SRI.VINOD KUMAR NAHAR (HUF) ,BANGALORE vs. THE INCOME TAX OFFICER WARD-5(2)(3), BANGALORE

The Ground No. 3.1 reads as under:- “3.1 In any case, the order passed in gross violation of the principles of natural justice and fair play, especially in the absence of the cross examination of the persons whose averments are sought to be relied upon by the AO while passing the order, make the order totally bad in law and liable to be cancelled.”

Learned AR of the assessee submitted that similar issue was decided by the tribunal in the case of Shri Mukesh Kumar Solanki vs. ITO in dated 17.03.2017. A copy of this tribunal order was submitted and it was pointed out that the tribunal has followed the judgment of Hon’ble Karnataka High Court rendered in the case of Chandra Devi Kothari in Writ Petition No. 39370/2014 dated 02.02.2015 and reproduced the relevant Para 8 of that judgment in Para 5 of this tribunal order and as per Para 6 of that tribunal order, the matter was restored to the file of the AO for fresh decision with the same directions as were given by the Hon’ble Karnataka High Court in that case as per Para 8 of that judgment. He submitted that in the present case also, the matter should be restored to the file of the AO for fresh decision with the same directions as were given by the Hon’ble Karnataka High Court in that case as per Para 8 of that judgment. Learned DR of the revenue supported the order of CIT (A). He also sub could not point out any difference in facts.

I have considered the rival submissions. I find that there is no difference in facts in the present case and in the case of Shri Mukesh Kumar Solanki vs. ITO (Supra). In that case, the issue was decided as per Para 5 & 6 of that tribunal order and these paras of that tribunal order are reproduced here in below for ready reference. These are as under:- “5. I have considered the rival submissions and first of all, I reproduce Para No.8 of the judgment of Hon'ble Karnataka High Court rendered in the case of M/s Chandra Devi Kothari (Supra) and this is as under:- 8. In the light of the facts and circumstances as adverted to above, and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed." 6. From the above Para from the judgment of Hon'ble Karnataka High Court, it is seen that matter was restored back to the file of the AO for fresh decision after providing copy of the statement of Shri Mukesh Choksi. As per the facts noted by the High Court in the earlier paras of judgment and as per the facts of the present case, I find that the facts are similar and ld DR of the Revenue also could not point out any difference in facts and hence, by respectfully following this judgment of Karnataka High Court, I set aside the order of ld CIT(A) and restore the matter to the file of the AO for fresh decision with the same directions as were given by the Hon'ble Karnataka High Court in the case as per Para No.8 of the judgment reproduced above. In view of this decision, no adjudication is called for at this stage regarding the merit of the addition.”

Respectfully following this tribunal order and in turn following the judgment of Hon’ble Karnataka High Court rendered in the case of Chandra Devi Kothari (Supra), I set aside the orders of CIT (A) in the present case and restore the matter back to AO for a fresh decision with same directions as were given by Hon’ble Karnataka High Court in that case as per Para No. 8 of that judgment reproduced above. In view of this decision, no adjudication is called for at this stage regarding the merit of the addition raised before me as per remaining grounds.

In the result, the appeal of the assessee is allowed for statistical purposes.