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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 ..... nt during assessment. Also it has been stated in the cross objection filed by the assessee that the AO did not grant cross-examination of the parties to the respondent, despite the request of the respondent during assessment. We set aside the order of the CIT(A) and restore the matter to the file of the AO to make a de novo order after examining the aforesaid parties and allowing the assessee opportunity to cross-examine them. We direct the assessee to file the relevant documents/evidence before the AO. - ITA No. 3164/MUM/2017, C.O. No. 279/MUM/2018 (ITA No. 3164/MUM/2017) - - - Dated:- 30-1-2019 - Shri Joginder Singh (Vice President) And Shri N.K. Pradhan (Accountant Member) Revenue by: Mr. Satish Chandra Rajore, DR Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t grant inspection to the respondent of the materials based on which such addition is made, despite the request of the respondent during assessment. 4. The AO did not grant cross examination of the parties to the respondent despite the request of the respondent during assessment. 4. The assessee filed its return of income for the assessment year (AY) 2012-13 on 21.09.2012 declaring total income at ₹ 290/-. During the course of assessment proceedings, the Assessing Officer (AO) asked the assessee to prove the identity, genuineness and creditworthiness of the persons from whom the assessee had received share premium of ₹ 8,45,50,000/-. In response to it, the assessee filed confirmation along with copy of return including pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,35,00,000/- u/s 68 of the Act on the reason that the assessee has received share premium from the companies of Shri Shirish C. Shah, who stated himself to be providing accommodation entries. 5. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). In the order dated 03.02.2017, the Ld. CIT(A) observed that the AO has made the addition solely on the basis of the statement recorded u/s 132(4) of Shri Shirish C. Shah on 13.04.2013. The assessee claimed that since it did not know Shri Shah, it was not possible for it to produce him for examination. Thus the Ld. CIT(A) held that the assessee established the identity, creditworthiness and genuineness of share application money by furnishing the complete details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions (ii) decision in Superline Construction Pvt. Ltd. others by ITAT Mumbai, (iii) copy of Form 5 of Ministry of Corporate Affairs for increasing authorized share capital of the assessee, (iv) copy of Form 23 of Ministry of Corporate Affairs for resolution for increasing authorized share capital of the assessee, (v) copy of Form 2 of Ministry of Corporate Affairs for allotment of shares by the appellant, (vi) copy of letter of authority, (vii) the set containing copies of documents of share subscribing company Aadhar Ventures India Ltd., Sanguine Media Ltd. and Emporis Projects Ltd., (viii) decision of Bombay High Court in Creative World Telefilms Pvt. Ltd. of 2009. The Ld. counsel further files a P/B containing decision in CIT v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 25.03.2015 stating inter alia that reasonable opportunity be given to examine the documents on the basis of which allegation has been made; cross-examine the parties which is alleged to be bogus etc. Also in the cross objection the assessee has stated that the AO did not make available to the respondent of the materials based on which such addition is made, despite the request of the respondent during assessment. Also it has been stated in the cross objection filed by the assessee that the AO did not grant cross-examination of the parties to the respondent, despite the request of the respondent during assessment. In the case of Sunita Dhadda(supra), the Hon ble Rajasthan High Court vide order dated 31.07.2017 in ITA No. 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return necessarily carry with it the right to examine witnesses and that includes equally the right to cross-examine witnesses. In ITO vs. M. Pirai Choodi (2012) 20 taxmann.com 733 (SC), the Hon'ble Supreme Court has held that Order of assessment passed without granting an opportunity to assessee to cross-examine, should not have been set aside by High Court; at most, High Court should have directed Assessing Officer to grant an opportunity to assessee to crossexamine concerned witness. We find that the Ld. CIT(A) has failed to appreciate the relevance of cross-examination in the instant case. 8.1 Examined on the touchstone of the above position of law, we set aside the order of the Ld. CIT(A) and restore the matter to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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