M/s. Pathik Developers, Surat v. The ACIT.,Cent.Circle-2,, Surat

CO 270/AHD/2009 | 2006-2007
Pronouncement Date: 05-07-2013 | Result: Dismissed

Appeal Details

RSA Number 27020523 RSA 2009
Assessee PAN AAIFP5808R
Bench Ahmedabad
Appeal Number CO 270/AHD/2009
Duration Of Justice 3 year(s) 7 month(s) 11 day(s)
Appellant M/s. Pathik Developers, Surat
Respondent The ACIT.,Cent.Circle-2,, Surat
Appeal Type Cross Objection
Pronouncement Date 05-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 05-07-2013
Date Of Final Hearing 26-04-2013
Next Hearing Date 26-04-2013
Assessment Year 2006-2007
Appeal Filed On 24-11-2009
Judgment Text
ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI A.M.) I.T. A. NO. 3020 & 3142/AHD/2009 & CO. N O. 270/AHD/2009 (ASSESSMENT YEAR: 2006-07) THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2 SURAT (APPELLANT) VS. M/.S PATHIK DEVELOPERS 4 TIRUPATI APARTMENT NEAR KADIWALA SCHOOL RIND ROAD SURAT . (RESPONDENT) M/.S PATHIK DEVELOPERS 4 TIRUPATI APARTMENT NEAR KADIWALA SCHOOL RIND ROAD SURAT . (RESPONDENT) VS. THE ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2 SURAT (APPELLANT) PAN: AAIFP 5808 R APPELLANT BY : SHRI RAHUL KUMAR SR. D.R. RESPONDENT BY : SHRI S.N. SOPARKAR A.R. ( )/ ORDER DATE OF HEARING : 26-04-20 13 DATE OF PRONOUNCEMENT : 05 -07-2013 PER SHRI ANIL CHATURVEDI A.M. ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 2 1. THESE TWO APPEALS ONE FILED BY THE REVENUE AND THE OTHER FILED BY ASSESSEE ARISE OUT OF AGAINST THE ORDER OF CIT(A)-II AHMED ABAD DATED 18.08.2009 FOR ASSESSMENT YEAR 2006-07. 2. THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE AS UNDER. 3. A SEARCH AND SEIZURE ACTION WAS CONDUCTED IN THE CASE OF JIVRAJ GROUP ON 7.03.2006 WHEREIN CERTAIN DOCUMENTS RELATED TO THE ASSESSEE WAS SEIZED. IN THE STATEMENT SHRI VIREN SHAH DISCLOSED UNACCOUNTE D INCOME OF RS. 2 88 00 000/-. THE ASSESSEE FILED ITS RETURN ON INC OME FOR A.Y. 2006-07 ON 30.12.2006 AND THE CASE WAS SELECTED FOR SCRUTINY A ND THEREAFTER ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 31 .12.2007 AND THE TOTAL WAS ASSESSED AT RS. 4 37 87 140/-. ASSESSEE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 18.08.2009 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT( A) BOTH ASSESSEE AND REVENUE ARE IN APPEAL BEFORE US. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION. 4. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 31 42/AHD/2009 READS AS UNDER:- 1 LEARNED CIT (A) HAS ERRED IN LAW AND ON FA CTS IN CONFIRMING ADDITION MADE BY AO OF RS. 3 50 OOO/- U/S 68 OF THE ACT WH ICH IS WHOLLY UNSUSTAINABLE IN LAW AND ON FACTS WHEN THE APPELLAN T HAS ESTABLISHED THE GENUINENESS OF ONE OF THE PARTY BY SUBMITTING THE C ONFIRMATION OF A/C AS WELL PAN NO. OF THE DEPOSITOR. BOTH THE LOWER AUTHORITIE S HAVE FURTHER ERRED IN IGNORING THE SUBMISSION MADE BY THE APPELLANT TO IS SUE SUMMONS U/S 131 OF THE ACT TO THE SECOND PARTY IN LIGHT OF NON CO - OP ERATION OF THE DEPOSITOR. THE ADDITION BEING WITHOUT ANY MERITS AND JUSTIFICATION REQUIRES TO BE QUASHED. 