TaxTMI 
TaxTMI 
2019 (5) TMI 1985
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.... 1. That the Ld. CITA) has erred in law and on facts in confirming the action of AO that reopening of case by invoking the provisions Section 147 of the Act. It is submitted that while reopening of assessment u/s 147 is totally bad in law and void-ab-initio and thus the order passed by the Assessing Officer u/s 143(3) rws 147 deserves to be quashed and be set aside. 2. The Ld. CIT(A) has erred in confirming the addition made by AO of Rs 5,83,320/- on account of unexplained investment. It is submitted that the addition was made purely relying on third party statement namely Shri Madan Mohan Gupta without having any sound basis / independent findings on the part of Ld A.O. It is therefore submitted that the incorrect and illegal addition confirmed of Rs 5,83,320/- deserves to be deleted. The same be held now. 3. The Ld CIT(A) has erred in confirming the addition of Rs 5,83,320/- on basis of statement recorded of Shri Madan Mohan Gupta without providing copy of that statements recorded to the assessee and without providing opportunity of cross-examination. It is therefore submitted that the order passed by Ld AO is completely incorrect, illegal and unlawful and thus the entire....
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....atements of Shri Madan Mohan Gupta were recorded. The AO noted that in the statements recorded during the search operation and during the assessment proceeding, Shri Madan Mohan Gupta had accepted receipt of on-money on sale of plots of the scheme. The AO on the basis of assessee's name appearing in one of the documents seized during the course of search, inferred that the assessee had also paid on-money of Rs. 5,83,320/- to Shri Madan Mohan Gupta, the seller for purchase of plot No. 5, Revenue Residency (Nizi Khatedar Residential Scheme) at Village Peepla Bharat Singh , Bhankarota Jaipur during the year under consideration and failed to explain the source of the same. Accordingly, the AO made the addition of Rs. 5,83,320/- u/s. 69 treating it as unexplained investment. The appellant has vehemently contested this action of the AO by submitting that the AO merely on the basis of statement of third party and without giving proper opportunity of crossexamination held that the assessee had paid on- money towards purchase of plot. It was claimed by the appellant that it had duly produced all the relevant evidences so as to discharge burden as laid down in sec. 69 of the Act. The appella....
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....ngh Ujjawal Vs. ITO, Ward-3 (1), Jodhpur in ITA No. 271/Jodh 2018 for the assessment year 2009-10 (supra), wherein vide order dated 18.01.2019, the similar addition was deleted by the ITAT Jodhpur Bench (SMC). The relevant finding has been given in para 5 to 14 of the order which read as under:- "5. Rival contentions have been heard and record perused. The issue under consideration is squarely covered by the decision of Tribunal in the case of Shri Deva Ram Suthar in ITA No.342/Jodh/2018 wherein exactly similar addition was deleted by the Tribunal after observing as under:- "7. Rival contentions have been considered and record perused. I had also deliberated on the judicial pronouncements referred by lower authorities in their respective orders as well as cited by learned AR and DR during the course of hearing before us in the context of factual matrix of the case. From the record I found that the assessee had purchased Plot No. 84 measuring 233.33 Sq.yards in the residential project "Revenue Residency" at Village Peepla Bharatsing, (Jaisinghpura-Muhana Road), Bhankrota, Tehsil- Sanganeer, Jaipur developed by Shri Madan Mohan Gupta in F.Y.2008-09 relevant to A.Y.2009-10 for to....
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....f natural justice, a serious flaw which makes the order null and void. 11. For this purpose, reliance can be placed on the decision of Hon'ble Supreme Court in the case of Andaman Timber Industries 281 CTR 241 wherein it was held that not allowing assessee to cross- examine witnesses by adjudicating authority though statements of those witnesses were made as basis of impugned order, amounted in serious flaw which made impugned order nullity as it amounted to violation of principles of natural justice. The precise observation of the Hon'ble Supreme Court was as under :- "Not allowing the appellant 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 appellant 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 appellant disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant....