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TMI Blog2019 (1) TMI 1818X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer. 2. The ground of appeal filed by the Revenue reads as under: 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 4,35,00,000/- u/s 68 of the Act, on account of Unexplained Share Premium. 2. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of Rs. 4,35,00,000/- without appreciating the fact that the genuineness of the share premium amount and the creditworthiness of the companies has not been established by the assessee as these companies which subscribed to the Shares had been formed only on paper without having any substantial business activities and are operated and controlled by Shri Shirish C. Shah. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the statement recorded during the course of search, Shri Shah himself stated that listed companies like Empower India Ltd., Prabhav Industries Ltd., Secunderabad Health Care Ltd., Vishesh Infotechnics Ltd., Dhanush Technologies Ltd., Aadhar Venture India Ltd., Sanguine Media Ltd, Emporis Projects Ltd., Avance Technologies Ltd. and Shri Ganesh Spinners Ltd. were managed and controlled by him. He further clarified that he was using these listed companies for providing accommodation entries of share capital/premium, share application, unsecured loans (one time). In response to a show cause notice issued by the AO, the assessee filed a reply dated 25.03.2015 which has been extracted by the AO at para 6 of his assessment order. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Construction P. Ltd. vide ITA No. 3645/Mum/2014 for AY 2007-08 dated 30.11.2015 and M/s Creative World Telefilms Ltd. (earlier known as Link International Service Pvt. Ltd.) vide ITA (L) No. 2182 of 2009 dated 12.10.2009, the Ld. CIT(A) deleted the addition of Rs. 4,35,00,000/- made by the AO u/s 68 of the Act. 6. Before us, the Ld. DR submits that the assessee company has received share premium from the companies of Shri Shirish C. Shah who stated himself to be providing accommodation entries. In this context, the Ld. DR refers to answer to question No. 7 of the statement recorded u/s 132(4) during the course of search on 13.04.2013. Thus the Ld. DR submits that the addition of Rs. 4,35,00,000/- made by the AO be restored. 7. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon'ble Supreme Court in the case of CIT v. Sunita Dhadda (Department's SLP No. 9432/2018, dismissed) and mentions the following : "S. 143(3)/292C: if the AO wants to rely upon documents found with third parties, the presumption u/s 292C against the assessee is not available. As per the principles of natural justice, the AO has to provide the evidence to the assessee & grant opportunity of cross-examination. Secondly evidences cannot be relied on as if neither the person who prepared the documents nor the witnesses are produced. The violation of natural justice renders the assessment void. The Dept cannot be given a second chance (All judgments considered." The Ld. counsel further submits that the assessee would not like to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst this order has been dismissed by the Hon'ble Sepreme Court. A proper hearing must always include a 'fair opportunity' to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Lord Denning in Kanda v. Government of Malaya [1962] AC 322 has added : "If the right to be heard is to be real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them." Cross-examination is allowed by procedural rules and evidently also by the rules of natural justice. Any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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