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TMI Blog2013 (2) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... that such an opportunity had not been provided by the assessing officer. However, from the record no finding that there was any such request made by the respondent-assessee for cross-examining Jamil A. Khan. In fact, found rather intriguing as to why would the respondent-assessee 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 (Appeals) as also of the Tribunal that despite the request of the respondent-assessee, the assessing officer had not provided opportunity of cross-examining Jamil A. Khan, are contrary to the record. The Tribunal had completely overlooked the fact that Jamil A.Khan had filed a revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary to the record and/or perverse? 2. The facts of the case are that in respect of the assessment year 2006-07, 48,100 shares of R.S.Builtwell Pvt. Ltd. were sold by the assessee to M/s Samiah International Builders Pvt. Ltd., Mr Jamil A. Khan and Ms Tabassum Jamil. The apparent consideration for the transfer of these shares was shown as Rs.125/- per share. There is no dispute that this amount of Rs.125/- per share was received through cheques from the aforesaid persons by the respondent/assessee. 3. A survey operation was carried out under Section 133A of the Income Tax Act, 1961 insofar as M/s Samiah International Builders Pvt. Ltd. was concerned on 15.1.2008. In the course of the survey operations certain documents were found to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant financial year regarding the period to which the surrender related. Moreover, on the day of survey we have not gone through the seized documents and now after going through the seized documents, we affirm that we have surrendered an additional income of Rs.10 crores subject to the non-initiation of any penal action on dated 15.1.2008 during the course of survey proceedings in the relevant financial year of the documents seized. We, however, now give details of the surrender and the same includes additional income of Rs.6.29 crores being amount paid by Ms/ Samiah International Builders Pvt. Ltd. for the purchase of shares during the financial year 2005-06 and the balance amount of Rs.3.71 crores related to the relevant year of remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an addition of Rs.1,51,27,450/-. 4. The assessment was completed on the above basis. 5. The respondent-assessee being aggrieved by the said assessment, preferred an appeal before CIT (Appeals) who deleted the said addition of Rs.1,51,27,450/-. The CIT(Appeals) was impressed by the fact that during the course of assessment proceedings the respondent-assessee had filed documentary evidence before the assessing officer which included the confirmations/affidavits of the buyers, income tax returns of the buyers, the valuation report of the independent valuer in support of price of shares and that the assessing officer had not pointed out any defects or deficiency in them. The CIT(Appeals) was of the opinion that the assessing officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing officer made the addition on the basis of statement of Shri Jamil A. Khan, but it is noted that Sh. Jamil A. Khan himself confirmed to the Assessing Officer by filing an affidavit that no cash payment was made to the assessee for the purchase of shares. The Assessing Officer has not brought on record the author of documents impounded during the course of survey. Despite the request of the appellant, the Assessing Officer has not provided the opportunity of cross examination of Jamil A Khan or the author of impounded documents. In these circumstances, Ld. Commissioner of Income Tax (Appeals) held that additions cannot be made in the hands of the assessee on the basis of documents found from the premises of third parties and on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see for cross-examining Jamil A. Khan. In fact, we find it rather intriguing as to why would the respondent-assessee 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 Commissioner of Income Tax (Appeals) as also of the Tribunal that despite the request of the respondent-assessee, the assessing officer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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