Allahabad High Court
Commissioner Of Income Tax And ... vs Shri Pawan Kumar Agrawal on 16 July, 2015
Bench: Tarun Agarwala, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 37
Case :- INCOME TAX APPEAL No. - 159 of 2015
Appellant :- Commissioner Of Income Tax And Anr.
Respondent :- Shri Pawan Kumar Agrawal
Counsel for Appellant :- Ashok Kumar,Sr.S.C.
Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.
We have heard Sri Ashok Kumar, learned counsel for the appellants.
Search and seizure operation was carried out in the premises of one Shobhan Raj Mehta. It is alleged that several incriminating documents were found which showed that Rs.1,13,40,000/- was received by the assessee-Pavan Kumar Agarwal. Based on this search and seizure operation the aforesaid sum was added to the income of the assessee under Section 69A of the Income Tax Act.
The assessee being aggrieved with the assessment order dated 31.12.2011 filed an appeal before the Commissioner of Income Tax (Appeals) which was allowed by an order dated 19.4.2012. The addition made by the assessing officer was deleted.
Against the order of the Commissioner of Income Tax (Appeals), the department filed an appeal before the Tribunal which was rejected and consequently, the present appeal under Section 260A of the Income Tax Act has been filed.
The submission of learned counsel for the appellants is, that the Commissioner of Income Tax (Appeals) committed a manifest error in allowing the appeal. It was urged that from a perusal of the documents it was clear that incriminating documents were found which showed that the assessee had received a sum of Rs.1,13,40,000/-.
From a perusal of the appellate order, we find that there is no direct nexus between the assessee and Mr. Mehta. The appellate authority found that there was no business relationship with Mr. Mehta and that the assessee had a business relationship with M/s
.
Dhariwal Industries, Pune and that Mr. Mehta was at one point time the consignee agent of M/s Dhariwal Industries. The appellate authority held that the conclusion drawn by the assessing authority that the amount indicated in the documents are the income of the assessee was based on no evidence. The appellate authority considered and found that mere notings in a diary does not amount to undisclosed income of the assessee and that the documents and the amounts are required to be proved to the effect that the assessee was the owner as contemplated under Section 69A of the Income Tax Act . The appellate authority also found that opportunity to cross examine Mr. Mehta by the assessee was not granted deliberately and, therefore, such incriminating evidence, if any, could not be utilized against him. In this regard, we find that the assessing authority in paragraph no. 6.2 of the assessment order denied the opportunity to cross examine Mr.Mehta on the ground that his
address was not known . We find that when the premises of Mr. Mehta was searched by the Income Tax Department, it does not lie in their mouth to contend that address of Mr. Mehta was not known to them.
We are of the opinion that the incriminating documents seized from Mr. Mehta was being utilized against the assessee. As such an opportunity to cross examination should have been given to the assessee. Denial of such cross objection was violative of the principles of natural justice.
In the light of the aforesaid, we find that the order of the Tribunal is based on findings of fact. Consequently no substantial question of law arises for consideration.
The appeal is dismissed.
Order Date :- 16.7.2015
Mukesh
.
(Surya Prakash Kesarwani,J.) (Tarun Agarwala, J.)
