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TMI Blog2018 (7) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the statements of witnesses are used against the assessee for re-opening assessment resulting into addition of income. Taking into consideration entire facts of the case, we deem it appropriate to restore these appeals to the file of Commissioner of Income Tax (Appeal) for allowing an opportunity to the assessee to cross examine the dealers whose statements were used by the Department for re-opening the assessments in the case of assessee. Identical grounds have been raised by the assessee in all the appeals. Accordingly, the ground No.1 raised in the appeals are allowed for statistical purpose. - ITA Nos. 2591 to 2593/PUN/2016 - - - Dated:- 29-6-2018 - SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w.s 147 of the Act for all the three assessment years. The Assessing Officer in re-assessment proceedings made following additions on account of fictitious purchases from Hawala operators. Assessment year Additions made by Assessing Officer (Amount in Rs.) 2009-10 1,68,21,812/- 2010-11 72,65,214/- 2011-12 44,94,900/- 4. Aggrieved by the assessment orders for the respective assessment years, the assessee filed appeal before Commissioner of Income Tax (Appeal) challenging the validity of re-assessment proceedings as well as additions on merits. The Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax(Appeal) for cross examination of the witnesses whose statements were used to re-open the assessments and to make additions. The assessee never got chance to rebut the statements and the affidavits which have been used against the assessee for making the additions. The ld. AR submitted that the assessee has made specific request before the Commissioner of Income Tax (Appeal) for granting an opportunity to cross examine the witnesses. However, the same was rejected by the Commissioner of Income Tax (Appeal). The Commissioner of Income Tax (Appeal) after placing reliance on the decision in the case of Kolte Patil Developer Vs. DCIT, in ITA Nos. 1478 to 1483/PN/2013 for assessment years 2004-05 to 2009-10 decided on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participated in the assessment proceedings. The assessee did not ask for cross examination of the witnesses and assessee never asked for the reasons for re-opening assessment. The Hon'ble Supreme Court of India in the case of M/s. Andaman Timber Industries Vs. Commissioner of Central Excise(supra.) has held the assessment to be bad in law, where opportunity of cross examination was not provide to the assessee despite specific request. However, in the instant case, no request was made by the assessee during assessment proceedings. The assessee for the first time appeared before Commissioner of Income Tax (Appeal) in First Appellate proceedings and asked for cross examination. The ld. DR prayed that since facts in the present case are di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art relief to the assessee by restricting the addition to the extent of 25% of the alleged bogus purchases in all the three assessment years. The argument of the assessee in allowing an opportunity to cross examine was also rejected by the Commissioner of Income Tax (Appeal) in light of the order of Tribunal in the case of Kolte Patil Developers Vs. DCIT (supra.). 10. In the present set of appeals, the ld. AR of the assessee has confined his submissions challenging the order of Commissioner of Income Tax (Appeal) in not granting opportunity of cross examination to the assessee. The Hon'ble Supreme Court of India in the case M/s. Andaman Timber Industries Vs. Commissioner of Central Excise (supra.) has held that not providing opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals to the file of Commissioner of Income Tax (Appeal) for allowing an opportunity to the assessee to cross examine the dealers whose statements were used by the Department for re-opening the assessments in the case of assessee. Identical grounds have been raised by the assessee in all the appeals. Accordingly, the ground No.1 raised in the appeals are allowed for statistical purpose. 13. Since ground No.1 of the appeals by the assessee are allowed for statistical purpose, the other grounds i.e. ground No. 2 to 4 raised in all the appeals on merits of the addition have become academic and not dwelled upon. 14. In the result, all the three appeals of the assessee are partly allowed for statistical purposes in the terms aforesaid. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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