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TMI Blog2010 (6) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of the addition made by the Assessing Officer under section 69A of the IT Act. Undeniably again, these statements were never provided to the assessee for rebuttal. Also, he was not afforded any opportunity to cross-examine the deponents of these statements. This is despite the fact that the assessee had made repeated requests to the Assessing Officer for providing the statements to him and for affording him an opportunity to cross-examine these deponents. Pertinently, even at the first appellate stage, the matter was remitted by the learned CIT(A) to the Assessing Officer, however, once again, no such opportunity was provided to the assessee. CIT(A) observed that AO had failed to establish any case against the assessee, nor was any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm M/s. Om Prakash Subhash Kumar, engaged in the business of trading in Kirana goods and spices. The completed assessment of the assessee was reopened on the basis of the information received from Dy. CIT, Central Circle-19, New Delhi which referred money lending activity carried out by one Brij Mohan Gupta, in whose case, search operation was carried out on 15-12-2004 under section 132 of the Income-tax Act. The said letter of Dy. CIT enclosed two lists containing the names of the parties who have received cash loans from Hundies and also names of the parties who had advanced cash loans from Shri Brij Mohan Gupta. The transactions worth Rs. 49 lakhs were, on the basis of the contents of the said letter, observed to have been carried out be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted by the learned CIT(A); that the sole basis of the addition was the statement of Shri Brij Mohan Gupta, his son and the accountant, which were never provided to the assessee for rebuttal nor was any opportunity granted to the assessee to cross-examine the deponents; that even though the matter was remanded by the CIT(A) to the Assessing Officer for doing the needful, the situation remained much the same and the addition remained made without opportunity to the assessee despite repeated requests in this regard by the assessee. Reliance has been placed on the following case law : (1) CIT v. Pradeep Kumar Gupta [2008] 303 ITR 95 (Delhi); (2) CIT v. Rajesh Kumar [2008] 306 ITR 27 (Delhi) (3) CIT v. Dharam Pal Prem Chand Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinently, even at the first appellate stage, the matter was remitted by the learned CIT(A) to the Assessing Officer, however, once again, no such opportunity was provided to the assessee. 7. It was on these facts that the learned CIT(A) deleted the addition. The learned CIT(A) further observed that the Assessing Officer had failed to establish any case against the assessee, nor was any corroborative evidence gathered by the Assessing Officer in relation to the assessee. The Assessing Officer, as observed by the learned CIT(A), merely summarized the salient features of the assessment proceedings relating to Brij Mohan Gupta and thereafter, summarily rejected the reply of the assessee as not acceptable. Though the Assessing Officer referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as vehemently opposed it. He has contended that the deficiency of the Department cannot now be made good. He has relied on the following case law : (1) Anima Investment Ltd. ( supra ); (2) Rohtas Projects Ltd. ( supra ); (3) Raj Kumar Jain ( supra ); and (4) Smt. Neena Syal ( supra ). 12. In Anima Investment Ltd. ( supra ), the Third Member Bench of the Tribunal held that the powers of the Tribunal in the matter of setting aside an assessment cannot be exercised to allow the Assessing Officer to make up the deficiency of his case. 13. In Rohtas Projects Ltd. ( supra ), another Third Member Bench of the Tribunal held that the Department cannot be given a fresh innings in the absence of any material brought on record b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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