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2.2 The A.O noted that a search and survey operation was carried out by the Directorate of Investigation (Mumbai) at the premises of the Nirav Modi Group. During the search and survey proceedings, various evidences were gathered which revealed that Nirav Modi group indulged in the practice of accepting "On Money"

(cash) from customer against the sale of Diamond/Gold Jewellery. The employees of the assessee group who were maintaining the cash data in digital form admitted in their statements recorded on oath that the "On Money" (Cash) was received over and above the sale consideration recorded by the assessee group in its books of account. The A.O relied on several statements of various key persons in support of the above, in which the specific details and modus operandi were admitted, and has reproduced the relevant extracts in the assessment order.

2.3 During the course of survey proceedings, an excel file containing details of jewellery sold from April 2016 to 31-03-2017 was found from the laptop of Mr. Saurabh Shah which contained the details of jewellery sold both at the Mumbai P a g e |4 Gyan Enterprises Pvt. Ltd. (AY: 2012-13) and Delhi store and also included the mode of payment. The A.O has reproduced the relevant extracts of the statement in his order. As from the details in the excel sheet AO observed that a 16 ct Yellow Ctr Stone Diamond Ring had been purchased by the assessee Gyan Enterprises for which an amount of Rs. 70,00,000 had been paid in cash. The A.O noted that analysis of table above made it clear that total costing of the products sold by Nirav Modi to M/S Gyan enterprises Pvt. Ltd itself came to INR 1,18,01,474 and the selling price fixed by Mr. Nirav Modi was Rs. 17000000. On the other hand M/S Asha Burman/M/s Gyan Enterprises Pvt. Ltd. had claimed to paid only an Amount of Rs. 10000000 through Cheque which was less than the cost, which the A.O noted was practically not possible that products were sold to them at a price less than costing. This fact further substantiated the cash payment made by her for the purchase of above mentioned jewellery. In addition the A.O relied on multiple statements to arrive at a conclusion that the assessee had paid an amount of Rs 70,00,000 for the purchase of the jewellery. A careful comparison of the information as contained in seized document (in form of digital data) during search and the information as available in the return of income of the assessee, made it clear that the Assessee had purchased jewellery from Nirav Modi/Firestar Group during AY 2012-13, however. the Assessee had disclosed only partial investments in the jewellery by disclosing payment through cheque and by hiding payments made in cash. The A.O P a g e |5 Gyan Enterprises Pvt. Ltd. (AY: 2012-13) concluded that the assessee had purchased the jewellery for Rs 1,70,00,000/- but paid only Rs 1,00,00,000 by cheque and Rs 70,00,000/- in cash. Accordingly, the A.O made an addition of Rs 70,00,000 /s 69B of the Act. Same was sustained by the ld. CIT(A) for which assessee is in appeal raising following grounds;

6. Then what we find is that investment of undisclosed income was found in the form of 'on money' allegedly paid by the assessee but for which the record was P a g e |7 Gyan Enterprises Pvt. Ltd. (AY: 2012-13) found in and with the Nirav Modi/Firestar Group. There was no admission or any material corroborating the same found with assessee. Thus it is not a case of admitted evidence found with assessee or admitted facts occurring in books of assessee. Admission is relevant and admissible as evidence against the maker only. Then admission to be admissible must be clear, unequivocal and not ambiguous. What the department relies is admission of employees of Nirav Modi/Firestar Group and the record kept by them. In the statement of any of the employees there is no specific questioning on the alleged 'on money' paid by the assessee. The statement only disclose the fact of practice of receiving 'on money' but if at all in case of assessee to such money was received needed to be at least deposed on oath by witnesses. In these circumstances when only evidence is statements and documents of other persons then right to cross examine witness gains importance. Specially when it is a case of relying electronic evidences. However, ld. CIT(A) has not appreciated this aspect in correct perspective while dealing with the ground of assessee in para 8.21 and same is reproduced below;

"8.21 From the above detailed analysis given by the Hon'ble Court on the right of cross examination and applying it to the facts of this case it is seen that a search and seizure action was carried out on the Nirav Modi Group wherein it was found that jewellery was being sold to persons and payments were being accepted by way of cheque, electronic modes, cash or combinations thereof. Statements of key persons were recorded to confirm the modus operendi adopted. Excel sheets were P a g e |8 Gyan Enterprises Pvt. Ltd. (AY: 2012-13) found which gave the precise details about the cash payments made by clients for the purchases. It was in this connection that it was found that the appellant Gyan Enterpirses had purchased a 16 carat yellow diamond ring and paid Rs 70,00,000 in cash. The Nirav Modi group indulged in cash receipts for multiple customers and clients of which the assessee was only one. There is no indication that the investigations were aimed solely and only targeted the appellant but instead it is clear that they were generic in nature. The investigations were targeted at the Nirav Modi group to unearth the malpractice of unaccounted cash receipts and as a consequence unearthed the details of parties who used unaccounted income for the jewellery purchases. In this case all the statements relied upon were provided by the A.O to the assessee. Therefore, considering the factual scenario no prejudice has been established to the assessee by not making the said persons available for cross examination .The Hon'ble Supreme Court has held In Bakshi Ghulam Mohammad 89 that the right of hearing cannot include the right of cross examination and the right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being enquired into. Furthermore, the Hon'ble Kolkata High Court in Swati Bajaj (supra) has held that "right to cross-examine the witness who made adverse report is not an invariable attribute of the requirement of the dictum, "audi alteram partem". The principles of natural justice do not require formal cross-examination. Formal cross examination is a part of procedural justice. It is governed by the rules of evidence, and is the creation of Court, It is a part of legal and statutory justice therefore it cannot be laid down as a general proposition of law that the revenue cannot rely on any evidence which has not been subjected to cross examination." Accordingly, I am of the opinion that by not allowing the facility of cross examination would not render the assessment order bad in law. The contentions of the appellant on these counts are rejected.