M/S. ARK TRANSFORMERS PVT. LTD., Bhopal V. THE ACIT 1(2), Bhopal

ITSSA 46/IND/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2417 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of cross examination
• Section: 153A; 132; 139

Judgement Text

M/S ARK TRANSFORMERS PVT. LTD IT(SS) A NO. 46/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM IT(SS)A NO.46/IND/2015 A.Y.2010-11 M/S ARK TRANSFORMERS PVT.LTD. BHOPAL PAN AABCA 2562R ::: APPELLANT VS ACIT 1(2) BHOPAL ::: RESPONDENT APPELLANT BY SHRI ANIL KHABYA RESPONDENT BY SHRI RAJIV VARSHNEY DATE OF HEARING 26.7.2016 DATE OF PRONOUNCEMENT 18.8.2016 O R D E R PER SHRI D.T. GARASIA, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 5.2.2015 . 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN MAINTAINING THE ADDI TION M/S ARK TRANSFORMERS PVT. LTD IT(SS) A NO. 46/IND/2015 2 OF RS.5,05,864/- TOWARDS UNEXPLAINED INVESTMENT IN PURCHASE OF LAND. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRI VATE LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACTURI NG OF TRANSFORMERS AND ALLIED PRODUCTS. A SEARCH AND SEIZUR E OPERATION U/S 132 OF THE ACT WAS CONDUCTED AND THE ASSESSEE HAS FILED THE RETURN OF INCOME U/S 139 OF TH E ACT. THE ASSESSEE HAS ALSO FILED THE RETURN IN RESPONSE TO NOTICE U/S 153A AND HE HAS DECLARED SOME ADDITIONAL INCOME. THE ASSESSEE COMPANY HAS PURCHASED THE LAND FROM SMT. SANTOSHI VERMA W/O SHRI ASHOK VERMA. THE STATEMENT OF SMT. SANTOSHI VERMA WAS RECORDED ON OATH IN WHICH SHE HAS ACCEPTED THAT SHE HAS SOLD THE LAND TO THE ASSESSEE THROUGH RAJESH GUPTA FOR CONSIDERATION OF RS. 26 LACS AND OUT OF RS. 26 LACS, RS. 17 LACS WERE PAID THROUGH CHEQU E AND THE REMAINING RS. 9 LACS WERE RECEIVED IN CASH. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION IN THE M/S ARK TRANSFORMERS PVT. LTD IT(SS) A NO. 46/IND/2015 3 CASE OF RAKESH GUPTA ON PROTECTIVE BASIS AND IN THE ASSESSEES CASE ON SUBSTANTIVE BASIS. THE MATTER WAS CARRIED IN APPEAL BEFORE THE LEARNED CIT(A) WHO CONFIRM ED THE ACTION OF THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BE FORE THE TRIBUNAL THAT THE ASSESSING OFFICER HAS RECORDED T HE STATEMENT OF SMT. SANTOSHI VERMA AND A COPY OF THE STATEMENT WAS GIVEN TO THE ASSESSEE BUT THE ASSESSEE WAS NOT GIVEN OPPORTUNITY OF CROSS-EXAMINATION. THEREFORE , ANY STATEMENT RECORDED BEHIND THE BACK OF THE PERSON IS INADMISSIBLE IN EVIDENCE. THEREFORE, DUE PROCESS OF LAW HAS TO BE CONVERTED IN ANY STATEMENT INTO LEGAL ADMISSIBLE EVIDENCE. THEREFORE, THE ASSESSEE MAY BE GIVEN OPPOR TUNITY TO CROSS EXAMINE SMT. SANTOSHI VERMA AND THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER. THE LEARNED DR HAS NO OBJECTION TO THE SAME. WE, THEREFORE, IN THE INTERES T OF M/S ARK TRANSFORMERS PVT. LTD IT(SS) A NO. 46/IND/2015 4 JUSTICE AND FAIR PLAY, RESTORE THE MATTER T6O THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO AFFORD REASON ABLE OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN OPEN COURT ON 18 TH AUGUST, 2016 SD/- SD/- (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 18 TH AUGUST, 2016 DN/- M/S ARK TRANSFORMERS PVT. LTD IT(SS) A NO. 46/IND/2015 5