M/S.Morning Glory Infra Limited, Kanpur V. Deputy Commissioner of Income Tax,Central Circle-II, Kanpur

ITSSA 72/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1023 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A. K. BAR
• Keywords: Income from undisclosed sources; Search and seizure; Principle of natural justice; Opportunity of cross examination; TDS; Set aside
• Section: 11; 133A; 234B; 201; 207; 64; 13; 22; 153C; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER IT (SS) A NO. 72/LKW/2018 ASSESSMENT YEAR: 2015 - 16 MORNING GLORY INFRA LTD. 7/102, SWAROOP NAGAR KANPUR V. D Y. CIT CENTRAL CIRCLE II KANPUR T AN /PAN : AAGCM5984J (APP ELL ANT) (RESPONDENT) ASSESSEE BY: SHRI S. K. GARG, ADVOCATE DEPARTMENT BY: SHRI A. K. BAR, CIT (DR) DATE OF HEARING: 27 0 2 201 9 DATE OF PRONOUNCEMENT: 15 0 3 201 9 O R D E R PER A. D. JAIN, V.P . : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - IV, KANPUR DATED 21/12/2017 FOR ASSESSMENT YEAR 2015 - 16, TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN UPHOLDING ADDITION OF RS.64 CRPRES MADE B Y THE ASSESSING OFFICER ALLEGING THE SAME TO HAVE BEEN RECEIVED BY THE APPELLANT AS ON - MONEY IN CASH, NOT ACCOUNTED FOR IN THE REGULAR BOOKS, AGAINST SALE/ BOOKING OF FLATS IN EMERALD GARDEN PROJECT. 2. THAT THE CIT(A)/ ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN ADDING THE SAID AMOUNT BY MERELY RELYING UPON STATEMENT OF ONE MR. ANOOP ASTHANA, A PROPERTY BROKER AND CONTENTS OF DIARY PURPORTEDLY IMPOUNDED FROM HIS PREMISES, DE - HORS ANY RELIABLE/ CREDIBLE MATERIAL/ EVIDENCE TO SUBSTANTIATE THE SAME. 2.1 TH AT THE CIT(A)/ ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SIMULTANEOUS SURVEY AT THE PREMISES OF THE ITA NO. 72/LKW/2018 PAGE 2 OF 18 APPELLANT AND THE MANAGING DIRECTOR OF THE APPELLANT - COMPANY REPEATEDLY DENIED HAVING RECEIVED ANY ON - MONEY. 2.2 THAT THE CIT(A)/ ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING THE AFORESAID ADDITION ON THE BASIS OF EX - PARTE MATERIAL, IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2.3 THAT THE CIT(A) ERRED ON FA CTS AND IN LAW IN HOLDING THAT SURRENDER OF RS. 9 CRORES BY SHRI SANJEEV KUMAR JHUNJHUNWALA WAS UNSUBSTANTIATED AND BASED ON FLIMSY GROUNDS AND SUCH SURRENDER ALLEGEDLY CONFIRMS MODUS OPERAND!, AS MENTIONED BY THE ASSESSING OFFICER, USED THE APPELLANT COMP ANY. 2.4 WITHOUT PREJUDICE, THE CIT(A)/ ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN ADDING SUM OF RS. 9 CRORES ASSESSED AS INCOME IN HANDS OF MANAGING DIRECTOR OF THE APPELLANT, SHRI SANJEEV KUMAR JHUNJHUNWALA, LEADING TO DOUBLE TAXATION OF SUCH SUM. 3. THAT THE CIT(A)/ ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN CHARGING/ COMPUTING INTEREST UNDER SECTIONS 234B AND 234D OF THE ACT. 2 . THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH AND SEIZURE OPERATION UNDER SECTION 132(1) OF THE INCOME - TAX ACT, 1961 W AS CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF DOLPHIN DEVELOPERS/ANAND/ROTOMAC GROUP OF CASES ON 25/6/2014 AT KANPUR. SIMULTANEOUSLY, A SURVEY UNDER SECTION 133A OF THE ACT WAS ALSO CONDUCTED AT THE REGISTERED OFFICE AND THE OFFICE OF M/S MOR NING GLORY INFRA LTD., SITUATED AT PLOT NO.2, BLOCK - I, GOTAIYA SCHEME NO.VII, 7/102, SWAROOP NAGAR, KANPUR AND 17/K/13, SARVODAYA NAGAR, KANPUR. SHRI ANOOP ASTHANA, PROP. M/S ANOOP ASTHANA PROPERTIES, MAIN BROKER FOR ANAND/DOLPHIN GROUP AND MORNING GLORY INFRA LTD. WAS ALSO COVERED UNDER SECTION 133A OF THE ACT. DURING THE COURSE OF SURVEY OPERATION AT THE PREMISES OF M/S ANOOP ASTHANA PROPERTIES, SITUATED AT RATAN BHAWAN, 7/108, SWAROOP NAGAR, KANPUR, A DIARY WAS FOUND AND IMPOUNDED AS ANNEXURE A - 14 PAGE NO.163 TO 165 , WHICH, AS PER THE ITA NO. 72/LKW/2018 PAGE 3 OF 18 AUTHORITIES BELOW, CONTAINED THE DETAILS RELATED TO EMERALD GARDEN PROJECT BEING CARRIED OUT BY M/S MORNING GLORY INFRA LTD. THE ASSESSING OFFICER COMPLET E D THE ASSESSMENT BY MAKING THE ADDITION OF RS.64,00,00,000/ - ON AC COUNT OF UNACCOUNTED INCOME. 3 . THE LD. CIT(A) CONFIRMED THE ADDITION. 4 . APROPOS GROUND NO.2.2, THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE LD. CIT(A)/ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING THE AFORESAID ADDITION ON THE BASIS OF EX - PARTE MATERIAL, IN GROSS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. 5 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER, WHEREBY THE LD. CIT(A) HAS HELD THAT IT CANNOT BE SAID THAT THE ASSESSEE WAS NOT PROVIDED ANY OPPORTUNITY OF CROSS - EXAMINATION OF SHRI ANOOP ASTHANA. 6 . THE FOLLOWING GROUNDS, IN THIS REGARD, WERE RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A): - 2. THAT THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING ADDITION OF RS. 64 CRORES ALLEGING THE SAME TO HAVE BEE N RECEIVED BY THE APPELLANT AS ON - MONEY IN CASH, NOT ACCOUNTED FOR IN THE REGULAR BOOKS, AGAINST SALE/ BOOKING OF FLATS IN EMERALD GARDEN PROJECT. 2.1 THAT THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING THE AFORESAID ADDITION BY MERELY RELYING U PON EX - PARTE STATEMENT OF ONE MR. ANOOP ASTHANA, A PROPERTY BROKER AND CONTENTS OF DIARY PURPORTEDLY IMPOUNDED FROM HIS PREMISES, WITHOUT ANY RELIABLE/ CREDIBLE MATERIAL/EVIDENCE TO SUBSTANTIATE/CORROBORATE THE SAME. 2.2 THAT THE ASSESSING OFFICER ERRED O N FACTS AND IN LAW IN NOT APPRECIATING THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SIMULTANEOUS SURVEY AT THE PREMISES OF THE APPELLANT AND THE MANAGING DIRECTOR OF THE APPELLANT - COMPANY WHO REPEATEDLY DENIED HAVING RECEIVED ANY ON - MONEY. ITA NO. 72/LKW/2018 PAGE 4 OF 18 2.3 THAT THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING THE AFORESAID ADDITION ON THE BASIS OF EX - PARTE MATERIAL, IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 7 . IN ITS WRITTEN SUBMISSIONS, THE ASSESSEE, INTER ALIA, SUBMITTED BEFORE THE L D. CIT(A) THAT : - IT IS, AT THE OUTSET, EMPHATICALLY SUBMITTED THAT THE AFORESAID HUGE ADDITION OF RS.64 CRORES MADE BY THE ASSESSING OFFICER IS PATENTLY ILLEGAL AND BAD IN LAW SINCE THE SAME HAS BEEN MADE MERELY ON THE BASIS OF PRESUMPTIONS, CONJECTURES A ND SURMISES, WITHOUT ANY CREDIBLE MATERIAL/CORROBORATIVE EVIDENCE TO ESTABLISH RECEIPT OF ANY INCOME/CASH, OUTSIDE THE BOOKS OF ACCOUNT, AS EXPLAINED HEREUNDER: THE ASSESSING OFFICER, AS STATED ABOVE, HAS SIMPLY PRIMARILY RELIED UPON THE CONTENTS OF A DIAR Y PURPORTEDLY IMPOUNDED FROM THE PREMISES OF ONE PROPERTY BROKER, MR. ANOOP ASHTHANA, AND HIS EX - PARTE STATEMENT RECORDED DURING THE COURSE OF SURVEY AT HIS PREMISES. RE: DIARY IMPOUNDED FROM PREMISES OF MR. ANOOP ASTHANA IT IS RESPECTFULLY SUBMITTED THAT THE CONTENTS OF THE AFORESAID DIARY FOUND DURING SURVEY IN THE CASE OF MR. ANOOP ASTHANA MARKED AS ANNEXURE A - 14, PAGES 163 - 165 WHEREOF HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER, COULD NOT HAVE BEEN THE BASIS FOR MAKING SUCH HUGE ADDITION IN THE HANDS OF THE APPELLANT FOR THE FOLLOWING REASONS: . (F) PERTINENTLY, EVEN THE NAMES OF THE INDIVIDUAL PARTIES APPEARING IN THE DIARY ALONGSIDE THE AMOUNTS, ARE COMPLETELY ALIEN TO THE APPELLANT. THE APPELLANT HAD NOT SOLD ANY FLAT IN THE EMERALD GARDEN PROJECT TO THE PERSONS NAMED IN THE SOLD DIARY. THEREFORE, THE VERY CONTENTS OF THE DIARY ARE MATTER OF GREAT SUSPECT AND ARE TOTALLY UNRELIABLE/UNAUTHENTIC. (G) NO ADVERSE INFERENCE CAN BE DRAWN FROM CERTAIN PAYMENT RECEIPTS (3 IN NUMBER) IN RESPECT OF FLATS IN EMERALD GARDEN PROJECT FOUND FROM THE PREMISES OF MR. ANOOP ASTHANA, ITA NO. 72/LKW/2018 PAGE 5 OF 18 PARTICULARLY WHEN NOTHING ADVERSE HAS BEEN STATED BY MR. ASTHANA IN THIS REGARD. ON PERUSAL OF THE AFORESAID, IT WILL KINDLY BE APPRECIATED THAT THE C ONTENTS OF THE DIARY FOUND AT THE PREMISES OF A THIRD PARTY ARE TOTALLY UNRELIABLE AND UNAUTHENTIC, WHICH COULD NOT HAVE BEEN THE BASIS OF DRAWING ANY ADVERSE INFERENCE AGAINST THE APPELLANT, MUCH LESS FOR THE PURPOSE OF MAKING ANY ADDITION. RE: STATEMENT OF MR. ANOOP ASTHANA RECORDED DURING THE COURSE OF SURVEY PROCEEDINGS. COMING TO THE STATEMENT OF MR. ANOOP ASTHANA, RECORDED DURING THE COURSE OF SURVEY PROCEEDINGS AT HIS PREMISES, WHICH HAS BEEN HEAVILY RELIED UPON BY THE ASSESSING OFFICER TO INFER THA T THE APPELLANT TOOK ON MONEY IN CASH FROM THE CUSTOMERS ON SALE/BOOKING OF FLATS, IT IS RESPECTFULLY SUBMITTED AS UNDER: IT IS SUBMITTED THAT THE