9911796707
TMI Blog2015 (12) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. Since in the instant case also opportunity to cross examine the witness was not granted despite specific request made by the assessee, therefore, respectfully following the decision of the jurisdictional High Court cited (Supra) we restore the issue to the file of the AO with a direction to give an we restore the issue to the file of the AO with a direction to give an opportunity to the assessee to cross examine Shri Rakesh Agarwal. The AO shall decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. - Decided in favour of assessee for statistical purposes. - ITA No.1681/PN/2013 - - - Dated:- 9-10-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated on the seized paper. The AO handed over a copy of the seized paper and the statement of Shri Rakesh Agarwal to the authorized representative of the assessee on 03-11-2010 calling for his explanation/comments in respect of the above with reference to the short term capital gain disclosed. 3. The assessee in his statement stated that the seized paper is not in the handwriting of the assessee. The payment for the transaction of the property in question was received by him at ₹ 22 lakhs by cheques for which he has paid the broker a lumpsum brokerage of ₹ 2 lakhs on which TDS has been made. He is not in knowledge about the financial information contained in the seized paper. The assessee does not know Mr. Rakesh Agarwal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the seized paper. As there is no other party to the deal except the pride group, the brokers whose names and amounts are mentioned and the assessee and since the pride group has already accepted the fact that they have paid the cash amount of ₹ 29,83,030/- which is over and above the consideration of ₹ 22 lakhs recorded in the documents, therefore, the AO relying on various decisions and observing that all the facts and circumstances point that the assessee has received cash of ₹ 29,83,030/-, held that the request of the assessee to cross examine Shri Rakesh Agarwal would not serve any purpose. He therefore declined the request of the assessee to cross examine Shri Rakesh Agarwal and made addition of ₹ 29,83, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cross examine Mr. Rakesh Agarwal, on the basis of whose statement, the addition of ₹ 29,83,030/- was made in the hands of the appellant on account of alleged undisclosed cash element in sale of plot. 3. The appellant craves for addition to, deletion, alteration, modification, change any of the above grounds. 7. The Ld. Counsel for the assessee at the outset submitted that addition has been made by the AO and confirmed by the CIT(A) without giving an opportunity to the assessee to cross examine Shri Rakesh Agarwal, consultant of the pride group, to whom the assessee has sold the property. Referring to the decision of the Hon ble Bombay High Court in the case of R.W. Promotions Pvt. Ltd. Vs. ACIT vide ITA No.1489/2013 order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 22,00,000/-. Although the assessee during the course of assessment proceedings had flatly denied to have received any such amount in cash from pride group and has requested for cross examination of Shri Rakesh Agarwal we find the AO declined to accede the request of the assessee on the ground that the same would not serve any purpose in view of the document seized and the categorical statement of Shri Rakesh Agarwal. We find the Ld.CIT(A) upheld this action of the AO. It is the submission of the Ld. Counsel for the assessee that without giving an opportunity to the assessee to cross examine Shri Rakesh Agarwal the AO should not have made the addition to the total income of the assessee especially when the assessee does not know Mr. Rak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no cross examination was called for in the present facts. This reason itself makes the impugned order vulnerable. 12. Moreover, in the present facts, the appellant had also filed affidavit of the representatives of M/s. Inorbit and M/s. Nupur which indicates that they had received payment from the appellant for rendering of services to the appellant. These affidavits also have not been taken into account by any authority including the Tribunal while upholding the disallowance of the expenditure. 13. Thus the appellant was not given an opportunity to cross examine the witnesses whose statement is relied upon by the revenue and the evidence led by the appellant has not been considered. Therefore clearly a breach of principles of na ..... X X X X Extracts X X X X X X X X Extracts X X X X
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