Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
O R D E R PER SHRI KUL BHARAT, JM This appeal is filed by the assessee against the order of ld. CIT(A)-2, Indore, dated 29.1.2016 on the following grounds of appeal:
1. That the ld. CIT(A) has erred in law and on facts in dismissing the appeal by arriving at a perverse finding on the issue of breach of principles of natural justice on the part of the Assessing Officer by brushing aside the same as a technical and procedural flaw. The finding of the ld. CIT(A) is in teeth of the established principles of fair play and natural justice being fully applicable to assessment proceeding and thus the order of the ld. CIT(A) is vitiated in law and on facts.
That the assessment order of the Assessing Officer is also vitiated on account of breach of principle of natural justice.
of 2018 2 Sunderdeep Construction P. Ltd.
3. That the ld. CIT(A) erred in law and on facts in glossing over the failure of the Assessing Officer to provide an opportunity of cross-examination to the assessee those two persons who were examined by the Assessing Officer behind the back of the assessee. Such failure of the Assessing Officer vitiates the entire evidence recorded behind the back of the assessee and the addition made on the basis of such statements deserves to be quashed.
4. That the ld. CIT(A) erred in law and on facts in rejecting the application filed u/r 46A for admission of affidavit of Satish Patidar which was material to the issue before the ld. CIT(A) and the appellant had duly demonstrated in its application u/r 46A as to the maintainability of the said document.
That even on merits the addition of Rs.55,30,000/- sustained by the ld. CIT(A) deserves to be deleted as the provisions of Section 68 were not attracted to the said amounts as these were advances made by the assessee in earlier years by account payee cheques which were simply received back and consequently these cannot be treated as cash credits and Section 68 will have no application.”
2. At the outset, learned Counsel for the assessee submitted that the Revenue Authorities did not follow the principles of natural justice and fair play as the Assessing Officer failed to provide an opportunity of cross-examination to the assessee those two persons who were examined by the Assessing Officer behind the back of the assessee. Such failure of the Assessing Officer vitiates the entire evidence recorded behind the back of the assessee and the addition made on the basis of such statements deserves to be quashed and the ld. CIT(A) also made error in confirming the action of the Assessing Officer and in rejecting the application filed u/r 46A for admission of affidavit of Satish Patidar which was material to the issue before the ld. CIT(A) and the assessee had duly demonstrated in its application u/r 46A as to the maintainability of the said document. Further, even on merits, the addition of 2018 3 Sunderdeep Construction P. Ltd. deserves to be deleted as the provisions of Section 68 were not attracted to the relevant amounts as these were advances made by the assessee in earlier years by account payee cheques which were simply received back and consequently these cannot be treated as cash credits u/s 68 of the I.T. Act.
Thus, ld. counsel for the assessee contended that no proper and meaningful opportunity of being heard was given to the assessee by the Assessing Officer as well as ld. CIT(A). On the other hand, ld. Sr. DR relied on the order of the ld. Revenue Authorities.
We have heard both the parties and perused the orders of lower authorities. Looking to the facts and rival submissions, we had recorded the statement of Shri Satish Patidar in the presence of learned Counsel for the assessee and ld. Sr. DR Shri Amit Kumar Soni on 15.7.2019, copy of which was supplied to concerned parties. Before us, the submission of the learned Counsel for the assessee in respect of following principles of natural justice and rejection of additional evidence under Rule 46A was not controverted by the Revenue by bringing any cogent material on record. The assessee has also filed paper books and written submission/case-laws. Considering the facts and circumstances of the case and the statement recorded by us in the presence of both the parties, we are of the view that in order to provide natural justice, the cross-examination should have been allowed by the Assessing Officer and ld. CIT(A) should also have admitted application for additional evidence, therefore, the matter requires reconsideration at the level of the Assessing Officer. Accordingly, the orders of Revenue Authorities are set of 2018 4 Sunderdeep Construction P. Ltd. aside and the matter is restored back to the file of the Assessing Officer with direction that the Assessing Officer would decide the matter de novo by giving opportunity of the cross-examination after affording due opportunity of being heard to the assessee as per law and the assessee is also directed to cooperate/appear before Assessing Officer in this regard and file all the relevant documents, if any, in support of the claim.
In result, the appeal filed by the assessee is allowed for statistical purposes only.
Order was pronounced in the open court on 31.10.2019.