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TMI Blog2018 (4) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine the witness by the adjudicating authority, though the statement of those witness were made, the basis of the impugned order, is a serious flaw of law which makes the order nullity. - Decided in favour of assessee - ITA No.1495/Kol/2016 - - - Dated:- 20-4-2018 - SHRI N. V. VASUDEVAN, JM AND DR. A. L. SAINI, AM For The Appellant : ShriS. M. Surana, Advocate For The Respondent : ShriSaurabh Kumar, Addl. CIT(Sr. DR) ORDER Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the Assessee, pertaining to Assessment Year 2008-09, is directed against an order passed by the Commissioner of Income Tax(Appeals)-9, Kolkata, in Appeal No. 211/CIT(A)-9/Wd-31(4)/2015-16/Kol, dated 11. 05. 2016, which in tur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth ₹ 9,36,314/- and the difference amounting to ₹ 11,37,412/- (Rs. 20,73,726/- - ₹ 9,36,314/-) was treated by the Assessing Officer as unexplained expenditure. According to Assessing Officer, the assessee neither explained the purchase worth ₹ 9,36,314/-,( which was treated by the assessing officer as bogus purchase), nor the assessee explained unaccounted expenditure of ₹ 11,37,412/-. Therefore, the Assessing Officer made the addition at ₹ 20,73,726/- (being, bogus purchase of ₹ 9,36,314/- and anunaccounted expenditure at ₹ 11,37,412/-). 4. On appeal, the ld CIT(A) directed the assessing officer to inform the DDIT(Inv) to locate the right person to whom this entry is given and take necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sparsh Exports Ltd. The Assessing Officer has not provided any material to the assessee prior to the statement recorded by the Investigation wing. Moreover, the payment was not established by the Assessing Officer, the addition on account of unaccounted expenditure was unjustified and not tenable. The ld. Counsel for the assessee pointed out that only on the basis of statement given to the Investigation Wing, the addition cannot be made, as the statement has not been corroborated by any tangible material. The counsel also submitted that no opportunity of cross-examination of M/s Sparsh Exports Ltd. had been given by the assessing officer before drawing adverse inference from the statement. The ld. Counsel submitted before us that addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The statement made by the supplier of M/s Sparsh Exports Ltd has not been cross examined therefore, the Assessing Officer failed to bring any cogent evidence to demonstrate that assessee s purchases were bogus. 7.1 We also note that, on appeal to the CIT(A), the CIT(A) directed the Assessing Officer to inform the DDIT(Inv) to locate the right person. We note that so far the purchase of ₹ 9,36,314/- is concerned it cannot be termed as bogus purchase, as the assessee submitted tax audit report, 3CD form, wherein list of books of accounts were mentioned. As per the tax audit report, the assessee was maintaining cash book, bank book, journal, purchase register, sales register, stock register etc. We note that Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination, for that we rely on the judgment of Hon ble Supreme Court in the case of Andaman Timber Industries 281 ITR 214 (SC), wherein it was held that not allowing the assessee to cross-examine the witness by the adjudicating authority, though the statement of those witness were made, the basis of the impugned order, is a serious flaw of law which makes the order nullity. Considering the entirety of the facts and circumstances of the case and material on record, we are unable to uphold the stand of the ld. AO in confirming the addition of ₹ 20,73,726/-. Therefore, we are of the view that addition made by the Assessing Officer needs to be deleted. Accordingly, we delete the addition. 7.4 In the result, the appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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