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TMI Blog2018 (12) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... licable here. We find considerable cogency in the contention raised by the assessee’s counsel that addition was made on the basis of material collected at the back of the assessee without giving him an opportunity to rebut/cross examine the same, which was also raised before the CIT(A), who did not adjudicate the same and wrongly upheld the AO’s order, which is not proper and is against the principle of natural justice as well as law laid down in the case of Andaman Timber vs. CIT [2015 (10) TMI 442 - SUPREME COURT] wherein held as not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the balance amount has not been claimed in the profit and loss account. iv) That the said case Ld. CIT(A) and AO, both has erred on facts and in law in calculating the tax payable by the assessee. v) That the said case Ld. CIT(A) and AO, both has erred on law. The provisions of section 234B, 234C and 234D are not applicable in the case of the appellant. vi) That the appellant craves leave to add, alter, modify withdraw, amend substitute any ground(s) of appeal either before or at the time of hearing. 2. Brief facts of the case are that assessee company belongs to the Aerens Group. Search Seizure and Survey operations under section 132 / 133A of the Income Tax Act, 1961 were conducted on 17.08.2011 in the case of the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted money. For the instant year, addition of ₹ 1,56,00,000/- (Rs. 26,00,000/- as Share Capital plus ₹ 1,30,00,000/- as Share Premium), claimed to be received from 2 Companies was made. Further, the Claim of Loss amounting to ₹ 58,92,431./- was disallowed in the absence of verification and disallowances u/s 40(a), 40A(7) and 43B under the heads, FBT, Wealth Tax, Interest and Gratuity, amounting to a total of ₹ 59,75,028/- were also made and income of the assessee was assessed at ₹ 1,56,00,000/- vide order dated 30.3.2014 passed u/s. 153 read with section 143(3) of the I.T. Act, 1961. Against the action of the AO, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 28.6.2016 has partly allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. addition made u/s. 68 of the Act. 5. We have heard both the parties and perused the records, especially the assessment as well as impugned order and the submissions filed by both the parties. We find that the case laws relied upon by the Ld. DR are on the merits of the case, however, the ground argued before the Tribunal is relating to confirmation of addition which was made on the basis of material collected at the back of the assessee without giving his an opportunity to rebut/cross examine the same which is in violation of the principle of natural justice, hence, the same are not applicable here. We find considerable cogency in the contention raised by the assessee s counsel that addition was made on the basis of material collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenable. 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 appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of crossexamination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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