AFORESAID STATEMENT COULD NOT HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER FOR THE FOLLOWING REASONS: ( A ) COPY OF STATEMENT OF MR. ANOOP ASTHANA TO ALLEGE THAT THE APPELLANT HAD RECEIVED CASH ON SALE/BOOKING OF FLATS OUTSIDE ITS REGULAR BOOKS OF ACCOUNT, WAS NOT EVEN PROVIDED TO THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, THE APPELLANT WA S DENIED ANY EFFECTIVE OPPORTUNITY TO REBUT THE CONTENTS OF THE STATEMENT SO MADE. ( B ) FURTHER, NO OPPORTUNITY TO CROSS - EXAMINE MR. ANOOP ASTHANA WAS EVER ACCORDED TO THE APPELLANT. IN ABSENCE OF COPY OF STATEMENT BEING PROVIDED TO THE APPELLANT AND/OR OPPORT UNITY TO CROSS - EXAMINE MR ANOOP ASTHANA, HIS STATEMENT COULD NOT HAVE BEEN TAKEN INTO CONSIDERATION TO DRAW ANY NEGATIVE INFERENCE AGAINST THE APPELLANT. 8 . THE LD. CIT(A) HAS HELD, INTER ALIA, AS FOLLOWS: - 5.6 THE INCRIMINATING DOCUMENT AT PAGE 163, 164 AND 165 CONTAINS THE DETAILS RELATED TO THE EMERALD GARDEN PROJECT BEING DEVELOPED BY THE APPELLANT COMPANY. PAGE NO.163 OF THE ANNEXURE A - 4 MENTIONS CERTAIN FIGURES WHICH ESTABLISHES THAT THE ITA NO. 72/LKW/2018 PAGE 6 OF 18 MONEY WAS RECEIVING SALE CONSIDERATION IN WHITE AND BLACK FOR EXAMPLE FOR A 3 BHK FLATS 2080 SQUARE FEET, THE QUANTUM OF WHILE AND BLACK MENTIONED ARE RS.1,20,57,600/ - AND RS.42, 12,000/ - RESPECTIVELY. FURTHER, ANOTHER ENTRY IS MADE FOR THE 3 BHK FLAT ADMEASURING 2325 SQ. FT. AREA, WHEREIN AMOUNT OF WHITE AND BLACK M ENTIONED IS 1,34,81,400/ - AND RS.47,08,125/ - RESPECTIVELY. THUS, ASSESSING OFFICER HAS CALCULATED THE QUANTUM OF BLACK AMOUNT AT 25% OF THE TOTAL CONSIDERATION. DURING SURVEY PROCEEDINGS THE STATEMENT OF SHRI ANOOP ASTHANA , PROPRIETOR OF AAP WAS RECORDED . FOR ANSWER TO QUESTION NO.22, IN THE STATEMENT RECORDED ON 25/6/2014 SHRI ANOOP ASTHANA HAS CATEGORICALLY STATED THAT PAGE 163 OF THE ANNEXURE A - 4 ARE THE ENTRIES RELATING TO EMERALD GARDEN AND THE AMOUNT OF WHITE AND BLACK REPRESENTS THE AMOUNT OF CHEQ UE AND CASH. IT IS ALSO STATED THAT THE BLACK AMOUNT WHICH IS INVARIABLY IN CASH IS DIRECTLY PAID TO THE APPELLANT COMPANY BY THE INVESTOR TO THE DIRECTOR OF THE APPELLANT COMPANY. SHRI ANOOP ASTHANA ALSO STATES THAT HE ONLY GETS THE COMMISSION INCOME AT THE TIME OF REGISTRATION OF THE PROPERTY. HE IS CONTINUING TO STATE IN THE SAME ANSWER THAT THIS PROCESS HAS BEEN FOLLOWED INI MINIMUM 12 FLATS OF THE EMERALD GARDEN WHICH IS BOOKED THROUGH HIM. THUS, IT IS CRYSTAL CLEAR THAT THE APPELLANT COMPANY IS RE CEIVING 25% CONSIDERATION IN CASH WHICH IS NOT REFLECTING IN THE REGULAR BOOKS OF ACCOUNT. 5.7 DURING THE POST SURVEY PROCEEDINGS THE INCRIMINATING DOCUMENT MENTIONED HERE - IN - ABOVE AND THE STATEMENT OF SHRI ANOOP ASTHANA WAS SPECIFICALLY CONFRONTED TO THE MANAGING DIRECTOR OF THE APPELLANT COMPANY SHRI SANJEEV KUMAR JHUNJHUNWALA (SKJ) ON 27/6/2014 WHICH IS REPRODUCED AT PAGE 6 AND 9 OF THE ASSESSMENT ORDER BY THE ASSESSING OFFICER. IN THE STATEMENT SHRI SKJ ACCEPTED THE STATEMENT OF SHRI ANOOP ASTHANA THA T THE ENTRIES ARE RELATED TO THE APPELLANT COMPANIES. HOWEVER, HE SURRENDERED RS.9 CRORE AS AN UNACCOUNTED INCOME FOR THE F.Y. 2014 - 15 RELATING TO A.Y. 2015 - 16 AS THE UNDISCLOSED INCOME IN HIS INDIVIDUAL CAPACITY. THIS IS INTERESTING TO NOTE THAT UNDISCL OSED INCOME OF RS.9 CRORE OFFERED BY SHRI SKJ IS ON VERY FLIMSY GROUND THAT HE EARNED THE UNDISCLOSED INCOME FROM COMMODITY TRADING. IT IS ALSO INTERESTING TO NOTE THAT SHRI SKJ HAS NOT DISCLOSED ANY PROFITS FROM THE COMMODITY TRADING IN ANY OF THE IMMEDI ATE ITA NO. 72/LKW/2018 PAGE 7 OF 18 PREVIOUS YEAR OR SUBSEQUENT YEAR. THUS, THE CONTENTION OF SKJ THAT SURRENDERED AMOUNT OF RS.9 CRORE IS ON ACCOUNT OF COMMODITY TRADING REMAINS U NSUBSTANTIATED OBVIOUSLY BECAUSE IT REPRESENTS ON MONEY RECEIVED IN THE EMERALD PROJECT. 5.10. DURING THIS APPEAL PROCEEDINGS LD. A.R. OF THE APPELLANT HAS VEHEMENTLY ARGUED THAT THE INCRIMINATING DOCUMENT FOUND AND IMPOUNDED FROM THE PREMISES OF THE AAP DOES NOT BELONG TO THE APPELLANT COMPANY AND SINCE NO OPPORTUNITY OF CROSS EXAMINATION OF SHRI ANOOP ASTHAN A WAS EVER ACCORDED TO THE APPELLANT. THE CONTENTION OF THE APPELLANT IS HOLLOW AND ARE NOT BASED ON THE PROPER APPRECIATION OF THE FACTS. IT IS ADMITTED FACT THAT SHRI ANOOP ASTHANA PROPRIETOR OF AAP WAS ACTING AS A PROPERTY BROKER FOR THE APPELLANT COM PANY. THIS FACT IS ALSO EVIDENT FROM THE COMMISSION PAID TO SHRI ANOOP ASTHANA, WHEREIN TDS WAS ALSO DEDUCTED BY APPELLANT COMPANY. IT IS NOT DENIED BY THE LD. AR THAT NO COMMISSION WHATSOEVER WAS PAID TO AAP. THUS THE RELATION BETWEEN THE APPELLANT COM PANY AND SHRI ANOOP ASTHANA PROPRIETOR OF AAP IS ESTABLISHED AS PROPERTY DEVELOPER AND THE PROPERTY BROKER. THE INCRIMINATING DOCUMENT FOUND FROM PREMISES OF AAP ESTABLISHES THE FACT THAT APPELLANT COMPANY IS ENGAGED IN RECEIVING 25% OF THE SALE CONSIDERA TION IN CASH, WHICH IS UNACCOUNTED IN THE BOOKS OF THE APPELLANT. ASSESSING OFFICER HAS CORRECTLY EXTRAPOLATED THE MODUS OPERANDI FOR CALCULATING UNACCOUNTED INCOME OF APPELLANT. 5.11. THE CONTENTION OF THE LD. AR THAT NO OPPORTUNITY OF CROSS EXAMINATI ON TO SHRI ANOOP ASTHANA WAS EVER ACCORDED TO THE APPELLANT IS FAR AWAY FROM TRUTH AND REALITY OF THE CASE. THE INCRIMINATING DOCUMENT FOUND AND IMPOUNDED IN THE BUSINESS PREMISES OF THE ANOOP ASTHANA AND THE INCRIMINATING STATEMENTS OF SHRI ANOOP ASTHANA WAS SPECIFICALLY CONFRONTED TO THE MANAGING DIRECTOR OF THE APPELLANT COMPANY SHRI SANJEEV KUMAR JHUNJHUNWALA ON 27/1/2014. THIS STATEMENT IS PART AND PARCEL FO THE ASSESSMENT ORDER PAGE 6 TO 9, THEREFORE, THE PLETHORA OF THE CASE LAWS CITED BY THE LD. A R OF THE APPELLANT DOES NOT APPLY TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. ITA NO. 72/LKW/2018 PAGE 8 OF 18 9 . THUS, THE ASSESSEE SPECIFICALLY CONTENDED BEFORE THE LD. CIT(A) , THAT ANY CROSS - EXAMINATION OF SHRI ANOOP ASTHANA WAS NOT ALLOWED TO IT . T HE LD. CIT(A) HAS HELD THAT T HE STATEMENT OF SHRI ANOOP ASTHANA WAS SPECIFICALLY CONFRONTED TO THE MANAGING DIRECTOR OF THE ASSESSEE COMPANY . HOWEVER, HE DOES NOT DENY THAT THE ASSESSEE WAS NOT ALLOWED TO CROSS - EXAMINE SHRI ANOOP ASTHANA, WHOSE STATEMENT WAS USED BY THE ASSESSING OF FICER AGAINST THE ASSESSEE, THOUGH THE SAID STATEMENT WAS RECORDED AT THE BACK OF THE ASSESSEE. HE MERELY STATES THAT DURING SURVEY PROCEEDINGS THE STATEMENT OF SHRI ANOOP ASTHANA PROPRIETOR OF AAP WAS RECORDED ; THAT IN ANSWER TO QUESTION NO.22, IN THE ST ATEMENT RECORDED ON 25/6/2014 , SHRI ANOOP ASTHANA HAS CATEGORICALLY STATED THAT PAGE 163 OF THE ANNEXURE A - 4 ARE THE ENTRIES RELATING TO EMERALD GARDEN AND THE AMOUNT OF WHITE AND BLACK REPRESENT S THE AMOUNT OF CHEQUE AND CASH; THAT I T IS ALSO STATED THAT THE BLACK AMOUNT , WHICH IS INVARIABLY IN CASH , IS DIRECTLY PAID TO THE APPELLANT COMPANY BY THE INVESTOR , TO THE DIRECTOR OF THE APPELLANT COMPANY ; THAT SHRI ANOOP ASTHANA ALSO STATES THAT HE ONLY GETS THE COMMISSION INCOME AT THE TIME OF REGISTRATION OF T HE PROPERTY; THAT H E CONTINU ES TO STATE IN THE SAME ANSWER THAT TH IS PROCESS HAS BEEN FOLLOWED IN MINIMUM 12 FLATS OF EMERALD GARDEN , WHICH IS BOOKED THROUGH HIM ; THAT T HUS, IT IS CRYSTAL CLEAR THAT THE APPELLANT COMPANY IS RECEIVING 25% CONSIDERATION IN C ASH WHICH IS NOT REFLECTING IN THE REGULAR BOOKS OF ACCOUNT ; THAT F URTHER, AS PER MATERIAL LP - 32, 33 AND 51 , IMPOUNDED FROM THE PREMISES OF AAP, IT IS NOTED THAT TH ESE DOCUMENTS ARE THE RECEIPTS OF PAYMENTS MADE BY SHRI ARUN KUMAR (LP - 32), SHRI SARAJ KATIY AR (LP - 3) AND SHRI HIMANSHU CHUG (LP - 51) ; THAT W HEN CONFRONTED WITH THE FACT THAT SOME OF THE RECEIPTS ISSUED BY THE APPELLANT COMPANY WERE FOUND IN THE PREMISES OF (AAP), SHRI SKJ HAS SHOWN HIS IGNORANCE ; AND THAT T HIS IS MAINLY DUE TO ITA NO. 72/LKW/2018 PAGE 9 OF 18 THE FACT THAT INCRI MINATING MATERIAL WAS FOUND FROM THE PREMISES OF AAP AND SKJ WISHED TO DISTANCE THE APPELLANT COMPANY FROM AAP. 10 . THUS, THE POSITION OBTAINING IS THAT A DIARY WAS RECOVERED FROM THE PREMISES OF SHRI ANOOP ASTHANA DURING THE SURVEY. P AGES 163, 164 AND 165 OF THE DIARY, ANNEXURE A - 14 , HAVE BEEN TAKEN TO GO AGAINST THE ASSESSEE. THESE THREE DOCUMENTS, FIRSTLY, WERE NOT RECOVERED FROM THE POSSESSION OF THE ASSESSEE. THEN , P AGE 163 IS UNDATED , WHEREAS PAGES 164 AND 165 DO NOT PERTAIN TO THE YEAR UNDER CONSIDE RATION. IT IS ONLY IN THE STATEMENT OF SHRI ANOOP ASTHANA , THAT HE ATTRIBUTED ACCOUNT OF THESE DOCUMENTS TO THE ASSESSEE. 11 . FIR ST AND FOREMOST, THE SUBJECT DI ARY/PAGES WERE FOUND AND IMPOUNDED FROM THE PREMISES OF SHRI ANOOP ASTHANA, A THIRD PARTY, AND NO T FROM THE APPELLANT. FURTHER, SHRI ANOOP ASTHANA, IN HIS STATEMENT, HAD STATED THAT ENTRIES IN THE SAID DIARY WERE MADE BY STAFF MEMBER OF SHRI ANOOP ASTHANA, WITHOUT PROVIDING DETAILS OF THE SO - CALLED STAFF MEMBER. THUS, THE AUTHOR OF THE SO - CALLED DIA RY IN QUESTION IS NOT EVEN KNOWN TILL DATE. SHRI ANOOP ASTHANA NOWHERE STATED THAT THE DIARY WAS WRITTEN BY SOMEONE ON HIS BEHALF AND/OR ON HIS INSTRUCTIONS. THEREFORE, THE ENTIRE CASE IS FUNDAMENTALLY BASED ON A MERE INFERENCE DRAWN ABOUT THE NATURE OF THE CONTENTS OF THE DIARY WRITTEN BY SOMEONE UNKNOWN, MORE PARTICULARLY , ONLY ON THE STATEMENT OF SHRI ANOOP ASTHANA ABOUT THE CO NTE NTS OF THE DIARY WRITTEN BY SOMEONE ELSE. SINCE THE DIARY WAS UNDISPUTEDLY FOUND FROM THE POSSESSION OF SHRI ANOOP ASTHANA AND NOT FROM THE APPELLANT, THE CONTENTS OF THE SAID DIARY, SIMPLICIT OR , WITHOUT ANY CORROBORATIVE MATERIAL/EVIDENCE COULD NOT HAVE BEEN, IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL / EVIDENCE, MADE THE BASIS OF DRAWIN G ANY ADVERSE INFERENCE AGAINST THE APPELLANT, MUCH LESS MAKING ANY ADDITION IN THE CASE OF THE APPELLANT. IN THE DIARY, NAME OF THE PROJECT EMERALD GARDEN PROJECT BEING CONSTRUCTED BY THE APPELLANT ITA NO. 72/LKW/2018 PAGE 10 OF 18 ALONG WITH CERTAIN NAMES OF INDIVIDUALS AND AMOUNTS W AS STATED TO BE MENTIONED. AS TO W HY AND FOR WHAT PURPOSE THE AUTHOR HAD MADE SUCH NOTING IS NOT KNOWN, NOR BROUGHT ON RECORD. THE APPELLANT HAS, AL L THROUGH, DENIED ANY KNOWLEDGE OF THE CONTENTS OF THE DIARY. IT ALSO COULD NOT BE EXPECTED TO BE AWARE OF THE CONTENTS RECORDED IN THE DIARY FOUND AT THE TIME OF SURVEY AT THE PREMISES OF SHRI ANOOP ASTHANA, A THIRD PARTY. IT IS UNDISPUTED THAT THE CONTENTS OF THE DIARY HAD NO SIGNATURE AND/OR ANY OTHER AUTHENTICATION ON BEHALF OF THE APPELLANT. THIS B EING SO, THE DIARY IMPOUNDED FROM THE PR EMISES OF SHRI ANOOP ASTHANA CANNOT BE USED TO DRAW ANY ADVERSE INFERENCE AGAINST THE APPELLANT , IN ANY MANNER. THE ASSESSEE/APPELLANT MAINTAINS AS FOLLOWS. SHRI ANOOP ASTHANA WAS ONE OF THE PROPERTY BROKERS WHO DEALT WITH IN THE PROJECT OF THE APPELLANT AND ACTED AS BROKER FOR SALE OF CERTAIN PLOTS IN THE EMERALD GARDEN PROJECT, DURING PRECEDING YEARS . T HE APPELLANT HAD NO T SOLD ANY FLAT THROUGH SHRI ANOOP ASTHANA DURING THE YEAR UNDER CONSIDERATION (I.E. F.Y. 2014 - 15). PERTINENTLY, SHRI ANOOP ASTHANA, EARLIER IN JANUARY 2014 (31/1/2014), HAD BOOKED TWO FLATS WITH THE APPELLANT IN HIS OWN WIFES NAME IN THE EMERALD GARDEN PROJECT, BUT SINCE HE COULD NOT MAKE NECESSARY PAYMENTS AS PER THE PAYMENT SCHEDULE, THE APPELLANT WAS CONSTRAINED TO CA NCEL HIS BOOK ING ON 8/12/2014. ON ACCOUNT OF THE AFORESAID, THERE HAD BEEN DIFFERENCES/DISPUTES BETWEEN THE APPELLANT AND SHRI ANOOP ASTHANA AND ACCORDINGLY, THE APPELLANT HAD NO T SOLD ANY FLAT THROUGH SHRI ANOOP ASTHANA DURING THE RELEVANT YEAR AND HA D NOT PAID ANY CO MMISSION TO HIM DURING THE RELEVANT YEAR. ON ACCOUNT OF THE ONGOING DISPUTE BETWEEN THE APPELLANT AND SHRI ANOOP ASTHANA , ANY AVERMENT MADE BY SHRI ANOOP ASTHANA AGAINST THE APPELLANT COULD NOT BE TAKEN AT ITS FACE VALUE. FURTHER, THE DATES MENTIONED IN THE DIARY IMPOUNDED RELATE BACK TO JANUARY, 2014 (18/1/2014, 23/1/2014), WHICH IS THE PERIOD WHEN SHRI ITA NO. 72/LKW/2018 PAGE 11 OF 18 ANOOP ASTHANA BOOKED TWO FLATS WITH THE APPELLANT IN HIS PERSONAL CAPACITY. THEREFORE, THE RECORDINGS IN THE DIARY COULD NOT BE HELD TO BE RELATED TO TH E OTHER SALE OF FLATS UNDERTAKEN BY THE APPELLANT, WITHOUT ANY INVOLVEMENT OF SHRI ANOOP ASTHANA. E VEN THE NAMES OF THE INDIVIDUAL PARTIES APPEARING IN THE DIARY ALONGSIDE THE AMOUNTS ARE , STATED L Y, COMPLETELY ALIEN TO THE APPELLANT. THE APPELLANT HAD NO T SOLD ANY FLAT IN THE EMERALD GARDEN PROJECT TO THE PERSONS NAMED IN THE S AID DIARY. THEREFORE, THE VERY CONTENTS OF THE DIARY ARE SUSPECT AND ARE TOTALLY UNRELIABLE/UNAUTHENTIC. NO ADVERSE INFERENCE CAN BE DRAWN FROM THE PAYMENT RECEIPTS (3 IN NUMBER) IN RESPECT OF FLATS IN EMERALD GARDEN PROJECT FOUND FROM THE PREMISES OF SHRI . ANOOP ASTHANA, PARTICULARLY WHEN NOTHING ADVERSE HAS BEEN STATED BY SHRI . ASTHANA IN THIS REGARD. 12 . THESE FACTS, AS SPECIFICALLY CONTENDED BY THE ASSESSEE BEFORE THE LD. CIT(A) HA VE NOT BEEN REBUTTED AND THE LD. CIT(A) HAS GONE MERELY BY THE UNCORROBORATED UNILATERAL STATEMENT OF SHRI ANOOP ASTHANA , QUA WHICH, NO OPPORTUNITY OF CROSS - EXAMINATION OF THE DEPONENT , SHRI ANOOP ASTHANA , WAS AFFORDED TO THE ASSESSEE AT ANY STAGE WHATSOEV ER. IT IS NOT SUFFICIENT TO OBSERVE, AS HAS BEEN DONE BY THE LD. CIT(A), THAT THE INCRIMINATING DOCUMENT FOUND AND IMPOUNDED IN THE BUSINESS PREMISES OF SHRI ANOOP ASTHANA AND THE INCRIMINATING STATEMENTS OF SHRI ANOOP ASTHANA WAS SPECIFICALLY CONFRON TED TO THE MANAGING DIRECTOR OF THE APPELLANT COMPANY SHRI SANJEEV KUMAR JHUNJHUNWALA ON 27/1/2014 ... IT IS TRITE LAW THAT MERELY CONFRONTING THE STATEMENT RECORDED AT THE BACK OF THE ASSESSEE, TO THE ASSESSEE, IN THE ABSENCE OF PROVIDING A CROSS - EXAMI NATION OF THE MAKER OF THE STATEMENT , IS IN COMPLETE VIOLATION OF THE NATURAL JUSTICE PRINCIPLE OF AUDI ALTEREM PARTEM . THE FOLLOWING JUDGMENTS, IN TER ALIA, ARE ELO QUENT IN THIS REGARD: - ITA NO. 72/LKW/2018 PAGE 12 OF 18 1 . KISH I NCHAND CHELLARAM VS. CIT, 125 ITR 713 (SC). 2 . SARASWATI INDUSTRIA L SYNDICATE LTD. VS. CIT, 237 ITR 1 (SC). 3 . STATE OF PUNJAB VS. BHAGAT RAM, AIR 1974 SC 2335. 4 . KALRA GLUE FACTORY VS. SALES TAX TRIBUNAL, 167 ITR 498 (SC). 5 . CIT VS. PRADEEP KUMAR GUPTA, 207 CTR 115 (DEL). 6 . SONA ELECTRIC COMPANY VS. CIT, 152 ITR 507 (DEL). 7 . CIT V S. EASTERN COMMERCIAL, 210 ITR 103, 110 (CAL). 8 . P.S. ABDUL MAJEED VS. STO, 209 ITR 821, 823 (KER). 9 . CIT VS. SHAM LAL, 127 ITR 816 (P&H). 10 . MUKUND SINGH AND SONS VS. PRESIDING OFFICER, 107 STC 300 (P&H). 11 . ANUPAM AGENCIES VS. STATE OF PUNJAB, 98 STC 338 (P&H). 12 . PR AKASH CHAND MEHTA VS. CIT, 220 ITR 277, 279 (MP) 13 . CIT VS. D.M. DOSHI, 229 ITR 315 (GUJ) 14 . AMARJIT SINGH BAKSHI (HUF) VS. AC I T , 263 ITR (AT) 75 (DEL) (TM) 15 . MAHES GULABRAI JOSHI VS. CIT, 95 ITD 300 (MUM). 16 . MONGA METALS (O) LTD., 67 TTJ 247 (ALL) 17 . VERMA ROADWAYS VS . ACIT, 75 ITD 183 (ALL) 18 . SARITA DEVI KAJARIA VS. ITO, 89 ITD 109 (KOL) (TM). 19 . ITO VS. PUKHRAJ N. JAIN, 95 ITD 281 (MUM) 20 . OBULAPURAM MINING COMPANY (P) LTD. VS. DCIT, 160 ITD 224 (BANG.). 21 . CIT VS. SMC SHARE BROKERS LTD., 288 ITR 345 (DEL). 22 . CIT VS. DHARAM PAL P REM CHAND LTD., 295 ITR 105 (DEL). 23 . ANDAMAN TIMBER INDUSTRIES VS. CCE 281 CTR 241 (SC). 13 . SOME DECISIONS IN THIS REGARD ARE DISCUSSED THUS. 14 . IN KISH I NCHAND CHELLARAM VS. CIT (SUPRA), IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT THAT THE ASSESSMENT MADE BY RELYING UPON THE STATEMENT OF A THIRD PARTY, WITHOUT GIVING THE EFFECTED PERSON A CHANCE TO CROSS - EXAMINE SUCH THIRD PARTY, IS LIABLE TO BE HELD AS BASED ON NO EVIDENCE AND, THEREFORE, LIABLE TO BE DELETED. ITA NO. 72/LKW/2018 PAGE 13 OF 18 15 . IN SONA ELECTRIC COMPANY VS. CIT (SUPRA), IT HA S BEEN HELD THAT THE STATEMENT OF A WITNESS RECORDED AT THE BACK OF THE ASSESSEE HAS TO BE EXCLUDED, AS THE SAME WAS RELIED ON WITHOUT GIVING ANY OPPORTUNITY TO CROSS - EXAMINE THE PERSON GIVING STATEMENT; AND THAT THE ASSESSMENT BASED ON SUCH A STATEMENT IS A STATEMENT RENDERED AS BASED ON NO EVIDENCE AND, ACCORDINGLY, LIABLE TO BE ANNULLED. 16 . IN AMARJIT SINGH BAKSHI (HUF) VS. ACIT (SUPRA), IT HAS BEEN HELD THAT OPPORTUNITY TO CROSS - EXAMINE THE PERSON GIVING A STATEMENT OF CULPABLE NATURE HAS TO BE GIVEN; AN D THAT IN THE ABSENCE OF SUCH AN OPPORTUNITY BEING GIVEN TO THE AFFECTED PERSON, THE STATEMENT CEASES TO BE MATERIAL FOR THE PURPOSES OF ASSESSMENT. 17 . IN CIT VS. SMC SHARE BROKERS LTD . (SUPRA), IT WAS HELD THAT A STATEMENT GIVEN BY A BROKER AT THE BACK OF TH E ASSESSEE COULD NOT BE U SED TO THE DETRIMENT OF AN ASSESSEE AND DISMISSAL OF REVENUES APPEAL WAS HELD TO BE JUSTIFIED. 18 . IN THE CASE OF ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE , 281 CTR 241(SC), IT HAS BEEN HELD THAT THE A SSESSEE WAS MANUFACTURING PLY - WOODS AND RELATED PRODUCTS IN ITS FACTORY . SOME OF THOSE PRODUCTS WERE SOLD FROM FACTORY PREMISES ONLY TO CERTAIN BUYERS . HOWEVER, MAJOR PORTION OF PRODUCTS MANUFACTURED WERE SOLD TO OTHER DEALERS FROM THEIR NUMEROUS DEPOTS SITUATED AT DIFFERENT PLACES IN COUNTRY . ASSESSEE FILED ITS DECLARATION U/S. 173C OF CENTRAL EXCISE RULES SHOWING PRICE OF GOODS AT WHICH THEY WERE SOLD EX - FACTORY AND DELIVERY BASIS . REVENUE FOUND THAT THERE WAS LOT OF PRICE DIFFERENCE BETWEEN GOODS SOLD AT EX - FACTO RY AND DELIVERY BASIS IN COMPARISON WITH GOODS WHICH WERE SOLD TO BUYERS FROM DEPOTS . INVESTIGATION WAS CARRIED OUT AND STATEMENTS OF TWO BUYERS WERE RECORDED, ON BASIS OF WHICH SHOW CAUSE NOTICE WAS SERVED UPON ASSESSEE . ADJUDICATING AUTHORITY PASSED OR DER CONFIRMING DEMAND IN SHOW CAUSE NOTICE ON GROUND THAT PRICE AT WHICH GOODS WERE SOLD TO CUSTOMERS FROM DEPOTS MAY NOT BE BASIS FOR ITA NO. 72/LKW/2018 PAGE 14 OF 18 DETERMINING VALUE FOR PURPOSE OF EXCISE DUTY - ADJUDICATING AUTHORITY ALSO TOOK INTO CONSIDERATION PRICE LIST OF ASSESSEE M AINTAINED AT ITS DEPOTS THAT WAS TREATED AS PRICE FOR PURPOSES OF LEVYING EXCISE DUTY . ASSESSEE FILED APPEAL AGAINST ORDER OF ADJUDICATING AUTHORITY THAT WAS DISMISSED BY CESTAT . ASSESSEE SUBMITTED THAT IT WAS NOT ALLOWED TO CROSS - EXAMINE DEALERS WHOSE S TATEMENTS WERE RELIED UPON BY ADJUDICATING AUTHORITY IN PASSING IMPUGNED ORDERS . HELD, NOT ALLOWING ASSESSEE TO CROSS - EXAMINE WITNESSES BY ADJUDICATING AUTHORITY THOUGH STATEMENTS OF THOSE WITNESSES WERE MADE AS BASIS OF IMPUGNED ORDER, AMOUNTED IN SERIOU S FLAW WHICH MAKE IMPUGNED ORDER NULLITY AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE . IT WAS TO BE BORNE IN MIND THAT ORDER OF COMMISSIONER WAS BASED UPON STATEMENTS GIVEN BY TWO WITNESSES . EVEN WHEN ASSESSEE DISPUTED CORRECTNESS OF STAT EMENTS AND WANTED TO CROSS - EXAMINE WITNESSES, ADJUDICATING AUTHORITY DID NOT GRANT OPPORTUNITY TO ASSESSEE . IN IMPUGNED ORDER PASSED BY ADJUDICATING AUTHORITY IT WAS SPECIFICALLY MENTIONED THAT SUCH OPPORTUNITY WAS SOUGHT BY ASSESSEE, HOWEVER, NO SUCH OPP ORTUNITY WAS GRANTED . ASSESSEE CONTESTED TRUTHFULNESS OF STATEMENTS OF TWO WITNESSES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH PURPOSE OPPORTUNITY OF CROSS - EXAMINATION WAS SOUGHT . IT WAS NOT FOR ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COU LD BE SUBJECT MATTER OF CROSS - EXAMINATION AND DENY PRAYER OF ASSESSEE . IN CASE TESTIMONY OF TWO WITNESSES WAS DISCREDITED, THERE WOULD BE NO MATERIAL WITH DEPARTMENT TO JUSTIFY ITS ACTION, AS STATEMENT OF TWO WITNESSES WAS ONLY BASIS OF ISSUING SHOW CAUSE NOTICE . IMPUGNED ORDER AS PASSED BY CESTAT WAS SET ASIDE . APPEAL ALLOWED. 19 . EVIDENTLY, THE THREE DOCUMENTS FOUND DURING SURVEY FROM THE POSSESSION OF SHRI ANOOP ASTHANA, IN THE ABSENCE OF THE STATEMENT OF SHRI ANOOP ASTHANA, DO NOT HAVE ANY VALUE, PARTICU LARLY IN THE FACE OF ITA NO. 72/LKW/2018 PAGE 15 OF 18 THE FACT THAT THEY ARE NOT CORROBORATED BY ANY INDEPEND ENT EVIDENCE. PAGE NO. 163 : THIS IS UN - DATED, BUT NAME OF THE PROJECT 'EMERALD GARDEN' LAUNCHED BY THE APPELLANT WAS MENTIONED THERE. WITH REFERENCE TO THIS, SHRI ANOOP AATHANA WH O HAD BEEN EXAMINED BY THE AUTHORISED OFFICERS, STATED CATEGORICALLY THAT HE HAD BEEN WORKING AS A BROKER FOR LAST 30 YEARS AND ALL THE PROMINENT DEVELOPERS OF KANPUR WERE HIS CLIENTS. IN HIS SUBSEQUENT STATEMENT WHICH APPEARS AT PAGE 31 TO 36 OF THE SYNOP SIS DATED 10.12.2018, AND IN RESPONSE TO QUESTION NO.7, HE STATED THAT 'CASH MONEY' AS MENTIONED THERE WAS SUBJECT TO NEGOTIATION BETWEEN THE CUSTOMER AND THE DEVELOPER . HE FURTHER STATED IN HIS REPLY THAT HE WAS NOT CONCERNED WITH THE 'INCOMING' AND 'OUT - GOING' ' LEN - DEN PAYMENTS. PAGE N OS. 1 64 AND 165 : THESE WERE DATED 18 . 01 . 2014 AND 13 . 01.2013, FALLING IN THE ASSESSMENT YEAR S 2014 - 15 & 2013 - 14 RESPECTIVELY, I.E. , THE EARLIER TWO YEARS. NO SUCH ADDITION HAD BEEN MADE M THE A . Y. 2013 - 14 & A.Y . 