TaxTMI 
TaxTMI 
2023 (11) TMI 762
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.... 11 and 38 of 2023, which have been filed under Section 260A of the Income Tax Act, 1961 (for short 'the Act') regarding the Assessment Years 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018. The facts are being taken from ITA-38-2023 pertaining to the Assessment Year 2013-2014. 2. It is to be noticed that the Tribunal had decided 5 appeals bearing ITA Nos. 82 to 86/CHD/2022 for the Assessment Years 2013- 2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018 vide common order dated 29.07.2022. The Tribunal had allowed the appeals principally on the ground that the Assessing Officer has not given any opportunity of cross-examination to the assessee regarding the persons on whose statements the assessing authority had relied on. Resu....
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....not provided to the assessee keeping in view of the principles decided in the judgment of Hon'ble Calcutta High Court in the case of Kisanlal Agarwalla vs. Collector of Land Customs AIR 1967 & Cal.80 which throws light on the right of cross examination. 3.3 Whether the impugned order dated 29.07.2022 passed by the Hon'ble ITAT is erroneous in the eyes of law and deserves to be vacated and overruled." 4. It has also been admitted by the revenue as such that for the Assessment Year 2013-2014, 2014-2015, 2015-2016, 2016-2017 and 2017-2018 the tax effect is of Rs. 5,19,998/-, Rs. 1,89,733/-, Rs. 28,57,860/-, Rs. 52,52,093/- and Rs. 27,63,990/-, respectively, which is below the prescribed monetary limits prescribed by the CBD....
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....ed at Rs. 3,62,60,331/- The Commissioner of Income Tax had applied the average net profit of 3.64% and reduced the addition and got it down to Rs. 16,02,706/-, vide order dated 24.12.2021. 6. The assessee being not satisfied preferred the appeals before the Tribunal. The Tribunal noticed that statements of four persons namely Gulshan Gaba, proprietor of M/s Amit Papers, Naveen Salley, proprietor of M/s Ess Ess Sales Corporation, Sudhir Sethi, proprietor of M/s J.S. Enterprises and Manish Jain, proprietor of M/s B.M. Enterprises had been recorded, apart the statement of Shiv Charan Lal, an Ex-employee. Resultantly, it was noticed that in spite of request given for opportunity to cross-examine the said four persons, no such opportunity was....
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....unrecorded sales and the fact that there were recovery of such parallel invoices from the premises of Sanjay Dhawan was a contradiction which was noticed. The retraction of Manoj Kumar having accepted the fact of issuing parallel invoices and of making sales outside the books of account was also kept in mind. 8. It was noticed that for the subsequent year 2015-2016, 2016- 2017 and 2017-2018 the basis of addition was e-mail communication received from the electronic records of M/s B.M. Paper Mart and the said e-mail was sent by one Sunil Kumar, part time employee of the assessee company. The said employee had been summoned by the Assessing Officer, who had denied the knowledge of the e-mail and that the e-mail ID from which the e-mail was....
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....he order nullity as it amounted to violation of principles of natural justice by which the assessee was adversely affected. The argument whether the cross-examination would be relevant was also rejected, on the ground that it is not for the Tribunal to have guess work regarding the purpose of the cross-examination of the dealers and what was to come from it and thus, the appeals were allowed. Apart from that it was also noticed that to discredit the testimony the opportunity of cross-examination was necessary. Accordingly, it was observed 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 ....