2 LEARNED CIT (A) HAS GROSSLY ERRED IN LAW A ND ON FACTS IN CONFIRMING ADDITION OF RS. 25 52 780/- MADE BY AO OF UNACCOU NTED INVESTMENT IN LAND ADMEASURING 62 550 SQ. METERS AT BLOCK NO. 445 SIM PLY ON THE BASIS OF THE STATEMENT OF THE SELLER OF THE LAND. LD. CIT (A) OU GHT TO HAVE DELETED THE ADDITION MADE WITHOUT ANY DOCUMENTARY EVIDENCE OR O THER CORROBORATIVE MATERIAL RELIED UPON BY AO. 3. BOTH THE LOWER AUTHORITIES HAVE GRAVELY ERRED I N NOT CONSIDERING THE OBJECTIONS RAISED BY THE APPELLANT AGAINST THE INQU IRY CONDUCTED BEHIND THE BACK OF THE APPELLANT AND FURTHER ERRED IN AGGRAVAT ING THE SAME BY NEITHER SUPPLYING COPY OF THE STATEMENT RELIED UPON NOR GRA NTING OPPORTUNITY TO CROSS EXAMINE THE SELLER OF THE LAND. THE ADDITION BEING MADE ON THE BASIS OF ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 3 STATEMENT WITHOUT AFFORDING OPPORTUNITY TO THE APPE LLANT TO CONTROVERT THE SAME IS COMPLETELY AGAINST THE PRINCIPLES OF NATURA L JUSTICE AND JUDICIAL PRONOUNCEMENTS THAT DESERVES TO BE QUASHED AND COST BE GRANTED TO THE APPELLANT FOR SUFFERING INJUSTICE AND GRAVE INJURY. 4. THE ORDER PASSED BY CIT(A) IS WITHOUT PROPERLY APPRECIATING THE FACT AND THAT HE FURTHER ERRED IN GROSSLY IGNORING VARIOUS S UBMISSIONS EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIM E TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED OR DER. 5. INITIATION OF PROCEEDINGS TO LEVY INTEREST IS NOT JUSTIFIED. 6. INITIATION OF PENALTY U/S 271(L)(C) OF THE AC T IS NOT JUSTIFIED. 5. ON THE OTHER HAND THE GROUNDS RAISED BY REVENUE IN ITA NO. 3020/AHD/2009 READS AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DE LETING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED INVESTMENT IN THE LAND. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS THAT WHILE DELETING THE ADDITIONS HE HAS FAILED TO APPRECIATE THAT THE ADJOINING 2 PL OTS OF LANDS AT BLOCK NO.444 AND 446 WILL ALSO FETCH THE SAME RATE AS ADMITTED B Y THE SELLER OF PLOT AT BLOCK NO.445 ON OATH AND IGNORING THE FACT THAT THE SAME HAS BEEN OFFERED FOR TAXATION ALSO. 3. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS THAT H E HAS FAILED TO APPRECIATE THAT IN THE PLOT AT BLOCK NO. 171 ALSO ONE OF THE P ARTY WAS THE SAME PERSON WHO ADMITTED THE RECEIPT OF ON MONEY AND OFFERED TH E SAME FOR TAXATION. 4. THE LD CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITIONS OF RS. 1 20 84 360/- MADE ON ACCOUNT OF UNEXPLAINED INVEST MENT IN LAND WITHOUT CONSIDERING THE ON-MONEY ELEMENT INVOLVED IN THE TR ANSACTION OF PURCHASE OF ADJOINING PLOTS TO PLOT NO.445 IN RESPECT OF WHICH SHRI INDRAVADAN PRAJAPATI ADMITTED RECEIPTS OF ON-MONEY AND SHOWN IN HIS RETU RN AND ALSO IN RESPECT OF ADDITION OF RS.25 52 780/-HAS BEEN CONFIRMED BY LD. CIT(A). 