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TMI Blog2020 (3) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... to delete the addition so made. See ANDAMAN TIMBER INDUSTRIES VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA-II [ 2015 (10) TMI 442 - SUPREME COURT] . Appeal of the assessee is allowed. - SHRI R.C. SHARMA, ACCOUNTANT MEMBER For the Assessee : Shri Surendra Chopra (CA) For the Revenue : Shri Abhimanyu Singh Yadav JCIT-DR ORDER PER: R.C. SHARMA, AM This is an appeal filed by the assessee against the order of the CIT(A)-1, Jodhpur dated 28/09/2018 for the A.Y. 2009- 10 in the matter of order passed u/s 143(3)/147 of the Income-tax Act, 1961 [hereinafter referred to as the Act , for short]. 2. In this appeal the assessee is aggrieved by confirming the addition of Rs. 5,83,320/- made by the A.O. on account of on money payment for purchase of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey paid by him, therefore, the AO issued notice u/s. 148 of the Act on 30.03.2016. The assessee stated that he had not paid extra amount (on-money) towards purchase of plot. However, the AO was not convinced with the assessee's reply and various assertions made in the reply filed in response to notice issued. By the impugned order, the ld. CIT(A) confirmed the action of the AO, against which the assessee is in further appeal before the Tribunal. 5. The ld. AR placed on record a decision of the Coordinate Bench in the case of Shri Deva Ram Suthar Vs ITO in ITA No. 342/Jodh/2018 order dated 27/12/2018 wherein under similar facts and circumstances, the addition made on account of alleged on-money paid on purchase of plot was deleted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee 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 per our considered view, not providing opportunity of cross examination amount to violation of principle of natural justice, a serious flaw which makes the order null and void. 11. For this purpose, reliance can be placed on the decision of Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose it wanted to avail the opportunity of crossexamination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. 12. Reliance can also be placed on the decision of Bombay High Court in the case of Ashish International in ITA No. 4299/Mum/2009 dated 22/02/2011, wherein Court held as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity goes to root of the matter and strikes at the very foundation of the assessment order and renders it vulnerable. 14. Applying proposition of law laid down by Hon ble Supreme Court and High Court as discussed above, I do not find any merit for the addition made by AO merely on the basis of statement, when there is no corroborative material with AO suggesting the alleged addition, without allowing assessee an opportunity to cross examine the person on whose statement addition was made. Accordingly, AO is directed to delete the addition so made. 15. Before parting with the matter, I observe that Ld. AR had placed on record order of ITAT Jaipur Bench in the case of Navrattan Kothari vs ACIT in ITA No. 425/JP/2017 in which proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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