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KAUSHALYA DEVI (DECEASED), THROUGH LEGAL HEIR JAI PARKASH GULYANI, 8, LAJPAT NAGAR, BEHIND UCO BANK, PANIPAT Vs. INCOME TAX OFFICER, WARD-I, PANIPAT
December, 29th 2014
                                                           ITA NO. 2514/DEL/2013


                 IN THE INCOME TAX APPELLATE TRIBUNAL
                       DELHI BENCH "D", NEW DELHI
               BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT
                                   AND
                    SHRI S.K. YADAV, JUDICIAL MEMBER


                          I.T.A. No. 2514/DEL/2013
                                 A.Y. : 1998-99
KAUSHALYA      DEVI               VS.                 INCOME TAX OFFICER,
(DECEASED),                                           WARD-I,
THROUGH       LEGAL                                   PANIPAT
HEIR JAI PARKASH
GULYANI,
8, LAJPAT NAGAR,
BEHIND UCO BANK,
PANIPAT
(PAN: ABBPD3954E)
(APPELLANT)                                           (RESPONDENT)

           Assessee by                  :   Sh. Gurjeet Singh, Adv.
          Department by                 :   Sh. Gaurav Dudeja, Sr. D.R.


                      Date of Hearing : 23-12-2014
                      Date of Order    : 26-12-2014


                              ORDER
PER S.K. YADAV : JM
      This appeal is preferred by the Assessee against the Order of
the Ld. CIT(A), Karnal on a solitary ground that Ld. CIT(A) has erred
in not following the direction of ITAT in the assessee's appeal to
allow opportunity to the assesee of cross examination of the witness
on whose statement the proceedings were initiated u/s. 147/148.
Therefore, the additions made by the AO u/s. 147/148 be deleted.




2.    During the course of hearing of appeal the Ld. Counsel of the
assessee invited our attention that in fact this a third round of
litigation.   In the first round of litigation, the matter was restored to

                                     1
                                                     ITA NO. 2514/DEL/2013


CIT(A) for adjudication of certain issues thereafter in second round
of litigation the matter was restored to the AO with the directions to
afford the opportunity for cross examination of Mr. SS Mehta, whose
statement was relied on by the AO to reopen the assessment and
on the basis of the same addition was made, vide order dated
17.2.2010 in ITA No. 2512/Del/2008. Copy of the order is placed on
record. Despite the directions of the Tribunal the assessee was not
afforded an opportunity to cross examine Mr. SS Mehta in order to
ascertain the veracity of his statement.   These facts were brought
to the notice of the Ld. CIT(A), but he was not convinced with the
explanation of the assessee and confirmed the additions made by
the AO after treating the sale of shares as bogus. It was further
contended that the assessee has claimed the benefit of provisions of
section 54F for the capital gain received on sale of shares.      Since
the AO has     not made the compliance of the directions of the
Tribunal, the additions made on the basis of the statement of Sh. SS
Mehta cannot be sustained.

3.   Ld. DR placed a reliance on the order of the Ld. CIT(A).         He
however, submitted that assessee was given an opportunity to
produce Sh. SS Mehta for cross examination. Once he failed to do
so, the AO has no option but to make the additions on the basis of
the earlier statement recorded.   Therefore, the order of the lower
authorities is confirmed.

4.   Having carefully examined the order of the lower authorities,
we find that undisputedly the Tribunal vide its order dated
17.2.2010 categorically directed the AO to afford an opportunity to
the assessee to cross examine Sh. SS Mehta whose statement was
made as a sole ground for treating the sale transaction of shares to
be bogus.      But despite the directions,     opportunity for cross
examination of Sh.    SS Mehta was not afforded to the assessee.

                                  2
                                                      ITA NO. 2514/DEL/2013


Though the Revenue has taken a plea that Sh. SS Mehta was not
available at the given address, but it is the witness of the Revenue
and the onus is squarely upon the Revenue to allow the assesse to
cross examine the witness. In the absence of the cross examination
of Sh. SS Mehta, despite the directions of the tribunal, the statement
of Sh. SS Mehta cannot relied on for treating the sale transaction to
be bogus. Except the statement of Sh. SS Mehta, we do not find any
other evidence on record on the basis of which the sale transaction
of shares can be held to be bogus. We therefore, find no merit in
the addition made after treating the sale transaction to be bogus on
the basis of the statement of Sh. SS Mehta.      We accordingly, set
aside the order of the Ld. CIT(A) on this ground      and delete the
additions.




5.    In the result, the Appeal filed by the Assessee stands allowed.

      Order pronounced in the Open Court on 26/12/2014.

      Sd/-                                              Sd/-

[G.D. AGRAWAL]                                    [S.K. YADAV]
VICE PRESIDENT                                 JUDICIAL MEMBER
Date 26/12/2014
"SRBHATNAGAR"
Copy forwarded to: -
1.    Appellant -

2.    Respondent -
3.    CIT
4.    CIT (A)
5.    DR, ITAT
                            TRUE COPY
                                                  By Order,



                                                  Assistant Registrar,
                                                  ITAT, Delhi Benches

                                   3
    ITA NO. 2514/DEL/2013




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