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 6. IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 4 6. THE GROUNDS RAISED BY ASSESSEE IN CO. NO. 270/AH D/2009 ARE IN SUPPORT OF THE ORDER OF CIT(A). SINCE BOTH THE APPEALS ARE IN TERCONNECTED ALL THE APPEALS ARE CONSIDERED TOGETHER. 7. FIRST GROUNDS WITH RESPECT TO ADDITION OF RS. 3 50 000/- UNDER SECTION 68. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH CONFIRMATION OF ALL THE PERSONS APPEARING A S CREDITORS IN THE BOOKS. ASSESSEE DID NOT PRODUCE CONFIRMATION FOR RS. 1 50 000/- RECEIVED FROM MANISH PATEL AND JYOTI PATEL AND RS. 2 00 000/- FRO M P.B. DAVE. IN THE ABSENCE OF CONFIRMATION ASSESSING OFFICER CONCLUDE D THAT THE PARTIES WERE NOT GENUINE AND THE ASSESSEE HAS FAILED TO PROVE THE GE NUINENESS AND CREDITWORTHINESS OF THE PARTIES. HE ACCORDINGLY TR EATED THE AGGREGATE AMOUNT OF RS. 3 50 000/- AS INCOME OF THE ASSESSEE. AGGRI EVED BY THE ORDER OF ASSESSING OFFICER ASSESSEE CARRIED THE MATTER BEFO RE CIT(A). BEFORE CIT(A) ASSESSEE FILED CONFIRMATION LETTER FOR MANISH PATEL AND JYOTI PATEL AND REQUESTED HIM TO ADMIT THE ADDITIONAL EVIDENCE. CIT (A) CONFIRMED THE ACTION OF ASSESSING OFFICER BY HOLDING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS . HOWEVER I FIND THAT THE CONFIRMATION GIVEN DURING THE APPELLATE PROCEEDINGS DOES NOT BEAR THE COMPLETE ADDRESS OF THE PARTY ALTHOUGH IT BEARS PAN BUT COPY OF THE RETURN BALANCE SHEET ARE NOT FILED HENCE IT CANNOT BE EST ABLISHED THAT HE IS ASSESSED TO TAX AND HE HAS REFLECTED THE AMOUNT IN HIS BALAN CE SHEET. HENCE THE LOAN IS NOT PROVED. FURTHER IN RESPECT OF LOAN FROM P.B.DAV E NO CONFIRMATION IS FILED EVEN AT THE APPELLATE STAGE. IN VIEW OF THESE FACTS THE ACTION OF THE A.O. IS UPHELD AND THE GROUND IS REJECTED. 9. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NO W IN APPEAL BEFORE US. 10. BEFORE US THE LEARNED A.R SUBMITTED THAT IT HA D FILED CONFIRMATION LETTER FROM MANISH PATEL AND JYOTI PATEL BEFORE CIT(A) AS IT CO ULD NOT OBTAIN THE SAME AT THE TIME WHEN THE ASSESSMENT PROCEEDINGS WERE CONTI NUING BEFORE ASSESSING OFFICER. SINCE ASSESSEE HAS FURNISHED THE CONFIRMA TION ALONG WITH THE PAN ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 5 NUMBER IT HAS DISCHARGED THE ONUS CAST UPON IT AND THEREFORE THE ADDITION BE DELETED. THE LEARNED D.R. ON THE OTHER HAND RELIED ON THE ORDER OF ASSESSING OFFICER AND CIT(A). 