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TMI Blog2019 (9) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Appellant relied upon the Judgment delivered by in case of Andaman Timber Industries V/s Commissioner of C. Ex., KolkataII, Decided [ 2015 (10) TMI 442 - SUPREME COURT] . There was a proceedings relating to the payment of central excise. The Assessee made grievance about denial of an opportunity to cross-examine the buyers. Denial of such an opportunity is a serious flaw rendering the order as a nullity. Hence the Hon ble Supreme Court set-aside the impugned orders. Provisions of Income Tax Act - The investigating team has recorded statement of said Gopal Kondawar on three occasions. They are on 10/4/2013, 31/5/2013 and 7/6/2013. The Appellant Assessee has made grievance about not admitting cash payment by Mr. Gopal Kondawar in firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), Nagpur. 2. Vide said order, the Assistant Commissioner included ₹ 1,50,00,000/being unaccounted investment in the total income of the Assessee. He further directed to initiate penalty proceedings. There is an appeal preferred against the said order before the learned Commissioner of Income Tax (Appeals) 3, Nagpur. The Appellant - Assessee could not convince him and the Appeal came to be dismissed on 30th November 2016. Even the Appellant could not succeed before the Income Tax Commissioner as mentioned above. All these decisions are challenged before us. 3. The Appellant Assessee has agreed to purchase land from one M/s Jagdamba Realtors Private Limited. There was one Memorandum of Understanding executed on 13th March 2007. Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Limited and whether it has caused prejudice to the Appellant due to denial of opportunity to cross-examine. 6. On 10th July 2019 after hearing both the sides, we have framed two questions of law. We have also heard Mr. S. S. Dewani, the learned Counsel for Appellant and Mr. Bhattad, the learned Counsel for Respondent. GRIEVANCES 7. There are two grievances. One is non-supply of documents including the statement of Gopal Kondawar to the Appellant Assesses and second is denial of an opportunity to cross-examine him. The first grievance is not agitated before us seriously. When we have perused the documents, We are also satisfied that the first appellate authority i.e. Commissioner of Income Tax has supplied the documents to the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made about opportunity to cross-examine Mr. Gopal Kondawar. We have also perused the Memo of Appeal filed before the learned Appellate Tribunal (Second Appeal). The grievance about denial of cross-exponentiation was made in Paragraph No. 7 of the grounds of facts. CONCLUSION 10. The above facts clearly shows that specific grievance was made about the willingness to cross-examine Mr. Gopal Kondawar. The objection taken on behalf of the Respondent needs to be negated. In order to support their contention about the right to cross-examine witness, the leaned Counsel for the Appellant relied upon the Judgment delivered by the Hon'ble Supreme Court in case of Andaman Timber Industries V/s Commissioner of C. Ex., KolkataII, Decided on 2nd Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontents of those statements. That is why an opportunity of crossexamining Mr. Gopal Kondawar needs to be given. REMAND 13. Assistant Commissioner of Income Tax is the first authority who has conducted that enquiry. Hence, he only can be directed to secure the presence of Mr. Gopal Kondawar for cross-examination by the Assessee. We do not find anywhere any observations by the learned Commissioner of Income Tax and by the learned Appellate Tribunal regarding the grievance made about denial of an opportunity of cross-examination. Failure to give an opinion about this grievance also amounts to refusal of an opportunity to cross-examine the said Gopal Kondwar which is improper. Hence, all the orders needs to be set-aside. For the above discus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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