The Tax Publishers2019 TaxPub(DT) 1641 (Del-Trib)

INCOME TAX ACT, 1961

Section 68

Where assessee disputed the correctness of the statements and wanted to cross-examine, Adjudicating Authority did not grant this opportunity to assessee, however order passed by AA had specifically mentioned that such an opportunity was sought by assessee, but no such opportunity was granted, therefore, AO was directed to allow the claim of exemption under section 10(38), and addition under section 68 was deleted.

Income from undisclosed source - Addition under section 68 - Undisclosed income - Non-providing of opportunity of cross-examination

Assessee had raised the revised/additional ground that addition in dispute was made by AO and confirmed by CIT(A) under section 68 on the basis of the statement of Mr. V, on whose statement AO had treated the exempt Long-Term Capital Gain claimed under section 10(38) as undisclosed income. But both revenue authorities have not provided the opportunity to cross examination of Mr. V to assessee. He further submitted that non-providing of opportunity of cross-examination was against the principle of natural justice and against the settled law. Held: Not allowing assessee to cross-examine the witnesses by Adjudicating Authority though the statements of those witnesses were made the basis of was a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice. Order passed by AA had specifically mentioned that such an opportunity was sought by assessee, however, no such opportunity was granted and the aforesaid plea was not even dealt with by AA. Therefore, AO was directed to allow the claim of exemption under section 10(38), and addition was deleted.

Relied:Andaman Timber Industries v. CCE 2015 (324) ELT 641 (SC) : 2015 TaxPub(EX) 2155 National Thermal Power Company Ltd. v. CIT (1998) 229 ITR 383 (SC) : 1998 TaxPub(DT) 0342 (SC) Smt. Jyoti Gupta v. ITO [ITA No. 3510/Del/2018 (assessment year 2014-15)] : 2019 TaxPub(DT) 0326 (Del-Trib)

REFERRED :

FAVOUR : In assessee's favour

A.Y. :



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