TaxTMI 
TaxTMI 
2019 (5) TMI 1271
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.... seized during a search operation were not got confirmed and the assessee was not granted opportunity to verify such records by cross examination." 1.1 Since common legal ground has been raised by the assessees in all the 03 appeals, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience, by dealing with facts and circumstances of ITA No. 2378/Del/2018 (AY 2009-10) - IPL Realtors Pvt. Ltd. vs. ITO and the result thereof will apply mutatis mutandis to other 02 appeals i.e. Shakuntala Agencies P. Ltd. vs. ITO (ITA No. 2379/Del/2018) (AY 2009-10) and Shakuntla Properties Pvt. Ltd. vs. ITO (ITA NO. 2381/Del/2018) (AY 2009-10). 2. Brief facts of the case are that AO received information from Investigation Wing of the Department at New Delhi about the result of Search and Seizure operations carried out in the case of Sh Surender Kumar Jain group of cases in which concrete evidences were gathered which proved that the said group was involved in providing accommodation entry to a number of persons who wanted to introduce their undisclosed income in their books of accounts (beneficiaries). These entries are generally in the fo....
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....btained by the assessee by holding the said payment of Rs. 80,000/- as made from undisclosed sources and made the assessment at Rs. 46,58,820/- u/s. 143(3)/147 of the Act vide order dated 26.12.2016. Against the above addition, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 12.02.2018 has dismissed the appeal of the assessee. Aggrieved with the impugned order dated 12.2.2018, assessee is in appeal before the Tribunal. 3. During the hearing, Ld. counsel for the assessee has submitted that the addition made by the AO and confirmed by the Ld. CIT(A) is merely on the basis of statement of Satish Garg alleged entry provider. He further submitted that assesse after submitted all the documents has asked for the cross examination of Satish Garg, which request of the assessee has not been accepted by the AO and the Ld. CIT(A). Hence, he submitted that in a such a situation the courts and the various Benches of the ITAT have unanimously held that it is clear cut violation of the principle of natural justice and hence assessment deserves to be quashed and relied upon the decision of the Hon'ble Supreme Court of India in the case of Andaman Timber Industries vs. ....
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....appeal of the assessee on exactly similar facts and circumstances. Hence, he requested to follow the aforesaid case and allow the appeal of the assessee. 4. Ld. DR relied upon the orders of the authorities below and reiterated the contents mentioned by the Assessing Officer in his order and relied upon the case laws cited by the AO. In support of his contention, he relied upon the decision of the Hon'ble Delhi High Court in the case of Udit Kalra vs. ITO dated 8.3.2019 2910-TIOL-751-HC-Del-IT and ITAT, SMC Bench decision dated 25.4.2019 in the case of Pooja Ajmani vs. ITO. 5. I have heard both the parties and perused the records, especially the assessment order as well as impugned order and forming a negative inference solely on the basis of extracts of statement which was not confronted to the assessee much less offered for cross examination and the case laws cited by the both the parties. I note that AO made the addition, which was confirmed by the Ld. CIT(A) merely on the basis of statement of Satish Garg alleged entry provider. However, the assessee has submitted all the documents and asked for the cross examination of Satish Garg, which request of the assessee has not be....
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....natural justice." 5.2 Since the Ld. CIT(A) has not properly addressed the ground no. 5, 6 & 7 raised before him, hence, the assessee has raised the following ground no. 4 before the Tribunal:- "4. That the Ld. AO erred in law and on facts in making and the Ld. CIT(A) erred in confirming the addition of Rs. 40 lac without affording opportunity of cross examination of the concerned parties whose records and statements were relied upon by the AO and made the basis for making addition. The veracity of documents / records allegedly found and seized during a search operation were not got confirmed and the assessee was not granted opportunity to verify such records by cross examination." 5.3 After perusing the aforesaid finding of the Ld. CIT(A) vide para no. 7.15, it is clear that Ld. CIT(A) has not properly adjudicated the aforesaid ground no. 5, 6 & 7 raised before him, which is not sustainable in the eyes of law. Therefore, in view of above, the legal issue argued vide ground no. 4 before the Tribunal is squarely covered by the decision of the ITAT, SMC, Delhi Bench wherein the Tribunal vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the ....
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....unity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cro....