OF OPPORTU NITY OF CROSS EXAMINATION, IT HAS TO BE ESTABLISHED THAT PREJUDIC E HAS BEEN CAUSED TO THE APPELLANT BY THE PROCEDURE FOLLOWED. . THERE HAS BEEN IN THE FACTS AND CIRCUMSTANCES OF THE CASE, NO INFRACTION OF ANY PRINCIPLE OF NATURAL JUSTICE BY THE ABSENCE OF A FORMAL OPPORTUN ITY OF ORAL CROSS EXAMINATION. NEITHER CROSS EXAMINATION OF A FORMAL OPPORTUNITY OR ORAL. NEITHER CROSS EXAMINATION NOR THE OPPORTUNITY TO LE AD EVIDENCE IS AN INTEGRAL OF ALL QUASI-JUDICIAL ADJUDICATIONS, WHICH IS NOT TENABLE IN THE EYES OF LAW. I FURTHER FIND THAT ASSESSEE HAS RAISED GROUND NO . 5(D) BEFORE THE LD. CIT(A) VIZ. NO STATEMENT (BACK MATERIAL REFERRED IN PARAGRAPH NO. 20.6 ONWARDS TILL 20.9) IS CONFRONTED TO THE ASSESSEE MUCH LESS OFFERED FOR CROSS EXAMINATION, WHICH ALSO LACK S INDEPENDENT CORROBORATION FROM ANY INCRIMINATING MATERIAL , WHICH WAS ALSO NOT ADJUDICATED BY THE LD. CIT(A). I FURTHER NOTE THAT ASSESSEE VIDE HIS REPRESENTATION DATED 14.5.2018 MADE BEFORE THE LD. CIT(A) AT PAGE NO. 77 OF THE PB HAS RAISED A GROUND THAT THAT THE STATEMENT CANNOT BE USED BY THE AO WITHOUT GIVING AN OPPORTUNITY TO CROSS EX AMINATION AS PER APEX COURT IN ANDAMAN CASE. AND VIDE PAGE NO. 83 OF THE PB HAS RAISED THAT THAT THERE IS GROSS AND FLAGRANT VIOLATION OF PRIN CIPLE OF NATURAL JUSTICE TO CONFRONT THE BACK MATERIAL AND TO OFFER AND PROVIDE CROSS EXAMINATION OF REVENUE WITNESS. BUT THE LD. CIT(A) HAS NOT CONSIDERED THE AFOR ESAID 8 GROUNDS RAISED IN THE REPRESENTATION AS WELL AS GRO UND RAISED BEFORE HIM IN THE GROUNDS OF APPEAL VIDE GROUND 5(D), WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, IN VIEW OF ABOVE, THE LEGAL ISSUE ARGUED VIDE GROUND NO. 3 BEFORE THE TRIBUNAL IS SQUARELY COVERE D BY THE DECISION OF THE ITAT, SMC, DELHI BENCH WHEREIN THE TRIBUNAL VIDE IT S ORDER DATED 06.11.2018 PASSED IN ITA NO. 3510/DEL/2018 (AY 2014 -15) IN THE CASE OF SMT. JYOTI GUPTA VS. ITO WHEREIN, THE TRIBUNAL HA S ALLOWED THE APPEAL OF THE ASSESSEE ON EXACTLY SIMILAR FACTS AND CIRCUMST ANCES. I AM OF THE CONSIDERED VIEW THAT ASSESSEE HAS CONSIDERABLE COGE NCY THAT ADDITION WAS MADE ON THE STATEMENT (BACK MATERIAL REFERRED IN PA RAGRAPH NO. 20.6 ONWARDS TILL 20.9) IS CONFRONTED TO THE ASSESSEE MU CH LESS OFFERED FOR CROSS EXAMINATION, WHICH ALSO LACKS INDEPENDENT COR ROBORATION FROM ANY INCRIMINATING MATERIAL, WHICH GROUND WAS ALSO RAIS ED BEFORE THE LD. CIT(A), WHO DID NOT ADJUDICATE THE SAME, WHICH IS A GAINST THE SETTLED LAW. I NOTE THAT EXACTLY ON THE SIMILAR FACTS AND CIRCU MSTANCES THE ITAT, SMC, DELHI BENCH VIDE ITS ORDER DATED 06.11.2018 PASSED IN ITA NO. 3510/DEL/2018 (AY 2014-15) IN THE CASE OF SMT. JYOT I GUPTA VS. ITO WHEREIN, THE SMC BENCH HAS CONSIDERED THE STATEMENT OF VIKRANT KAYAN AND HAS HELD THAT SINCE THE IMPUGNED ADDITION WAS M ADE ON THE STATEMENT OF SH. VIKRANT KAYAN WITHOUT PROVIDING AN Y OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SAME, WHICH IS IN VIO LATION OF PRINCIPLE OF NATURAL JUSTICE AND AGAINST THE LAW LAID DOWN BY TH E HONBLE SUPREME COURT OF INDIA IN THE CASE OF ANDAMAN TIMBER VS. CI T DECIDED IN CIVIL APPEAL NO. 4228 OF 2006. FOR THE SAKE OF CONVENIENC E, I AM REPRODUCING 9 THE RELEVANT PORTION OF THE ITAT, SMC, DELHI BENCH VIDE ITS ORDER DATED 06.11.2018 PASSED IN ITA NO. 3510/DEL/2018 (AY 2014 -15) IN THE CASE OF SMT. JYOTI GUPTA VS. ITO AS UNDER:- 13. MERELY ON THE STRENGTH OF STATEMENT OF THIRD PARTY I.E. SHRI VIKRANT KAYAN CANNOT JUSTIFY THE IMPUGNED ADDITIONS. MORESO, WHEN SPECIFIC REQUEST WAS MADE BY THE ASSESSEE FOR ALLOWING CROSS EXAMINATION WAS DENIED BY THE ASSESSING OFFICER. THE FIRST APPELLATE AUTHORITY ALSO DID NOT CONSIDER IT FIT TO ALLOW CROSS-EXAMINATION. THIS IS IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND AGAINST THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER VS. CIT CIVIL APPEAL NO. 4228 OF 2006 WHEREIN IT HAS BEEN HELD AS UNDER: ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROSS-EXAMINE THE WITNESSES 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 10 NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNITY WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE ADJUDICATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTION OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS-EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROUGHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE APPELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX-FACTORY PRICES REMAIN STATIC. IT 11 WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLANT WANTED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPELLANT WANTED FROM THEM. AS MENTIONED ABOVE, THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH PURPOSE IT WANTED TO AVAIL 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 WERE, IN FACT, SOLD TO THE SAID DEALERS/WITNESSES AT THE PRICE WHICH IS MENTIONED IN THE PRICE LIST ITSELF COULD BE THE SUBJECT MATTER OF CROSS- EXAMINATION. THEREFORE, IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COULD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATION AND MAKE THE REMARKS AS MENTIONED ABOVE. WE MAY ALSO POINT OUT THAT ON AN EARLIER OCCASION WHEN THE MATTER CAME BEFORE THIS COURT IN CIVIL APPEAL NO. 12 2216 OF 2000, ORDER DATED 17.03.2005 WAS PASSED REMITTING THE CASE BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPEAL ON MERITS GIVING ITS REASONS FOR ACCEPTING OR REJECTING THE SUBMISSIONS. IN VIEW THE ABOVE, WE ARE OF THE OPINION THAT IF THE TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED, THERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTION, AS THE STATEMENT OF THE AFORESAID TWO WITNESSES WAS THE ONLY BASIS OF ISSUING THE SHOW CAUSE. WE, THUS, SET ASIDE THE IMPUGNED ORDER AS PASSED BY THE TRIBUNAL AND ALLOW THIS APPEAL. 14. CONSIDERING THE FACTS OF THE CASE IN TOTALITY, I DO NOT FIND ANY MERIT IN THE IMPUGNED ADDITIONS. THE FINDINGS OF THE CIT(A) ARE ACCORDINGLY SET ASIDE. THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF EXEMPTION U/S 10(38) OF THE ACT. 6. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE PRESENT CASE AND RESPECTFULLY FOLLOWING THE ORDER O F THE TRIBUNAL, SMC BENCH, DELHI IN THE CASE OF SMT. JYOT I GUPTA VS. ITO (SUPRA) AND IN VIEW OF THE LAW SETTLED BY THE H ONBLE 13 SUPREME COURT OF INDIA IN THE CASE OF ANDAMAN TIMBE R VS. CIT (SUPRA), ON IDENTICAL FACTS AND CIRCUMSTANCES, THE ADDITION IN DISPUTE IS DELETED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED. THE DECISION IS PRONOUNCED ON 18/04/2019. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 18/04/2019 SRBHATNAGAR COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI