Shri Manakchand Hazarilal HUF, Indore v. The Income Tax Officer Wd- 4(2), Indore

ITA 437/IND/2010 | 2002-2003
Pronouncement Date: 30-11-2011 | Result: Partly Allowed

Appeal Details

RSA Number 43722714 RSA 2010
Assessee PAN AABHM0294H
Bench Indore
Appeal Number ITA 437/IND/2010
Duration Of Justice 1 year(s) 5 month(s) 2 day(s)
Appellant Shri Manakchand Hazarilal HUF, Indore
Respondent The Income Tax Officer Wd- 4(2), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2011
Assessment Year 2002-2003
Appeal Filed On 28-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH J.M. AND SHRI R.C.SHARM A A.M. PAN NO. : AABHM0294H I.T.A.NO. 437/IND/2010 A.Y. : 2002-03 SHRI MANAKCHAND HAZARILAL HUF ITO PROP. M/S. BHAGIRATH DHANNALAL VS WARD 4(2) 12 DALIA PATTI MALHARGANJ INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI PRAKASH JAIN CA RESPONDENT BY : SHRI ARUN DEWAN SR. DR DATE OF HEARING : 15.09.2011 DATE OF PRONOUNCEMENT : 30.11.2011 O R D E R PER R. C. SHARMA A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II INDORE 29.3.2010 FOR THE ASSESSMENT Y EAR 2002- 03. -: 2: - 2 2. FOLLOWING GROUND OF APPEAL HAVE BEEN TAKEN BY THE ASSESSEE :- 1. THAT THE LD. CIT(A) ERRED IN LAW IN CONFIRMING THE ADDITION OF RS. 9 93 260/- U/S 68 OF THE ACT BEING THE AMOUNT WHICH REMAINED OUTSTANDING AT THE CLOSE OF THE YEAR AND PAYABLE TO THREE SUPPLIERS. H E OUGHT TO HAVE CONSIDERED AND APPRECIATED FOLLOWING MATERIAL FACTS :- A) THAT ALL THE PARTIES WERE REGISTERED IN COMMERCIAL TAX DEPARTMENT AND DISCLOSED THEIR TURNOVER IN RETURNS SUBMITTED WITH THE SALES TAX DEPARTMENT. B) THAT ALL OF THEM SUBMITTED INCOME TAX RETURN ALONGWITH TAX AUDIT REPORT U/S 44AB OF THE ACT AND HAVE BEEN ASSESSED TO TAX. C) THE APPELLANT MAINTAINED REGULAR BOOKS OF ACCOUNT HAVING QUANTITATIVE DETAILS OF PURCHASES AND SALES. D) PURCHASES WERE EFFECTED FORM M/S. DEEPAK TRADERS ONLY THROUGH BROKER WHEREAS -: 3: - 3 PURCHASES FROM OTHER TWO PARTIES WERE DIRECT. M/S. KARTIKEY FOODS DECLARED ITS SALES TO MANDI COMMITTEE AT RS. 20.28 CRORES AND M/S. MANDI ENTERPRISES DECLARED SALES TO COMMERCIAL TAX DEPARTMENT AT RS. 3.60 CRORES FOR THE YEAR. E) THE STATEMENT GIVEN BY ONE OF THEM BEHIND THE BACK UP THE APPELLANT WITHOUT AFFORDING ANY OPPORTUNITY TO CROSS EXAMINE CANNOT BE MADE A BASIS FOR ADDITION U/S 68 OF THE ACT. F) PURCHASES OF CHANA (GRAM) EFFECTED FROM M/S. MANDI ENTERPRISES AND KARTIKEY FOODS AT THE FAG END OF THE YEAR AND WERE SOLD ALSO BEFORE THE CLOSE OF THE YEAR HENCE PURCHASES CANNOT BE DOUBTED UPON. G) IN CHAN A/C GROSS PROFIT WAS RS. 70 002/- ON TOTAL SALES OF RS. 19.15 LACS AND IF SUCH PURCHASES ARE TREATED AS UNEXPLAINED OR BOGUS RESULTANT PROFIT WOULD BE RS. 8.22 LACS I.E. 43 % WHICH IS AN IMPOSSIBILITY. -: 4: - 4 H) PAYMENTS WERE MADE TO ALL SUPPLIERS BY THE APPELLANT BY ACCOUNT PAYEE CHEQUES IN THE MONTHS OF APRIL/MAY 2002. THUS NOT ONLY IDENTITY WAS PROVED BUT THE GENUINENESS OF THE TRANSACTIONS WAS ALSO PROVED BEYOND DOUBT. CONFIRMATION OF ADDITIONS MADE U/S 68 OF THE ACT IS THEREFORE WHOLLY UNJUSTIFIED IMPROPER BAD IN LAW AND DESERVES TO BE SET ASIDE. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THE ASSESSEE IS ENGAGED IN BUSINESS OF FOO DGRAINS. DURING THE YEAR UNDER CONSIDERATION THE RETURN WAS FILED ALONGWITH AUDITED ACCOUNTS GIVING QUANTITATIVE DETA ILS AND DIFFERENT KINDS OF WHEAT PURCHASED AND SOLD THE AS SESSEE HAD SHOWN GROSS PROFIT OF RS. 47.50 LAKHS WHICH WORKED OUT TO 5.57 %. DURING THE COURSE OF SCRUTINY ASSESSMENT T HE AO OBSERVED THAT THE ASSESSEE HAD SHOWN HUGE CREDIT BA LANCES IN RESPECT OF PURCHASES FROM THE FOLLOWING :- 01. M/S. DEEPAK TRADERS INDORE CR.RS. 240410/- 02. M/S.NANDI ENTERPRISES INDORE CR.RS.376740/- 03. M/S. KARTIKEY FOODS INDORECR.RS. 376110/- RS. 9 93 260/- -: 5: - 5 THE AO HAS HELD THAT THE AMOUNT OF RS. 993260/- IS BOGUS AND IN FACT REPRESENT CASH CREDIT U/S 68 OF THE ACT . THE AO STATED THAT THE ASSESSEE HAS FAILED TO PRODUCE THE PARTIES FOR VERIFICATION. AO FURTHER STATED THAT IN RESPONSE TO SUMMON ISSUED U/S 131 MAHENDRA KALA PROPRIETOR OF M/S. K ARTIKEY FOODS APPEARED BEFORE THE AO WHOSE STATEMENT WAS RE CORDED WHEREIN HE HAS ACCEPTED THAT HE HAS FILED THE RETUR N OF INCOME WITH THE DEPARTMENT WITH AUDIT REPORT PREPARED ON T HE BASIS OF BANK TRANSACTION. HE ALSO STATED THAT HE DID NOT MAKE ANY PURCHASES/SALES TO THE ASSESSEE CONCERNED. THIS STA TEMENT WAS RECORDED BEHIND THE BACK OF THE ASSESSEE AND TH E ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY TO CROSS EXA MINE HIM. THE STATEMENT SO RECORDED ON 23.2.2005 WAS MADE KNO WN TO MANAK CHAND ONLY WHEN ASKED FOR BY HIM THE ADDITIO N SO MADE WAS CONFIRMED BY THE LD. CIT(A) AND THE ASSESS EE IS NOW BEFORE US. 4. THE LD. AUTHORIZED REPRESENTATIVE PLACED ON RECORD ORDER OF THE I.T.A.T. INDORE BENCH IN THE CASE OF VIMAL CHAND KALA ORDER DATED 16.1.2009 WHEREIN FOR SAME ASSESS MENT YEAR 2002-03 PURCHASES MADE FROM DEEPAK TRADERS AND -: 6: - 6 NANDI ENTERPRISES WAS FOUND GENUINE. WITH REGARD TO THE ADDITION IN CASE OF KARTIKEY FOOD INDORE IT WAS C ONTENDED BY THE LD. AUTHORIZED REPRESENTATIVE THAT STATEMENT WA S RECORDED BEHIND THE ASSESSEE WITHOUT GIVING THE ASSESSEE OPP ORTUNITY TO CROSS EXAMINE. 5. LD. AUTHORIZED REPRESENTATIVE RELIED ON THE JUDGME NT OF THE HON'BLE SUPREME COURT IN CASE OF KISHAN CHAN D CHELA RAM 121 ITR 713 WHEREIN IT WAS HELD THAT NO EVIDEN CE OR MATERIAL IS ADMISSIBLE TO THE DETRIMENT OF THE ASSE SSEE. RELIANCE WAS ALSO PLACED ON THE DECISION OF KERALA HIGH COURT IN CASE OF M.O. THOMA KUTTY VS. CIT 34 ITR 501 WH EREIN IT WAS HELD THAT EVEN WHERE EXPENDITURE DURING COURSE OF ASSESSMENT WAS DISALLOWED ON THE BASIS OF FINDING P ASSED ON DEFINITE INFORMATION OBTAINED FROM GOVERNMENT AUTHO RITY EVIDENCE BROUGHT ON RECORD WITHOUT KNOWLEDGE OF ASS ESSEE ASSESSMENT WAS HELD TO BE INVALID. RELIANCE WAS ALS O PLACED ON THE DECISION OF DELHI HIGH COURT IN CASE OF SMC SHARE BROKER 288 ITR 345 WHEREIN IT WAS HELD THAT IN ABSE NCE OF THIRD PARTY BEING MADE AVAILABLE FOR CROSS-EXAMINAT ION HIS -: 7: - 7 STATEMENT COULD NOT BE RELIED UPON TO THE DETRIMENT OF THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT DURING THE YEAR UNDER CONSIDERATIO N THE ASSESSEE HAD SHOWN TURN OVER OF RS. 8.53 CRORES WH ICH WERE DULY AUDITED. DURING THE COURSE OF ASSESSMENT THE AO FOUND THAT THE THREE PARTIES FROM WHOM THE ASSESSEE HAD S HOWN THE PURCHASES DID NOT EXIST ON THE GIVEN ADDRESS ACCOR DINGLY PURCHASES MADE FROM THEM WERE NOT ACCEPTED AND THE CREDIT APPEARING IN THEIR ACCOUNTS WERE ADDED IN ASSESSEE S INCOME. NO WHERE THE AO HAS ALLEGED THAT PROFIT RATE SHOWN BY THE ASSESSEE WAS COMPARATIVELY LOWER AS COMPARED TO THE EARLIER YEAR. FROM THE RECORD WE FOUND THAT BEFORE THE AO THE ASSESSEE HAS FURNISHED ALL DOCUMENTARY EVIDENCES TO ESTABLISH THE GENUINENESS OF PURCHASES OF THE PARTIES BY FILI NG THE PAN NUMBERS REGISTRATION UNDER THE M.P. SALES TAX ACT CENTRAL SALES TAX ACT FOODGRAIN MANDI TAX BANK ACCOUNT D ETAILS WHICH WERE AS UNDER :- NAME OF PARTIES M.P.S.T.NO CST NO. FOODGRAIN LICENSE MANDI TAX NAME OF BANK A/C -: 8: - 8 REGIST RATION NO. BANK NO. M/S. DEEPAK TRADERS 0101/DH/1736/2/S 0101/DH/1166/S 3998/98 D/57 UNION BANK OF INDIA 13100 M/S.NANDI ENTERPRISES 0102/XXI/2126/8/ S 0102/XXI/1501 /8 109/200 N/69 VYAPA RIK AYODH OGIKSA HAKARI BANK 1278 M/S.KARTIKE Y FOODS 0113/LXIV/1740/1 /S 0113/LXIV/124 /7/C 113/2000 SHUBH LAKSH MI MAHILA COOP. BANK LTD. THE REGISTRATION UNDER THE MPGST CST AND MANDI TAX IS NOT GIVEN MERELY ON THE BASIS OF APPLICATION MADE BY TH E APPLICANT. FOR GRANTING REGISTRATION UNDER THESE AC TS THE REGISTERING AUTHORITY DEPUTE AN INSPECTOR FOR VERIF ICATION OF PARTICULARS OF APPLICANT. FOR THAT PURPOSE THE INSP ECTOR UNDER THE RESPECTIVE ACT VISIT THE BUSINESS