Shri Chhaganbhai V.Desai, Ahmedabad V. The Dy.CIT., Cent.Circle-1(2), Ahmedabad

ITSSA 14/AHD/2011

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0033 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-03-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 12-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T P KRISHNA KUMAR
• Keywords: Income from undisclosed sources; Loose papers; Opportunity of being heard; Principle of natural justice; Documents seized
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD , , , , BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND .., ! '# '# '# '# SHRI T.R. MEENA, ACCOUNTANT MEMBER $%.. , &' ( & ! ) & ! ) & ! ) & ! ) IT(SS)A NOS. 9 TO 14/AHD/2011 ASSESSMENT YEARS: 1999-2000, 2000-01, 01-02, 02-03, 03-04 & 05-06. CHHAGANBHAI V. DESAI 1, GOPALNAGAR VIBHAG-1, NR. ST. XAVIERS LOYALA SCHOOL, MEMNAGAR, AHMEDABAD V/S . THE DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(2), AAYAKAR BHAVAN, ASHRAM ROAD, AHMADABAD - 380009 PAN NO. A CVPD8607M (APPELLANT) .. (RESPONDENT) ( * + & / BY REVENUE SHRI T. P. KRISHNAKUMAR, CIT D.R. & * + & /BY ASSESSEE NONE (WRITTEN SUBMISSION) , * -%' /DATE OF HEARING 26.03.2014 ./0 * -%' /DATE OF PRONOUNCEMENT 27.03.2014 O R D E R PER BENCH THESE SIX APPEALS FILED BY THE ASSESSEE ARE EMANATE D FROM THE ORDER OF THE LD. CIT(APPEALS)-I, AHMEDABAD, ORDER DATED 07.1 0.2010 FOR A.Y. 1999- 2000, 00-01, 01-02, 02-03, 03-04 & 05-06. ALL APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORD ER FOR THE SAKE OF CONVENIENCE. THE EFFECTIVE GROUNDS OF APPEAL FOR A .Y. 1999-2000 ARE AS UNDER: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN REJECTING THE GROUND OF APPEAL NO. 1 REGARDING IMPROPER AND INADE QUATE IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 2 OPPORTUNITY GRANTED TO THE APPELLANT BY THE A.O. HA VING PASSED THE ASSESSMENT ORDER IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND EQUITY AS WELL AS WITHOUT PROPERLY CONS IDERING AND APPRECIATING THE ELABORATE SUBMISSIONS FILED BEFORE HIM DURING THE COURSE OF APPELLATE PROCEEDINGS. ACCORDINGLY, THE I MPUGNED ORDER REQUIRES TO BE QUASHED AS VOID-AB-INITIO THE SAME H AVING BEEN PASSED IN FLAGRANT VIOLATION OF THE PRINCIPLES OF N ATURAL JUSTICE AND EQUITY. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE GROUND OF APPEAL NO. 2 DISPUTING THE A.O. REFUSAL T O GRANT ORAL CROSS-EXAMINATION OF SHRI VIKAS SHAH FROM WHOSE POS SESSION THE MATERIAL RELIED UPON IN CASE OF THE APPELLANT HAVE BEEN FOUND AND SEIZED AND WHOSE STATEMENTS HAVE BEEN RELIED UPON B Y THE A.O. FOR MAKING ADDITIONS IN CASE OF THE APPELLANT. THE A.O. BEING DUTY BOUND BY LAW TO GRANT SUCH CROSS-EXAMINATION, THE R EFUSAL TO GRANT THE SAME UNDER THE GARB THAT WRITTEN CROSS EXAMINAT ION HAS BEEN GRANTED AND THAT THE STATEMENT OF THE SAID PERSON W AS FURNISHED AND THE ISSUE HAVING BEEN DISCUSSED IN THE STATEMEN T OF THE APPELLANT IS WHOLLY UNJUSTIFIED AND THE IMPUGNED AS SESSMENT ORDER REQUIRES TO BE QUASHED ON THIS GROUND ITSELF. 