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TMI Blog2020 (9) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the Revenue as to whether the said on-money which has been allegedly admitted by Sri.Valiyil Moosa has led to an assessment of higher capital gain tax or whether the said amount has been assessed under any other heads is also not known. These are evidences which would go to lay down the facts properly. As admittedly there has been violation of principles of natural justice also, we are of the view that the issues in this appeal must be restored to the file of the A.O. for re-adjudication after granting the assessee adequate opportunity. A.O. shall provide all such persons whose statements are being used against the assessee for his cross-examination. The presence of the assessee shall not be insisted upon for the purpose of cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is a non-resident doing business in Saudi Arabia and also receiving rental income, interest income and agricultural income. It was the submission that the original return of income filed by the assessee had been proposed u/s 143(1) of the I.T.Act. Subsequently it came to the attention of the A.O. that the assessee had purchased 28.73 cents of land from one Sri.P.Moideen Koya. The land was situated at Mavoor Road, Kozhikode. It further came to the attention that on-money transaction had taken place in the purchase of the said land. Consequently, the A.O. had issued notice u/s 148 on 04.11.2009. The return in response to the notice u/s 148 came to be filed on 31.08.2010. 4. It was submitted that as per the registered docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad deleted the addition without considering the various evidences produced by the A.O., but by simply observing as follows:- 14. It is observed from the above discussions that the entire addition was made based on the statements recorded from the seller Sri.Moideen Koya and his brother Sri. Moosa. However, Sri.Moideen Koya himself has not filed any return of income for the income admitted in his sworn statement. Moreover Moideen Koya himself has stated that he did not have any direct transaction with the appellant and the payments were received only through Sri.Mohammed Anwar and Sri.Kabeer, the broker. It is also to be observed that Sri.Mohammed Anwar has not accepted the on-money payment in his sworn statement dated 06.03.2015 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) is liable to the sustained on merits. It was the submission that reopening of the assessment on the basis of mere statements was bad in law. 7. We have considered the rival submissions. On going through the facts in the present case and at the time of hearing, the learned DR was specifically asked as to whether the assessee has been granted the opportunity to cross examine Sri.Moideen Koya and his brother Sri.Valiyil Moosa and such persons whose statements have been used to draw adverse inference against the assessee. To this, it was submitted that the assessee had not asked for the opportunity of cross-examination and therefore, there was no necessity for the same. 8. A perusal of the facts in the present case as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was drawn to the fact that the assessee s Authorized Representative had requested permission to cross-examine the witnesses, but this was declined by the A.O. insisting that the appellant should be personally present and it was for that reason that the opportunity to cross-examine could not be availed. In the statement of facts in para 17, the assessee has submitted that he had made several requests in the course of assessment and after receipt of the assessment order to furnish copies of statements recorded from Sri.Moideen Koya on 17.01.2008 by the ADIT, Income-tax, Calicut. 9. A perusal of the assessment order at para 12, it is mentioned by the A.O. that opportunity for cross-examining the witnesses was provided to the assessee. But o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of M/s.Andaman Timber Industries v. Commissioner of Central Excise [(2015) 281 CTR 241 (SC)]. We are also live to the fact that the said decision relates to a Central Excise matter. 11. A perusal of the statement recorded from Sri.Valiyil Moosa, which has also been extracted by the A.O. in his assessment order in para 11 clearly records the facts that the transactions were not done directly by Sri.C.Abdul Maharoof, the assessee, but were done by his nephews Sri.Anwar and Sri.Bappooty. There is no direct dealings between the purchaser and the seller. There is total absence of any written agreement between the assessee and the seller Sri.Moideen Koya or Sri.Valiyil Moosa. The order of the learned CIT(A) records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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