TaxTMI 
TaxTMI 
2016 (5) TMI 1585
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd, completion of assessment under the Act. 3. That the learned Commissioner of Income Tax (Appeals) has further erred in law and on facts in sustaining the initiation of proceedings u/s 147 of the Act on the basis of information received from DIT (investigation) mechanically and without independent application of mind. 3.1 That further, the reasons recorded were mere reasons to suspect and were just to make fishing and roving enquiries, as no independent enquiry was conducted by the assessing officer before issuing such notice under section 148 and as such the proceeding initiated under section 148 was a mere pretence. 4 That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in making an addition of Rs.15,00,000/- as alleged accommodation entry received from Sh. S.K. Gupta, and held to be unexplained cash credit uls 68 of the Act. 4.1 That in doing so, the learned Commissioner of Income Tax (Appeals) has completely ignored and overlooked all the necessary documents which were filed before both AO and CIT (A), explaining the fact that the appellant company has sold its shareholding in MIs Capital Town Planners Ltd. to M/s Passion Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... considerations, conjectures and surmises and as such is liable to be deleted as such. 8 That the learned Commissioner of Income Tax (Appeals) has erred in law and on facts in making additions in the hands of assessee company, without giving any fair and proper opportunity of being heard to the appellant company. Thereby, violating the principles of natural justice. 9 That the learned Commissioner of Income Tax (Appeals) has further erred by sustaining of levy of interest uls 2348 of the Act, which is not leviable on the facts of the appellant company." 2. The brief facts of the case are that original return of income was filed on 21.11.2015 declaring loss of Rs. 14,660/-. Notice u/s. 148 of I.T. Act dated 28.3.2011 was issued and served on the assessee, after duly recording reasons for reopening the assessment and approval of the competent authority. Ld. Authorised Representative attended the assessment proceedings and filed the reply dated 27.4.2011 stating therein that the return filed u/s. 139 of the I.T. Act, may be treated as filed in response to notice u/s. 148 of I.T. Act. Notices u/s. 142(1) of the I.T. Act dated 20.7.2011, 14.9.2011 and u/s. 143(2) dated 14.9.2011 wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... vide letter dated 27.4.2011 stated that original return of income filed should be taken as the return filed in response to the notice u/s. 148. The assessee vide letter dated 8.11.2011 filed its objections to reopening of assessment which were duly disclosed by the AO through its order dated 11.1.2011, rejecting the objections of the assessee company. He stated that the addition has been made on the basis of the statements recorded by Sh. DN Taneja on 07.1.2009, who is a third party. In this regard, he draw our attention towards the Hon'ble Delhi High Court decision in the case of CIT vs. Pradeep Kumar Gupta & Anr. reported in (2008) 303 ITR 95 (Delhi). He further stated that right of cross examination has not been given to the assessee which is against the principle of natural justice. To support this contention, he further draw our attention towards the Hon'ble Supreme Court of India decision in the case of Andaman Timber Industries vs. Commissioner of Central Excise reported in (2015) 94 CCH 0187 (SC). In view of the above, he requested that addition may be deleted and appeal of the assessee may be allowed. 6. On the contrary, Ld. Departmental Representative has relied upon th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....further find considerable force in the Ld. Counsel of the assessee's submissions that in view of the Hon'ble Supreme Court of India decision in the case of Andaman Timber Industries vs. Commissioner of Central Excise reported in (2015) 94 CCH 0187 (SC) the assessee is entitled for cross examine the witness. We find that the Hon'ble Apex Court concluded that now allowing assessee to cross-examine, amounting to serious flaw which make impugned order nullity and violation of principles of natural justice. The Hon'ble Supreme Court of India vide para no. 6 to 8 has adjudicated the issue as under:- "6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the" aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-exarrme, the Adjud....