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TMI Blog2019 (3) TMI 2029X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged on-money by the assessee to Shri Madan Mohan Gupta arises for consideration. Annexure-A-3 referred by the AO in his order is a register where the details of the plot allotted to various persons is noted. This Annexure nowhere suggests that any on-money has been received by Shri Madan Mohan Gupta from the allottees of plot. At the time of possession of the plot, the final receipt is issued for the entire amount received and that receipt no. is also mentioned in this register. Thus, in these papers there is no evidence that any on-money has been paid by the assessee. Further, opportunity to cross examine Shri Madan Mohan Gupta was not provided even when specifically asked for on the ground that he is not a third party ignoring that assessee has not purchased any plot from him rather it is the Rajasthan Tehsildar Sewa Parishad who have allotted the plot to the assessee under the scheme framed by them. No merit in the addition so made by the AO and confirmed by the ld. CIT(A), hence, the Assessing Officer is directed to delete the same. - Decided in favour of assessee. - ITA No. 1273/JP/2018, 1330/JP/2018, 1320/JP/2018, 1310/JP/2018 - - - Dated:- 25-3-2019 - SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, the ld. CIT(A) has confirmed the reopening as well as merit of the addition so made. 4. Now the assessee is in further appeal before the ITAT challenging the validity of reopening U/s 147 of the Act and also the merit of the addition so made. 5. I have considered the rival contentions and carefully gone through the orders of the authorities below. I so far as the reopening is concerned, I am satisfied that after recording the detailed reasoning on the basis of the documents found during the search from Shri Madan Mohan Gupta, the Assessing Officer has reason to believe that the income of the assessee has escaped assessment, accordingly, reopening is valid and I uphold the same. 6. Now I come to the merit of the addition, I found that the Assessing Officer observed at pages 2 to 15 of the order that in search at business premises of Shri Madan Mohan Gupta dated 23.05.2013, incriminating documents were found and seized which revealed that the assessee made payment of Rs.2,68,330/- and Rs.2,670/- towards boundary expenses by receipt no. 53 dated 07.07.2008 through cheque and Rs.4,66,660/- as on-money . He referred to the relevant extract of the statement of Shri Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mohan Gupta. Therefore, no question of payment of alleged on-money by the assessee to Shri Madan Mohan Gupta arises for consideration. 8. I also observe that Annexure-A-3 referred by the Assessing Officer in his order is a register where the details of the plot allotted to various persons is noted. As per this register, the name address of the person to whom the plots were allotted, the area of the plot, the amount receivable from these persons at the rate of Rs. 1,150 per sq. yard, and the amount due to them after adjusting Rs.30,000/- received from the Rajasthan Tehsildar Sewa Parishad on account of these persons is noted. Thus, this Annexure nowhere suggests that any on-money has been received by Shri Madan Mohan Gupta from the allottees of plot. At the time of possession of the plot, the final receipt is issued for the entire amount received and that receipt no. is also mentioned in this register. Thus, in these papers there is no evidence that any on-money has been paid by the assessee. Further, opportunity to cross examine Shri Madan Mohan Gupta was not provided even when specifically asked for on the ground that he is not a third party ignoring that assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the entire fabric being woven against the appellant for treating the alleged payment of on money go around the statement of Shri Madan Mohan Gupta. It is submitted that after thought statement carry no weight under the law and they are against the spirit of natural justice because they have no evidence value. d. That except the above statement of Shri Madan Mohan Gupta there was no supporting evidence available with the Id.AO which could corroborate that on money of Rs.4,66,660/- was paid by the appellant to Shri Madan Mohan Gupta. e. That while making the allegation the Ld.AO has relied upon the statement of Shri Madan Mohan Gupta course of search proceedings. 10. Assessee also asked before the AO to provide opportunity for the cross examination of the person on whose statement addition was made. However, no such opportunity was provided neither by the AO nor by the CIT(A). Thus, without affording cross examination, the AO has made addition on the basis of statement of Shri Madan Mohan Gupta u/s 69 being unexplained investment and added the same in assessee s income. However, there was no corroborative material available with the AO for making addition. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of Bombay High Court in the case of Ashish international in 1TA No.4299/Murn/2009 dated 22/02/2011, wherein Court held as under:- The question raised in this appeal is, -whether the Tribunal justified in deleting the addition on account of bogus purchases allegedly made by the appellant from M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. According to the revenue, the Director of M/s. Thakkar Agro Industrial Chem Supplies P.Ltd. in his statement had stated that there were no sales/ purchases but the transactions were only accommodation bills not involving any transactions. The Tribunal has recorded a finding of fact that the appellant had disputed the correctness of the above statement and admittedly the appellant was not given any opportunity to cross examine the concerned Director of M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. who had made the above statement. The appellate authority had sought remand report at that stage the genuineness of the statement has not been established by allowing cross examination of the person whose statement was relied upon by the revenue. In these circumstances, the decision of the Tribunal being based on the fact, no su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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