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TMI Blog2018 (11) TMI 1723X X X X Extracts X X X X X X X X Extracts X X X X ..... er wherein it was stated that assessee has demanded an opportunity to cross examine Sh. Nikhil Jain vide its letter dated 07.12.2016 which was not provided to him, which is against the law settled by the Hon ble Supreme Court of India in the case of Andaman Timber Industries vs. CIT [2015 (10) TMI 442 - SUPREME COURT]. Further, even the Ld. CIT(A) in the impugned order has stated that assessee was provided the statement of Nikhil Jain and others, used against him, which is nowhere mentioned in the assessment order and is totally wrong and even otherwise no opportunity of cross examination Sh. Nikhil Jain was provided to the assessee, which fact was not at all considered by the Ld. CIT(A) - further, in the statement of Sh. Narendra Balasia, Director of M/s SMC Global Securities Ltd. through which assessee has opened DMAT account, nowhere the name of assessee is mentioned. AO has stated that an opportunity to cross examine Sh. Narendra Balasia in the office of DDIT (Inv.), Kolkata, at any time on or before 16.12.2016 is provided to assessee but no such communication was received from DDIT (Inv.), Kolkata as to on what date assessee should appear before him for cross examination. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase and sale of shares. Thus relying on the statement of third party which is not directly connected with the assessee is illegal and bad in law. He draw my attention towards para no. 6.2 at page no. 11 of the Assessment order and stated that assessee has demanded an opportunity to cross examine Sh. Nikhil Jain vide its letter dated 07.12.2016 which was not provided, which is against the decision of the Hon ble Supreme Court of India in the case of Andaman Timber Industries vs. CIT 127 DTR 0241. He further draw my attention towards Ld. CIT(A) s order vide para no. 8(c) at page no. 6 and has stated that assessee was provided the statement of Nikhil Jain and others, used against him, which is totally wrong. However, nowhere in the assessment order, the AO has mentioned that the statement of Nikhil Jain was provided to the assessee and even no opportunity of cross examination him was provided, which was not considered by the Ld. CIT(A). He further draw my attention towards Assessment order page no. 12 para no. 6.3 and submitted that in the statement of Sh. Narendra Balasia, Director of M/s SMC Global Securities Ltd. through which assessee has opened DMAT account, nowhere the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther find from the assessment order para no. 6.2 at page no. 11 wherein it was stated that assessee has demanded an opportunity to cross examine Sh. Nikhil Jain vide its letter dated 07.12.2016 which was not provided to him, which is against the law settled by the Hon ble Supreme Court of India in the case of Andaman Timber Industries vs. CIT in Civil Appeal No. 4228 of 2006. I further note that even the Ld. CIT(A) vide para no. 8(c) at page no. 6 of the impugned order has stated that assessee was provided the statement of Nikhil Jain and others, used against him, which is nowhere mentioned in the assessment order and is totally wrong and even otherwise no opportunity of cross examination Sh. Nikhil Jain was provided to the assessee, which fact was not at all considered by the Ld. CIT(A). I further find that in the statement of Sh. Narendra Balasia, Director of M/s SMC Global Securities Ltd. through which assessee has opened DMAT account, nowhere the name of assessee is mentioned. AO has stated that an opportunity to cross examine Sh. Narendra Balasia in the office of DDIT (Inv.), Kolkata, at any time on or before 16.12.2016 is provided to assessee but no such communication was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note 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 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 cross examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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