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TMI Blog2024 (7) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... ortation bills, confirmed copy of accounts and the fact of payment through cheques, VAT Registration of the sellers their Income Tax Return. Purchases made by the appellant is found to be acceptable and the consequent disallowance resulting in addition to income made is directed to be deleted - Decided in favour of assessee. - Dr. M. L. Meena, Accountant Member And Sh. Udayan Dasgupta, Judicial Member For the Appellant : None (Written submission) For the Respondent : Sh. S. R. Kaushik, CIT DR CONSEQUENTIAL ORDER PER DR. M. L. MEENA, AM: While disposing of both the appeals of the assessee, the Hon ble Accountant Member and the Hon ble Judicial Member constituting the Bench vide separate orders dated 18.01.2019 respectively, have taken the divergent views qua on the quantum addition made by AO and confirmed by CIT(A)-2, Jalandhar. 2. Due to the divergent views of the members of the Bench, this case was assigned to the Hon ble third member through reference u/s 255(4) of the Act. The Hon ble third member vide order dated 15.05.2024 concurred with the view taken by the Judicial Member in deleting the addition confirmed by the ld. CIT(A) by allowing the appeals of the assessee-appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N REVIEW PETITION (C) DIARY NO, 22394 OF 2019 IN CIVIL APPEAL NOS, 9604-9605 OF 2018 Commissioner of Income Tax-7, ... Petitioner New Delhi Versus M/s Odeon Builders Pvt. Ltd. ..... Respondent ORDER Delay condoned. We have perused the review petition and find that the tax effect in this case is above Rs. l crore, that is, Rs. 6,59,27,298/-. Ordinarily, therefore, we would have recalled our order dated 17th September, 2018, since the order was passed only on the basis that the tax effect in this case is less than Rs. 1 crore. However, on going through the judgments of the CIT, ITAT and the High Court, we find that on merits a disallowance of Rs. 19,39,60,866/- was based reply on third party information, which was not subjected to any further scrutiny. Thus, the CIT (Appeals) allowed the appeal of the assessee stating: Thus, the entire disallowance in this case is based on third party information gathered by the Investigation Wing of the Department, which have not been independently subjected to further verification by the AO who has not provided the copy of such statements to the appellant, thus denying opportunity of cross examination to the appellant, who has prima facie discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The discussion made by the Hon ble Supreme Court in paragraphs no. 6 7 reads as under:- 6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n admission of a third party, who might have many reasons for making such statements and such witnesses were not subject to cross examination. Therefore, I am of the view that Brother Judicial Member has rightly deleted the disallowance and I concur with his order. 27. As far as the questions referred to me as noticed in paragraphs no. 13 14 of this order are concerned, I am of the view that Question No. 1 framed by the Hon ble Accountant Member and Question No. 2 framed by the Hon ble Judicial Member are common. Both these questions exhibit the issue, whether the assessee is entitled to the claim of expenditure for its purchases made from these three concerns, namely M/s. Daksh Diamonds, M/s. Jewel Diamonds (A.Y. 2007-08) and M/s. Nazar Impex (P) Ltd. (A.Y. 2013-14). The rest of the questions are either academic in nature or contains peripheral arguments on this central point. For example in the first question, Hon ble Judicial Member has propounded - Whether it is not incumbent upon the later Bench to follow the verdicts of the Coordinate Benches on the identical and similar issues, in order to maintain the judicial discipline, in view of the judgment passed by the Apex Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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