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2016 (8) TMI 1133 - AT - Income TaxAddition under the head Income from other sources - income from undisclosed sources - Held that - CIT(A) has rightly pointed out that the assessment order is single page cryptic order in which the addition of 43, 52, 980/- has been made to the returned income which is primarily based on the solitary statement of Shri Mukesh Choksi recorded by the DDIT(Inv.)(1)(4) Mumbai. The led. CIT(A) has also rightly considered the factual position of the present case wherein no independent enquiry has been done by the AO to verify whether the statement of Shri Mukesh Choksi admitting to issuing bogus bills was correct in the case of assessee or not by providing an opportunity of cross examination to the assessee of such person and therefore in such circumstances in the present case the statement of third party i.e. Mukesh Choksi recorded at the back of the assessee cannot be used against him without giving the assessee an opportunity to cross examine and rebut the allegation. In the peculiar facts of the present case we have also noticed that the AO has not fully complied with the directions given by the ld. CIT(A) as per page No.11 & 12 of the paper book. Thus we hold that the ld.CIT(A) has passed a well reasoned speaking order and no new circumstances of facts have been brought before us to deviate from or to interfere into well a reasoned and judicious findings recorded by the ld. CIT(A). - Decided against revenue
Issues Involved:
1. Deletion of addition of ?43,52,980/- by CIT(A) based on lack of opportunity for cross-examination. 2. Treatment of ?43,52,980/- as income from undisclosed sources. 3. Non-appreciation of findings in the Assessing Officer’s remand report. 4. Discrepancies in the purchase of shares of M/s Buniyad Chemicals Ltd. Issue-wise Detailed Analysis: 1. Deletion of Addition of ?43,52,980/- by CIT(A): The CIT(A) deleted the addition of ?43,52,980/- by holding that the assessee was not granted the opportunity to cross-examine Shri Mukesh Choksi, whose statement was pivotal in the Assessing Officer's decision. The CIT(A) emphasized that the powers of CIT(A) are co-terminus with those of the Assessing Officer, and thus, the CIT(A) could have provided the opportunity for cross-examination instead of pointing out the lacuna in the remand report. The reliance on the decisions in CIT Vs Kanpur Coal Syndicate (53 ITR 225 (SC) (1964)), Jute Corpn. Of India Ltd Vs CIT (53 Taxman 85 (SC) (1990)), and CIT Vs K.S. Dattreya (197 Taxmann 151 (Kar.) (2011)) was highlighted. 2. Treatment of ?43,52,980/- as Income from Undisclosed Sources: The Assessing Officer treated the amount of ?43,52,980/- as income from undisclosed sources, based on the statement of Shri Mukesh Choksi, who admitted to issuing bogus bills. The CIT(A) found that the assessment order was primarily based on this statement without any independent inquiry to verify its correctness in the assessee's case. The CIT(A) noted that the statement was not provided to the assessee during the assessment proceedings, and no opportunity for cross-examination was given, which violated the principles of natural justice. 3. Non-appreciation of Findings in the Assessing Officer’s Remand Report: The CIT(A) considered the remand report and the rejoinder submitted by the assessee. The discrepancies and shortcomings pointed out by the Assessing Officer regarding the share transactions, especially with respect to the scrips of Buniyad Chemicals, were addressed satisfactorily by the assessee. The CIT(A) held that the reopening of the case and the assessment proceedings were legally valid, but the objections raised by the Assessing Officer in the remand report were sufficiently met by the assessee. 4. Discrepancies in the Purchase of Shares of M/s Buniyad Chemicals Ltd.: The CIT(A) addressed the discrepancies pointed out by the Assessing Officer regarding the market rates of scrips bought and sold, which were different from what was shown in the bills submitted by the assessee. It was clarified that these bills related to the Assessment Year 2002-03 and not the year under consideration. The CIT(A) directed that any effect of these discrepancies should be considered in the Assessment Year 2002-03, and the Assessing Officer was free to take necessary action as per law. Conclusion: The Tribunal upheld the CIT(A)'s decision, emphasizing that the Assessing Officer's reliance on the statement of Shri Mukesh Choksi without providing an opportunity for cross-examination was against the principles of natural justice. The Tribunal also noted that the CIT(A) had given specific directions for cross-examination, which were not complied with by the Assessing Officer. The appeal filed by the revenue was dismissed, and the order pronounced on 10th August 2016 confirmed the deletion of the addition and the treatment of the profit on the sale of shares as long-term capital gains.
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