2.1 THE LEARNED CIT(A) FURTHER ERRED IN DISREGARDIN G THE BINDING DECISION OF THE HON'BLE ITAT, AHMEDABAD IN THE CASE OF APPELLANT HIMSELF FOR A.Y.1998-99 DATED 14/05/2010 WHEREIN IN TERALIA THE HON'BLE ITAT WHILE SETTING ASIDE THE ORDER TO THE F ILE OF THE A.O. HAS CATEGORICALLY OBSERVED THAT 'IT IS SETTLED LAW THAT WHEN A STATEMENT OF A WITNESS IS RECORDED BEHIND THE BACK OF THE ASS ESSEE, SUCH STATEMENTS COULD NOT BE USED AGAINST THE ASSESSEE U NLESS THE ASSESSEE IS ALLOWED AN OPPORTUNITY TO CROSS EXAMINE SUCH WITNESSES. IN OUR OPINION, THE CROSS EXAMINATION CA N ONLY BE MADE ORALLY AND SO-CALLED WRITTEN CROSS EXAMINATION CANN OT SUBSTITUTE THE RIGHT OF ORAL CROSS EXAMINATION OF THE ASSESSEE.' 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.50,000/-BEING UNDISCLOSED INCOME ON THE BASIS OF MATERIAL SEIZED AND FOUND FROM THE POSSESSION AND C ONTROL OF A IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 3 THIRD PARTY NAMELY SHRI VIKAS SHAH ON THE BASIS OF IRRELEVANT OBSERVATION AND FINDINGS BASED ON DECISIONS WHICH A RE NOT APPLICABLE TO THE APPELLANT'S CASE, WHILE IGNORING THE DECISIONS CITED BY THE APPELLANT WHICH WERE SQUARELY APPLICABLE TO THE FACTS OF THE APPELLANT'S CASE. IN VIEW OF THE FACTS AND ELABORAT E SUBMISSIONS FILED COUPLED WITH LEGAL POSITION IN SUPPORT THEREO F, THE IMPUGNED ADDITION OF RS.50,000/- REQUIRES TO BE DELETED. 4. THE LEARNED CIT(A) HAS ERRED IN NOT ADJUDICATING THE GROUND OF APPEAL NO.4 DISPUTING THE DISALLOWANCE OF 1/3 RD OUT OF POWER, TELEPHONE AND MOTORCAR EXPENSES AMOUNTING TO RS.24, 793/-. IN VIEW OF FACTS AND SUBMISSIONS FILED, THE SAID ADDIT ION OF RS.24,793/- REQUIRES TO BE DELETED. GROUNDS IN ALL THE YEARS ARE IDENTICAL BUT QUANTUM OF DISPUTE IS DIFFERENT. 2. THE A.O. OBSERVED THAT A SEARCH OPERATION U/S. 1 32(2) WAS CONDUCTED ON VIKAS A. SHAH BY ISSUING A WARRANT OF AUTHORIZAT ION U/S. 132(1) OF THE ACT ON 09.02.2005 AND VARIOUS DOCUMENTS/BOOKS OF ACCOUN T/ OTHER VALUABLE ARTICLES/ OTHER THINGS WERE FOUND AND SEIZED FROM T HE VEHICLE NO. GJ1 HF 251 (STATION VAN TOYOTA CAR, OWNED AND CLAIMED BY VIKAS A. SHAH). ON VERIFICATION OF VARIOUS DOCUMENTS FOUND, SEIZED AND INVENTORISED AS ITEM NO. A-1 TO A-271, IT IS NOTICED THAT (1) PAGE NO.30 OF ANNEXURE A-73 IS THE MEMORANDUM OF UNDERSTANDING BETWEEN SHRI CHHAGANBHA I V. DESAI, AMTHABHAI V. DESAI AND SHRI VIKAS A. SHAH, (2) PAGE 32 OF ANNEXURE A-73 MEMORANDUM OF UNDERSTANDING BETWEEN SHRI CHHAGANBHA I V. DESAI AND SHRI DHARAM SINGH DESAI AND (3) PAGE NO.100 TO 105 OF AN NEXURE A-79 REGARDING THE CONSTRUCTION AGREEMENT BETWEEN MANSI BUILDERS A ND HELLY ENTERPRISE, PROP. CHHAGANBHAI V. DESAI. FROM THE ABOVE IT IS C LEAR THAT THE SAID PAGES ARE BELONGS TO SHRI CHHAGANBHAI V. DESAI. THE A.O. GAVE REASONABLE IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 4 OPPORTUNITY OF BEING HEARD IN ALL THE YEARS FOR EXP LAINING THE SEIZED MATERIALS RELEVANT TO RESPECTIVE ASSESSMENT YEARS. AFTER CON SIDERING THE ASSESSEES REPLY, HE OBSERVED AS UNDER FOR A.Y. 1999-2000: A) THE ASSESSEE HAS DISOWNED ALL THE TRANSACTIONS AS MENTIONED IN SEIZED PAPER I.E. PAGE NO.86 OF A-124, WHICH IS PAR T OF CASH BOOK SEIZED AS ANNEXURE A-124. HERE ALSO IT IS WORTH TO MENTION THAT ENTRIES APPEARING IN THE CASH BOOK ORE DULY SIGNED BY VIKAS A. SHAH, CMD OF MANSI BUILDERS LTD. SHRI VIKAS A. SHAH HAS SIGNED IN ALMOST ALL THE PAGES OF THESE SEIZED CASH BOOKS INV ENTORISED AS ANNEXURE A-21, A-25. A-29, A-124, ETC, AND ENTRIES OF THESE CASH BOOKS PERTAINING TO THE BONK TRANSACTIONS I.E. WITH DRAWAL AND DEPOSITS FROM THE BANKS HAD BEEN DULY CONFIRMED. TH EREFORE, IT CANNOT BE SAID THAT ENTRIES APPEARED ON THE SAID PA PER AND OTHER SEIZED PAPER AND OTHER SEIZED PAPERS ARE GENERAL NO TING AND JOTTINGS. B) THE CONTENTION OF THE ASSESSEE THAT FROM THE SEIZED MATERIAL, IT IS NOT UNDERSTANDABLE/KNOWN AS TO HOW SOME OF THE FIGU RES ARE WRITTEN IN THE SO CALLED CASH REPORTS BY CONCEALING TWO ZEROS, OF MANSI BUILDERS, IS NOT CORRECT. IN ANS. NO.34 OF HI S STATEMENT RECORDED U/S.131(1A) OF THE ACT ON 1.3.2005, SHRI V IKAS A, SHAH HAS CATEGORICALLY STATED WHILE EXPLAINING THE ENTRI ES NOTED ON ANNEXURE A-124 THAT THESE ARE DAILY CASH REPORT OF MANSI BUILDERS LTD. AND VIKAS ARVIND SHAH. IT IS PREPARED BY MY E MPLOYEE AND AFTER VERIFYING THE SAME. I USED TO PUT MY SIGNATU RE. I CAN SAY THAT THESE ARE CASH REPORTS AND DETAILS OF CASH RECEIPTS AND CASH OUTGOINGS. THE OUTGOINGS INCLUDE, CASH DEPOSITED I N BANK ACCOUNT AND EXPENDITURE, ETC. THIS PERTAIN TO THE PERIOD F ROM 2.1.1998 TO 24.3.1999. THE FIGURES WRITTEN IN THESE CASH REPOR TS ARE IN 100 (HUNDREDS). FROM THE ABOVE, IT IS ESTABLISHED BEYOND THE SHAD OW OF DOUBT THAT THE ASSESSEE HAS RECEIVED AN AMOUNT O F RS.50,000/- (SHOWN AS 500/- IN SEIZED PAPERS) DURING THE YEAR F ROM VIKAS A. IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 5 SHAH AND/OR MANSI BUILDERS AND SAID AMOUNT WAS NOT DISCLOSED TO THE DEPARTMENT. C) THE CONTENTION OF THE ASSESSEE THAT 'IN THE REAS SESSMENT PROCEEDINGS FOR AY. 1998-99, THE THEN A.O. AFTER CO NSIDERATION OF MY EXPLANATION IN RESPECT OF SIMILAR DAILY CASH REP ORTS AND AFTER ELABORATE DISCUSSION IN THE ASSESSMENT ORDER FOR TH E A.Y. 1998-99 HAS NOT MADE ANY ADDITION ON ACCOUNT OF ENTRIES PUR PORTED BE IN MY NAME IS FACTUALLY INCORRECT. ASSESSMENT IN THE CAST OF THE ASSESSEE FOR THE A.Y. 1998-99 WAS COMPLETED AFTER CONSIDERIN G ALL THE ENTRIES APPEARED IN DAILY CASH REPORT OF VIKAS A. SHAH AND MANSI BUILDERS. THEREFORE, IT IS CONCLUDED THAT CONTENTIONS MADE BY THE ASSESSEE ARE FACTUALLY INCORRECT AND MISGUIDING. D) FOR THE DEVELOPMENT OF LAND AT VILLAGE THALTEJ, TALUKA: DASCROI, DIST. AHMEDABAD, SURVERY NO.20, 25 & OTHERS ADMEASU RING 22,430 SQ. YDS. A SCHEME OF SEVEN TOWERS OF RESIDENTIAL FI ATS FLOATED BY MANSI BUILDERS, A CONSTRUCTION CONTRACT FOR ONE TOW ER WAS MADE WITH M/S. HELLY ENTERPRISE, A PROPRIETARY CONCERN O F SHRI CHHAGANBHAI VELJIBHAI DESAI. THIS PROVE THAT THE AS SESSEE HAS BEEN A CLOSE BUSINESS ASSOCIATE OF VIKAS A. SHAH FR OM WHOM HE HAS RECEIVED RS.50,000/- DURING THE YEAR. E) AS REGARDS, REQUEST OF THE ASSESSEE TO PROVIDE T HE ORIGINAL COPY OF STATEMENT OF SHRI VIKAS A. SHAH, IT IS WORTH TO MEN TION THAT COPY PROVIDED TO THE ASSESSEE IS THE COPY OF ORIGINAL STATEMENT OF V IKAS SHAH DULY SIGNED BY HIM. THEREFORE, CONTENTION OF T HE ASSESSEE THAT COPY OF THE STATEMENT PROVIDED TO HIM IS INCOR RECT. F) SO FAR AS CONTENTION MADE BY THE ASSESSEE CHALL ENGING THE EVIDENTIARY VALUE OF SEIZED PAPERS AND GENUINENESS OF TRANSACTIONS NOTED ON*HE SEIZED PAPERS, IT CAN BE SAID THAT THE SAID TRANSACTION IS DULY CONFIRMED BY VIKAS SHAH IN HIS STATEMENT. F URTHER, IT HAS ALREADY BEEN PROVED THAT THE ASSESSEE HAS BEEN A CL OSE BUSINESS ASSOCIATE OF VIKAS SHAH AND MANSI BUILDERS. FROM TH E ABOVE FACTS, IT IS CRYSTAL CLEAR THAT THE TRANSACTIONS RECORDED ON PAGE NO.86 OF A-124 AND OTHER SEIZED PAPERS RELATED TO ASSESSEE A RE GENUINE AND NOT JUST NOTINGS/ JOTTINGS AS CLAIMED BY THE IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 6 IN THE CASE OF ROGER ENTERPRISES (P.) LTD. VS DEPUT Y COMMISSIONER OF INCOME -TAX HONORABLE ITAT, DELHI ( 88 ITD 95 ITAT DELHI B BENCH ) HAS HELD THAT ANY STATEMENT OF A PERSON WHO IS ONE OF THE PARTY OF THE TRANSACTION/TRANSACTIONS HAS EVIDENTIARY VALUE AND THEREFORE CAN NOT BE IGNORED. HERE IN THE INSTANT CASE BOTH THE PARTIES (ASSESSEE AS WELL AS VIKAS A SHAH) HAVE ADMITTED THE TRANSACTION WHOLLY OR PARTLY. THEREFORE IT CAN BE SAFELY CONCLUDED THAT TRANSACTIONS RECORDED ON THE SEIZED PAPER ARE GENUINE AND ASSESSEE HAS RECEIVED AN AMOUNT OF RS.5 0.000/- FROM VIKAS A. SHAH AND/OR MANSI BUILDERS. HERE IT IS ALS O PERTINENT TO MENTION THAT SINCE ASSESSEE HIMSELF HAS ADMITTED PA RT OF TRANSACTION RECORDED ON OTHER LOOSE PAPERS, IT IS E STABLISHED THAT THAT DOCUMENTS SEIZED (PAGE NO. 36 OF A-124) FROM T HE VEHICLE NO. GJ1 HF 251(STATION VAN TOYOTA VEHICLE OWNED AND CLA IMED BY VIKAS A. SHAH) BELONGS TO ASSESSEE ALSO. SINCE ASSESSEE HAS NOT DISCLOSED THE RECEIPT OF RS.50.000/- NOTED ON SAID PAPER, THE SAME IS LIABLE TO BE ADDED IN THE TOTAL INCOME OF THE AS SESSEE AS UNACCOUNTED INCOME. G) IN HIS SUBMISSION ASSESSEE HAS ASKED FOR CROSS-E XAMINATION OF VIKAS A. SHAH AND TO PROVIDE COPY OF ORIGINAL STATEMENT OF VIKAS A SHAH. IN THIS REGARD IT IS PERTINENT TO NOTE THAT C OPY OF RELEVANT PORTION OF ORIGINAL STATEMENT OF VIKAS A SHAH HAD A LREADY BEEN PROVIDED TO ASSESSEE DURING THE COURSE OF ASSESSMEN T PROCEEDINGS. MOREOVER THIS ISSUE WAS VERY MUCH DISC USSED/DEALT WITH IN THE STATEMENT OF ASSESSEE RECORDED DURING T HE COURSE OF POST SEARCH INVESTIGATIONS. THEREFORE, IT CAN BE SA ID THAT FURTHER ASKING THE COPY OF STATEMENT OF VIKAS A. SHAH AND R EQUEST OF CROSS EXAMINING TO VIKAS A SHAH IS NOTHING BUT TO DELAY T HE PROCEEDINGS AND MISLEADING THE DEPARTMENT. THEREFORE ASSESSEE'S REQUEST FOR CROSS EXAMINATION OF VIKAS A SHAH IS REJECTED. 2(I). IDENTICAL FINDINGS HAD BEEN GIVEN BY THE A.O. FOR THE OTHER YEARS. LD. A.O. MADE ADDITION U/S. 153C R.W.S. 153A AS UNDER: A.Y. AMOUNT IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 7 1999-2000 RS.74,793/- 2000-2001 RS.5,14,642/- 2001-2002 RS.1,50,142/- 2002-2003 RS.10,14,777/- 2003-2004 RS.1,77,000/- 2005-2006 RS.1,75,000/- 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAS ALLOWED THE APPEAL PARTLY. 4. NOW THE ASSESSEE IS BEFORE US IN ALL YEARS. ON THE DATE OF HEARING NONE APPEARED. A WRITTEN REPLY WAS FILED BEFORE US WHICH IS CONSIDERED FOR DISPOSAL OF THESE APPEALS. IT WAS SUBMITTED BY THE ASSESSEE THAT HONBLE ITAT D BENCH IN ITA NO. 3366/AHD/07 FOR A.Y. 1998 -99 HAD SET ASIDE THE ISSUE TO THE A.O. FOR DECIDING THE CASE AFRESH. IS SUES OF ALL THE YEARS ARE IDENTICAL TO A.Y. 98-99. THEREFORE, SAME MAY BE SE T ASIDE TO THE A.O. FOR FRESH ADJUDICATION. AT THE OUTSET, LD. CIT D.R. FA IRLY ACCEPTED THE PROPOSAL. 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL ON RECORD. THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR A. Y. 1998-99 HAS OBSERVED AS UNDER: 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. THE FACTS AS SUBMITTED BY THE LEARNED COUNSEL ARE NOT IN DISPUTE. THE AO RECORDED THE STATEMENT OF 'VAS' BEHIND THE BACK OF THE ASSESSEE AND THE ASSES SEE REQUESTED FOR CROSS-EXAMINATION OF 'VAS'. THE AO WAS OF THE OPINI ON THAT IT WAS NOT POSSIBLE TO PERMIT THE ASSESSEE THE OPPORTUNITY OR ORAL CROSS-EXAMINATION, THEREFORE, THE OPPORTUNITY OF WRITTEN CROSS EXAMINA TION WAS GIVEN WHICH THE ASSESSEE HAS NOT AVAILED, WHICH IS EVIDENT FROM THE PARA-3.3 OF THE ASSESSMENT ORDER AS UNDER: IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 8 '3. I ALSO REITERATE MY REQUEST FOR ORAL CROSS-EXAM INATION OF SHRI VIKAS SHAH FAILING WHICH THE RELIANCE PLACED ON HIS STATE MENT AND THE MATERIAL SEIZED FROM HIS POSSESSION AND CONTROL IS BAD IN LA W AND THE SAME HAY NO EVIDENTIARY VALUE IN THE EYES OF LA AS HELD BY VARI OUS COURTS OF