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TMI Blog2016 (10) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the assessee against the order dated 16.3.2016 passed by the ld.CIT(A)-9, Mumbai for the assessment years 2008-09 and 2009-10. Since these appeals pertain to the same assessee, these appeals are being decided by this common order for the sake of convenience. 2. ITA No. 3812/Mum/2016. 3. Grounds of appeal taken by the assessee are as under : 1. The Commissioner of Income-tax (Appeals) - 9, Mumbai (hereinafter referred to as CIT(A) erred in upholding the action of Deputy Commissioner of Income-tax - 4(2),Mumbai (hereinafter referred to as the Assessing Officer) in issuing a notice under section 148 dated 28.3.2013 on the basis of the search and seizure operations carried out under section 132 on KSL Group. The appellants contend that the Assessing Officer passed the assessment order for income-tax assessment year 2007-08 on the basis of the search and seizure operations carried out under section 132 on KSL Group by order dated 29.12.2009 and hence, the Assessing Officer had the information in his possession when he completed the original assessment proceedings for the year under reference by his order dated 15.12.2011 and as such, the issue of impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case and as such, the impugned addition ought to be deleted. The appellants further, contend that the CIT(A) ought not to have upheld the action of the Assessing Officer inasmuch as the Assessing Officer has grossly violated the principles of natural justice in not allowing the appellants an opportunity to cross examine Mr Girishchand Yadav, the main witness on whose statement the Assessing Officer has based the impugned addition, inspite of the appellants requesting for the same; it is the obligation of the Assessing Officer to produce Mr Girishchand Yadav for cross examination inasmuch as he is the witness of the Department. 4. Facts of the case are that the assessee filed is return of income on 19.9.2008 declaring total income of ₹ 1,47,76,121/- which was processed under section 143(1) of the Income Tax act, 1961 (hereinafter referred to as the Act). Thereafter the case of the assessee was selected for scrutiny and assessment was completed under section 143(3) at the returned income. Subsequently the case was reopened under section 147 of the Act and notice under section 148 of the Act was issued to the assessee on 28.3.2013 after recording the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id company having ₹ 65.95 crores turnover, net profit of ₹ 1,52,180/- with paid up capital of ₹ 1 lakh, investments of ₹ 9.5 crores and advances of ₹ 3.65 crores. The AO observed that it is impossible to believe that a company s paid up capital of ₹ 1 lakhs has advanced ₹ 3.65 crores whose director earning ₹ 8000/- per month from this company and staying in the rented house and thereby held that the credits in the credit of M/s Seaview Trading Co. Pvt Ltd. in the books of the assessee was not genuine and finally framed the assessment u/s 143(3) of the Act read with section 147 of the Act by making an addition of ₹ 1,05,00,000/- u/s 68 of the Act at an income of ₹ 2,26,95,490/- by disbelieving the identity and creditworthiness of the creditor and genuineness of the transaction. The order of the AO was upheld by the ld. CIT(A) in the appellate proceedings.Now the assessee is before us challenging the order of CIT(A) 5. We shall first take up the issue on merit as raised in ground No.3 of the appeal that the ld. CIT(A) has erred in upholding the addition of ₹ 1,05,00,000/- as made by the AO u/s 68 of the Act for unex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the AO, the party M/s Seaview Trading Co. Pvt Ltd is at serial no.3 and Realstar Trading Co. was appearing at Sr.No.1 in the reasons recorded by the AO u/s 148 of the Act. In the assessment year 2007-08, the assessee has taken similar loans from Realstar Trading Co amounting to ₹ 94,95,000/- and in the current year the assessee took the amount of ₹ 1.05 crores from M/s Seaview Trading Co. Pvt. We find that the facts of the current year are identical to that of the facts of earlier year i.e AY 2007-08 in which the co-ordinate Bench of the Tribunal deleted he addition by upholding that the transactions as made by the assessee from Realstar Tradisng Co was genuine and no addition u/s 68 could have been made . The operative portion of the judgment of the Tribunal is reproduced as under : 9. We have heard the rival contentions and perused the record. We notice from the assessment order that the assessing officer has placed full reliance on the Sworn statements given by the four persons viz., shri Mahavir Duggar, Shri Dilip S Mehta, Smt. Sangeetha J Sawant and Shri Girishchand R Yadav for doubting about the genuineness and credit worthiness of M/s Real Star T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect, doubted about the genuineness of the transaction, in view of the findings arising out of the search operations conducted on M/s KSL group of companies. 12. We have already noticed that the assessing officer has considered the statements taken from the parties in connection with search operations conducted on M/s KSL group. We have also noticed that the AO did not make any enquiries about the transactions entered between the assessee and M/s Realstar Trading Co. P Ltd. Under these set of facts, we are of the view that the tax authorities should not have placed their reliance on the statements given in connection with M/s KSL group for drawing adverse inference in the instant case. We notice that the assessee has asked for an opportunity to cross examine the four persons cited above, but the said opportunity seems to have not been provided with, even though the AO has reported that the assessee did not avail the opportunity. We have already noticed that the assessee has furnished affidavits obtained from the four persons and these affidavits would show that they have not received any communication from the AO asking them to appear for Cross examination. These facts, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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