Sh. Joginder Singh, New Delhi V. ACIT, New Delhi

CO 211/DEL/2011

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6398 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 01-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Opportunity of being heard; Additional evidence; Reasonable cause
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH D DELHI ] BEFORE SHRI R. P. TOLANI, JM AND SHRI K. D. RANJ AN, AM I. T. APPEAL NO. 2942 (DEL) OF 2011. ASSESSMENT YEAR : 2005-06. ASSTT. COMMISSIONER OF INCOME-TAX, SH RI JOGINDER SINGH, C I R C L E : 25 (1), VS. 7/51, WEST PUNJABI BAGH, N E W D E L H I. N E W D E L H I. PAN / GIR NO. AAO PG 0786 F. A N D C. O. NO. 211 (DEL) OF 2011 [ IN I. T. APPEAL NO. 2942 (DEL) OF 2011 ]. ASSESSMENT YEAR : 2005-06. SHRI JOGINDER SINGH, ASSTT. COMMISSIONER OF INCOME-TAX, 7/51, WEST PUNJABI BAGH, VS. C I R C L E : 25 (1), N E W D E L H I. N E W D E L H I. PAN/GIR NO. AAOPG 0786F. ( APPELLANTS ) ( RESPONDENTS ) ASSESSEE BY : SHRI GAUTAM JAIN, ADV.; DEPARTMENT BY : MS. Y. KAKKAR, SR. D. R. O R D E R. PER K. D. RANJAN, AM : THIS APPEAL BY THE REVENUE AND THE CROSS OBJECTION BY THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 ARISE OUT OF ORDER OF THE LD. CIT (APP EALS)XXIV, NEW DELHI. THESE APPEALS 2 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE ARE BEING DISPOSED OF, BY THIS CONSOLIDATED ORDER. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE REPRODUCED AS UNDER :- 1. IN DELETING THE ADDITION OF RS.14,52,000 /- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS VIOLATING THE RULE 46-A O F THE INCOME TAX ACT AS THE ADDITIONAL EVIDENCE WERE FILED BY THE ASSESSEE BEFO RE THE APPELLATE AUTHORITY, THE ADMISSIBILITY OF WHICH WAS OBJECTED BY THE ASSESSIN G OFFICER; 2. IN ACCEPTING THE SWEEPING SUBMISSIONS OF TH E ASSESSEE WHICH DO NOT STAND SUPPORTED BY THE EVIDENCES. 3. THE ONLY ISSUE FOR CONSIDERATION IN REVENUES AP PEAL RELATES DELETING THE ADDITION OF RS.14,52,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS BY ADMISSION OF ADDITIONAL EVIDENCE IN VIOLATION OF PROVISIONS OF RULE 46-A OF THE INCOME-TAX RULES, 1962. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSING OFFICER , WARD : 25(4), THE DESIGNATED ASSESSING OFFICER-43 RECEIVED AIR INFORMATION FROM CIT [CIB] DELHI VIDE REFERENCE NO.CIT[CIB]/DELHI/GSL14948 FOR TRANSACTION OF RS.14 ,52,000/-. HE ISSUED NOTICE UNDER SECTION 142(1) WHICH WAS SENT TO THE ASSESSEE BY SPEED POST AT THE LAST ADDRESS AVAILABLE ON RECORD. SINCE THE NOTICE ISSUED U/S 142(1) WAS NOT RECEIVED BACK, THE AO TREATED THE NOTICE AS SERVED. ANOTHER NOTICE WAS SENT TO THE ASSESSEE ON 3/12/200 7 FOR COMPLIANCE ON 11/12/2007. ON THIS DATE NEITHER ANY PERSON ATTENDED NOR WAS ANY REPLY FILED. SINCE NO REPLY WAS RECEIVED BY THE AO, HE DECIDED TO COMPLETE THE ASSESSMENT EX-PARTE U/S 144 OF THE INCOME-TAX ACT, 1961 BY MAKING ADDITION OF RS.14,52,000/-. 