Shri Mahender Pal Paliwal, New Delhi V. ITO, New Delhi

CO 477/DEL/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9372 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 21-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Depreciation; Additional evidence; Reasonable cause; Assessment record; Reason to believe
• Section: 142(1); 147; 148; 144

Judgement Text

ITA NO. 2050 & C.O4 77.DEL.12 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI B. C. MEENA, ACCOUNTANT MEMBER I.T.A .NO. 2050 /DEL/2012 (ASSESSMENT YEAR-2006-07) ITO WARD-25(4), 304-D, 3 RD FLOOR, VIKAS BHAWAN NEW DELHI (APPELLANT) VS MAHENDER PAL PALIWAL 1058-B, NAJAFGARH NEW DELHI P AN-AAEPP0579P (RESPONDENT) C.O- 477/DEL/2012 APPELLANT BY SH.VED JAIN (C.A) RESPONDENT BY SH. KEYUR PATEL (SR. DR) ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 8/2/2012 OF CIT(A) XXIV, NEW DELHI PERTAINING TO 2006-07 ASSESS MENT YEAR ON THE FOLLOWING GROUNDS:- .1 IN DELETING THE ADDITION OF RS.75,000/- MADE BY THE AO ON ACCOUNT OF DEPRECIATION OF CAR, VIOLATING THE RULE 46A OF THE INCOME TAX AS THE ADDITIONAL EVIDENCE WERE FILED BY THE ASSESSEE BEFORE THE APPELLATE AUTHORIT Y WHICH WERE NEVER SUBMITTED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS . 2. IN DELETING THE ADDITION OF RS. 3,47,428/- MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF INTEREST PAID, VIOLATING THE RULE 46A OF THE INCOME TAX AS THE MAHENDER PAL PALIWAL 1058-B,NAJAFGARH, NEW DELHI P AN-AAEPP0579P (APPELLANT) VS ITO WARD-25(4), 304-D, 3 RD FLOOR, VIKAS BHAWAN NEW DELHI (RESPONDENT) ITA NO. 2050 & C.O4 77.DEL.12 2 ADDITIONAL EVIDENCE WERE FILED BY THE ASSE SSEE BEFORE THE APPELLATE AUTHORITY WHICH WERE NEVER SUBMITTED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS. 3. IN DELETING THE ADDITION OF RS.1,08,42,500/- MADE B Y THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY, VIOLATING THE R ULE 46A OF THE INCOME TAX AS THE ADDITIONAL EVIDENCE WERE FILED BY THE ASSESSEE BEFO RE THE APPELLATE AUTHORITY WHICH WERE NEVER SUBMITTED BEFORE THE AO DURING ASSESSMEN T PROCEEDINGS. 4. IN DIRECTING THE AO TO TREAT THE INCOME OF RS.95,00 0/- AS AGRICULTURE INCOME VIOLATING THE RULE 46A OF THE INCOME TAX AS THE ADDITIONAL EV IDENCE WERE FILED BY THE ASSESSEE BEFORE THE APPELLATE AUTHORITY WHICH WERE NEVER SUB MITTED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS. 5. IN ACCEPTING THE SWEEPING SUBMISSIONS OF THE ASSESS EE WHICH DOES NOT STAND SUPPORTED BY EVIDENCE ON RECORD OF THE ASSESSING OF FICER, AND IN ACCEPTING SELF SERVING DOCUMENTS NOT CORROBORATED OR EXAMINED DURI NG ASSESSMENT PROCEEDINGS THE THUS DENYING OPPORTUNITY OF HOLISTIC EXAMINATION TO THE AO, DURING ASSESSMENT PROCEEDINGS. 6. SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE M ATTER BECK TO THE AO TO RE-EXAMINE FRESH EVIDENCE IN A HOLISTIC MANNER. 2. THE ASSESSEE IN SUPPORT OF THE IMPUGNED ORDER HA S ALSO FILED CROSS-OBJECTION ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TA X(APPEALS) [CIT(A)] HAS ERRED, BOTH ON FACTS AND IN LAW, IN NOT QUASHING THE REASSESSMENT ORDER MADE BY A.O AS THE SAME WERE IN GROSS VIOLATION OF PROCEDURE PRESCRIBED U/S 147 READ WITH SECTION 148 OF THE ACT . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT APPRECIATING THE FACT THAT THE RE OPENING CANNOT BE DONE FOR VERIFICATION. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT QUASHING THE REASSESSMENT ORDER M ADE BY THE A.O AS THE SAME IS BAD IN LAW BEING MADE ON THE BASIS OF VAGUE REASONS . 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR AL TER ANY OF THE GROUNDS OF CROSS-OBJECTION. 3. A PERUSAL OF THE RECORD SHOWS THAT AS A RESULT O F INFORMATION AVAILABLE WITH THE DEPARTMENT THAT THE ASSESSEE HAD INVESTED AN AM OUNT OF RS. 99 LACS FOR PURCHASE OF PROPERTY RECEIVED FROM SUB-REGISTRAR KA PASHARA, NEW DELHI THE ASSESSMENT WAS REOPENED AFTER RECORDING OF REASONS U/S 147 AND ISSUANCE OF NOTICE U/S 148 DATED 29/1/2010. IN RESPONSE TO THE NOTICE RECEIVED THE ASSESSEE FURNISHED A COPY OF THE RETURN VIDE LETTER DATED 22/2/2010. A PERUSAL OF THE ASSESSMENT ORDER ITA NO. 2050 & C.O4 77.DEL.12 3 PASSED U/S 144/147 SHOWS THAT THE A.O MAKES THE FOL LOWING OBSERVATIONS ON APPRAISING THE FACTS:- ON GOING THROUGH THE RETURN OF INCOME IT IS NOTI CED THAT SHRI MAHENDER PAL PALIWAL, FURNISHED A BELATED RETURN ON 31/3/2008 B Y DECLARING RS.3,28,230/- PLUS AN AGRICULTURAL INCOME OF RS.95,000/- AND CLAIMED A REFUND OF RS. 960/- OUT TO TDS OF RS.24,239/-. THE RETURN WAS PROCESSED U/S 1 43(1). THE AR OF THE ASSESSEE SUBMITTED LETTER DATED 21/1/ 2009 ADDRESSED TO THE ITO WARD-25(4), NEW DELHI WHICH IS REPRODUCED. THE ASSESSEE HAD ALREADY FILED A LETTER DATED ON 21/1/2009 IN RESPONSE TO AIR INFORMATION REQUIRED IN THIS CASE FOR THE A.Y 2006- 07. COPY OF THE LETTER IS ENCLOSED HEREWITH. BUT THIS REPLY IS NOT CORRECT, AS THE COMPUTATION ATTACHED WITH THE RETURN WAS NOT ACCOMPANIED BY P &L ACCOUNT, BAL ANCE SHEET, TDS CERTIFICATE (COPY ANNEXED). 