9911796707
TMI Blog2024 (5) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... l, it was the responsibility and duty of the AO to bring Mr. Nilesh Ajmera for cross examination before the assessee and give him the opportunity to assessee to cross examine Mr. Nilesh Ajmera so as to adhere to the principles of natural justice, since the additions have been made based on third parties statement. The burden to discharge the onus as directed by this Tribunal was purely on the AO and he could not absolve from his duty by mentioning that summons were sent twice to Mr. Nilesh Ajmera. The action of the AO seems like that there is a witness from the side of the Revenue and on his statement, the addition has been made in the hands of the affected party but when the opportunity of giving cross examination is to be given, then rather than the Revenue to bring its witness for cross examination the affected party is held responsible for bringing such witness. Similar approach of the Ld. AO in the instant case cannot be held to be justified. For the inability of the AO to comply with the directions of this Tribunal by not providing the opportunity to the assessee to cross- examine to Mr. Nilesh Ajmera leaves us with no option except to delete alleged addition for unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Act, 1961, was framed assessing the income at Rs. 35,07,800/-. In the said reassessment proceedings, addition of Rs. 30 lakhs was made towards unexplained investment allegedly made by the assessee by way of giving cash to Mr. Nilesh Ajmera for the purpose of purchasing immovable property. The said addition was made on the basis of the information received from the seized records found in the case of Nilesh Ajmera during the course of search and seizure operation of Satellite Groups and its group concern on 19.11.2009. The seized material included the diary B5-8, wherein certain details about payments in the mode of cash and cheque were found to have been made to Nilesh Ajmera alongwith some information about purchase of flat. The said details totalled to Rs. 80 lakhs of which Rs. 50 lakhs was through cheque and Rs. 30 lakhs was through cash alleged to have been received by Nilesh Ajmera from the assessee. Based on this information since payments made through cheque were duly accounted for by the assessee, addition was made in the hands of the assessee for cash component. During the course of appellate proceedings, though the assessee denied to have given any cash to Nilesh Ajme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g down similar ratios and the same are mentioned in the written submissions. 4. Second fold of contention by Ld. Counsel for the assessee is that the assessee sought opportunity to cross examine Nilesh Ajmera, so as to prove that the assessee has not advanced alleged sum of Rs. 30 lakhs to Mr. Nilesh Ajmera and this opportunity was to be provided by the AO but the ld. AO casted the onus upon the assessee to bring Nilesh Ajmera for cross examination and since no such opportunity was granted, the alleged addition deserves to be deleted. Reliance placed on various decisions including that of Hon'ble High Court of Delhi in the case of CIT vs. SMC Shares Brokers Limited, 74 CCH 0659 and in the case of CIT vs. S.D.Agrawal, 75 CCH 0314. While concluding his arguments, he also submitted that the Ld. AO has alleged that the disputed sum has been advanced by the assessee for the purpose of acquiring a flat in Dubai, but no evidence has been put forth by the Revenue Authorities to prove that whether any such investment has ever been made in the name of assessee for acquiring/purchasing flat at Dubai. 5. On the other hand, the Ld. Departmental Representative vehemently argued supporting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord. Looking to the facts and circumstances, we find that the assessee disputed the correctness of the entries made in the diary and wanted to cross-examine Mr. Ajmera, but the AO did not grant this opportunity to the assessee. The Ld. CIT(A) confirmed the same on the ground that cross-examination is secondary evidence as the seized papers are primary evidence, therefore, there is no denial of natural justice if witnesses were not allowed to be cross-examined. However, we are of the view that even when the assessee disputed the correctness of the entries made in the diary and wanted to cross- examine Mr. Ajmera and stated that he did not pay any amount in cash to Mr. Nilesh Ajmera against purchase of booking of any property, then the approach of the Revenue Authorities is not justified as it amounted to violation of principle of natural justice and because of which, the assessee was adversely affected. The ratio laid down by the Hon'ble Supreme Court in the case of M/s. Andaman Timber Industries vs. Commissioner of Central Excise (Civil Appeal No. 4228 of 2006, order dated September 2, 2015) supports our view. The relevant portion of the above order of the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajmera. When the ld. AO carried out the proceedings in pursuance of directions of this Tribunal, the relevant observation of ld. AO appearing in the assessment order reads as under :- 4. In response to said notices, Shri S.S.Solanki, CA and authorized representative of the assessee attended the assessment proceedings from time to time as per order sheet entries with whom the case was discussed. Written submission along with supporting documents were filed and placed on record. As per directions of Hon'ble ITAT, efforts were made to call for Shri Ajmera and get him cross examined by the assessee . Summons were issued to Shri Nilesh Ajmera twice but he did not attend office. The summons were served upon the gate-keeper in the residence of Shri Ajmera as he was not available at the residence. As per information, Shri Ajmera is absconding for last 2 years. 5. During the course of assessment proceedings, the AR of the assessee has not pressed upon the cross examination of Shri Ajmera but he has taken another plea that on similar ground the same bench of Hon'ble ITAT i.e. Indore Bench has decided the issue in favour of the assessee. The assessee has furnished copies of order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO worth Rs. 30,00,000/- is confirmed and the appeal of the appellant is dismissed. 9. Now on going through the proceedings, and the relevant observations of the lower authorities, we find that the onus of bringing Nilesh Ajmera for cross examination has been casted upon the assessee. We fail to find any merit in such observation of the lower authorities for the reasons that the search and seizure action have been conducted by the Income Tax Department on Mr. Nilesh Ajmera and certain documents and diaries were seized. Based on such documents and also taking basis of statements given by Mr. Nilesh Ajmera, reassessment proceedings have been carried out in the case of the assessee. Admittedly, search action was conducted on the assessee and the alleged addition is merely on the basis of third parties information. So, when the additions have been made on the basis of documents found from the possession of Mr. Nilesh Ajmera and the search operations have been carried out in the case of Nilesh Ajmera, then as per the direction of this Tribunal, it was the responsibility and duty of the AO to bring Mr. Nilesh Ajmera for cross examination before the assessee and give him the opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
