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TMI Blog2022 (2) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... Ashwani appearing in seized documents. It has been explained by the assessee before the AO and the Ld. CIT(A) that such references relate to payment of remuneration to the assessee and not to any commission. Even where there is mention of 2 to 3% commission in seized documents, the name of the assessee does not appear at all therein. In fact we notice that the AO in his remand report has categorically admitted that the statements of Sri Anil Agarwal, Sri Vipul Jain and Sri Mahavir Jain do not mention the name of the assessee being a party to the accommodation entries to the Rockland Group. No adverse inference can be drawn against the assessee regarding receipt of commission by him. The addition is based on presumptions alone without any corroborative evidence brought on record in support thereof. - Decided against revenue. - ITA No. 4643/Del/2016 - - - Dated:- 8-2-2022 - Sh. G. S. Pannu, Hon ble President And Sh. C. N. Prasad, Judicial Member For the Revenue : Sh. Satpal Gulati, CIT(DR) For the Assessee : Sh. P C Yadav, Adv. ORDER PER C.N. PRASAD, JM : The present appeal is filed by the Revenue against the order of the Ld. Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame as having contacted them for making investments in the Rockland group. However, the details as provided in the assessment order do not indicate that any commission was paid to the appellant for doing so. In any case, no evidence can be used justifiably against the assessee without offering cross- examination of the parties to the appellant, unless of course it is impossible to do so. The assessment order does not suggest that any such cross-examination was provided to the appellant; in fact this confirmed in the remand report as well. It has been mentioned in the remand report that the appellant to has not sought cross-examination before the completion of the assessment proceedings. But it would also be noticed that the A.O. has never confronted the appellant that he intends to use the statements of these three persons against him and therefore obviously there would be no cause for the appellant to seek cross-examination. Even when opportunity for cross-examination was provided to the A.O. during remand proceedings, it did not lead anywhere as none of these three persons could be located by the A.O. It is a settled position of law that non-providing of cross-examination of part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even when specifically asked. Therefore I am of the view that no inference can be drawn on the behalf of the revenue against the appellant from the statements. (iv) Even the statements of Sh. Prabhat Kumar Srivastava and Sh. Anil Bhandari, both Directors of the Rockland, which indicate that the appellant has introduced some investors to the Rockland group, fall short of actually stating that commission was payable or paid to appellant for making these introductions. Rather, subsequently Sh. Prabhat Kumar Srivastava has clarified before the A.O. that no fees/commission was paid to the appellant for making these introductions. These declarations of Sh. Prabhat Kumar Srivastava and Sh. Anil Kumar Bhandari has been brought out in the assessment order, but not specifically rejected or taken note of by the A.O. In my view, the statements of the promoters too cannot be said to be evidence to conclude that commission has been paid to the appellant. In fact, their subsequent uncontroverted self-declaration specifically puts any such doubt to rest. 6. Aggrieved, the Revenue is in appeal before the Tribunal on the following grounds:- (i) The order of Ld. CIT(A) is not correct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the view that no addition on account of commission allegedly received by the assessee can be made. In support, reliance is placed on the judgment of the Delhi High Court in the case of PCIT vs. Anand Kumar Jain (HUF), ITA No. 23/2021 and CM APPL. 5385/2021 pronounced on 12.02.2021 wherein the Hon ble Court held that the statement recorded in search cannot be regarded as the incriminating document for assessment under section 153A of the Act unless opportunity of cross examination of the witness is provided to the assessee. 11. We further find that the declaration made by Mr. Prabhat Kumar Srivastava, the Director in his affidavit denying payment of any fees/ commission to the assessee has neither been considered nor specifically rejected by the AO by recording any reasons. Nothing has been brought on record to disbelieve the statement of the Director, Mr. Prabhat Kumar Srivastava. In fact his statement remained uncontroverted by the AO. The Ld. CIT(A) has recorded a categorical finding that no adverse inference can reasonably be drawn from the entry against the word Ashwani appearing in seized documents. It has been explained by the assessee before the AO and the Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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