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CONFIRMATION FILED DURING THE APPELLA TE PROCEEDINGS WAS NOT ACCEPTED BY THE CIT(A) FOR THE REASON THAT THE CONF IRMATION DID NOT CONTAIN THE COMPLETE ADDRESS OF THE PARTY ALTHOUGH IT CONTAINE D THE PAN NUMBER OF THE LENDER. WE ARE OF THE VIEW IN THE INTEREST OF JUS TICE ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO FURNISH THE NECESSARY EV IDENCE WITH RESPECT TO THE RECEIPTS OF LOANS. WE THEREFORE REMIT THE MATTER TO THE FILE OF ASSESSING OFFICER AND DIRECT HIM TO VERIFY THE EVIDENCE SUBMI TTED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AS PER LAW AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THIS GROUND OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12. SECOND ADDITION IS WITH RESPECT TO ADDITION OF RS. 25 52 780/- MADE ON ACCOUNT OF UNACCOUNTED INVESTMENT IN LAND:- DURING THE COU RSE OF ASSESSMENT PROCEEDINGS ASSESSING OFFICER NOTICED THAT ASSESSE E HAS PURCHASED SIX DIFFERENT PIECE OF LAND IN VILLAGE NIMLAI AND PARSO LI IN DISTRICT NAVSARI. THE DESCRIPTION OF LAND IS AS UNDER:- S. NO. DATE BLOCK NO. AREA SELLER 1 23/11/05 171 85 605 SHARDABEN HIRALAL PRAJAPATI INDRAWADAN HIRALAL PRAJAPATI 2 25/11/05 445 62 550 INDRAWADAN HIRALAL PRAJAPATI MANISHA I. INTWALA 3 12/12/05 171 1 65 070 VATIKA DEVELOPERS 4 28/12/05 40 27 471 ARUNKUMAR HIRALAL CHOKSHI 5 3/2/06 444 58940 PARAS SHAH 6 3/2/06 446 17 368 PARAS SHAH ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 6 13. DURING THE COURSE OF SEARCH PROCEEDINGS SUMMON WERE ISSUED TO INDRAWADAN PRAJAPATI (INTWALA) WHO HAD SOLD LANDS AT SERIAL NO . 1 AND 2 TO THE ASSESSEE AND HIS STATEMENT WAS RECORDED ON 4.04.2006 WHEREI N HE ADMITTED TO HAVE SOLD THE LAND TO ASSESSEE AT RS. 54 PER SQ. MTRS T HOUGH THE DOCUMENTS WAS PREPARED FOR RS. 19.15 PER SQ. MTRS. IT WAS FURTHER STATED BY HIM THAT RS. 25 52 780 BEING THE DIFFERENTIAL AMOUNT WAS THE O N-MONEY WHICH WAS ACCEPTED AS HIS UNACCOUNTED INCOME AND THE SAME WAS ALSO OFFERED FOR TAX IN HIS RETURN OF INCOME FOR A.Y. 2006-07. THE ASSESSE E WAS ISSUED A SHOW CAUSE NOTICE AND ASKED TO EXPLAIN AS TO WHY THE ON- MONEY PAID BY HIM FOR PURCHASE OF LAND NOT TO BE ADDED AS THE INCOME OF T HE ASSESSEE. ASSESSEE INTERALIA SUBMITTED THAT IT HAS NOT PAID ANY ON-MO NEY FOR THE PURCHASE OF LAND. ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE AS SESSEE HAD PURCHASED FIRST LAND AT RS. 55 PER SQ. MTRS IT WAS NATURAL THAT AL L THE SUBSEQUENT LANDS WERE PURCHASED AT THE SAME RATE OR MORE. HE ACCORDINGLY CONSIDERED THE PURCHASE PRICE OF ALL THE LANDS AT RS. 54 PER SQ. MTRS AND W ORKED OUT THE ON-MONEY AT RS. 34.85 PER SQ. MTRS. SINCE THE ASSESSEE HAD PURC HASED 4 20 004 SQ. MTRS OF LAND THE TOTAL ON-MONEY WAS WORKED OUT AT RS. 1 46 37 140/- AND THE SAME WAS ADDED TO THE INCOME OF ASSESSEE. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER ASSESSEE CARRIED THE MATTER BEFO RE CIT(A). CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE GRANTED PARTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER. 3.4 I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS . THE APPELLANT'S SUBMISSIONS THAT ANY FINDING OF THE INQUIRY CONDUCT ED AT THE BACK OF THE ASSESSEE WITHOUT CONFRONTING THE FINDING OF SUCH IN QUIRY WITH THE ASSESSEE CANNOT BE USED AGAINST THE ASSESSEE BY THE ASSESSI NG AUTHORITY FOR THE PURPOSE OF DRAWING CONCLUSIONS IS CORRECT BUT IN THIS CASE THE ASSESSING OFFICER HAS CONFRONTED THE APPELLANT THE FINDING OF THE ENQUIRY AND ASKED TO EXPLAIN WHY ON THE BASIS OF STATEMENT OF SHRI INDRA WADAN INTWALA THE ADDITION FOR ON MONEY PAYMENT BE NOT MADE. THEREFOR E THE ARGUMENT OF THE APPELLANT AND THE CASE LAWS RELIED ON ARE NOT OF AN Y HELP TO HIM. AS PER DECISION OF ITAT DELHI BENCH IN THE CASE OF ROGER E NTERPRISES PVT.LTD. VS CIT ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 7 88 ITD 95 ANY STATEMENT OF A PERSON WHOSE ONE OF T HE PARTY OF THE TRANSACTIONS HAS EVIDENTIARY VALUE AND THEREFORE CANNOT BE IGNORED. THE APPELLANT HAS PURCHASED LAND FROM INDRAWADAN INTWAL A WHO IS .THE SELLER AND WHO IS ACCEPTING THE RECEIPT OF 'ON MONEY'. THEREFO RE HIS STATEMENT IS ALSO HAS EVIDENTIARY VALUE IN THE CASE OF THE APPELLANT WHO IS THE PURCHASER. SHRI INTWALA NOT ONLY ACCEPTED THE RECEIPT OF ON MONEY B UT ALSO HAS OFFERED IT FOR TAXATION. IN VIEW OF THIS THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THE ADDITION OF RS.25 52 780/- IN THE HANDS OF THE APPE LLANT FOR ON MONEY PAYMENT FOR PURCHASE OF LAND AT BLOCK NO.445 MEASUR ING 62550 SQ.MTS. HOWEVER IN MY VIEW THE ASSESSING OFFICER IS NOT JU STIFIED IN APPLYING THE RATE OF RS.54 PER SQ.MT. FOR ALL OTHER LANDS PURCHASED F ROM OTHER PARTIES WHEN THERE IS NO EVIDENCE IN RELATED TO PURCHASE OF THOS E PLOTS. ACCORDINGLY THE ADDITION IS RESTRICTED TO RS.25 52 780/- AND THE AP PELLANT IS ALLOWED FOR THE AMOUNT OF RS. 1 20 84 360/-. 14. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) THE ASSESSEE IS NOW IN APPEAL BEFORE US. 15. BEFORE US THE LEARNED A.R. SUBMITTED THAT THE ASSESSING OFFICER HAD RELIED ON THE STATEMENT OF SHRI INTWALA WHEREIN HE HAD ALLEGE DLY ADMITTED WHO HAVE RECEIVED ON-MONEY FROM THE ASSESSEE ON SALE OF LA ND. THE LD. A.R. SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROC EEDINGS THE ASSESSING OFFICER DID NOT ISSUE THE COPY OF THE STATEMENT OF MR. INTWALA AND FURTHER NEITHER AN OPPORTUNITY TO CROSS-EXAMINE MR. INTWALA WAS GIVEN TO THE ASSESSEE. IT WAS THEREFORE SUBMITTED THAT THE ADDIT ION ONLY ON THE BASIS OF STATEMENT WITHOUT ANY CORROBORATIVE EVIDENCE CANNOT BE MADE. THE LEARNED A.R. FURTHER SUBMITTED THAT THE VARIOUS HIGH COURTS HAVE HELD THAT ANY FINDING OF THE ENQUIRY CONDUCTED AT THE BACK OF THE ASSESSE E WITHOUT CONFRONTING THE FINDING OF SUCH ENQUIRY WITH THE ASSESSEE CANNOT BE USED AGAINST THE ASSESSEE FOR THE PURPOSE OF DRAWING CONCLUSIONS. T HE LEARNED A.R. FURTHER PLACED RELIANCE ON THE DECISION OF GUJ. H.C. IN THE CASE OF DCIT VS. MAHENDRA PATEL (TAX APPEAL 462 OF 1999) ORDER DATED 13.04.20 10 DECISION IN THE CASE OF CIT VS. D. KANTA 