4. ON APPEAL BEFORE THE LD. CIT (APPEALS) IT WAS SU BMITTED THAT THE ASSESSMENT MADE UNDER SECTION 144 OF THE ACT DATED 27/12/2007 WAS WITHOUT JURISDICTION AS THE ASSESSEE WAS REGULARLY ASSESSED BY ITO, WARD : 25(3), NEW DELHI. THE NOTI CE UNDER SECTION 142(1) WAS ISSUED BEYOND THE END OF THE RELEVANT ASSESSMENT YEAR. THEREFORE , SUCH NOTICE UNDER SECTION 142(1) WAS ILLEGAL, INVALID AND WITHOUT JURISDICTION. IT WAS ALSO SUBM ITTED THAT NOTICE UNDER SECTION 142(1) OF THE ACT DATED 19/09/2007 WAS NOT SERVED ON THE ASSESSEE . ONLY QUESTIONNAIRE DATED 3/12/2007 WAS 3 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. SERVED ON THE ASSESSEE, WHICH WAS NOT COMMUNICATED TO THE CHARTERED ACCOUNTANT OF THE ASSESSEE BY THE ACCOUNTANT ON ACCOUNT OF HIS ILL-HE ALTH. THEREFORE, PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN TO THE ASSESSEE. ON MERITS IT WAS SUBMITTED THAT THE AMOUNT OF RS.14,52,000/- WAS DEPOSITED IN THE BANK ACCOUNT OU T OF WITHDRAWALS MADE BY THE ASSESSEE FROM THE BANK ACCOUNTS OF HIS PROPRIETORSHIP CONCERNS. T HEREFORE, NO ADDITION COULD BE MADE. THE ASSESSEE FILED ADDITIONAL EVIDENCE IN THE FORM OF C OPY OF BANK STATEMENT OF SAVINGS ACCOUNT SHOWING CASH DEPOSITS FOR THE FINANCIAL YEAR 2004-0 5 OF CITI BANK, DETAILS OF CASH DEPOSITED IN SAVINGS ACCOUNT, COPY OF FINANCIAL STATEMENT AS ON 31 ST MARCH, 2005 OF M/S. SHIV PETROLEUM CO. ALONG WITH BOOKS OF ACCOUNTS, COPY OF FINANCIAL STA TEMENT AS ON 31 ST MARCH, 2005 OF M/S. SHIV INDUSTRIES, COPY OF BANK STATEMENTS, COPY OF DETAIL S OF BANK ACCOUNT DETAILS OF DEPOSITS AND WITHDRAWALS / PAYMENTS FROM SAVINGS ACCOUNT AND DET AILS OF CASH POSITION. THE ASSESSEE MADE A REQUEST TO THE LD. CIT (A) FOR ADMISSION OF ADDITIO NAL EVIDENCE UNDER RULE 46A. THE LD. AR OF THE ASSESSEE ON SPECIFIC QUERIES MADE BY THE LD. CI T (A) ON 31 ST AUGUST, 2010 WHEREIN THE ASSESSEE HAD BEEN DIRECTED TO FURNISH FURTHER INFOR MATION SUBMITTED REPLY EXPLAINING CERTAIN PAYMENTS MADE TO SHRI MANAS KAPUR AND NATURE OF BUS INESS OF TWO PROPRIETORSHIP CONCERNS. 5. THE LD. CIT (A) ALONG WITH SUBMISSIONS MADE BY T HE ASSESSEE FORWARDED THE DOCUMENT FOR THE COMMENTS OF THE ASSESSING OFFICER. THE AO, CIRCLE : 25 (1) VIDE HER LETTER DATED 28/07/2010 HAD RAISED SPECIFIC OBJECTION FOR ADMISS ION OF THE ADDITIONAL EVIDENCE. THE LD. CIT (A) OBTAINED COMMENTS OF THE ASSESSEE ON OBJECTIONS RAISED BY THE AO FOR ADMISSION OF THE ADDITIONAL EVIDENCE. THE LD. AR OF THE ASSESSEE RA ISED OBJECTION ABOUT THE JURISDICTION OF THE AO, WARD : 25(4) ON THE GROUND THAT THE ASSESSEE WA S REGULARLY ASSESSED WITH ITO, WARD : 