LAW. LL IS SUBMITTED THAT YOUR HONOUR'S OFFER FOR WRITTEN CROS S-EXAMINATION OF SHRI VIKAS SHAH BY ASKING QUESTIONS TO HIM IN WRITING WH ICH IN TURN WILL BE FORWARDED TO HIM BY YOUR HONOUR WILL NOT SERVE ANY EFFECTIVE PURPOSE SINCE IT WILL ONCE AGAIN TANTAMOUNT TO SELF SERVING STATEMENT. WITH DUE RESPECT, I FURTHER APPREHEND TAT THE SAME WILL BE A WELL THOUGHT OF AND GUIDED STATEMENT WITH SOMEBODY'S HELP AND WILL NOT BE A SPONTANEOUS STATEMENT. HENCE, IN THE INTEREST OF JUSTICE AND EQ UITY, IT WILL BE ONLY FAIR AND REASONABLE TO GRANT ORAL CROSS-EXAMINATION OF S HRI VIKAS SHAH TO ARRIVE AT THE TRUE FACTS. ' IT IS SETTLED LAW THAT WHEN A STATEMENT OF A WITNES S IS RECORDED BEHIND THE BACK OF THE ASSESSEE, SUCH STATEMENTS COULD NOT BE USED AGAINST THE ASSESSEE UNLESS THE ASSESSEE IS ALLOWED AN OPPORTUN ITY TO CROSS-EXAMINE SUCH WITNESSES. IN OUR OPINION, THE CROSS-EXAMINATI ON CAN ONLY BE MADE ORALLY AND SO-CALLED WRITTEN CROSS-EXAMINATION CANN OT SUBSTITUTE THE RIGHT OF ORAL CROSS-EXAMINATION OF THE ASSESSEE. THE UTIL IZATION OF THE STATEMENT OF 'VAS' WITHOUT ALLOWING THE ASSESSEE TO CROSS-EXA MINE HIM IS AGAINST THE NATURAL JUSTICE. IN VIEW OF THE ABOVE, WE SET A SIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTORE THE MATTER BACK TO TH E FILE OF THE AO. WE HOLD THAT IF THE AO WANTS TO UTILISE THE STATEMENT OF 'VAS' AGAINST THE ASSESSEE, HE HAS TO ALLOW AN OPPORTUNITY OF ORAL CR OSS-EXAMINATION OF VAS TO THE ASSESSEE. OTHERWISE, THE AO MAY DISPO SE OF THE MATTER ON THE BASIS OF OTHER MATERIAL AVAILABLE ON RECORD AFT ER ALLOWING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HAVE VERIFIED AND IT IS FOUND THAT ISSUED IN ALL THE YEARS ARE IDENTICAL. THE ASSESSEE HAS NOT PROVIDED CROSS EXAMINATION OF SHRI VIKAS A. SHAH, WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. BY RESPE CTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE, WE HAVE A LSO CONSIDERED VIEW THAT THE ASSESSEES APPEAL DESERVES TO BE SET ASIDE TO THE A.O. ACCORDINGLY, IT(SS)A NOS. 9 TO 14/AHD/2011, A.Y. 99-00, 00-01, 0 1-02, 02-03, 03-04 & 05-06, CHHAGANBHAI V. DESAI VS. DCIT PAGE 9 WE RESTORE THE MATTER BACK TO THE FILE TO THE A.O. FOR FRESH ADJUDICATION. NEED NOT TO MENTION HERE THAT A REASONABLE OPPORTUNITY O F BEING HEARD IS TO BE ALLOWED TO THE ASSESSEE BEFORE FINALIZING THE SET A SIDE PROCEEDING. 6. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D FOR STATISTICAL PURPOSES IN ALL YEARS. THESE ORDERS PRONOUNCED IN OPEN COURT ON 27.03.2014 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA &1 &1 &1 &1 * ** * 2-3 2-3 2-3 2-3 4&30- 4&30- 4&30- 4&30- / COPY OF ORDER FORWARDED TO:- 1. (/ REVENUE 2. & / ASSESSEE 3. ## - 9 / CONCERNED CIT 4. 9- / CIT (A) 5. 3= 2- , , / DR, ITAT, AHMEDABAD 6. ? @A / GUARD FILE. BY ORDER/ &1 &, / # , )