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TMI Blog2013 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... T (A) erred on facts and in law by confirming initiation of reassessment proceedings by the Assessing Officer u/s 147, on a mere change of opinion, the A.O. having already initiated and dropped proceedings u/s 153 C prior to issue of notice u/s 147/148 on the same set of facts." 3. The facts in all these appeals are, mutatis mutandis, the same. 4. The Assessing Officer made the additions for the three years under consideration on account of transactions made by the assessee with one Shri Brij Mohan Gupta and his associates. The CIT (A) deleted the additions for all the years. For Assessment Year 2001-02, the CIT (A) held as follows:- "5. Grounds 4,5 and 6, relating to the quantum addition and issue of affording proper opportunity to be heard, are taken up next. 5.1 it is contended by the appellant that as per the scheme of Section 69A, the onus to prove the ownership of the assessee over money etc, is on the assessing officer, that this burden was never discharged by him and that instead additions were made merely on the basis of statements of third parties recorded during search on another person. It was also stated that the appellant was never confronted with the statements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 4587/Del/2010, the Tribunal, vide its order dated 29.10.2010 (copy at pages 18 to 26 of the assessee's paper book), observed as follows:- "7. From the order of the learned CIT(A) it appears that the CIT(A) has deleted the addition because of the reason that principle of natural justice was violated by the AO inasmuch as the AO neither provided the copies of the statements nor afforded requisite opportunity to cross examine the persons whose statements were being relied upon by him. The learned CIT(A) further observed that the AO did not throw any light on any inquiry/investigation carried out by him. We therefore, have to see as to whether in the facts and circumstances of the case, the CIT(A) should have failed to provide opportunity to cross examine the persons whose statements were relied upon. In this respect we have gone through the assessment order and found that the AO issued a show cause notice on 10.12.2008 narrating detailed reasons for reopening the case under sec. 148 and asked the assessee to furnish certain information and details as mentioned in Para 9 of the assessment order for the assessment year 2001-02. The case was fixed for hearing on 17.12.2008. In respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnishing inaccurate particulars .of is income. " 8. In support of the contention that no further opportunity should be allowed to the AO to fill up the lacuna, The assessee has relied upon the decision of IT AT, Delhi Bench 'F' in the case of ITO vs. Shri Pawan Kumar Gupta, order being dated 14.06.2010 in ITA No. 4690(Del)2009 where the Hon 'ble Tribunal has decided this issue by saying that no case law contrary to those cited by the learned' counsel for the assessee, either for the proposition that where the assessee was not afforded any opportunity of rebuttal or cross-examination, the addition was not valid, or for the proposition that in case of no opportunity provided to the assessee, the matter cannot be set aside to the Assessing Officer to fill-up the lacuna, have been quoted by the department. On the other hand, the learned DR has relied upon another decision of coordinate Bench of ITAT in the case Centurion Investment & International Trading Co. (P) Ltd. vs. ITO since now reported in (2010) 126 ITD 356 (del), order being dated May 15, 2009 in ITA No. 85 (Del)/2008, where the Hon'ble Tribunal has taken in view that by not following procedural provision like allowing cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curred." 9. Since in the case of Shri Pawan Kumar Gupta (supra) the Tribunal decided the issue in the absence of any law contrary to the decisions cited by the learned counsel for the assessee, that decision is now not applicable to the present case where the learned DR has been able to point out the contrary decisions where it has been laid down that in the case of failure of the Assessing Officer to provide opportunity to the assessee to cross-examine the concerned person, the matter should be set aside to be re-done as so held by the Tribunal in the case of Centurion Investment & International Trading Co. (P) Ltd. (supra) where both the cited decisions were fully considered and commented upon. Therefore, respectfully following the decision of coordinate bench of the Tribunal in the case of Centurion Investment & International Trading Co. (P) Ltd. (supra), was restore this issue back to the file of the Assessing Officer for his fresh consideration after allowing the assessee an opportunity to examine and verify the statements of the concerned persons and after allowing the assessee an opportunity to cross-examine them so that the matter can be decided in its right and correct pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, statement of Sh. Rajiv Gupta, son of Late Sh. B. M. Gupta and Sh. Ram Avtar Singhal accountant are no relevance. At the time of search the accountant Sh. Ram Avtar Singhal and son of Sh. B. M. Gupta, Sh. Rajiv Gupta were the main persons involved in the operation on behalf of the assessee. They gave statements on oath and decoded the parties' names and identifications on oath. Had they not been in the thick of business of Sh. B. M. Gupta, all the decoding and explanations could not have been given by Sh. B. M. Gupta, his son and accountant. On the basis of this