BIMAL V. VORA,MUMBAI vs. ITO - 19 (1)(2), MUMBAI

At the outset, the learned Counsel for the assessee drew our attention to the common grounds / grounds No. 2 and 3. The facts and circumstances are exactly identical in all the years and issue is also identical. Hence, I will take the facts from AY 2006-07 in and will decide the issue. The relevant ground Nos. 2 and 3 read as under: - “2. The learned CIT(A) further erred in upholding the action of the learned AO in treating share purchased as sham without considering the direction issued by the honorable ITAT in its order. Thus, the order passed by the learned CIT (A) in contravention of directions issued by the honorable ITAT is bad in law and Lite same may be quashed.

The learned Counsel for the assessee filed copy of Tribunals order in assessee’s own cases in its paper book. In all the three years, the Tribunal in 3190/Mum/2015, 3188/Mum/2015, 3191/Mum/2015, 3192/Mum/2015 for AYs 2006-07, 2007-08, 2008-09 vide order dated 19.08.2015 has remanded the matter back to the file of the AO for allowing opportunity of cross examination by Shri Mukesh Choksi, the alleged entry provider. The Tribunal vide Para 4 remanded the matter back by observing as under: - “4. After going through the reasons for reopening, we found that there was sufficient material before the AO for reaching to conclusion that there was escapement of income. Accordingly, I uphold the reopening of assessment under section 147 of I.T. Act. The assessee has vehemently requested for opportunity of Cross examination. In these peculiar facts, it is considered appropriate to send these matters back to the file of the with the direction to provide all adverse material and copies of statements which have been referred by AO for making addition in the assessment order of the assessee. The assessee shall 4 | P a g e ITA Nos. 5451 to 5453/Mum/2018 Bimal V. Vora, also place full material as may be required by Assessing Officer. The assessee shall extend necessary cooperation to the Assessing Officer. The Assessing Officer shall also give opportunity of cross examination to the assessee before making any addition in this regard.”

In term of the above, the learned Counsel for the assessee took us through the assessment order and stated that the AO repeated the same additions without any evidence or without allowing opportunity of cross examination of Shri Mukesh Choksi, the alleged entry provider on the basis of whose statement the addition was made. Even this issue was raised before CIT(A) and CIT(A) has reproduced the ground vide Para 3 of his order which read as under: - “3. The AO has erred in not complying with specific directions of the Honourable ITAT that the appellant be given an opportunity to cross examine Mr. Choksi.” He pointed out that this ground was not at all adjudicated 5. by CIT(A). When these facts were confronted to the learned Sr. Departmental Representative, he could not rebut the above arguments and the fact that no opportunity of cross examination was provided to the assessee, of the alleged entry provider Shri Mukesh Choksi.

I have heard rival contentions and gone through the facts of the case. The admitted fact is that the Tribunal in ITA Nos.