25(3) AND, THEREFORE, ITO, WARD : 25 (4) WAS NOT HAVING A NY JURISDICTION OVER THE ASSESSEE. AS REGARDS THE ADDITIONAL EVIDENCE, IT WAS SUBMITTED THAT THE ASSESSEE DID NOT HAVE ANY VALID AND PROPER; OPPORTUNITY OF PRODUCING THE EVIDENCE BEFORE THE AO AND, THEREFORE, THE ASSESSEES CASE WAS COVERED BY CLAUSES (B), (C) AND (D) OF RULE 46-A. IT WAS ALSO SUBMITTED THAT UNDER SUB RULE (4) OF RULE 46A THE LD. CIT (A) COULD ADMIT ANY EVIDENCE, WHICH WAS NECESSARY FOR RENDERING SUBSTANTIAL JUSTICE. THE ASSESSEE PLACED RELIANCE ON SEVERAL DECISIONS. 4 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. 6. THE LD. CIT (A) CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE, THE REMAND REPORT AND REJOINDER OF THE ASSESSEE. LD. CIT(A) HAS OBSERV ED THAT THOUGH THE RULES REQUIRE NEW EVIDENCE TO BE ADMITTED ONLY WHERE THERE IS REASON FOR THE A SSESSEE FOR NOT BEING ABLE TO PRESENT SUCH EVIDENCE BEFORE THE ASSESSING OFFICER, IT IS CONSID ERED NOT ONLY FAIR BUT JUSTIFIED, WHERE THE APPELLATE AUTHORITY ITSELF CONSIDERS SUCH EVIDENCE NECESSARY. HE ALSO NOTED THAT THE HONBLE COURTS HAVE HELD THAT WHERE THERE WAS OMISSION TO S UBMIT PART OF THE DOCUMENTS AS REQUIRED BY THE ASSESSING OFFICER, THE APPELLATE AUTHORITY MIGH T NOT BE JUSTIFIED MERELY BY DRAWING AN ADVERSE INFERENCE AGAINST THE ASSESSEE FAILING TO FURNISH C ERTAIN DOCUMENTARY EVIDENCES AS IT WOULD AMOUNT TO A PUNITIVE MEASURE. THE APPELLATE AUTHOR ITY MAY WELL UNDERTAKE TO MAKE GOOD SUCH OMISSION. THE LD. CIT (A) THUS CAME TO THE CONCLUS ION THAT THE ASSESSEE HAD A REASONABLE CAUSE FOR ADMISSION OF ADDITIONAL EVIDENCE. HE, THEREFOR E, ADMITTED ALL THE ADDITIONAL EVIDENCE FOR DECIDING THE APPEAL ON MERITS AND IN THE INTEREST O F JUSTICE. THE LD. CIT (A) RELIED ON SEVERAL DECISIONS FOR ADMISSION OF ADDITIONAL EVIDENCE. THE ADDITIONAL EVIDENCE FILED BEFORE THE LD. CIT (A) WAS FOR THE PURPOSE OF DECIDING THE APPEAL AND WERE . FOR AN APPELLATE AUTHORITY IT IS IMPLICIT IN COMING TO A PROPER CONCLUSION; IT IS FOR THIS RE ASON THAT THOSE EVIDENCE ONLY ENABLED THE LD. CIT (A) TO PASS AN ORDER ON THE ISSUE ONE WAY OR TH E OTHER. ON MERITS, THE LD. CIT (A) DELETED THE ADDITION BY OBSERVING AS UNDER:- 6. NOW NEXT ISSUE TO BE DECIDED IS IN RESPECT OF THE MERIT OF THE CASE. I HAVE VERIFIED THE CONTENT OF THE AIR INFORMATION AND FOUND THAT T HE APPELLANTS SUBMISSION IN RESPECT OF BANK DEPOSITS ARE THE BASE OF THE ASSESSMENT. I HA VE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION OF THE ASSESSEE. THE RECOR DS REVEAL THAT THE APPELLANT, A BUSINESSMAN HAS WITHDRAWN CASH FROM HIS CONCERNS. THE DEPOSITS IN BANK ACCOUNT IN AGGREGATE OF RS.14,52,000/- DURING THE RELEVANT PER IOD HAS BEEN FOUND DULY REFLECTED IN THE BOOKS OF ACCOUNTS OF THE APPELLANT. THE APPELL