2012 19 TAXMANN. COM. 92 (KAR. ). HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF RAJESH BAB UBHAI DAMANIYA VS. ITO 251 ITR 541(GUJ) ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 8 16. THE LEARNED D.R. ON THE OTHER HAND SUBMITTED TH AT THE MATTER BE REMANDED BACK TO THE ASSESSING OFFICER FOR ALLOWING THE ASS ESSEE AN OPPORTUNITY TO CROSS-EXAMINE MR. INTWALA. HE PLACED RELIANCE ON T HE DECISION OF HON. APEX COURT IN THE CASE OF ITO VS. M. PIRAI. CHOODI (2011 ) 334 ITR 262. 17. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD PURCHASED SIX PIECES OF LAND FROM VARIOUS PARTIES. ONE OF THE PARTIES FROM WHOM THE A SSESSEE HAD PURCHASED THE LAND HAD IN HIS STATEMENT HAD ADMITTED TO HAVE RECEIVED ON-MONEY ON THE SALE OF LAND BY THE ASSESSEE AND HE HAD DISCLOSED T HE UNACCOUNTED ON- MONEY IN HIS RETURN OF INCOME FOR A.Y. 2006-07. BASED ON THE STATEMENT OF ONE OF THE SELLER THE ASSESSING OFFICER HAD MADE A DDITION ON ACCOUNT OF UNACCOUNTED ON-MONEY FOR ALL THE REMAINING 5 TRAN SACTIONS OF PURCHASE OF LAND. IT IS ALSO A FACT THAT THE ASSESSEE WAS NEIT HER GIVEN AN OPPORTUNITY TO CROSS-EXAMINE THE SELLER NOR A COPY OF THE SELLERS STATEMENT RECORDED DURING THE COURSE OF SUCH PROCEEDINGS WAS GIVEN TO ASSESSE E. WE THEREFORE FEEL THAT TO MEET THE ENDS OF JUSTICE ONE MORE OPPORTUNITY S HOULD BE MADE AVAILABLE TO THE ASSESSEE TO CROSS-EXAMINE THE SELLER AND FOR WH ICH WE FIND SUPPORT FROM THE DECISION OF HON. SUPREME COURT IN THE CASE OF I TO VS. M.P. CHOODI (SUPRA) WHERE IN PARA 3 THE HON. APEX COURT HAS NOT ED AS UNDER:- IN THIS CASE THE HIGH COURT HAS SET ASIDE THE ORDER OF ASS ESSMENT ON THE GROUND THAT NO OPPORTUNITY TO CROSS-EXAMINE WAS GRANTED AS SOU GHT BY THE ASSESSEE. WE ARE OF THE VIEW THAT THE HIGH COURT SHOULD NOT HAVE SET ASIDE THE ENTIRE ASSESSMENT ORDER. AT THE HIGHEST THE H.C. SHOULD HAVE DIRECTED THE ASSESSING OFFICER TO GRANT AN OPPORTUNITY TO THE AS SESSEE TO CROSS-EXAMINE THE CONCERNED WITNESS. WE THEREFORE REMIT THE ISSU E TO THE FILE OF ASSESSING OFFICER AND DIRECT HIM TO FURNISH THE COPY OF THE S TATEMENT RECORDED OF SHRI INTWALA AND ALSO ALLOW THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE MR. INTWALA. THE ASSESSING OFFICER SHALL THEREAFTER PAS S THE NECESSARY ORDERS AS PER LAW AFTER GIVING AN OPPORTUNITY OF HEARING TO T HE ASSESSEE. ITA NO 3020& 3142 /A/20 09&CO NO.270/09 . A.Y. 2006- 07 9 18. IN THE RESULT THIS GROUND OF THE ASSESSEE AND REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 19. THE GROUNDS RAISED IN CO WERE NOT PRESSED BEFOR E US BY LD. A.R. AND THEREFORE THE SAME ARE DISMISSED AS NOT PRESSED. 20. IN THE RESULT THE APPEALS OF ASSESSEE AND REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES AND THE CO. OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 05-07 - 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT A HMEDABAD