PREMISES OF T HE APPLICANT RECORD HIS STATEMENT COLLECT NECESSARY EVIDENCES L IKE RATION CARD CERTIFICATE UNDER THE SHOP AND ESTABLISHMENT ACT RENT AGREEMENT/RENT RECEIPT ETC. AFTER THE INSPECTION BY THE INSPECTOR AND RECEIPT OF INSPECTOR REPORT THE SALES TAX OFFICER CALL TO THE APPLICANT IN PERSON AND CONFIRM THE PAR TICULAR GIVEN IN THE APPLICATION AND ONLY THEN REGISTRATION IS GR ANTED. AS TO -: 9: - 9 THE MANDI TAX ACT XEROX COPY OF STATEMENT GIVEN BY MR. ASHISH GUPTA PROPRIETOR M/S. MANDI ENTERPRISES BEF ORE THE MANDI TAX INSPECTOR WAS ALSO PRODUCED BEFORE THE AO . 7. WE HAD ALSO VERIFIED THE COPY OF COMMERCIAL TAX ASSESSMENT ORDER OF M/S. NANDI ENTERPRISES WHICH IS ON PAGE NO.36 TO 38 INDICATING THE FOLLOWING FACTS :- (I) THAT THE ASSESSEE INTENTIONALLY NOT PRODUCING THE BOOKS OF ACCOUNT. THUS INFORMATION IS CALLED FROM THE MANDI SAMITI AND ACCORDING TO THEIR RECORD ASSESSEE HAS EFFECTED FOLLOWING PURCHASES. (A) WHEAT RS. 5 09 93 011/- (B) METHI RS. 2 69 325/- (C) SOYABEAN RS. 61 63 686/- (D) JWAR RS. 1 14 185/- (E) MAKKA RS. 18 77 822/- (F) TUWAR RS. 13 61 250/- (G) MASUR RS. 1 86 968/- 8. IN THE SALES TAX ASSESSMENT ORDER IT WAS STATED THAT FROM ROAD MAP OF DECLARATION PASSED BY THE JANCH C HOWKI (COMMERCIAL TAX CHECK POST) AT SENDHWA AT JHABUA IT IS FOUND THAT ASSESSEE HAS EFFECTED THE PURCHASES OF 7 0 TRUCKS WHEAT AND FOR WHICH HE OBTAINED DECLARATION VIDE BO OK NO. 17920 AND BOOKS NO. A2404. -: 10: - 10 IN NEXT PARA THE ASSISTANT COMMISSIONER OF COMMERCI AL TAX STATED THAT FROM MANDI PRANGAN INFORMATION IS COLLE CTED AND ACCORDING TO WEEKLY RETURN IN FORM NO.34 THE INFORM ATION OF SALES OF THE ASSESSEE ARE AS UNDER :- (A) WHEAT RS. 5 26 16 945/- (B) SOYABEAN RS.13 76 30 058/- (C) CHANA RS. 48 22 575/- (D) DHANIYA RS. 51 68 744/- (E) JWARA RS. 47 661/- (F) MAKKA RS. 23 25 814/- (G) METHI RS. 2 25 737/- 9. IN VIEW OF THE ABOVE ASSESSMENT ORDER PASSED BY SA LES TAX AUTHORITIES IT IS ESTABLISHED THAT M/S. NANDI ENTERPRISES IS GENUINELY DOING THE BUSINESS. BEFORE REACHING TO THE CONCLUSION THAT PURCHASES MADE FROM THREE PARTIES W ERE BOGUS THE AO HAS NOT MADE ANY EFFORT TO COLLECT AN Y INFORMATION FROM THE COMMERCIAL TAX AUTHORITIES M. P. KRISHI UPAJ MANDI AND FOODGRAINS AUTHORITIES. 