KULDEEP GUPTA,DEHRADUN vs. DCIT, DEHRADUN

6. Before us, the brother of the assessee, Shri Gaurav Gupta appeared and requested for adjournment. On query by the bench, it is stated that in his own case, similar addition of INR 6.25 Lakhs was made which was deleted by Co-ordinate Bench of ITAT, Dehradun in vide order dated 18.02.2025. The necessary copy of the said order is placed at pages 32 to 34 of the Paper Book. It is thus, requested that the addition made in the hands of the assessee on the basis of same facts be deleted in the case of the assessee also.

7. On the other hand, Ld.CIT DR for the Revenue vehemently supported the orders of the lower authorities and requested for the confirmation of the addition made.

8. Heard the contentions of both the parties at length and perused the material available on record. It is observed that the addition is made based on the entry found noted in the loose paper No. 6 & 7, Annexure A-2 found and seized from the possession of Shri Krishna Sharma and Smt. Sheetal Sharma wherein assessee’s name alongwith his brother is appearing at Sl.No.15. As per the documents, assessee alongwith his brother has purchased a property for INR 15 Lakhs and paid his share of INR 7.50 Lakhs through banking channel. In the said paper, a sum of INR 12.50 Lakhs is mentioned in the last Column. However, nowhere in the assessment order, it is observed by AO that this amount of INR 12.50 Lakhs was paid by the assessee alongwith his brother as cash nor any statement of any persons confirming that these facts were brought on record. The Co- ordinate Bench of the Tribunal in the case of brother of assessee, Shri Gaurav Gupta in has deleted the addition by making following observations:- 5. “The Ld. Counsel for the Assessee addressing on Ground No. 3 and Ground No. 5 submitted that the authorities below committed error in making/sustaining the addition amounting to Rs. 19,00,000/- u/s 69B of the Act relying on the loose sheet of paper which is nothing but ‘dumb document’. Further submitted that there is no mentioning of ‘cash’ payment and the alleged incriminating material being a ‘dumb document’ which was not corroborated with any of the statement or evidence. Further submitted that though the loose paper was not found from the possession of the Assessee, the Revenue has not provided opportunity for cross-examination. Therefore, submitted that the addition made by the A.O. which has been upheld by the Ld. CIT(A) is liable to be deleted.”

9. It is further observed that addition on identical facts on the basis of entry in the same document was also made in the case of Bhagwani Devi vs DCIT where the Co-ordinate Bench of Dehradun Tribunal in vide order dated 22.08.2025 has deleted the addition by making following observations in para 8 to 10 of the order: 8. “From the plain reading of the above seized document it was found that there is no mentioning of the word ‘cash’. Admittedly the documents, have been seized from the third party, however, the Assessee has not been provided with opportunity of cross examination. The Assessee has specifically raised a Ground before the Ld. CIT(A) regarding violation of principals of natural justice on the ground that the Assessee has not been given opportunity of cross examination of the said Krishna Sharma. However, the Ld. CIT(A) held that the opportunity of cross examination is not a compulsory requirement before deciding the matter.

9. The Hon'ble Supreme Court in the case of Andaman Timber Industries Vs. Commissioner of Central Excise(2015) 62 Taxmann.com (S.C) held as under:- “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 the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross- examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above.”

10. As observed earlier, the seized document has no mention of the payment of cash and there is no corroborative statement recorded from the seized person i.e. Krishna Sharma. The assessment order came to be passed without providing opportunity of cross examination of the said Krishna Sharma, which is contrary to the ratio laid down by the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra). Thus, the Ld. CIT(A) has committed error in upholding the impugned addition. In view of the above, we find no reason to upheld the addition sustained by the Ld. CIT(A), finding merits in the Ground No. 3 & 5 of the Assessee, we allow the same.”

10. As the facts are identical therefore, by respectfully following the aforesaid judgments of Co-ordinate Bench of Dehradun Tribunal where addition was made by placing reliance on the entries found noted on the same document which is also the sole basis for making the addition in the hands of the assessee, the addition made in the case of assessee is hereby, deleted.