NAVNEET JHANWAR PROP M/S. SUPPER DRILLERS,MUMBAI vs. ITO WD 20(2)(3), MUMBAI

आदेश / O R D E R

Per Joginder Singh(Judicial Member) The assessee is aggrieved by the impugned order dated 28/03/2013 of the Ld. First Appellate Authority, Mumbai, on the grounds stated in the grounds of appeal.

2. During hearing, the ld. counsel for the assessee, Shri R. S. Samaria, has challenged the additions as contended in the grounds but before us broadly it was explained that reasonable and adequate opportunity of hearing was not provided to the assessee. It was brought to our notice that the assessment order dated 22/12/2010, passed by the Ld. Assessing Officer u/s 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter the Act) was contrary to the submissions made by the assessee and that too without providing adequate opportunity to the assessee. The amount of gifts were claimed to be received from seven donors and the addition was made merely on the basis of retractions made by one of the donor and the assessee was not provided opportunity to cross examine him. On the other hand, the ld. DR, Miss. Anupama Singla, defended the addition by supporting the impugned order.

2.1. We have considered the rival submissions and perused the material available on record. The facts, in brief, are that during assessment proceedings, it was noted by the ld. Assessing Officer that the assessee claimed to have Navneet R. Jhanwar (Prop. M/s Supper Drillers) received gift of Rs.7 lakh from various parties mentioned in the order and also in the impugned order. The statement of Shri Giriraj Vijayvargiya, one of the donor was recorded, wherein, it was stated that he was engaged in providing accommodation entries in the form of gifts/loans/shares capital etc against receipt of commission. It was also noted that the said donor had no blood relation with the assessee and there was no occasion to justify the receipt of such gifts. It was further noted that the gifts were received between 27/02/2003 and 17/03/2003 at the fag end of the financial year, therefore, the gifts were treated as non-genuine, consequently, on the basis of statements recorded from the alleged donors, the addition was made. On appeal before the Ld. Commissioner of Income Tax (Appeal), the addition was sustained. The assessee is in appeal before this Tribunal.

2.2. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, there is no dispute to the fact that due to non-availability of sufficient time, the addition was made. We are not going into the genuineness/non- genuineness of the gifts but certainly are of the view, as mandated in Article-265 of the Constitution of India that due taxes has to be levied/collected and since, there is violation of basic principle of natural justice for non-

Navneet R. Jhanwar (Prop. M/s Supper Drillers) providing opportunity to the assessee of being heard/not providing opportunity to cross examine the alleged donor, the addition cannot be sustained. However, keeping in view, the principle of natural justice, so that no prejudice is caused to either side, we remand this appeal to the file of the Ld. Assessing Officer to examine the genuineness of the claim. The assessee be provided opportunity of being heard with further liberty to cross examine the alleged donor. The assessee is also directed to produce all the donors before the Ld. Assessing Officer on the appointed date. The assessee is directed to substantiate its claim. The assessee is further directed to approach the office of the ld. Assessing Officer within one month from the receipt of this order. The Ld. Assessing Officer is free to decide the appeal on a mutually pre-decided date, thus, the appeal of the assessee is allowed for statistical purposes only. Finally, the appeal of the assessee is allowed for statistical purposes only. This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 24/01/2017.