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TMI Blog2021 (4) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained in the hands of the assessee. As we have decided the issue in favor of the assessee on the preliminary ground as discussed, we are not inclined to decide the issue on merit. Accordingly we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. - Decided in favour of assessee. - ITA Nos. 1855 and 1856/AHD/2018 - - - Dated:- 17-3-2021 - Waseem Ahmed, Member (A) And Madhumita Roy, Member (J) For the Appellant : Tushar Hemani, Sr. Advocate and P.B. Parmar, A.R. For the Respondents : S.S. Shukla, Sr. DR ORDER PER WASEEM AHMED , ACCOUNTANT MEMBER The captioned appeals have been filed at the instance of the Assessee against the separate orders of the Learned Commissioner of Income Tax (Appeals)-2, Vadodara, of even dated 13/06/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2010-2011 2013-14. 2. The assessee has raised the following grounds of appeal: 1.00 On the facts and in the circumstances of the case, the learned CIT. (Appeals) erred in rejecting the appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee. 5. Aggrieved assessee preferred an appeal to the learned CIT (A) who confirmed the order of the AO by observing as under: 4.2 Ground No. 2 pertains to the merits of the addition at ₹ 1,11,111/- made u/s. 69B of the Act. Undisputedly, the appellant has purchased a flat No. AD-6 from Corner Point Infrastructure Pvt. Ltd. The entries recorded by the responsible person of Corner Point Infrastructure Pvt. Ltd. are reproduced as under:- 14 Jwalit Sheth AD-6 18-Mar-2010 111111 22-Mar-2010 200000 1-April-2010 1000000 8-April-2010 800000 26-Aug-2012 261000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned disallowance could not have been made since it grossly violates principles of natural justice. Assessee, vide letter 14.02.16 raising objections against the action of reopening (Pgs. 19-21 @ 20 of P/B), categorically requested for copy of documents relied upon by AO. AO, vide order dated 16.02.16 disposing of objections raised against reopening (Pgs. 22-24 @ 24 of P/B), stated that the supporting evidences assessment proceedings. However, no such evidence was furnished by AO and hence, assessee, vide letter dated 14.03.16 (Pgs. 27-28 of P/B), again brought it to the notice of AO that during the course of hearing on 09.03.16, AO had no furnished any evidence to the assessee. Thus, despite the fact that AO had relied categorically upon the statement of Mitesh Patel and Mehul Pandya, copy of the same was never provided to the assessee. It is settled law that if any material is not confronted to an assessee, it would not constitute as admissible evidence and hence, any addition made on the basis of such evidence is liable to be deleted. Reliance is placed on Kishinchand Chellara, - 125 ITR 713 (SC) Opportunity of cross-examination ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the cheques entries reflecting in the list were matching with the records of the assessee except the cash entries. Thus if we see the cash entries in aggregation with the cheques entries, impugned document cannot be termed as dumb document. 9.2. Be that as it may be, we find that the assessee in his letter dated 13 February 2016 has made a request to the AO for supplying the documents based on which the addition was proposed. The relevant request by the assessee is placed on pages 19-20 of the paper book and the relevant extract is reproduced as under: In case you still wish to proceed with reason recorded, then you are requested to provide copy of documents relied upon by you using against me as a matter of natural law of justice. 9.3. The AO in his order dated 16th February 2016 disposing off the objections raised by the assessee assured to supply the documentary evidence for the cash payment at the time of assessment proceedings. The relevant finding of the AO is placed on pages 22-24 of the paper book which is reproduced as under: The supporting evidences regarding the cash payment will be shown to the assessee at the time of assessment proceedings. (B.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an opportunity to the assessee to meet the case against him by providing the material sought to be used against him in arriving before passing the order of assessment. This not having been done, the denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment and, therefore, renders the orders passed by the Commissioner (Appeals) and the Tribunal vulnerable. The assessee was bound to be provided with the material used against him apart from being permitting him to cross examine the deponents whose statements were relied upon by him. Despite the request seeking an opportunity to cross examine the deponents and furnish the assessee with copies of statements and disclose material, these were denied to him. 9.8. In view of the above we hold that no addition can be sustained in the hands of the assessee. As we have decided the issue in favor of the assessee on the preliminary ground as discussed, we are not inclined to decide the issue on merit. Accordingly we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. Coming to ITA No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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