ANT HAS EXPLAINED AND DEMONSTRATED THE SOURCE OF THE DEPOSIT OF RS.14,52,000/- WHICH H AS BEEN TREATED UNEXPLAINED BY THE ASSESSING OFFICER AND ACCORDINGLY ASSESSED AS INCOM E. THE CASH DEPOSITS HAVE BEEN DULY EXPLAINED FROM BANK WITHDRAWALS AND BUSINESS RECEIP TS / WITHDRAWALS AS MENTIONED ABOVE, WHICH ARE HELD GENUINE IN VIEW OF FACTS THAT NO PRUDENT MAN WILL WITHDRAW ACCOUNTED CASH FROM HIS BANK ACCOUNT/BUSINESS CONCE RNS AND CONVERT IT INTO UNACCOUNTED 5 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. / UNEXPLAINED / BLACK MONEY AND SIMULTANEOUSLY DEPO SIT HIS UNACCOUNTED /UNEXPLAINED / BLACK MONEY IN THE BANK ACCOUNT. THE AO HAS NOT BR OUGHT ANY MATERIAL ON RECORD TO ESTABLISH THE FACT THAT THE CASH WITHDRAWALS HAVE B EEN UTILIZED OTHER THAN THE PURPOSE SPECIFIED BY THE APPELLANT. KEEPING IN VIEW THE FA CTS AND CIRCUMSTANCES IN TOTALITY AND ALSO JUDICIAL PRONOUNCEMENTS IN THIS REGARD, I HERE BY HOLD THAT THE AO WAS NOT JUSTIFIED IN TREATING DEPOSITS OF RS.14,52,000/- UNEXPLAINED. HENCE THE ADDITION OF RS.14,52,000/- IS DELETED. ACCORDINGLY, THE APPELLANT GETS RELIEF . 7. AGGRIEVED BY THE ORDER OF THE LD. CIT (A) THE RE VENUE IS IN APPEAL BEFORE US. 8. BEFORE US THE LD. SR. DR SUBMITTED THAT WHERE NO COMMENTS WERE OFFERED BY THE ASSESSING OFFICER ON EXAMINATION/VERIFICATION OF THE ADDITION AL EVIDENCE IN HIS REMAND REPORT, ONE MORE OPPORTUNITY SHOULD HAVE BEEN OFFERED BY THE LD. CIT (APPEALS) TO THE ASSESSING OFFICER TO EXAMINE/VERIFY THE ADDITIONAL EVIDENCE WHEN THE SAM E WAS ADMITTED BY HIM OVERRULING THE OBJECTIONS RAISED BY THE ASSESSING OFFICER FOR ADMI SSION THEREOF. SHE PLACED RELIANCE FOR THIS PROPOSITION ON THE DECISION OF THE ITAT, DELHI BENC H G IN THE CASE OF ITO VS. M/S. SFIL STOCK BROKING LTD. IN I. T. APPEAL NO. 4687 (DEL) OF 2007 FOR ASSESSMENT YEAR 1999-2000 REPORTED AS [2009] TIOL ITAT DEL. DATED 17 TH OCTOBER, 2008. SHE ALSO PLACED RELIANCE ON THE DE CISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DIT VS. MODERN CHARITABLE FOUNDATION DATED 18 TH MAY, 2011 REPORTED AS [2011] TIOL 363 HC DE L. IT. SHE FURTHER SUBMITTED THAT THE LD. CIT (A) HAS NOT GIVEN REASONS BEFORE ADMISSION OF A DDITIONAL EVIDENCE. THE LD. CIT (A) HAS ACCEPTED THE SUBMISSIONS MADE BY THE ASSESSEE WHICH ARE AVAILABLE AT PAGE 118 TO 122 OF THE PAPER BOOK. THE LD. CIT (A) HAS NOT GIVEN ANY REAS ONS TO SUGGEST THAT THE AMOUNT OF RS.14,52,000/- WAS EXPLAINED. THE ORDER PASSED BY THE LD. CIT (A) IS CRYPTIC. THEREFORE, THE ORDER PASSED BY THE LD. CIT (A) IS BAD IN LAW. ON THE OTHER HAND, THE LD. AR OF THE ASSESSEE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT (A). H E SUBMITTED THAT PROPER OPPORTUNITY OF BEING HEARD WAS NOT GIVEN BY THE ASSESSING OFFICER. THER EFORE, THE LD. CIT (APPEALS) IS JUSTIFIED IN 6 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. ADMITTING THE ADDITIONAL EVIDENCE AND DELETING THE ADDITION AFTER RECORDING PROPER FINDINGS AS IS EVIDENT FROM HIS ORDER. 9. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE THE DESIGNATED OFFICER 43, NEW DELHI HAD RECEI VED INFORMATION FROM THE LD. CIT [CIB] DELHI IN RESPECT OF DEPOSIT OF RS.14,52,000/- IN THE BANK ACCOUNT. THE DESIGNATED OFFICER ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT FOR THE FIRS T TIME ON 19/09/2007 WHICH, ACCORDING TO THE ASSESSEE, HAD NOT BEEN SERVED ON HIM. ANOTHER NOTI CE WAS ISSUED ON 3 RD DECEMBER, 2007 TO BE COMPLIED ON 11/12/2007. SINCE NO COMPLIANCE WAS MA DE, THE AO PASSED EX-PARTE ORDER ASSESSING THE AMOUNT OF RS.14,52,000/-. WE HAVE GO NE THROUGH THE ASSESSMENT ORDER PASSED BY THE AO WHICH IS JUST 10 LINE ORDER WHICH CONSISTS O F FACTS AND DIRECTIONS TO INITIATE PENALTY PROCEEDINGS AND CHARGING OF INTEREST UNDER SECTION 234-A AND 234-B OF THE ACT. THE ORDER PASSED BY THE AO, IN OUR CONSIDERED OPINION, IS CRY PTIC AND WITHOUT SUFFICIENT OPPORTUNITIES GIVEN TO THE ASSESSEE. THE LD. CIT (A) IN ORDER TO DECIDE APPEAL HAS ADMITTED ADDITIONAL EVIDENCE ON THE GROUND THAT PROPER OPPORTUNITY WAS NOT AFFOR DED TO THE ASSESSEE. HE HAS ALSO MENTIONED THAT ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WAS NECESSARY IN THE INTEREST OF JUSTICE AND TO DECIDE THE ISSUE BEFORE HIM. THE LD. CIT (A) HAS R ECORDED FINDING OF FACT THAT THE ASSESSEE HAD A REASONABLE CAUSE FOR ADMISSION OF ADDITIONAL EVIDEN CE. HONBLE BOMBAY HIGH COURT IN THE CASE OF SMT. PRABHAWATI S. SHAH VS. CIT 231 ITR 1 (BOM.) HAS HELD THAT ON PLAIN READING OF RULE 46A OF INCOME TAX RULES, 1962, IT IS CLEAR THAT THE RULE IS INTENDED TO PUT FETTERS ON THE RIGHTS OF THE ASSESSEE TO PRODUCE BEFORE THE APPELLATE ASSIST ANT COMMISSIONER ANY EVIDENCE ORAL OR DOCUMENTARY, OTHER THAN EVIDENCE PRODUCED BY HIM DU RING THE COURSE OF PROCEEDINGS BEFORE INCOME TAX OFFICER, EXCEPT IN THE CIRCUMSTANCES SET OUT THEREIN. IT DOES NOT DEAL WITH POWERS OF APPELLATE ASSISTANT COMMISSIONER TO MAKE FURTHER EN QUIRY OR TO DIRECT THE INCOME TAX OFFICER TO MAKE FURTHER ENQUIRY AND TO REPORT THE RESULT OF TH E SAME TO HIM. THIS POSITION HAD BEEN MADE CLEAR BY SUB RULE (4) OF RULE 46-A, WHICH SPECIFICA LLY PROVIDES THAT THE RESTRICTIONS PLACED ON THE PRODUCTION OF ADDITIONAL EVIDENCE BY THE APPELLANT WOULD NOT AFFECT THE POWERS OF APPELLATE AUTHORITY TO CALL FOR PRODUCTION OF ANY DOCUMENT OR THE EXAMINATION OF ANY WITNESS TO ENABLE HIM TO DISPOSE OF THE APPEAL. HONBLE HIGH COURT HAS F URTHER NOTED THAT THE POWERS OF FIRST APPELLATE 7 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. AUTHORITY ARE CO-TERMINUS WITH