TaxTMI 
TaxTMI 
2015 (12) TMI 1909
X X X X Extracts X X X X
X X X X Extracts X X X X
....r an opportunity of cross examining Jamil A Khan and that such an opportunity had not been provided by the Assessing Officer. However, from the record we do not find that there was any such request made by the respondent assessee for cross examining Jamil A Khan. In fact, we find it rather intriguing as to why would the respondent ssessee request for cross examining Jamil A Khan when the respondent assessee himself had furnished affidavits to Jamil A Khan in support of his case. The observations of the CIT (A) as also of the Tribunal that despite the request of the respondent assessee, the A.O. had not provided opportunity of cross examining Jamil A Khan, are contrary to the record. We are therefore, of the opinion that the answer to the question framed has to be in favour of the revenue and against the respondent assessee. 9. It must also be mentioned that in the conclusions arrived at by the Tribunal, there is reference to the return filed by Jamil A Khan. But, that reference is to the original return filed by Jamil A Khan and not to the revised return filed by Jamil A Khan. The Tribunal had completely overlooked the fact that Jamil A Khan had filed a revised return afte....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Mr. O.P. Meena referred to page 2 para 2 of the assessment order and submitted that M/s Samiah International Builders Pvt. Ltd. had made payments, amounting to Rs. 12.79 crores to Shri Pramod Gupta, Shri VK Gupta, Shri Sanjay Chaurasia and Shri Vimal Gupta and M/s Topend Realty P. Ltd. both by way of cheque as well as by way of cash and that the Managing Director of that company were unable to explain the entries made in the paper and Rs. 10 crore was surrendered as additional income. He referred to page 4 para 3.2 of the order of the Ld.CIT (A) and disputed the findings therein. He referred to the conclusions drawn by the Hon'ble Delhi High Court in its judgement and submitted that the assessee had never requested for an opportunity to cross examine Jamil A Khan that on the face of an affidavit having been furnished by Jamil A Khan, the question of adverse inference on the ground that no proper opportunity was given for cross examining Jamil A Khan does not arise. He further submitted that Jamil A Khan had filed a revised return wherein he made a surrender of Rs. 10 crores during survey operations and that he declared an amount of Rs. 6.29 crores as cash on pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee. He argued that revenue had not disputed this affidavit till date and had not examined Mr.Jamil A Khan on this affidavit and under those circumstances the averments in the affidavit have to be accepted as true. He further submitted that even otherwise, the contents of the seized documents, as held by the Ld.CIT(A), do not demonstrate that cash payment was made to the assessee. He submitted that the Revenue has not discharged the onus that lay upon it. He relied on the following case laws. (i) Kisnichand Chellaram vs. CIT (1980) 125 ITR 713 (S.C.) (ii) Laxmnbhai S Patel vs. CIT(2008) 174 Taxman 206 (Guj.) (iii) CIT vs. Rajesh Kumar (2008) 172 Taxman 74 (Del.) (iv) CIT vs. Pradeep Kumar Gupta(2008) 303 ITR 95 (Del.) 6. The Ld.Counsel for the assessee relied on the order of the Ld.CIT(A), the written submissions made by the Ld.CIT (A) as well as that made before the Tribunal which is at pages A to G of the paper book. 6.1. In reply the Ld.DR submitted that he would produce the revised return of income filed by Mr. Mr.Jamil A Khan in support of his contentions that the transaction with the assessee was declared in such return of inc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... or has failed to produce other supporting evidence when called upon to do so. c). The sale price of the share was based upon the independent valuation report of the valuer. Since the company whose shares were sold was owning a property, the valuation of the share was done by the Chartered Accountants after considering the market value of property and after duly considering the rate of land notified by the Greater Noida Authority. No defect or deficiency has been pointed out by the A.O. in the valuation report. d). In the case of Unitex Products Ltd. vs ITA (2008) 22 SOT 429 (Mum) it was held that section 133A(3)(iii) authorities authority to record statement of any person which may be useful for or relevant to any proceeding under the Act. However, the officer is not authorize to record .statement on oath and hence statement taken during the course of survey has no evidentiary value. e). The loose papers on the basis of which the Assessing Officer has made the addition bears no signature of the appellant. There is mention about total payment of ~ 12.29 Cr. On these pages, out of which Rs. 6.29 Cr. is stated to be in cash and balance Rs. 6.00 Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....these statements have no evidentiary value. Even otherwise the purchasers have filed affidavits which stand uncontroverted till date. The assessee produced all evidences in support of their claim. The A.O. could not dislodge their claim with evidence. In our opinion the A.O. could not prove that there was cash payment for the purchase of the shares. 7.3. It is well settled that when an allegation is made by the Revenue that the assessee has earned certain income, the burden is on the Revenue to prove the same. In the case on hand the facts and evidences demonstrate that the Revenue has not discharged this burden of proof that lay on it. Thus we have no other alternative but to uphold the factual finding as well as the order of the First Appellate Authority and dismiss this appeal of the Revenue. 8. In the result Revenue's appeal 1603/Del/2010 for the A.Y. 2006-07 is dismissed. 9. ITA 1211/Del/11 is filed by the Revenue and is directed against the order of the Ld.CIT(A)-XXVII Delhi dt. 27th October, 2010 for the A.Y. 2006- 07. The Cross Objection 105/Del/11 is filed by the assessee against the appeal by the Revenue in ITA no. 1211/Del/11 for the A.Y. 2006-07. 10. We first t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by ITO, Ward 34(4), New Delhi and a notice u/s 148 of the Act dt. 1.7.2008 was issued to the assessee. In response, the assessee submitted his reply on 10.9.2008, stating that, the return of income filed by him on 31.8.2006 vide receipt no. 007521, is to be treated as a return filed in response to the above notice u/s 148 of the Act. Further the assessee sought a copy of the reasons recorded for reopening of the case. The ITO, ward 34(4) furnished a copy of the reasons recorded to the assessee on 7.9.2007. This is clear from para 2 page 3 of the assessment order. The ACIT, Circle 34(1), New Delhi has admittedly not recorded that he had reasons to believe that income chargeable to tax of the assessee has escaped assessment. He continued reassessment proceedings initiated by the ITO, Ward 34(4) of the Act without independently recording reasons for reeopening or issuing a fresh notice u/s 148 of the Act. There is no order u/s 127 of the Act transferring the jurisdiction of the ccase from ITO, Ward 34(4) to ACIT, Ward 34(1). Thus this order of reassessment passed by the ACIT u/s 34(1) of the Act is without jurisdiction and hence is bad in law. 13.1. The Delhi E Bench of the Tribun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt proceedings. 13.3. Even otherwise, the assessee has filed objections to the issual of notice u/s 148 of the Act after recording the reasons for re-opening disposed of by the AO. The Jurisdictional High Court under similar circumstances, in the case of Principal CIT vs. Tupperware India P.Ltd. in ITA 414/2015 order dt. 10.8.2015 has at paras 5 and 6 held as follows. ´5. Apparently, the assessee did raise an objection to the order of the A.O. reopening the assessment. In the order dt. 28th January, 2011 allowing the assessee's appeal, the CIT (A) noted that the assessee had indeed filed objections to the reopening of the assessment by its letter dt. 9th Agusut, 2006. In the remand report dated 20th December, 2010 the AO quoted a paragraph from the order sheet which stated that the afore mentioned letter dt. 9th August, 2006 had been handed over to the AO and that the AO had sought some more information which the assessee had not filed. The CIT (A) accordingly held that by stating that no objections had been filed, the AO had 'very conveniently disregarded the guidelines' laid down by the Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC)....