10. THE LD. AUTHORIZED REPRESENTATIVE ALSO PLACED ON RECORD THE DECISION OF I.T.A.T. INDORE BENCH IN T HE CASE OF VIMAL CHAND KALA IN I.T.A.NO. 483/IND/2007 ORDER DA TED -: 11: - 11 16.1.2009 ASSESSMENT YEAR 2002-03 WHEREIN ON IDENT ICAL FACTS IT WAS HELD THAT PURCHASES MADE FROM DEEPAK TRADERS AND NANDI ENTERPRISES ARE GENUINE. AS NOTHING WAS B ROUGHT ON RECORD BY THE LD. SENIOR D.R. TO CONTROVERT THE FINDINGS RECORDED BY THE TRIBUNAL IN ITS ORDER DATED 16 TH JANUARY 2009 WITH REGARD TO GENUINENESS OF M/S. DEEPAK TRA DERS AND NANDI ENTERPRISES WE RESPECTFULLY FOLLOW THE SAME AND DELETE THE ADDITION SO MADE BY AO. 11. WITH REGARD TO THE OBSERVATION OF THE AO IN RESPECT OF KARTIKEY FOOD WE FOUND THAT STATEMENT OF SHRI MAHJ ENDRA KUMAR KALA WAS RECORDED BEHIND BACK OF THE ASSESSEE NO OPPORTUNITY TO CROSS EXAMINE WAS GIVEN. THE ASSESSE E HAS SUBMITTED ALL THE DOCUMENTARY EVIDENCE TO ESTABLISH GENUINENESS OF THE FIRM. 12. AS PER THE PROPOSITION LAID DOWN BY THE HON'BLE SUPREME COURT IN CASE OF KISHAN CHAND CHELA RAM (SU PRA) AS WELL AS DELHI HIGH COURT IN CASE OF SMC SHARE BROKE R LTD. (SUPRA) WITHOUT ANY OPPORTUNITY FOR CLARIFICATION AND CROSS- EXAMINATION NO EVIDENCE OR MATERIAL IS ADMISSIBLE TO THE DETRIMENT OF THE ASSESSEE. FURTHERMORE HON'BLE ALL AHABAD -: 12: - 12 HIGH COURT IN CASE OF NATHU RAM PREM CHAND VS. CIT 49 ITR 561 CATEGORICALLY OBSERVED THAT IT IS THE DUTY OF THE ASSESSING OFFICER TO ENFORCE THE ATTENDANCE OF WITNESS IF TH E WITNESS IS MATERIAL IN EXERCISE OF HIS POWERS UNDER ORDERS 0. 16 RULE 10 OF CR.PC WHEN THE OFFICER DOES NOT DO SO NO INFER ENCE CAN BE DRAWN AGAINST THE ASSESSEE. HON'BLE SUPREME COURT I N CASE OF PRAKASH CHAND NAHATA 247 ITR 274 HELD THAT CROSS- EXAMINATION OF THE WITNESS IS MUST BEFORE THE DEPA RTMENT PLACES RELIANCE ON THE STATEMENT OF THE WITNESS FOR MAKING ADDITION. HON'BLE SUPREME COURT IN CASE OF KISHAN C HAND CHELA RAM (SUPRA) HAD ALSO CATEGORICALLY HELD THAT ANY EVIDENCE/STATEMENT USED AGAINST THE ASSESSEE WITHOU T GIVING THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE AND CO NTROVERT THE SAME THAT EVIDENCE ITSELF WILL NOT BE ADMISSIB LE IN SUPPORT OF THE ADDITION. IT WAS SPECIFICALLY HELD THAT I.T. AUTHORITIES ARE BOND TO ACCEDE THE REQUEST FOR CROSS-EXAMINATION AN D IF THEY DO NOT DO SO THE ADDITION CANNOT BE SUSTAINED. 13. IF THE AO DOUBTS THE PURCHASES MADE FROM THESE CONCERNS HE SHOULD ALSO IGNORE THE RELEVANT SALES EFFECTED OUT OF THESE PURCHASES. DISBELIEVING PURCHASES BUT AT T HE VERY -: 13: - 13 SAME TIME ACCEPTING THE SALES OF SUCH PURCHASES WIL L NOT RESULT IN ANY FRUITFUL RESULT. AT THE MOST IF THE AO FINDS THAT PURCHASES ARE SHOWN AT A HIGHER PRICE AS COMPARED T O THE PREVAILING MARKET RATE THE ADDITION CAN BE MADE TO THAT EXTENT ONLY. KEEPING IN VIEW THE TOTALITY OF FACTS AND CIR CUMSTANCES WE DIRECT THE AO TO RESTRICT THE ADDITION WITH RESP ECT TO PURCHASES FROM M/S.KARTIKEY FOODS AT 10 % OF RS. 3 76 110/-. WE DIRECT ACCORDINGLY. 14. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D IN PART IN TERMS INDICATED HEREINABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER 2011. (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH NOVEMBER 2011. CPU* 3011 -: 14: - 14 A LD. AUTHORIZED REPRESENTATIVE RELIED ON THE JUDGMEN T OF THE HON'BLE SUPREME COURT IN CASE OF KISHAN CHAND CHELA RAM 121 ITR 713 WHEREIN IT WAS HELD THAT NO EVIDENCE O R MATERIAL IS ADMISSIBLE TO THE DETRIMENT OF THE ASSESSEE. REL IANCE WAS ALSO PLACED ON THE DECISION OF KERALA HIGH COURT IN CASE OF M.O. THOMA KUTTY VS. CIT 34 ITR 501 WHEREIN IT WA S HELD THAT EVEN WHERE EXPENDITURE DURING COURSE OF ASSESS MENT WAS DISALLOWED ON THE BASIS OF FINDING PASSED ON DEFINI TE INFORMATION OBTAINED FROM GOVERNMENT AUTHORITY EVI DENCE BROUGHT ON RECORD WITHOUT KNOWLEDGE OF ASSESSEE AS SESSMENT WAS HELD TO BE INVALID. RELIANCE WAS ALSO PLACED ON THE DECISION OF DELHI HIGH COURT IN CASE OF SMC SHARE B ROKER 288 ITR 345 WHEREIN IT WAS HELD THAT IN ABSENCE OF THIR D PARTY BEING MADE AVAILABLE FOR CROSS-EXAMINATION HIS STA TEMENT COULD NOT BE RELIED UPON TO THE DETRIMENT OF THE AS SESSEE. B -: 15: - 15 AS PER THE PROPOSITION LAID DOWN BY THE HON'BLE SUP REME COURT IN CASE OF KISHAN CHAND CHELA RAM (SUPRA) AS WELL AS JURISDICTIONAL HIGH COURT IN CASE OF SMC SHARE BROK ER LTD. (SUPRA) WITHOUT ANY OPPORTUNITY FOR CLARIFICATION AND CROSS- EXAMINATION NO EVIDENCE OR MATERIAL IS ADMISSIBLE TO THE DETRIMENT OF THE ASSESSEE. FURTHERMORE HON'BLE ALL AHABAD HIGH COURT IN CASE OF NATHU RAM PREM CHAND VS. CIT 49 ITR 561 CATEGORICALLY OBSERVED THAT IT IS THE DUTY OF THE ASSESSING OFFICER TO ENFORCE THE ATTENDANCE OF WITNESS IF TH E WITNESS IS MATERIAL IN EXERCISE OF HIS POWERS UNDER ORDERS 0. 16 RULE 10 OF CR.PC WHEN THE OFFICER DOES NOT DO SO NO INFER ENCE CAN BE DRAWN AGAINST THE ASSESSEE. HON'BLE SUPREME COURT I N CASE OF PRAKASH CHAND NAHATA 247 ITR 274 HELD THAT CROSS- EXAMINATION OF THE WITNESS IS MUST BEFORE THE DEPA RTMENT PLACES RELIANCE ON THE STATEMENT OF THE WITNESS FOR MAKING ADDITION. HON'BLE SUPREME COURT IN CASE OF KISHAN C HAND CHELA RAM (SUPRA) HAD ALSO CATEGORICALLY HELD THAT ANY EVIDENCE/STATEMENT USED AGAINST THE ASSESSEE WITHOU T GIVING THE ASSESSEE AN OPPORTUNITY TO CROSS EXAMINE AND CO NTROVERT THE SAME THAT EVIDENCE ITSELF WILL NOT BE ADMISSIB LE IN SUPPORT -: 16: - 16 OF THE ADDITION. IT WAS SPECIFICALLY HELD THAT I.T. AUTHORITIES ARE BOND TO ACCEDE THE REQUEST FOR CROSS-EXAMINATION AN D IF THEY DO NOT DO SO THE ADDITION CANNOT BE SUSTAINED.