THAT OF THE ASSESSIN G OFFICER. THE POWERS CONFERRED ON FIRST APPELLATE AUTHORITY UNDER SUB SECTION (4) OF SECTIO N 250 BEING A QUASI JUDICIAL POWER, IT IS INCUMBENT ON HIM TO EXERCISE THE SAME IF THE FACTS AND CIRCUMSTANCES JUSTIFY. IF THE APPELLATE AUTHORITY FAILS TO EXERCISE HIS DISCRETION JUDICIAL LY AND ARBITRARY REFUSES TO MAKE ENQUIRY IN A CASE WHERE THE FACTS AND CIRCUMSTANCES SO DEMAND, HIS AC TION WOULD BE OPEN FOR CORRECTION BY A HIGHER AUTHORITY. THE PURPOSE OF RULE 46-A OF THE RULES IS TO ENSURE THE EVIDENCES PRIMARILY LED BEFORE THE ASSESSING OFFICER. 10. IN THE CASE BEFORE US THE ASSESSING OFFICER HAD ISSUED ONLY ONE NOTICE ON 3 RD DECEMBER, 2007. THE EARLIER NOTICE UNDER SECTION 142(1) ACCO RDING TO THE ASSESSEE HAD NOT BEEN SERVED ON HIM. MOREOVER, THE ASSESSEE WAS ASSESSED WITH INCO ME TAX OFFICER, WARD : 25 (3) AND NOT WITH DESIGNATED OFFICER - 43. IN THIS CASE THERE IS NO DISPUTE ABOUT THE FACT THAT THE QUESTIONNAIRE DATED 3 RD DECEMBER, 2007 WAS SERVED ON THE ASSESSEE, BUT THE ASSESSEE COULD NOT REPLY AS HIS ACCOUNTANT COULD NOT SENT THE PAPERS TO HIS CHARTER ED ACCOUNTANT BECAUSE OF HIS ILL-HEALTH. FROM THESE FACTS IT IS EVIDENT THAT THE ASSESSING OFFICE R HAD NOT GIVEN PROPER OPPORTUNITY AS THE NOTICE HAS BEEN ISSUED AT THE FAG END OF THE ASSESSMENT YE AR, WHEN ASSESSMENT WAS GOING TO BE BARRED FOR LIMITATION. IN THE CASE BEFORE US, THE LD. CIT (APPEALS) HAD ADMITTED THE ADDITIONAL EVIDENCE IN ORDER TO RENDER SUBSTANTIAL CAUSE OF JUSTICE. T HE LD. CIT (APPEALS) HAD HIMSELF EXAMINED THE CONTENTS OF AIR INFORMATION AND HAD RECORDED FINDIN G OF FACT THAT AMOUNT OF RS.14,52,000/- DEPOSITED IN THE BANK ACCOUNT WAS DULY REFLECTED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. HE HAD ALSO RECORDED A FINDING OF FACT THAT THE SOURCE OF DEPOSIT OF RS.14,52,000/- WAS EXPLAINED. CASH DEPOSITS WERE MADE FROM THE BANK WITHDRAWALS. THEREFORE, IT IS NOT A CASE WHERE THE LD. CIT (APPEALS) HAS SIMPLY ACCEPTED THE CONTENTION OF THE ASSESSEE WITHOUT VERIFICATION OF ADDITIONAL EVIDENCE FILED BEFORE HIM. THEREFORE, I N OUR CONSIDERED OPINION, THE ORDER PASSED BY THE LD. CIT (APPEALS) IS A SPEAKING ORDER AND CANNO T BE TREATED AS A CRYPTIC ORDER AS CONTENDED BY THE LD. SR. DR. FURTHER WITH EFFECT FROM 1/06/2003 POWER OF THE LD. CIT (APPEALS) TO SET ASIDE THE APPEAL TO THE ASSESSING OFFICER HAS BEEN WITHDR AWN. IT IS A SETTLED LAW THAT THE POWERS OF THE LD. CIT (APPEALS) ARE CO-TERMINUS WITH THAT OF THE ASSESSING OFFICER. THEREFORE, AFTER WITHDRAWALS OF POWER OF THE LD. CIT (APPEALS) TO SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER MORE 8 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. RESPONSIBILITIES ARE CAST ON THE LD. CIT (APPEALS) TO STEP INTO THE SHOES OF