ANURADHA K KAMATH,MUMBAI vs. ITO WD 19(1)(1), MUMBAI

We have heard the arguments advanced by the learned representative of the parties and perused the record carefully. Infact the assessee did not argue the case on merits but moved an application under rule 11 of the Income Tax Rules, 1963 seeking the permission to raise additional ground. The assessee has raised the following two additional grounds:-

The assessment order passed is an-initio void, in as much as, no opportunity was granted to cross examine Shri Mukesh Choksey, on the basis of whose testimony additions to the returned income has been made.

We have gone through the assessment order as well as the order passed by the learned CIT(A) on record. Infact the addition of undisclosed income was made on the basis of the material available from Shri Mukesh Choksey as well as in view of the statement made by the Shri. Mukesh Choksey. There is nothing on record to which it can be assumed that the material which was recovered from Shri. Mukesh Choksey was handed over to the assessee and the statement of Shri. Mukesh Choksey recorded by the authority was also handed over to the assessee. Even there is nothing on record to which it can be assumed that an opportunity of cross examination if any was given to the assessee before consideration the statement of Shri. Mukesh Choksey while concluding the assessment of the assessee on record. Anyhow, the application seems justifiable on record and this Tribunal is of the view that before passing an order of assessment the material whatever was recovered from Shri. Mukesh Choksey is required to be provided to the assessee and if the assessee desired to cross examine A.Y.2005-06 Shri. Mukesh Choksey then in these circumstances this opportunity was required to be given to the assessee before concluding assessment. In this regard we also placed reliance upon the judgement dated 2nd September, 2015, [2015] 127 DTR (SC) 241 in the case of Andaman Timber Industries Vs. Commissioner of Central Excise. In view of the above said circumstances and without commenting upon the merits of the case, we are of the view that the assessment is required to be concluded after giving an opportunity of being heard to the assessee and to provide him the necessary documents recovered from the Shri. Mukesh Choksey. Hence, we admit the additional ground raised u/s.11 of the Income Tax Rules 1963 and set aside the assessment order in the interest of justice and remand the case to the Assessing Officer to decide the matter afresh after giving the material demanded by the assessee in view of an application raised u/s.11 of the Income Tax Rules 1963 and providing him an opportunity of being heard in accordance with law. Therefore, the order of the learned CIT(A) is hereby ordered to be set aside and the case is remanded back before Assessing Officer to adjudicate the matter afresh in view of the above mentioned observations.

Accordingly the appeal filed by the assessee is hereby allowed for statistical purposes. A.Y.2005-06