3.1. THE RECORD FURTHER SHOWS THAT DESPITE OPPORTU NITY NOTHING WAS PLACED ON BEHALF OF THE ASSESSEE. ACCORDINGLY AS OPPOSED TO THE RETURNED INCOME OF RS.3,28,230/-, THE INCOME WAS ASSESSED AT 1,17,84, 630/- BY AN ORDER PASSED U/S 144/147 OF THE INCOME TAX ACT, 1961. 4. BEING AGGRIEVED BY THE SAID ACTION THE ASSESSEE CHALLENGED THE SAME IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A) IT WAS CANVASSED ON BEHALF OF THE ASSESSEE THAT HE COULD NOT BE REPRESENTED BEFORE T HE AO ON ACCOUNT OF ILLNESS OF HIS ITP/ACCOUNTANT. ACCORDINGLY PETITION FOR ADMIS SION FOR FRESH EVIDENCE RELATABLE TO THE ADDITIONS WAS MOVED. THE CIT(A) ADMITTED THE SAID EVIDENCE AFTER OBTAINING A REMAND REPORT FROM THE AO. CONS IDERING THE EVIDENCE MOST OF THE ADDITIONS MADE WERE DELETED BY THE FIRST APPELL ATE AUTHORITY BARRING THE ADDITION MADE ON ACCOUNT OF DEDUCTIONS CLAIMED UNDE R CHAPTER VIA RESULTING IN CONFIRMING THE DENIAL OF BENEFIT OF RS.96,463/- WHI CH WAS DIRECTED TO BE VERIFIED BASED ON THE EVIDENCE TO BE PRODUCED BY THE ASSESSE E BEFORE THE AO. 5. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL ON THE ABOVE MENTIONED GROUNDS. SINCE, IN THE CO FILED BY THE ASSESSEE TH E CHALLENGE IS POSED TO THE RE- OPENING IT WAS A COMMON STAND OF THE PARTIES THAT T HIS MAY BE FIRST ADDRESSED AT THE OUTSET. ITA NO. 2050 & C.O4 77.DEL.12 4 5.1. IN TERMS OF THE ABOVE STAND OF THE PARTIES, LD . AR LEADING THE ARGUMENTS INVITED ATTENTION TO COPY OF THE REASONS RECORDED P LACED AT PAPER BOOK PAGE 16. THE SAME IS EXTRACTED HEREUNDER FOR READY-REFERENCE :- INFORMATION IN RESPECT OF INVESTMENT AMOUNTING T O RS.99,00,000/- FOR PURCHASE OF PROPERTY (OFFICE OF SUB-REGISTRAR-KAPASHERA-DELHI) DURING THE F.Y 2005-06 CORRESPONDING TO A.Y 2006-07 WAS RECEIVED IN THE FO RM OF AIR INFORMATION (WITHOUT PAN). A LETTER WAS SENT ON 16/1/2008 TO THE ASSESSEE FOR SUB. OF COPY OF THE RETURN FOR A.Y 2006- 07. IN RESPONSE TO THIS LETTER ASSESSEE SUBMITTED COPY OF ITR FOR THE A.Y 06-07 WHERE HIS TOTAL INCOME IS SHOWN AT RS.3,28,234/-. FROM THE SCRUTIN Y OF THE COPY OF ITR, SOURCE OF INVESTMENT IS NOT COMMENSURATE WITH INVESTMENT MADE . IN VIEW OF THE ABOVE, THERE IS REASON TO BELIEVE TH AT ABOVE SAID INVESTMENT OF RS.99,00,000/-CHARGEBALE TO TAX FOR A.Y 2006-07 WAS ESCAPED ASSESSMENT. ACCORDINGLY NOTICE U/S 148 IS BEING ISSUED. 5.2. BASED ON THE ABOVE IT WAS HIS SUBMISSION THAT THE REASONS RECORDED ARE VAGUE AND NOT BASED ON ANY SOUND BELIEF WHICH CAN B E UNDERSTOOD AS REASON TO BELIEVE. IT WAS HIS ARGUMENT THAT IT IS A SETTLED LEGAL POSITION THAT REASON TO BELIEVE AND NOT REASON TO DOUBT IS A SINE QUA NON FOR PROCE EDING U/S 147 AND IT WAS HIS VEHEMENT STAND THAT IF RE-OPENING IS PERMITTED IN T HE LIGHT OF THE ABOVE REASONS THEN EACH AND EVERY CASE CAN BE RE-OPENED BY THE D EPARTMENT AS THAT WAY BASED ON THE PERCEPTION THAT ANY PERSON CAN BE DOUBTED BY TH E DEPARTMENT AS HAVING LESS INCOME RELATABLE TO HIS INVESTMENT AND RE-OPENING WILL BECOME A NORM INSTEAD OF AN EXCEPTION. IT WAS HIS ARGUMENT THAT ANY PERSON THEN CAN BE VISITED BY RE- OPENING A CONCLUDED ASSESSMENT ON THE MERE NOTICE THAT A CAR OF RS.5 LAKH HAS BEEN PURCHASED BY A PERSON HAVING INCOME OF RS.3 LA KH. IT WAS HIS SUBMISSION THAT THE RE-OPENING OF CONCLUDED ASSESSMENT SHOULD BE BA SED ON SOUND REASONS AND THIS IS A SETTLED LEGAL PRINCIPLE AND IF EVERY TIME BASE D ON SOME INFORMATION IN THE FORM OF AIR THE AO CONCLUDES THAT THE RETURNED INCOME IS LESS AND NOT COMMENSURATE WITH INVESTMENT THE REOPENING WOULD BECOME A COMPUL SORY CONSEQUENCE. IT WAS HIS SUBMISSION THAT IT IS A MATTER OF FACT THAT THE RE IS NO COLUMN TO DECLARE THE ASSETS ITA NO. 2050 & C.O4 77.DEL.12 5 AND HYPOTHETICALLY IF A PERSON PURCHASES A CAR OF A BOUT 5 LACS AND HIS RETURNED INCOME IS 2 LACS THEN THE ASSESSING OFFICER WILL FE EL JUSTIFIED IN RE-OPENING THE ASSESSMENT BASED ON THE AIR INFORMATION THAT INVEST MENT TO THE TUNE OF 5 LACS HAS BEEN MADE AND IF SUCH AN ACTION IS PERMITTED IT WOU LD AMOUNT TO HARASSMENT OF THE PUBLIC AT LARGE. INVITING ATTENTION TO PAPER BOOK PAGE NO. 8 WHEREIN THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FURNISH A COPY OF THE RETURN WITHIN 7 DAYS, THE ASSESSEE IT WAS STATED FILED A COPY OF RETURN ON 21 ST JANUARY 2009 COPY OF THE SAME WAS PLACED BEFORE THE COURT. HOWEVER, BEFORE PROCE EDING FURTHER IT WAS STATED ON HIS OWN THAT IN ALL FAIRNESS HE WAS DUTY BOUND TO INFORM THE COURT THAT THE ASSESSEE HAD NOT FILED ANY OBJECTIONS EITHER BEFORE THE A.O NOR BEFORE THE CIT(A) ON THE RE- OPENING. 