2014 - 15, F ROM WHICH IT FOLLOWS THAT ALL SUCH ENQUIRIES , AS WERE CALLED FOR , HAD DULY BEEN MADE BY THE ASSESSING OFFICER AND NOTHING CONTRARY TO THE APPELLANT WAS FOUND, ALTHOUGH ASSESSMENTS FOR THE ASSESSMENT YEARS 2013 - 14 & 2014 - 15 WERE MADE UNDER SECTION 153C ON T HE SAME DATE, AS ON WHICH THE ASSESSMENT FOR A.Y. 2015 - 16 WAS MADE, I.E., ON 9.12.2016. STRIKINGLY, THE MATERIAL FORMING THE BASIS OF THE ADDITION PRESENTLY UNDER CONSIDERATION IS THE VERY SAME AS THAT ON WHICH THE COMPLETED ASSESSMENT S UNDER SECTION 153C FOR THOSE EARLIER YEARS WERE REOPENED, BUT NO ADDITION WAS MADE. 15. AS REGARDS RECEIPTS BEARING NO.1030 DATED 31.05.2013, NO.1396 DATED 05.04.2014 AND NO.1418 DATED 28.04.2014, THE SAME HAD BEEN FOUND FROM THE POSSESSION OF SHRI ANOOP ASTHANA, THE BROK ER. SO FAR AS REGARDS THE TWO RECEIPTS DATED 05.04.2014 AND 28.04.2014, THE RELATED SALE DEEDS WERE EXECUTED AND FINAL REGISTRATION IN FAVOUR OF ITA NO. 72/LKW/2018 PAGE 16 OF 18 THE CUSTOMERS WAS EXECUTED ON 19.06.2018 AND 31.05.2018, RESPECTIVELY. THE RECEIPT NO.1030 DATED 31.05.2013 REL ATED TO ASSESSMENT YEAR 2014 - 15, BUT NO ADDITION WAS MADE IN THE SAID ASSESSMENT YEAR. IN RELATION TO THE SAID RECEIPTS, SHRI SANJEEV KUMAR JHUNJHUNWALA HAD BEEN EXTENSIVELY EXAMINED BY THE AUTHORISED OFFICER DURING THE COURSE OF SURVEY AND HE HAD GIVEN N AME - WISE DETAILS OF THE PERSONS TO WHOM THE RECEIPTS IN QUESTION HAD BEEN ISSUED BY THE APPELLANT COMPANY. HIS STATEMENT WAS RECORDED ON 27.06.2014, IN CONTINUATION TO THE STATEMENT RECORDED ON 26.06.2014. IN SUCH STATEMENT, HE HAD DECLARED AN INCOME OF RS.9 CRORES STATED TO HAVE BEEN EARNED BY HIM FROM COMMODITY TRADING TILL THAT DATE. DURING THE COURSE OF REGULAR ASSESSMENT PROCEEDINGS, HE WAS EXTENSIVELY EXAMINED ON 01.09.2016 BY ISSUE OF SUMMONS UNDER SECTION 131(1). IN RESPONSE TO QUESTION NOS.14, 15 AND 16, HE STATED THAT HE HAD DONE TRADING IN COMMODITY, AND LOOKING TO THE MARKET CONDITIONS PREVAILING AT THAT TIME, IT WAS NOT IMPROBABLE TO HAVE EARNED INCOME OF THIS VOLUME. FURTH ER, IN RESPONSE TO QUESTION NO. 18, HE WAS REQUIRED TO SUBMIT DOCUMENT ARY EVIDENCES IN SUPPORT OF INCOME DECLARED BY H IM. IN RESPONSE TO QUESTION NO. 21, HE GAVE COMPLETE DETAILS SUPPORTED BY DOCUMENTARY EVIDENCES RELATING TO COMMODITY TRADING. FURTHER, IN RESPONSE TO QUESTION NO . 22, HE GAVE COMPLETE INFORMATION ABOUT INCOME DECLARED AND INCOME TAX, WEALTH TAX PAYMENTS MADE BY HIM ON SUCH INCOME/WEALTH. IN RESPONSE TO QUESTION NO. 23, HE GAVE COMPLETE INFORMATION, NAME - WISE, OF THE BOOKING RECEIPTS AS HAD BEEN IMPOUNDED DURING THE COURSE OF SURVEY AT THE OFFICE PREMISES OF SHR I ANOOP ASTHANA , AND IN THE END, HE CATEGORICALLY STATED THAT IT WOULD NOT BE PROPER TO DRAW ADVERSE INFERENCE IN RELATION TO INCOME FROM COMMODITY TRADING. ITA NO. 72/LKW/2018 PAGE 17 OF 18 16 . THUS, ONE CANNOT BUT COME TO THE INEXORABLE CONCLUSION THAT THE ORDER UNDER APPEAL SUFFERS FROM THE VICE OF NOT TAKING INTO CONSIDERATION THE ASSESSEES CONTENTION, WHICH CONTENTION ALSO DOES NOT STAND REBUTTED, THAT IT WAS NOT PROVIDED WITH ANY OPPORTUNITY OF CROSS - EXAMINING SHRI ANOOP ASTHANA . 17 . IN VIEW OF THE ABOVE, WE HOLD THAT: ( I ) THE CASE OF THE ASSESSEE HAS BEEN PREJUDICED FOR WANT OF PROVIDING HIM OPPORTUNITY OF CROSS - EXAMINATION OF SHRI ANOOP ASTHANA, WHOSE UNILATERAL STATEMENT RECORDED EX - PARTE QUA THE ASSESSEE HAS BEEN MADE THE SOLE BASIS OF THE ADDITION, THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE; AND ( II ) THE OTHER MATERIAL, I.E., THREE PAGES OF THE DIARY FOUND IN THE SEARCH DO NOT ESTABLISH ANY CASE FOR ADDITION IN THE HANDS OF THE ASSESSEE IN THE YEAR UNDER CONSIDERATION, AS NONE OF THESE DOCUMENTS RELATE TO THE YEAR UNDER CONSIDER ATION, ONE OF THEM D OES NOT CONTAIN ANY DATE/YEAR AND THE OTHER T W O PERTAIN TO EARLIER YEARS, IN WHICH, NO ADDITION BASED ON THESE DOCUMENTS WAS MADE. 18 . THEREFORE, THE GRIEVANCE SOUGHT TO BE RAISED BY THE ASSESSEE IS JUSTIFIED. IT IS ACCEPTED AS SUCH. ACCO RDINGLY , THE ADDITION MADE IS DELETED. NOTHING FURTHER SURVIVES FOR ADJUDICATION , NOR WAS ANYTHING ELSE ARGUED. 19 . IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 / 0 3 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 15 TH MARCH , 201 9 JJ: 2702 ITA NO. 72/LKW/2018 PAGE 18 OF 18 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR