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TMI Blog2017 (11) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... is ground raised by the assessee and uphold the order of Ld. CIT(A). Additions made as relied upon the statement of the directors of Hiranandani Group admitting the receipt of cash money from the assessee - denial of natural justice - Held that:- Not providing copies of the statement of the Director of the Hiranandani Group to the assessee before making additions and not providing opportunity of cross examination to the assessee itself amounts to infringement of ‘legal rights’ of the assessee which caused prejudice to the rights in this context. In view the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to provide copies of statement of directors/promoters of Hiranandani Group and to provide opportunity of cross examination to the assessee and thereafter pass afresh order assessment. Appeal filed by the assessee are allowed for statistical purposes. - I.T.A. No. 5102/Mum/2017 - - - Dated:- 8-11-2017 - SHRIR. C. SHARMA, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri Vijay Mehta For The Respondent : Ms. ArjuGarodia ORDER Per Sandeep Gosain, Judicial Member: This appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after serving statutory notices and providing opportunity of hearing, assessment order u/s 143(3) r.w.s 147 of the I.T. Act was passed thereby making addition/disallowance. 3. Aggrieved by the order of AO, assessee preferred appeal before Ld. CIT(A) and Ld. CIT(A) after considering the case of both the parties dismissed the appeal of the assessee. Now before us, the assessee has preferred the present appeal on the grounds mentioned herein above. Ground No. 1. 4. This ground raised by the assessee relates to challenging the action of Ld. CIT(A) in confirming the reopening of the assessment which was reopened by the Ld. AO relying on the information sent by the search wing and without receipt of any seized material relevant to the assessee. 5. We have heard both the counsels of the parties at length and we have also perused the material placed on record as well as the orders passed by revenue authorities. We find that Ld. CIT(A) has discussed this ground at page no. 21 of its order and after having gone through the arguments of both the parties, we find that the return of income was filed by the assessee on 29.11.07 declaring total income of ₹ 83,19,830 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as per the judgment of Hon ble Supreme Court in the case of ACIT vrs. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500(SC) wherein it was held as under:- The word 'reason in the phrase reason to believe would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion- The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers . In other words, at the initiation stage, what is required is 'reason to believe , but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could, have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). Ld. CIT(A) while dealing with the said ground has passed the detail order and the operative portion of CIT(A) s order is reproduced below:- Since these grounds are related to common issue of addition of ₹ 1,00,00,000/ -, the same are decided jointly as follows. Under these grounds of appeal the appellant has disputed the addition of ₹ 1,00,00,000/- made by the AC) under the head Income from Other Sources. On perusal of the assessment order I find that the appellant paid ₹ 1,00,00,000/- to the Hiranandani group as On Money'. This fact was unearthed during the course of search action on 11/03/2014 on the Hiranandani Group. The AO further observed at para no. 5 that the said on money confessed by the Hiranandani group categorically included ₹ 1,00,00,000/- paid by the appellant in four parts on 4 different dates in connection with the purchase of flat by the appellant. On the other hand, the appellant merely denied having made such payment. I have carefully considered rival contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 1981 131(ITR) Page 451 has held that the duty of the Tribunal does not end with making a declaration that the assessments are illegal and it is duty bound to issue further directions. The appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh unless forbidden from doing so by the statute and the statute does not say that such a direction cannot be issued by the appellate authority in a case of this nature. Therefore, considering the above judgment and keeping in view the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to provide copies of statement of directors/promoters of Hiranandani Group and to provide opportunity of cross examination to the assessee and thereafter pass afresh order assessment. It is needless here to mention that before passing the order of assessment, the AO shall provide sufficient opportunity of hearing to the assesse. Before parting, we may make it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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