THE ASSESSING OFFICER AND DECIDE THE APPEAL ON THE BASIS OF MATERIAL ALRE ADY ON RECORD OR BY ADMITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE OR THE LD. CIT (APPE ALS) CAN ASK THE ASSESSEE TO PRODUCE CERTAIN EVIDENCE, WHICH IS NECESSARY FOR DECIDING THE ISSUE . IN THE CASE BEFORE US THE LD. CIT (APPEALS) HAS RECORDED HIS SATISFACTION THAT THE ADDITIONAL E VIDENCE WAS NECESSARY FOR DECIDING THE APPEAL ON MERITS AND FOR THE PURPOSE OF RENDERING SUBSTANT IAL CAUSE OF JUSTICE. THEREFORE, IN OUR CONSIDERED OPINION, THE LD. CIT (APPEALS) WAS JUSTI FIED IN ADMITTING THE ADDITIONAL EVIDENCE AND DECIDING HIMSELF THE ISSUE AFTER VERIFICATION OF TH E ADDITIONAL EVIDENCE. 11. IT IS NOT A CASE WHERE THE LD. CIT (APPEALS) H AS ADMITTED THE ADDITIONAL EVIDENCE AND WITHOUT VERIFICATION HAS DECIDED THE APPEAL IN FAVO UR OF THE ASSESSEE. HONBLE DELHI HIGH COURT IN THE CASE OF MODERN CHARITABLE FOUNDATION (SUPRA) HAS HELD THAT WHERE THE LD. CIT (APPEALS) AFTER ADMITTING ADDITIONAL EVIDENCE RELIED UPON THE SAME WITHOUT ANY VERIFICATION THE MATTER WAS TO GO BACK TO THE ASSESSING OFFICER FOR CONSIDERATI ON OF THE ADDITIONAL EVIDENCE. THE FACTS OF THE PRESENT CASE ARE DISTINGUISHABLE TO THE EFFECT THAT THE LD. CIT (APPEALS) HAS HIMSELF HAS VERIFIED THE EVIDENCE AND HAS RECORDED A FINDING OF FACT THA T THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT HAS BEEN EXPLAINED BY THE ASSESSEE WITH THE HELP OF BOO KS OF ACCOUNTS AND BANK ACCOUNT OF PROPRIETORSHIP CONCERNS. UNDER SUCH CIRCUMSTANCES N O PURPOSE WILL BE SERVED BY REMITTING BACK THE MATTER TO THE ASSESSING OFFICER WHEN THE LD. CI T (APPEALS) HAS HIMSELF HAD VERIFIED THE EVIDENCE AND RECORDED A FINDING OF FACT THAT THE SO URCE OF DEPOSIT WAS DULY VERIFIED. MERELY BECAUSE THE ASSESSING OFFICER HAD OBJECTED WOULD NO T BE A GROUND FOR REMITTING THE CASE BACK TO THE ASSESSING OFFICER PARTICULARLY WHEN THE MATT ER HAS BEEN EXAMINED AND DECIDED BY THE LD. CIT (APPEALS). ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LD. CIT (APPEALS) DELETING THE ADDITION ON THE BASIS OF ADD ITIONAL EVIDENCE ADMITTED AND AFTER PROPER VERIFICATION OF THE SAME. 9 I. T. APPEAL NO. 2942 (DEL) OF 2011 A N D C. O. NO. 211 (DEL) OF 2011. 12. AS REGARDS THE CROSS OBJECTION, THE LD. AR OF T HE ASSESSEE, DURING THE COURSE OF HEARING, DID NOT PRESS THE CROSS OBJECTIONS RAISED BY THE AS SESSEE. THEREFORE, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED, AS NOT PRESSED. 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 26 TH AUGUST, 2011. SD/- SD/- [ R. P. TOLANI ] [ K. D. RANJAN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH AUGUST, 2011. *MEHTA * COPY OF THE ORDER FORWARDED TO : - 1. APPELLANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT.