TaxTMI 
TaxTMI 
2019 (3) TMI 1540
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....ng, bad in law and needs to be quashed. 3. That the addition made u/s. 68 without considering the facts that the assessee has fulfilled the conditions of section 68 is totally wrong, bad in law and needs to be quashed. 4. That the notice u/s. 148 issued after the period of four years without mentioning in the recorded reasons that the escapement of chargeable income from tax was due to omission or failure on the part of the assessee to disclose fully and truly all material facts necessarily for assessment is invalid, bad in law and needs to be quashed. 5. That the order of the Ld. CIT(A) in confirming addition of Rs. 12,500/- as commission paid without bringing any evidence is wrong and needs to be deleted. 6. The above grounds of appeal are without prejudice to one another and assessee prays permission to add, delete or amend one or more grounds of appeal. 7. That the assessee assures unstinted cooperation in all proceedings before your goodself. 2. The brief facts of the case are that assessee original assessment was completed u/s. 143(3)/148 of the Income Tax Act, 1961 (in short "Act") on 27.2.2013 at Rs. 3,62,900/- against the ret....
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....ecessarily for assessment is invalid, bad in law and needs to be quashed. It was further submitted that the order of the Ld. CIT(A) in confirming addition of Rs. 12,500/- as commission paid without bringing any evidence is wrong and needs to be deleted. In support of the aforesaid contention, the Ld. counsel for the assessee has filed a Paper Book containing pages 1-60 in which he has attached the copy of written submissions before the Ld. CIT(A); copy of reasons provided for issuing notice u/s. 148 dated 4.8.2018 with tracking report; copy of reasons provided for issuing notice u/s. 148 dated 29.11.2012; copy of letter dated 14.7.2016, 26.7.2016, 1.9.2016 and 29.9.2016 to AO regarding cross examination of Sh. Neeraj Jain; copy of letter dated 21.6.2017 to CIT(A) for Remand Report; copy of letter dated 21.7.2017 to AO & CIT(A) for remand report; copy of letter dated 8.2.2013 to AO; copy of acknowledgement of return, computation and balance sheet of AY 2005-06; copy of acknowledgement of return and balance sheet of AY 2004-05; copy of acknowledgement of return of Sh. Neeraj Jain; copy of pass book of Assessee and copy of letter dated 22.3.2018 to CIT(A) and relied upon the ITAT deci....
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.... the ITAT and gave ample opportunity to the AO. However, the appellant did not appear before the AO pursuant to first two notices dated 18.05.2016 and 01.06.2016. The appellant filed first letter before the AO on 14.07.2016 requisitioning the cross-examination of Mr. Niraj Jain owner of Pooja Expo Inc. in person. The AO summoned Mr. Niraj Jain, but Mr. Jain did not appear before the AO for the purpose of crossexamination. The AO then requisitioned the appellant to prove the identity, credit worthiness and genuineness of the transaction and fixed the matter to November 21, 2016. However, again no one appeared on November 21, 2016 nor any communication was received from the assessee in this regard. AO placing reliance on the previous order passed, made the addition under Section 68 of the Act amounting to Rs. 2,50,000 and further added a sum amounting to Rs. 12,500/- on account of commission paid to obtain the above mentioned entry. Before the AO at the time of original assessment, the appellant's stand was that the amount of Rs. 2,50,000 was received back on account of the advance of Rs. 3,00,000 paid in cash by the appellant to Mr. Niraj Jain for....
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....sion dated 5/5/2017 before me, the appellant has submitted and averred that the reopening is bad in law and totally wrong and thus the reassessment proceedings must be quashed as notice under Section 148 was not properly served and that the reason to believe of the AO is not proper. After carefully considering the submission of the appellant and the order passed by the AO, it is noticed that no such contention was ever raised by the appellant before the AO. Further, the appellant never raised any such contention in the first round of appeal before any of the authority be it CIT(A) or Hon'ble Tribunal. Ramesh Chander Garg (HUF) Appeal No. 187/16-17, AY: 2005-06 However, considering the principles of natural justice, the additional grounds of appeal raised by the appellant are considered. Before me the appellant has furnished a written submission dated 05.05.2017 and at the outset stated that the initiation of reassessment proceedings is barred by limitation as notice issued under Section 147 of the Act was not served within the prescribed time limits. In this regard, firstly no such ground of appeal is raised by the appellant, further no additiona....
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.... Thus, the additional ground of appeal raised by the appellant is rejected. Further, before me, the appellant has submitted and averred at length with case laws that the appellant requisitioned the cross-examination of Mr. Niraj Jain, however, the AO did not provide the said crossexamination, hence the addition is bad in law as no evidence can be used against the appellant without granting any opportunity to cross- examine the same, in view of the principles of natural justice. Here, it is important to note that though the authorised representative for and on behalf of the appellant has made lengthy submission before me, but again no ground of appeal was raised on the said contention before me, thus the submissions of the appellant cannot be considered as no such ground of appeal is raised before me and nor even any application for additional ground of appeal was filed on such contention. Any judicial authority or quasi-judicial authority, can render its decision only on the ground of appeal raised before the said authority. The authority cannot go beyond the grounds raised. Ground Number 1 Now, considering the ground number 1 ra....
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....nus is on person who substantially asserts a claim. If the onus is discharged by him and a case is made out, the onus shifts on to deponent. It is pertinent to mention here that the phrase "burden of proof is used in two distinct meanings in the law of evidence viz, 'the burden of establishing a case', and 'the burden of introducing evidence'. The burden of establishing a case remains throughout trial where it was originally placed, it never shifts. The burden of evidence may shift constantly as evidence is introduced by one side or the others. In this case, once the evidence that assessee has obtained accommodation entry was introduced by the AO, the burden of evidence shifted to the assessee.. During the assessment proceeding and even during the appellate proceeding, the assessee has failed to produce any evidence to prove that the transaction in question was genuine. It has also been contested by the appellant that the assessee was not provided with opportunity to cross examine the persons/witness who according to revenue was an accommodation entry provider, I find that such right as held in various decisions, is not an absolute right and depends not only th....
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....ly baseless and against the principles of law. Before me and the AO, the appellant did not furnish anything on record to justify the same. The appellant only placed one story on record without any evidence/ documents to suggest the same. The appellant has not furnished any confirmation, any document to suggest any such transaction. The appellant has also not submitted the details of the property for which the advance was given. Even if as per the submission of the appellant, the appellant returned the original receipt to Mr. Niraj Jain, the appellant must have kept a photocopy of the same for records, further the appellant must be aware of the property for which such advance was given, furthermore, there should have been some MOU and Agreement to Sale disclosing the total consideration of the property at that time and other terms and conditions. However, nothing was placed on record by the appellant. Here, it is also worth noting that the Hon'ble Tribunal in its order dated 06.08.2015 at Para 7 of the order has clearly quoted that "The Assessee is also directed to furnish all the evidences before the AO to substantiate his case." However, in view of the a....
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....ing was placed on record by the assessee and he has failed to furnish even a single document on record to substantiate its stand. Therefore, Ld. CIT(A) has rightly confirmed the addition of Rs. 2,50,000/-, which does not need any interference on my part, hence, I uphold the action of the Ld. CIT(A) on the issue in dispute and reject the grounds raised by the Assessee. It is also noted that the case laws cited by the ld. Counsel for the assessee is distinguished on facts. 5.2 As regards issue involved in ground no. 2 relating to cross examination of Sh. Niraj Jain is concerned, assessee's counsel argued that AO as well as Ld. CIT(A) has not granted opportunity to cross examine Sh. Niraj Jain, therefore, the assessment in dispute may be quashed. After going through the orders passed by the revenue authorities as well as arguments advanced by the Ld. Counsel for the assessee on the issue involved in ground no. 2, I am of the considered view that assessee has not taken any specific ground before the Ld. CIT(A) and therefore, the Ld. CIT(A) has rightly rejected the request of the assessee for cross examination of Sh. Niraj Jain. Therefore, no interference is required on my part....