information only, the seized documents, diaries, and books of account were decoded by the department. By taking plea of the death of Sh. B. M. Gupta, his son and accountant cannot deny the original decoding done and explanations offered by them in the proceedings u/s 132/131. Hence, the statements recorded now cannot be relied upon. The assessee has also failed to produce any additional evidence to prove and in support of its claim that it is not the person involved in these transactions. The death of Sh. B. M. Gupta cannot be used by the assessee or the son and accountant to escape and to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be determinative of deleting the addition correctly made by the Assessing Officer, particularly when in the first round, Shri Ram Avtar Singhal, Accountant and Shri Rajiv Gupta, S/o Late Shri Brij Mohan Gupta had deposed against the assessee; that in the face of such deposition in the first round, their denial statements in the second round refusing to identify the assessee, as correctly held by the Assessing Officer, was merely an afterthought and the addition was wrongly deleted on this basis also; that in the search, entries had been found in the books of Shri Brij Mohan Gupta; that these entries were in code; that they were decoded by the department; that therefore, there did exist material against the assessee, which was the basis for the Assessing Officer to make the addition and the Ld. CIT (A) erred in brushing aside this material while wrongly deleting the additions correctly made. 10. The ld. counsel for the assessee, on the other hand, has strongly supported the impugned orders. It has been contended that in the first round, the assessee had categorically submitted before the Assessing Officer that he did not know Shri B.M. Gupta; that in this regard an affidavit had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of M/s Amar Nath Virender Kumar. They did not identify the assessee. The Assessing Officer, however, observed that these two persons had tried to misutilise the death of Shri B.M. Gupta, by deposing that Shri B.M. Gupta was the only person who knew about the actual affairs of the business and the people involved in it; and that so, the statements of these two persons, i.e., Shri Rajiv Gupta and Shri Ram Avtar Singhal, were of no relevance and they could not be relied upon; that the assessee had also failed to produce any additional evidence to prove that it was involved in the transactions in question; that the death of Shri B.M. Gupta could not be used by the assessee as an escape route to establish that the assessee was not the person involved in the transactions; that this was a clever ploy to retract from the original explanations and decoding done at the time of search; that there was, in existence, positive evidence that the transactions pertained to the assessee; that this evidence was in the name of the assessee firm, M/s Amar Nath Virender Kumar in the regular books of account kept in the regular course of business and then confirmed at the time of the search and the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similar is the position with the statement of Shri Ram Avtar Singhal. Likewise, the alleged encrypted as well as decoded material, inculpating the assessee has not surfaced. At least, nothing in this regard has been brought to our notice. So far as regards the allegation that the assessee failed to prove that Shri B.M. Gupta was not known to it, the assessee's affidavit in this regard, filed before the Assessing Officer in the first round, is at APB 82-83. Therein, Shri Virender Kumar, partner of the assessee firm, has categorically stated on solemn affirmation and oath, inter alia, that the firm had never advanced any sums to, or taken loan from, anybody, which was not disclosed in its books of account; that neither the assessee firm, nor its partners ever had any financial or business relation with Shri Brij Mohan Gupta or his family members or any concern belonging to them; that neither the assessee firm, nor Shri Virender Kumar, its partner, had advanced/taken a sum of Rs. 151.25 lacs to Shri Brij Mohan Gupta or his family or their concerns, if any, in Assessment Year 2001-02, as stated by the Assessing Officer. As against this affidavit, no other evidence was brought by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anywhere else. 4. That the firm had no other source of income apart from its above said business and duly reflected in Profit & Loss Account filed." 13.2 In his affidavit, Shri Ram Avtar Singhal has stated that : "1. That for last more than 30 years I am working with Mr. Rajiv Gupta and his late Father Sh. B.M. Gupta, R/o 292, Tagore Park Extension, Model Town, Delhi - 110 009, as their accountant. 2. To the best of my knowledge and belief I have never seen M/s Amar Nath Virender Kumar, 6687, Khari Baoli, Delhi or its owners transacting any financial activities with Mr. Rajiv Gupta or late Sh. B.M. Gupta. 3. That I have not recorded any transaction of any financial business activities or transaction of any hundi or other transactions involving with M/s Amar Nath Virender Kumar, 6687, Khari Baoli, Delhi or its owners specifically during financial years 2000-01, 2001-02 and 2004-05. 4. That similar facts were also conveyed during our my cross examination conducted on 21.12.2011 by M/s Amar Nath Virender Kumar, in the presence of and in the office of the Income Tax Officer, Ward 28(3), Room No.214, Drum Shaped Building, IP Estate, New Delhi - 110 002." 14. There is no evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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