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TMI Blog2019 (1) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, is not an absolute right and depends not only the circumstances of the case but also on the statute concerned, which is not proper. Similar facts and circumstances passed in case of Smt. Jyoti Gupta vs. ITO [ [2018 (11) TMI 1353 - ITAT NEW DELHI] ]wherein, 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 [2015 (10) TMI 442 - SUPREME COURT] - Decided in favour of assessee. - ITA No. 4931/DEL/2018 - - - Dated:- 18-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has declared income from long term capital gains at ₹ 23,32,869/- which has been claimed exempt u/s. 10(38) of the I.T. Act, 1961. AO held that the transactions were sham and has entered into colourable device for avoidance of tax and the receipt of ₹ 2382923/- by way of cheques is nothing but unexplained cash credits u/s. 68 of the Income Tax Act, 1961 to be taxed @ 30% u/s. 115BBE of the Income Tax Act, 1961 at the hands of the assessee and ₹ 71487/- @ 3% of ₹ 2382923/- (being the total sale value of shares) was also added u/s. 69C of the Act as unexplained expenditure of the assessee. Accordingly, the AO completed the assessment u/s. 143(3) of the Act at an income of 3084800/- vide order dated 29.12.2016. Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee on similar facts and circumstances. Hence, requested to follow the aforesaid case and allow the appeal 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 submissions filed by the Assessee before the Ld. CIT(A). I find considerable cogency in the contention raised by the assessee s counsel that the material on the basis of which report has been prepared by the investigation wing did not provided to the assessee and no opportunity was provided to cross examine the persons/witnesses whose statements have been used against the assessee, which issue was also raised before the Ld. CIT(A), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of natural justice and against the ratio laid down by the Hon'ble Supreme Court in the case of Andaman Timber Vs. CIT Civil Appeal No. 4228 OF 2006 wherein it has been held as under: According to us, 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 order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause. We, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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