TaxTMI 
TaxTMI 
TaxTMI 
2014 (12) TMI 293
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.... Act against the appellant. The re-assessment proceedings u/s 147 of the Act culminated in an order u/s 143(3)/254 of the Act on 26.12.2008 determining the total income of the appellant at Rs. 29,63,660/- as against Rs. 1,63.656/- declared originally whereas, for Assessment Year 2002-03, income was determined is at Rs. 42,66,610/- as against Rs. 1,66,610/- declared originally. The total income was thus increased by the AO by making an addition of Rs. 28 lacs in Assessment Year 2001-02 and Rs. 41 lakhs in Assessment Year 2002-03 u/s 69 of the Act. The said orders on appeal were struck down by the Id CIT(A)-XXV, New Delhi vide order dated 04.11.2009 whereby the addition of Rs. 28 lacs and Rs. 41 lakhs were deleted. 3. The said order of the ld CIT(A)-XXV, New Delhi was carried in appeal to the Tribunal and by order ITA No.175 &176/Del/2010 dated 16.11.2011, the Tribunal restored the matter to the file of the AO for fresh adjudication. 4. In pursuance of the above order of the ITAT dated 16.11.2011 the AO framed assessment orders on 19.03.2013 by making the additions of Rs. 28 lacs in Assessment Year 2001-02 and Rs. 41 lakhs in Assessment Year 2002-03. The ld CIT(A) has confirmed the....
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.... from a different angle. On the available facts the Id.AO was bound to form the same reason as was done by the erstwhile officers and the authorities of the Investigation Wing of income Tax. In the light of the foregoing facts, the ground of appeal no. 2 challenging the competency of the order passed by the Id.AO is dismissed." 7. Before us, the ld AR submitted that the assumption of jurisdiction is illegal and was without applying judicial mind. The ld DR supported the order of the ld CIT(A). 8. Having considered the facts and materials placed on record we find that in the first round the ld CIT(A), vide order dated 04.11.2009 had upheld the reopening u/s 147 of the Act on the following basis:- "4.2. It is evident that upon receipt of a letter from DCIT Central Circle 19 New Delhi, the assessing officer had bonafide reasons to re-open the assessment in the case of the appellant by issue of a notice u/s 148. Before doing so, the reasons for reopening the assessment were recorded and the approval for the same was obtained from the Addl CIT, Range-29 New Delhi. There is no merit in the arguments or the appellant against re-opening of the assessment. The letter of the DCIT Central....
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....." 10. In such circumstances and having regard to the above factual and judicial position we hold that the grounds raised are misconceived and as such dismissed. 11. Ground No.4 and 5 relates to additions made of Rs. 28 lakhs in Assessment Year 2001-02 and Rs. 41 lakhs in Assessment Year 2002-03 u/s 69 of the Act. 12. The relevant facts as stated by the ld CIT(A) while upholding the additions are that pursuant to a search on Shri Brij Mohan Gupta it was found that his group was engaged in hundi business where money was arranged from various parties and advances to the different parties. The group acted as mediator/ broker in such financial transaction wherein brokerage was charged by them. 13. During the course of search operation various loose papers/ diaries were found and seized which reflects details of the various parties on behalf of whom the group carried out hundi business. In some places full details of the parties were mentioned whereas in some other papers the details were mentioned in coded form. 14. The coded entries were written by Sh. Ram Avtar Singhal who was accountant of the group. He had decoded these entries by giving the correct details of transactions and....
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....ble for anyone to produce a dead person for cross examination. It was only a design or system underlying such a demand. The law does not expect anyone to perform the impossible. (iii) The Income-tax Officer was entitled to reach the conclusion from the seized material and evidence available on record against him. (iv) The statement where the appellant's name was stated as Hari Shankar of Narayana by the accountant was because of the misleading information given by the appellant deliberately to conceal his real identity and thereby his witness against him. (v) Though the statement indicated the appellant as the Hari Shankar Narayana, the seized documents reflected the correct address of the appellant. In this context, it is worthwhile to add that if a person's description tallies in all material respects the minor deviations deserve to be ignored. In the instant case, the oral evidence might be suggestive of some other person, the documentary evidence in the shape of seized documents pin pointed to the appellant in question. Moreover, it was never contradicted by the person making such a statement that Hari Shankar of Narayana was not the same as the appellant in question....
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....plain the source of such purported investment. The revenue has failed to lead any cogent and direct evidence to incriminate the assessee with the said additions. The AO has also referred to a typed chart placed in PB at Pg 57 to 68 which too has not been established to have any nexus with the assessee. In sum and substances, the Revenue despite two round of proceedings has not brought on record an iota of evidence showing investment by the assessee, so as to make the impugned additions. At this juncture, we consider it appropriate to extract the directions of the Tribunal in the order dated 16.11.2011, which are as under:- "11. We, therefore, restore this matter back to the file of the Assessing Officer for his fresh adjudication after providing the copy of statements of Shri Brij Mohan Gupta and others to the - assessee, copy of information received from the DCIT, Central Circle-19, New Delhi, copy of various documents or papers found during the course of search relating to present assessee and after providing an opportunity to cross-examine the persons on the basis of whose statements the addition was made. Needless to say that the assessee should be given a reasonable opportuni....