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TMI Blog2018 (11) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ion towards the Assessment Order page no. 6 para 13 in which the AO has himself reproduced the submission of the assessee submitted vide assessee's reply dated 7.12.2016 requesting therein to allow the assessee to cross examine the source on the basis of which such an opinion has been formed. he further submitted that AO has not considered this point while passing the assessment order. Further he draw my attention towards page no. 7 of the Ld. CIT(A)'s order para no. 13 mentioning the assessee's reply dated 7.12.2016 as made before the AO, as aforesaid, which was also not considered by the Ld. CIT(A). He further draw my attention towards page no. 24 of the Ld. CIT(A)'s order wherein it was specifically mentioned that the assessee is specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of principle of natural justice and against the law settled in the decision rendered by the Hon'ble Supreme Court of India in the case of Andaman Timber vs. CIT decided in Civil Appeal No. 4228 of 2006. Hence, he requested to follow the SMC Bench decision in the case of Jyoti Gupta (Supra) and allow the appeals of the assessee. 4. Ld. DR relied upon the orders of the authorities below. 5. I have heard both the parties and perused the records, especially the assessment as well as impugned order and the reply filed by the assessee before the AO in response to the show cause notice. I find from the Assessment Order page no. 6 para 13 in which the AO has himself reproduced the submission of the assessee submitted vide assessee's re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the same, which is in violation of principle of natural justice. I further note that exactly on the similar facts and circumstances the ITAT, SMC, Delhi Bench vide its order dated 06.11.2018 passed in ITA No. 3510/Del/2018 (AY 2014-15) in the case of Smt. Jyoti Gupta vs. ITO wherein, the SMC Bench has considered the statement of Vikrant Kayan and has held that since the impugned addition was made on the statement of Sh. Vikrant Kayan without providing any opportunity to the assessee to cross examine the same and Ld. CIT(A) has not considered the same ground, which is in violation of principle of natural justice and against the law laid down by the Hon'ble Supreme Court of India in the case of Andaman Timber vs. CIT decided in Civil App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I do not find any merit in the impugned additions. The findings of the CIT(A) are accordingly set aside. The Assessing Of ficer is directed to allow the claim of exemption u/s 10(38) of the Act." 6. Keeping in view of the facts and circumstances of the present case and respectfully following the order of the Tribunal, SMC Bench, Delhi in the case of Smt. Jyoti Gutpa vs. ITO (Supra) and in view of the law settled by the Hon'ble Supreme Court of India in the case of Andaman Timber vs. CIT (Supra), on identical facts and circumstances, the addition in dispute is deleted and the appeal of the assessee is allowed. 7. Following the consistent view as taken in ITA No. 4565/Del/2018 (AY 2014-15) in the case of Anubhav Jain vs. ITO, as aforesaid, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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