TaxTMI 
TaxTMI 
2021 (1) TMI 883
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....ch could established that the client code modification was made which allegedly resulted in shifting of profit. 2. That in the facts and circumstances of the case and in law, the CIT(A) grossly erred in sustaining the addition of Rs. 2,940/- as commission allegedly paid by the appellant to the broker without there being any material on record which could established that the said amount was paid by the appellant to the broker. 3. Because the CIT(A) has erred in not considering that the Assessing Officer had committed jurisdictional error in issuing notice under section 148 of the Income Tax Act merely on suspicious. There was no material available with the Assessing Officer for formation of necessary belief. The notice issued merely on the basis of the information received from ADIT (Inv.), unit 1(3) Ahmedabad was bad and invalid. 4. That the CIT(A) grossly erred in considering that the Assessing Officer had passed the order in gross violation of principle of natural justice. The Assessing Officer had passed the order without providing copies of the material relied upon by him. The Assessing Officer did not provide the information received form ADIT(Inv.)....
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....received from the ADIT (Inv.) Unit-1(3), Ahmedabad. The Appellant vide its letter dated 08.05.2017, 14.11.2017, 20.11.2017 repeatedly requested to provide copy of the information received from ADIT (Inv.) Unit-1(3), Ahmedabad, however the learned AO did not provide the same. It was submitted that the appellant also vide its letter dated 08.05.2017, 14.11.2017, 20.11.2017 repeatedly requested to provide copy of the statements of the brokers and clients who allegedly confirmed misuse of client code modification facility. However the learned AO did not provide the same. It was submitted that the appellant vide its letter dated 20.11.2017 (reply to SCN) requested to provide opportunity to cross examine the brokers and clients, who allegedly confirmed misuse of client code modification facility. However the learned AO did not provide the opportunity to cross examine the said brokers and clients. Further, the appellant vide its letter dated 20.11.2017 (reply to SCN) requested the AO to grant an opportunity of personal hearing before passing final order. However the learned AO passed the order on the next day i.e. 21.11.2017 without providing opportunity to be heard in person. It was acco....
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....he order of the lower authorities. 6. We have heard the rival contentions and perused the material available on record. We find that the AO has relied on certain information received from ADIT (Inv.) Unit-1(3), Ahmedabad and survey conducted at the premises of certain brokers and clients wherein statements of these persons were recorded. During the course of reassessment proceedings, we find that the assessee has repeatedly asked the Assessing officer to share with her, copy of the information received from ADIT (Inv.) Unit-1(3), Ahmedabad, copy of the statements of the brokers and clients and have also asked for an opportunity to cross-examine these persons who have allegedly confirmed misuse of client code modification facility as evident from various communication/letters written to the AO and placed on record. It is also a fact that the AO having acknowledged said communication and request from the assessee has not acted upon the same and has not shared such information/statements and an opportunity to cross-examine these persons was also not provided. It is a settled legal proposition as laid down by the Courts from time to time that where any third party material or sta....
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....nted and the aforesaid plea is not even dealt with by the Adjudicating. 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 could not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was no for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealer and what extraction the appellant wanted from them. 7. 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 cross-examination. Therefore, it was not for the Adjudicating Authority t....