6. IN THE SAID BACKGROUND, THE LD. SR. DR STATED TH AT IN THE FACE OF THE STATED STAND OF THE ASSESSEE THE CO CAN BE TREATED AS SUPP ORTIVE AS ONCE NO GRIEVANCE IS POSED IN THE ASSESSMENT PROCEEDINGS AND ALSO BEFORE THE CIT(A) AND HERE ALSO THE GROUND IS ARGUED AND THEN GIVEN UP AS SUCH HE WOULD RELY ON THE ORDERS AND STATE THAT THE ASSESSEE HAVING PARTICIPATED ALL ALONG BEF ORE THE CIT(A) WITHOUT VOICING HIS GRIEVANCE THE CROSS OBJECTION SHOULD BE DISMIS SED. 6.1. QUA THE DEPARTMENTAL GROUNDS IT WAS HIS VEHEME NT PLEA THAT HOW IS IT POSSIBLE THAT THE ASSESSEE COULD FILE NOTHING BEFOR E THE AO SUPPOSEDLY ON ACCOUNT OF NEUROLOGICAL ILLNESS OF HIS ACCOUNTANT. IT WAS HIS SUBMISSION THAT IT CANNOT AND SHOULD NOT BE BELIEVED THAT SIMPLY BECAUSE ONE EMPL OYEE WAS NOT WELL CONSEQUENTLY THE ASSESSEE WAS RENDERED IN CAPABLE O F GIVING ANY INFORMATION TO THE AO. IT WAS HIS SUBMISSION THAT NOTHING STOPPED THE ASSESSEE TO ASK HIS CHARTERED ACCOUNTANT TO CLARIFY THE POSITION AND THERE MUST B E OTHER EMPLOYEES ALSO WHO COULD HAVE ASSISTED THE ASSESSEE. IN THE LIGHT OF THE ARGUMENTS ADVANCED ABOUT THE NUMBER OF EMPLOYEES AT ASSESSEES COMMAND BY THE LD . SR. DR HE WAS REQUIRED TO ADDRESS THE NATURE OF THE ASSESSEES BUSINESS WARRA NTING SUCH A PRESUMPTION. IN ITA NO. 2050 & C.O4 77.DEL.12 6 RESPONSE THERETO THE LD. SR. DR CONSIDERING THE REC ORD AVAILABLE MODIFIED HIS SUBMISSIONS STATING THAT PROBABLY THE ASSESSEE DID NOT HAVE ANY LARGE BUSINESS AND MAY HAVE BEEN PURCHASING OR SELLING SOME PROPERTY F OR HIMSELF ONLY. THE LD. SR. DR WAS REQUIRED TO ELABORATE AS TO HOW AND WHY THE ASSESSEE WHO IS STATED AS PER THE DEPARTMENT NOT TO HAVE ANY SERIOUS BUSINESS SHO ULD MAINTAIN SUFFICIENT STAFF WHO COULD HAVE ASSISTED THE ASSESSEE AS THE ASSESSE ES ACCOUNTANT WAS NOT WELL. ADDRESSING THE ILLNESS OF THE CONCERNED PERSON, THE LD. SR. DR INVITING ATTENTION TO PAGES 42 TO 62 STATED THAT A PERUSAL OF THE MEDICAL EVIDENCE FILED BEFORE THE CIT(A) WOULD SHOW THAT AS PER THE DOCTORS PRESCRIPTION D ATED 22 ND APRIL 2010 SOME INVESTIGATION WAS BEING DONE AND MEDICATION AND TES TS ETC. WERE PRESCRIBED FOR FEVER. SIMILARLY PAGE 44 WOULD SHOW THAT IT PERTAI NS TO SOME CHEST X-RAY. THESE DOCUMENTS IT WAS ARGUED NO DOUBT SHOW THAT HE WAS I LL IN 2010, HOWEVER, IT WAS HIS SUBMISSION THAT WHAT STOPPED THE ASSESSEE TO EXPLAI N THE SAME IN JANUARY 2010. 6.2. IT WAS HIS SUBMISSION THAT THE FRESH EVIDENCE ADMITTED BY THE CIT(A) FIRSTLY SHOULD NOT BEEN ADMITTED AND IF AT ALL IT HAD TO BE ADMITTED IT HAD TO BE RESTORED TO THE FILE OF THE A.O IN TERMS OF THE MANDATE OF THE JURISDICTION HIGH COURT IN THE CASE OF MANISH BUILD WELL. 6.3. THE LD. SR. DR WAS REQUIRES TO ADDRESS THE DEP ARTMENTAL GRIEVANCE AGAINST THE REASONING OF THE CIT(A) SET OUT IN PARA 4.2 WH EREIN THE REASON FOR ADMISSION OF ADDITIONAL EVIDENCE HAVE BEEN DISCUSSED. FOR RE ADY REFERENCE THE SAME IS EXTRACTED HEREUNDER:- 4.2 THE APPELLANT SUBMITTED AN APPLICATION UNDER R ULE 46A OF THE INCOME TAX RULES FOR FILING OF ADDITIONAL EVIDENCE ON THE GROUNDS TH AT SOME OF THE DETAILS COULD NOT BE SUBMITTED BY THE APPELLANT DURING ASSESSMENT PRO CEEDINGS SINCE, HIS ITP/ACCOUNTANT SH. J. K. JAIN WAS SERIOUSLY ILL. H OWEVER, MOST OF THE INFORMATION, AS PER THE APPELLANT, IS AVAILABLE IN THE ASSESSMENT RECORD. THE APPELLANT SUBMITTED THAT SH. J. K. JAIN WAS LOOKING AFTER ALL HIS ACCOUNTS AND DUE TO HIS SUFFERING FROM A NEUROLOGICAL DISEASE, HE CO ULD NOT PREPARE THE RELEVANT DOCUMENTS FOR THE SUBMISSION BEFORE THE A.O. THE M EDICAL RECORDS OF SH. J. K. JAIN HAVE BEEN PLACED BY THE APPELLANT IN THE PAPER BOOK. IN THE LIGHT OF THE ITA NO. 2050 & C.O4 77.DEL.12 7 SUBMISSIONS MADE BY THE APPELLANT, I AM OF THE OPIN ION THAT THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM SUBMITTING CERTA IN CRUCIAL EVIDENCES BEFORE THE A.O DURING ASSESSMENT STAGE. AN AFFIDAVIT OF THE A PPELLANT IN THIS REGARD HAS ALSO BEEN PLACED ON RECORD. ACCORDINGLY, THE ADMISSION OF ADDITIONAL EVIDENCE AT APPELLATE STAGE IS ALLOWED. 6.4. THE SR. DR WAS ALSO REQUIRED TO READ OUT PARA 4.3 OF THE IMPUGNED ORDER TO SHOW AS TO HOW AND WHY THE ISSUE SHOULD BE RESTORED AS REMAND REPORTS APPARENTLY HAVE BEEN OBTAINED BY THE CIT(A) HIMSELF . THE SAID PARA IS ALSO EXTRACTED HEREUNDER FOR READY REFERENCE:- 4.3 A REMAND REPORT WAS CALLED FOR FROM THE AO VID E LETTER DATED 28/3/2011. THE REMAND REPORT WAS RECEIVED FROM THE AO VIDE HIS LET TER DATED 5/8/2011, IN WHICH HE BASICALLY OBJECTED TO THE ADMISSION OF ADDITIONA L EVIDENCE ON VARIOUS GROUNDS. SINCE, IT WAS DECIDED TO ADMIT THE ADDITIONAL EVIDE NCE, THE AO WAS DIRECTED VICE LETTER DATED 1/11/2011 TO SUBMIT HIS COMMENTS ON TH E DOCUMENTS PLACED ON RECORD BY THE APPELLANT AS ADDITIONAL EVIDENCE. VIDE HIS LETTER DATED 3/11/2011, THE AO REQUESTED FOR THREE MONTHS TIME TO SUBMIT HIS REMA ND REPORT ON MERITS. THIS REMAND REPORT WAS RECEIVED ON 18/1/2012. ON A PERU SAL OF THE REMAND REPORT, IT IS SEEN THAT THE AO HAS MERELY REITERATED THE ST AND TAKEN BY HIM ON EACH ISSUES IN THE ASSESSMENT ORDER. THE FRESH EVIDENCE SUBMIT TED BY THE APPELLANT HAS EITHER NOT BEEN CONSIDERED, OR HAS NOT BEEN COMMENTED UPON AT ALL AND THE AO HAS RESTRICTED HIMSELF TO THE SAME STAND AS TAKEN WHILE PASSING THE ASSESSMENT ORDER , DESPITE, HAVING TAKEN THREE MONTHS TO PRODUCE THE REMAND REPORT. 6.5. IN THE ABOVE FACTUAL BACKGROUND THE LD. SR. DR SUMMARIZED, ARGUMENTS QUA THE DEPARTMENTAL STAND THAT QUA GROUND NOS.- 1 TO 4 GRIEVANCE IS POSED TO ADMISSION OF FRESH EVIDENCES AND IT IS ALSO BEEN AD DRESSED IN GROUND NO. 5. THE ARGUMENT ADVANCED FOR SEEKING A DIRECTION THAT THE ISSUE SHOULD BE RESTORED TO THE AO FOR FRESH EXAMINATION IN HOLISTIC MANNER IS ADVA NCED IN TERMS OF GROUND NO-6 RAISED IN THE PRESENT PROCEEDINGS. ON THE QUERY WH ETHER THERE IS STILL ANY OTHER GRIEVANCE QUA THE GROUNDS THE LD. SR. DR STATED THA T THE STAND OF THE DEPARTMENT WAS THAT THE DEPARTMENTAL OBJECTION IN SUM & SUBSTA NCE IS THAT THE ARGUMENT THAT ACCOUNTANT WAS ILL IS NOT A GOOD ENOUGH REASON TO A DMIT FRESH EVIDENCE AND EVEN IF DESPITE THAT THE EVIDENCE CONSIDERED HAD TO BE ADMI TTED IT SHOULD BE RESTORED TO THE ITA NO. 2050 & C.O4 77.DEL.12 8 AO FOR VERIFICATION AND THIS WOULD BE THE SUM AND S UBSTANCE OF THE DEPARTMENTAL STAND. 7.1. IN THE ABOVE BACKGROUND, THE LD. AR ADDRESSING HIS C.O STATED THAT THE RE- OPENING IS BAD IN LAW AS RE-OPENING CAN ONLY BE UPH ELD IF IT IS ON ANY MATERIAL WHICH LEADS TO THE CONCLUSION THAT THERE IS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND THE COURTS HAVE REPEATEDLY H ELD THAT RE-OPENING CANNOT BE SUSTAINED ON THE BASIS OF REASON TO DOUBT BASED ON SUSPICIONS AND SURMISES.. 7.2. ADDRESSING THE ADMISSION OF FRESH EVIDENCE IT WAS HIS SUBMISSION THAT THIS ASPECT HAS BEEN A SUBJECT MATTER OF CONSIDERATION I N THE CASE OF A RELATIVE OF THE ASSESSEE WHICH HAS TRAVELLED TO THE ITAT AND THE SA ME IS ADDRESSED BY THE SAID ORDER DATED 31/10/2013 IN ITA 2051/DEL/12 IN THE CA SE OF ITO WARD-25 (4) VS. MRS. PUSHPLATA PALIWAL WHEREIN IDENTICAL GROUNDS HA VE BEEN RAISED BY THE REVENUE ASSAILING THE ACTION OF THE CIT(A) IN DELETING THE ADDITIONS BASED ON ADDITIONAL EVIDENCES AND EVEN THE WORDINGS OF GROUND NO. 5 IS IDENTICALLY WORDED AS WOULD BE EVIDENT FROM PAGE 2 & 3 OF THE SAID ORDER. IT WAS SUBMITTED THAT A PERUSAL OF THESE WOULD SHOW THAT THE ARGUMENTS ADVANCED ON BEH ALF OF THE DEPARTMENT THEREIN WERE ALSO IDENTICALLY WORDED. INVITING ATTENTION TO COPY AVAILABLE ON RECORD. FOR READY REFERENCE, WE REPRODUCE THE SAME FROM THE SAI D ORDER:- 5. THE MAIN GRIEVANCE OF THE REVENUE IS THAT LD. CITA() HAS ACCEPTED THE ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A. HENCE, IT HAS BEEN PLEADED BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE MATTER BE REMI TTED TO THE FILE OF THE LD. AO TO RE-EXAMINE THE FRESH EVIDENCE. LD. DR FURTHER RELI ED UPON THE DECISION OF MANISH BUILDWELL 245 CTR 397 AND MODERN CHARITABLE FOUNDAT ION 335 ITR 105. 7.3. INVITING ATTENTION TO THE SAID ORDER IT WAS SU BMITTED THAT CONSIDERING THE IDENTICAL PLEA THE DEPARTMENTAL OBJECTIONS WERE REJ ECTED. FOR READY REFERENCE WE REPRODUCE THE RELEVANT PARAS:- 5.1 ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT ASSESSEE HAS PROPERLY FILED THE ADDITIONAL EVIDENCES WHICH HAS A LSO BEEN SENT BY THE LD. CIT(A) TO THE LD. AO FOR THE REMAND REPORT. HE SUBMITTED THAT THE LD. AO HAS ALSO ITA NO. 2050 & C.O4 77.DEL.12 9 SUBMITTED THE REMAND REPORT WHICH HAS BEEN DULY CON SIDERED BY THE LD. CIT(A). HENCE, HE SUBMITTED THAT THERE IS NO CASE OF VIOLAT ION OF RULE 46A. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT LD. CIT(A) HAS NOTED THAT THE ASSESSEE HAS SUB MITTED APPLICATION UNDER RULE 46A REQUESTING FOR SUBMISSION OF ADDITIONAL EVIDENC ES ON THE GROUND THAT THE ITP/ ACCOUNTANT OF THE ASSESSEE SH. S. K. JAIN WHO IS SE VERE DIABETIC PATIENT, STARTED TO SUFFER FROM NEUROLOGY DISORDER, AS A RESULT, HE COU LD NOT SPEAK OR WRITE PROPERLY. HE SUBMITTED THAT BECAUSE OF THIS, SHE COULD NOT SU BMIT THE DOCUMENTS TO THE LD. A.O IN TIME. THUS, SHE SUBMITTED THAT SHE WAS PREV ENTED BY REASONABLE CAUSE FROM ATTENDING BEFORE THE LD. AO AND MAKING NECESSA RY COMPLIANCE. LD. CIT(A) ACCEPTED THE ADDITIONAL EVIDENCES, AND THESE EVIDEN CES WERE REMANDED TO THE LD. AO. LD. AO OBJECTED TO THE ADMISSION OF THE SAME. BUT, LD. CIT(A) ACCEPTED THE SUBMISSION THAT ASSESSEE WAS PREVENTED BY CIT(A) AC CEPTED THE ADDITIONAL EVIDENCES AND REQUIRED THE LD. AO TO SUBMIT HIS COM MENTS ON THE MERITS OF THE ADDITIONAL EVIDENCES. LD. AO ASKED FOR THREE MONTHS TIME FOR PREPARATION OF REMAND REPORT. ULTIMATELY THE REMAND REPORT WAS SUBMITTED BY THE LD. AO ON 18/1/2013 IN WHICH THE LD. A.O MERELY REITERATED TH E STAND TAKEN AT THE ASSESSMENT STAGE ON EACH ISSUE. INSTEAD OF ANALYZI NG THE ISSUE IN LIGHT OF FRESH EVIDENCES SUBMITTED BY THE ASSESSEE. LD. CIT(A) NO TED THAT DESPITE SEEKING TIME OF ALMOST THREE MONTHS FOR THE PREPARATION OF THE R EMAND REPORT, THE LD. AD DID NOT COMMENT ON THE MERITS OF THE ADDITIONAL EVIDENC E AT ALL. 7. IN LIGHT OF THE ABOVE DISCUSSION, WE FIND THAT L D. CIT(A) HAS CORRECTLY ACCEPTED THE ADDITIONAL EVIDENCES. IT CANNOT BE SAID THAT L D. A.O WAS DENIED ANY OPPORTUNITY TO GO THROUGH THE ADDITIONAL EVIDENCES. LD. AO HAS ASKED THREE MONTHS TIME, FOR SUBMISSION OF THE REMAND REPORT, LD. CIT(A) HAS DULY\GIVEN THE TIME. THEREAFTER, THE LD. AO DID NOT ANALYZE T HE ADDITIONAL EVIDENCES PROPERLY. THEREAFTER, LD. CIT(A) EVALUATED THE ADD ITIONAL EVIDENCES AND GAVE A VERY COGENT AND SPEAKING ORDER ON ALL ISSUES CONCER NED. IN THESE CIRCUMSTANCES, WE FIND THAT THE ALLEGATION BY THE REVENUE THAT LD. CIT(A) HAS DELETED THE ADDITION IN VIOLATION OF RULE 46A IS DEVOID OF COGE NCY. UNDER THE CIRCUMSTANCES, WE HOLD THAT LD. A.O HAS BEEN GIVEN PROPER OPPORTUN ITY BY THE LD. CIT(A) TO EXAMINE THE ADDITIONAL EVIDENCE. HENCE, LD. CIT(A) S ORDER ON THIS ACCOUNT CANNOT BE SAID TO BE SUFFERING FROM ANY SHORTCOMING . THE CASE LAW RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE ARE NOT APPLICA BLE ON THE FACTS OF THE CASE AS THE LD. AO IN THIS CASE HAS BEEN GIVEN ADEQUATE OPP ORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCES. 7.4. IT WAS HIS SUBMISSION THAT THE ARGUMENTS ON BE HALF OF THE DEPARTMENT THAT THE A.O SHALL NOW ONCE AGAIN LOOK AT THE EVIDENCES CANNOT BE ALLOWED AS WHEN THE HIGHER AUTHORITY DULY EXERCISING THE POWERS VESTED UPON IT BY THE STATUTE ADMITS ADDITIONAL EVIDENCE IN TERMS OF RULE 46A AND SEEKS A REMAND REPORT SPECIFICALLY ON THE EVIDENCES FILED THE AO CANNOT SEEK TO RELOOK A T THE EVIDENCES REPEATEDLY WHICH WERE MADE AVAILABLE TO HIM AS ADDITIONAL EVID ENCE. IT WAS SUBMITTED THE SAID ITA NO. 2050 & C.O4 77.DEL.12 10 STAND CANNOT BE ACCEPTED. INVITING ATTENTION TO TH E IMPUGNED ORDER IT WAS POINTED OUT THAT WHEN THE A.O OBJECTS TO THE ADMISSION OF A DDITIONAL EVIDENCE THE CIT(A) SPECIFICALLY RESTORED THESE EVIDENCES AGAINST OVERR ULING THE AOS OBJECTION TO THEIR ADMISSIONS REQUIRING HIM TO ADDRESS THE VERACITY OF THE EVIDENCE. REFERRING TO THE RECORD IT WAS SUBMITTED THE ASSESSING OFFICER THERE AFTER SEEKS 3 MONTHS TIME TO CARRY OUT THE NECESSARY EXERCISE AND THEREAFTER HE ONLY REITERATES THAT THE EVIDENCE WAS NOT FILED AT THE ASSESSMENT STAGE AND DOES NOT CARE TO ASSAIL THE SAME AND EVEN TODAY IT WAS CONTENDED THAT NO EFFORT HAS BEEN MADE BY THE DEPARTMENT TO ASSAIL THE EVIDENCES FILED BEFORE THE CIT(A) AND REMITTED TO T HE AO REPEATEDLY WHICH ARE CONTAINED IN THE 351 PAGES PAPER BOOK AVAILABLE ON RECORD AND THE ONLY ARGUMENT ADVANCED WAS ASSAILING THE CLAIM OF ILLNESS OF SH. J. K. JAIN, THE ACCOUNTANT WHO HAD COMPLETE KNOWLEDGE OF ASSESSEES AFFAIRS WHICH HAS BEEN STATED SO IN THE AFFIDAVIT FILED BY THE ASSESSEE PLACED AT PAGES 63 TO 65 WHICH DOCUMENT HAS ALSO NOT BEEN ASSAILED BY ANY EVIDENCE LET ALONE ANY ARG UMENT. THE REQUEST OF THE SR. DR TO MERELY SEEK THAT THE ISSUE BE RESTORED ONLY T O SATISFY THE WHIMS OF THE DEPARTMENT IT WAS STATED WOULD NOT BE IN ACCORDANCE WITH LAW AND AS SUCH WAS STRONGLY OPPOSED. 7.5. REFERRING TO THE AFFIDAVIT AVAILABLE ON RECORD IT WAS STATED THAT SHRI. J. K. JAIN HAD BEEN ASSESSEES ACCOUNTANT FOR THE LAST 20 YEARS AND HE WAS A CHRONIC DIABETES PATIENT AND ALSO FOUND TO BE SUFFERING FRO M NEUROLOGICAL PROBLEMS WHICH INCAPACITATED HIM FOR QUIET SOME TIME AND SINCE THE ASSESSEES FAMILY WAS ENTIRELY DEPENDENT UPON HIM THE RELEVANT EVIDENCES COULD NOT BE PLACED BEFORE THE AO. REFERRING TO THE EVIDENCES CONSIDERED AND AVAILABLE ON RECORD DULY CONFRONTED TO THE AO ALSO IT WAS HIS SUBMISSION THAT IT IS A MATT ER OF RECORD THAT THE ASSESSEE HAS BEEN REGULARLY EARNING AGRICULTURAL INCOME FROM TEH SIL HAMIRPUR AND GAJROLA AND THE PROPERTIES PURCHASED HAVE BEEN FROM THE FUNDS A DVANCED BY THE VARIOUS FAMILY MEMBERS WHO HAVE RECEIVED AWARD OF COMPENSATION FOR AGRICULTURE LAND BELONGING ITA NO. 2050 & C.O4 77.DEL.12 11 TO MAHENDRA PAL (HUF) AND ASSESSEES OWN RECEIPTS F ROM THE SAID AWARD WHICH WERE ALL THROUGH REGULAR BANKING CHANNELS. 7.6. ADDRESSING GROUND NO. 1-4 OF THE DEPARTMENT IT WAS SUBMITTED THAT ALTHOUGH QUA THE GROUND THE DEPARTMENT HAS CHALLENGED THE AC TION OF THE CIT(A) IN ADMITTING FRESH EVIDENCES AND ALSO THE DELETION OF THE ADDITION MADE IN THE AO ON MERITS ALSO AND QUA GROUND NO.-5 THE DELETION ON ME RITS HAS BEEN CHALLENGED AND ALTHOUGH ON MERITS NO SPECIFIC ARGUMENTS HAVE BEEN ADVANCED BY THE DEPARTMENT HOWEVER FOR THE SAKE OF COMPLETENESS HE WOULD WANT HIS ARGUMENTS TO BE SPECIFICALLY TAKEN NOTE OF EVEN ON MERIT. 7.7. IN THE SAID BACKGROUND ELABORATING HIS ARGUMEN T ATTENTION QUA GROUND NO-1 WAS INVITED TO THE FACTS FOUND RECORDED IN PARA 4.5 OF THE IMPUGNED ORDER. THE SAME IT WAS SUBMITTED ARE SUPPORTED BY PAPER BOOK P AGE NO. 66 WHICH IS COPY OF THE LEDGER ACCOUNT OF CAR PURCHASE. THE SAID PAGE IT WAS SUBMITTED IS THE LEDGER ACCOUNT ADDRESSING THE CLAIM OF DEPRECIATION THEREO N. ATTENTION WAS INVITED TO PAPER BOOK PAGE NO. 68 WHICH IS A COPY OF THE RC W HICH WOULD SHOW THAT THE CAR WAS REGISTERED ON 28 TH SEPTEMBER 1999 AS SUCH IT WAS ARGUED THERE CAN BE NO QUESTION OF IT NOT HAVING BEEN PUT TO USE. INVITIN G ATTENTION TO THE COPY OF THE LEDGER PAPER BOOK PAGE 60 IT WAS HIS SUBMISSION THA T IT WOULD SHOWS THAT THERE IS AN OPENING BALANCE IN THIS ACCOUNT ON WHICH THE DEP RECIATION AT THE PRESCRIBED RATE HAS BEEN CHARGED AND NONE OF THESE DOCUMENTS IT WA S SUBMITTED HAVE BEEN ASSAILED BY THE REVENUE. 7.8. ADDRESSING THE FACTS ON MERITS QUA GROUND NO. 2 IT WAS SUBMITTED THAT THESE ARE FOUND DISCUSSED IN PARA 4.6 BY THE CIT(A). REL YING ON THE SAME IT WAS HIS SUBMISSION THAT FROM THE COMPUTATION OF INCOME IT C AN BE SEEN THAT INTEREST ON LOAN AMOUNTING TO 3,46,428/-HAD BEEN CHARGED WHICH WAS DISALLOWED FOR WANT OF EVIDENCE. THE RELEVANT DETAILS IT WAS HIS SUBMISSI ON ARE FOUND AT PAGE 70 WHICH WOULD SHOW THAT THE INTEREST IS OVERDRAFT ON THE AM OUNT BORROWED FROM THE BANKS ITA NO. 2050 & C.O4 77.DEL.12 12 AGAINST FIXED DEPOSITS. IT WAS HIS SUBMISSION THAT THE AMOUNTS BORROWED FROM THE BANKS AGAINST THE FDRS HAVE BEEN UTILIZED FOR GIVIN G LOANS ON WHICH INTEREST HAS BEEN CHARGED AND THERE IS A DIRECT NEXUS BETWEEN IN TEREST EARNED ON LOANS GIVEN AND INTEREST PAID ON LOANS TAKEN. THESE FACTS ARE DEMONSTRATED FROM COPY OF BANK STATEMENTS FOUND AT PAGES 71 TO 75 OF THE PAPER BO OK WHICH ALSO HAS BEEN CONFRONTED TO THE AO AND NOT ASSAILED BY THE REVENU E IN THE PRESENT PROCEEDINGS AS SUCH THE MATTER SHOULD NOT BE ALLOWED TO BE REST ORED AGAIN TO THE AO FOR THE MERE ASKING AS ARGUMENTS IN SUPPORT OF THE SAID REQ UEST SHOULD BE CONSIDERED. 7.9. ADDRESSING THE GROUND NO.3 OF THE DEPARTMENT, THE FACTS QUA WHICH IT WAS SUBMITTED ARE FOUND DISCUSSED IN PARA 4.7 & 4.8 OF THE IMPUGNED ORDER, IT WAS HIS SUBMISSION THAT THE ASSESSEE HAS PURCHASED PLOTS IN DELHI FOR A SUM OF RS.48 LACS AND 51 LACS TOTALING AN AMOUNT OF RS.99 LACS. COPY OF THE SALE DEED IT WAS SUBMITTED IS PLACED AT PAGES 77 TO 138 OF THE PAPER BOOK WHEREIN THE ENTIRE PARTICULARS QUA THE PARTIES AND THE AMOUNTS ARE DIS CLOSED AND EVIDENCED. THE SOURCE OF THE MONEY IT WAS SUBMITTED HAS BEEN EXPLA INED TO BE COMING TO THE ACCOUNT OF THE ASSESSEE FROM THE ACCOUNT OF SHRI M AHENDER PAL PALIWAL, HUF. THESE EVIDENCES IT WAS SUBMITTED HAVE NOT BEEN ASSA ILED. REFERRING TO PAGES 146 TO 175 IT WAS HIS SUBMISSION THAT THE MONEY RECEIVED B Y SHRI MAHENDER PAL PALIWAL, HUF HAS COME FROM THE AWARD OF COMPENSATION RECEIVE D BY GOPAL DAS, RAJEEV LOCHAN, SATISH KUMAR, MADHO PRASAD AND GIRISH KUMA R. 7.9.1. ADDRESSING THE RECEIPT OF COMPENSATION FROM GOPAL DAS IT WAS HIS SUBMISSION THAT PAPER BOOK PAGE NO. 176 TO 177 IS A COPY OF THE CONFIRMATION FILED BY GOPAL DAS AND HE HAS ACCEPTED THAT HE HAS GIVEN A SUM OF RS.35 LACS TO SHRI MAHENDER PAL PALIWAL, HUF VIDE SPECIFIC CHEQUE NO. FROM SPECIFIC BANK ACCOUNT WHICH CAME AS A RESULT OF AWARD OF COMPENSATION FO R LAND ACQUIRED DULY SUPPORTED BY THE PAYMENT CERTIFICATE. COPY OF THE LAND ACQUISITION CERTIFICATE IT WAS SUBMITTED IS AT PAGE NO. 178 AND COPY OF THE BA NK PASSBOOK IS PLACED AT PAGES ITA NO. 2050 & C.O4 77.DEL.12 13 179 & 180 PAGES 181 TO 188. COPY OF THE REFERENCE BEFORE THE DEPUTY COMMISSIONER AGAINST THE AWARD OF COMPENSATION AND COPY OF THE JUDGMENT OF DISTRICT JUDGE DWARKA COURT, NEW DELHI IS AT PAGES 189 TO 198 OF THE PAPER BOOK AND AFFIDAVIT OF SH.GOPAL DAS IN SUPPORT OF THE CON FIRMATION AND THE EVIDENCES FILED ARE AVAILABLE AT PAGE 200. NONE OF THESE DOC UMENTS IT WAS SUBMITTED HAVE BEEN ASSAILED AND THEY ALL HAVE BEEN CONFRONTED TO THE AO. 7.9.2. SIMILARLY, IN THE CASE OF SATISH KUMAR, IT W AS HIS SUBMISSION THAT THE RECEIPT OF 16 LACS IS DULY CONFIRMED BY WAY OF A CONFIRMATI ON LETTER. HEREIN ALSO IT WAS SUBMITTED THAT LAND ACQUISITION PAYMENT CERTIFICATE IS PLACED AT PAGES 205. SIMILARLY, COPY OF BANK PASSBOOK, IDENTITY PROOF , COPY OF CHEQUE RECEIPT IS PLACED AT PAGES 203 TO 229 ALONGWITH AFFIDAVIT OF SH. SATI SH KUMAR. NONE OF THESE DOCUMENTS ALSO IT WAS ARGUED HAVE BEEN ASSAILED. 7.9.3. ADDRESSING THE FACTS OF SH. RAJEEV VOHRA IT WAS SUBMITTED THAT THE DOCUMENTS QUA THE LOAN OF 14 LACS FROM THE LAND ACQ UISITION PAYMENT ALONG WITH COPY OF BANK PASSBOOK, IDENTITY PROOF, AFFIDAVIT, C OPY OF CHEQUE ETC. DOCUMENTS ARE ALL FILED AT PAGES 230 TO 235 WHICH STAND UNREBUTTE D BY THE REVENUE. 7.9.4.INVITING ATTENTION TO THE SUM OF RS.23 LAC BY SHRI MADHO PRASAD IT WAS SUBMITTED IT HAS BEEN DULY CONFIRMED BY HIM AS BEIN G SOURCED FROM LAND ACQUISITION RECEIPTS ALONG WITH EVIDENCES OF BANK A CCOUNT COPY OF REFERENCE BEFORE DC AGAINST THE ACQUISITION, COPY OF THE JUDGMENT OF THE DISTRICT JUDGE, DWARKA COURT AFFIDAVIT AND IDENTITY PROOF OF SHRI MADHO PR ASAD PLACED AT PAGE 256 TO 283. THESE DOCUMENTS TOO IT WAS STATED STAND UNREBUTTED BY THE REVENUE 7.9.5. INVITING ATTENTION TO THE FACTS OF SHRI GIR ISH KUMAR WHO ACCEPTS THAT RS.17 LAC WAS GIVEN BY HIM TO SHRI. MAHENDER PAL PALIWAL, HUF IT WAS SUBMITTED THAT THE RECORD WOULD SHOW THAT IT WAS SOURCED FROM HIS LAND ACQUISITION RECEIPTS DULY SUPPORTED BY COPY OF BANK PASSBOOK, COPY OF REFEREN CE BEFORE DEPUTY COMMISSIONER AGAINST THE AWARD ACQUISITION COPY OF THE JUDGMENT, IDENTITY PROOF, ITA NO. 2050 & C.O4 77.DEL.12 14 AFFIDAVIT ETC ALONG WITH COPY OF CHEQUE RECEIPTS IT WAS SUBMITTED IS PLACED AT 284 TO 306 WHICH HAS NOT BEEN ASSAILED BY THE DEPARTMENT. 7.10. ADDRESSING THE FACTS QUA THE FOURTH GROUND RA ISED BY THIS REVENUE RELYING ON THE IMPUGNED ORDER ATTENTION WAS INVITED TO THE REL EVANT DOCUMENTS TAKEN INTO CONSIDERATION MADE AVAILABLE IN THE REMAND PROCEEDI NGS TO THE AO. THE FACTS IT WAS SUBMITTED ARE FOUND DISCUSSED IN PARA 4.9 OF TH E IMPUGNED ORDER. THESE FINDINGS IT WAS SUBMITTED ARE FOUND SUPPORTED BY CO PY OF KHATA KHATAUNI COPY PLACED AT PAGES 307 TO 309; COPY OF THE ACKNOWLEDGE MENT OF THE INCOME TAX RETURN FOR 2002-03 TO 2005-06 ASSESSMENT YEAR SHOWING AGRI CULTURAL INCOME AVAILABLE IN THE PAPER BOOK AT PAGES 310 TO 313. 7.11. FOR THE SAKE OF COMPLETENESS, AGAIN ATTENTIO N WAS INVITED TO COPY OF THE REMAND REPORT DATED 3/8/2011 AND 18/1/2012 PLACED A T PAGES 314 TO 316 AND 332 TO 334 RESPECTIVELY AND COPY OF THE REJOINDER TO THE R EMAND REPORTS IT WAS SUBMITTED ARE PLACED AT PAGES 317 TO 331 AND 335 TO 351 OF TH E PAPER BOOK. ON THE BASIS OF THE SAME IT WAS VEHEMENTLY SUBMITTED THAT IN THE AB SENCE OF ASSAILING THE EVIDENCE ON RECORD THE ISSUE CANNOT BE REMANDED ACCORDINGLY IT WAS ARGUED THAT EVEN GROUND NO-5 AND 6 OF THE REVENUE SHOULD BE REJECTED . 8. THE LD. DR IN REPLY REITERATED THE SUBMISSIONS A DVANCE MADE AT THE OUTSET. DISTINCTION FROM THE ORDER OF THE CO-ORDINATE BENCH WAS SOUGHT TO BE DRAWN ON THE GROUND THAT IT PERTAINS TO FACTS RELEVANT FOR 2008- 09 ASSESSMENT YEAR AS SUCH QUA THE ISSUE OF ILLNESS OF SHRI J. K. JAIN IT WAS ARGU ED THAT IT HAS NO RELEVANCE IN THE PRESENT PROCEEDINGS WHICH ARE CONSIDERING THE FACTS OF 2006-07 ASSESSMENT YEAR. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME ADD RESSING THE GRIEVANCE OF THE REVENUE IN ADMITTING FRESH EVIDENCE AT THE STAGE OF THE FIRST APPELLATE AUTHORITY, WE FIND THAT THE AO ISSUED QUESTIONNAIRE TO THE ASS ESSEE ON 03.06.2010 WHICH WAS NOT RESPONDED TO. THEREAFTER FURTHER OPPORTUNITIES WERE GIVEN TO THE ASSESSEE WHICH ITA NO. 2050 & C.O4 77.DEL.12 15 WERE NOT AVAILED OF AND THESE RESULTED IN PASSING O F THE ORDER U/S 144/147. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE AS SESSEE AS PER RECORD HAS PLEADED THAT ON ACCOUNT OF THE SERIOUS ILLNESS OF HIS ACCOU NTANT/ITP SH. J.K.JAIN, THE RELEVANT DOCUMENTS COULD NOT BE SUBMITTED. CONSIDE RING THE RELEVANT PAGES OF THE PAPER BOOK, SPECIFIC PAGES 42-62, IT IS SEEN THAT M EDICAL EVIDENCE OF ILLNESS DATED 22.04.2010 OF SOME TREATMENT ON ACCOUNT OF FEVER WH EREIN VARIOUS TESTS AND MEDICATION ARE PRESCRIBED ARE FOLLOWED BY SUPPORTIN G EVIDENCE OF SOME CHEST X- RAY DATED 23.05.2010 WITH VARIOUS FOLLOW UP TREATME NT /INVESTIGATION UPTO 29.01.2011 SUPPORTED BY AN AFFIDAVIT OF THE ASSESSE E PLACED AT PAGES 63-65 OF THE PAPER BOOK WHICH STATES THAT THE RELEVANT INFORMATI ON COULD NOT BE PROVIDED TO THE CA AS HIS ITP/ACCOUNTANT HANDLING HIS ACCOUNT & T AXATION FOR THE LAST 20 YEARS WAS SERIOUSLY ILL. THE CONCERNED EMPLOYEE HAS BEE N DESCRIBED AS A CHRONIC DIABETES PATIENT AT THAT POINT OF TIME WHO WAS ALS O HAVING SOME NEURO PROBLEM WHICH CONTINUED FOR MONTHS TOGETHER. ON THE BASIS OF THIS PLEA DULY SUPPORTED BY AFFIDAVIT AND PETITION FOR ADMISSION OF RELEVANT DO CUMENTS WAS MADE. THESE ARGUMENTS ADVANCED ARE FOUND DISCUSSED IN PARA 4.2 OF THE IMPUGNED ORDER HAVE BEEN ADDRESSED IN DETAIL ON BEHALF OF THE REVENUE A ND THE LD. AR AND HAVE BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER. A PER USAL OF THE SAME WOULD SHOW THAT A SPEAKING ORDER FOR ADMISSION OF THIS EVIDENCE HAS B EEN PASSED BY THE CIT(A) IN PARA 4.3 WHICH ALSO HAS BEEN EXTRACTED IN THE EARL IER PART OF THIS ORDER. APART FROM THAT IT IS ALSO SEEN THAT THESE ARGUMENTS IN THE CA SE OF A FAMILY MEMBER HAVE ALSO BEEN CONSIDERED BY A CO-ORDINATE BENCH VIDE THEIR O RDER DATED 31.10.2013. COPY OF THE SAME HAS BEEN PLACED BY THE LD. AR ON RECORD . A PERUSAL OF THE SAID ORDER IN ITA NO-2051/DEL/2012 IN THE CASE OF ITO, WARD-25 (4), NEW DELHI VS MRS. PUSHPLATA PALIWAL, NAJAFGARH, NEW DELHI FOR 2008-09 ASSESSMENT YEARS SHOWS THAT THE ACTION OF THE CIT(A) IN ADMITTING FRESH EVIDENC E QUESTIONED BY THE REVENUE HAS BEEN UPHELD BY THE CO-ORDINATE BENCH REJECTING THE DEPARTMENTAL GROUNDS. A ITA NO. 2050 & C.O4 77.DEL.12 16 PERUSAL OF THE SAID ORDER RELEVANT PORTION OF WHICH HAS BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER WOULD SHOW THAT THEREIN ALSO THE AO MADE A PLEA AFTER THE CIT(A) OVER-RULED THE AOS REPORT SEEKING A DISMISS AL OF FRESH EVIDENCE SOUGHT TO BE ADMITTED AND AGAIN DIRECTED THE AO TO CONSIDER T HE FRESH EVIDENCE ON MERITS WHEREIN ALSO THE AO SOUGHT 3 MONTHS TIME FOR PREPAR ING A REMAND REPORT. THE ARGUMENTS OF THE LD. SR. DR THAT THIS FINDING WOULD NOT BE RELEVANT IN THE YEAR UNDER CONSIDERATION AS IT PERTAINS TO THE FACTS IN 2006-07 ASSESSMENT YEARS ON CONSIDERATION OF THE SPECIFIC FACTS MENTIONED IN TH E ASSESSMENT ORDER NAMELY JUNE 2010 MAKES IT FULLY APPLICABLE AS NO DOUBT THE ASS ESSMENT YEAR IS 2006-07 THE RELEVANT DATES IN THE RE-OPENING MAKE A MENTION OF JANUARY 2010 AND JUNE 2010. WE REPRODUCE THE RELEVANT PORTION OF THE AO :- SUBSEQUENTLY, AFTER RECORDING THE REASONS U/S 147 OF INCOME TAX ACT NOTICE U/S 148 DATED 29.1.2010 WAS ISSUED AND SERVED UPON THE ASSE SSEE. IN RESPONSE TO SHRI MAHESH KHATTER CHARTERED ACCOUNTANT SUBMITTED POWER OF ATT ORNEY AND LETTER DATED 22.2.2010 HAS FURNISHED COPY OF RETURN OF INCOME FOR ASSESSME NT YEAR 2006-07 AND ALSO SUBMITTED THAT THE RETURN ALREADY FILED MAY BE TREATED IN RES PONSE TO NOTICE U/S 148. ON GOING THROUGH THE RETURN OF INCOME IT IS NOTICED THAT SHRI MAHENDER PAL PALIWAL, FURNISHED A BELATED RETURN ON 31.03.2008 BY DECLARI NG RS.3,28,230/- PLUS AN AGRICULTURAL INCOME OF RS.95,000/- AND CLAIMED A REFUND OF RS.96 0/- OUT TO TDS OF RS.24,239/-. THE RETURN WAS PROCESSED U/S 143(1). THE A.R. OF THE ASSESSEE SUBMITTED LETTER DATED 21. 01.2009 ADDRESSED TO THE ITO WARD- 25(4), NEW DELHI WHICH IS REPRODUCED. THE ASSESSEE HAD ALREADY FILED A LETTER DATED ON 2 1.01.2009 IN RESPONSE TO AIR INFORMATION REQUIRED IN THIS CASE FOR THE A.Y.2006- 07. COPY OF THE LETTER IS ENCLOSED HEREWITH. BUT THIS REPLY IS NOT CORRECT, AS THE CO MPUTATION ATTACHED WITH THE RETURN WAS NOT ACCOMPANIED BY P&L ACCOUNT, BALANCE SHEET, TDS CERTIFICATE (COPY ANNEXED). A DETAILED QUESTIONNAIRE NO.-1 DATED 03.06.2010 AL ONGWTIH NOTICE U/S 142(1) WAS ISSUED AND SERVED. SINCE THE ASSESSEE DID NOT RESP OND TO THE NOTICE A 2 ND QUESTIONNAIRE DATED 16.08.2010 ALONGWITH NOTICE U/S 142(1) WAS AL SO ISSUED AND SERVED. THE QUESTIONNAIRE IS REPRODUCED. IN SPITE OF SINCE THERE WAS NO APPEARANCE. THIS R ESULTED IN THE ISSUE OF A FURTHER NOTICE U/S 142(1) DATED 29.09.2010 MARKED AS FINAL OPPORTUNITY. THE DATE GIVEN WAS 13.10.2010. THIS NOTICE ALSO REMAINED UNCOMPLIED. A SHOW CAUSE NOTICE U/S 271(1)(B) DATED 10.11.2010 WAS ISSUED FOR COMPLIANCE OF 17.11.2010. THIS SHOW CAUSE NOTICE ALSO REMAINED UNCOMPLIED. THIS PROVED THAT HE HAD IS NOT INTERESTED IN FINALIZING HIS ASSESSMENT SINCE HE DI D NOT HAVE ANY EXPLANATION ABOUT THE INVESTMENT, IN THE PROPERTY BUSINESS ETC. I AM NO OTHER ALTERNATIVE TO COMPLETE THE ITA NO. 2050 & C.O4 77.DEL.12 17 ASSESSMENT AS EX-PARTE U/S 144 OF INCOME TAX ACT ON THE BASIS OF MATERIAL AVAILABLE IN THE FILE, AS THE ASSESSMENT IS BARRED BY LIMITATION . 9.1. ACCORDINGLY IN THE AFORE-MENTIONED PECULIAR FA CTS WHERE THE HEARINGS WERE FIXED IN 2010 FOR ASSESSMENT YEAR 2006-07 THE FACTS QUA THE ILLNESS OF THE VERY SAME ACCOUNTANT IN THE CASE OF A FAMILY MEMBER OF T HE ASSESSEE IN THE ORDER PERTAINING TO 2008-08 ASSESSMENT YEAR CANNOT BE BRU SHED ASIDE AS IRRELEVANT AND IT FURTHER FORTIFIES THE VIEW OF THE CIT(A) IN THE PRE SENT PROCEEDINGS AS SUCH HIS ACTION IN ADMITTING FRESH EVIDENCE CANNOT BE FAULTE D WITH AND THE SAME IS UPHELD. 9.2. ADDRESSING THE REMAINING GRIEVANCE POSED BY TH E REVENUE QUA GROUND NO- 1 TO 4 AND GROUND NO-5 THAT OPPORTUNITY OF HOLISTIC EXAMINATION WAS DENIED TO THE AO AS CONSIDERING THE FRESH EVIDENCE, THE ADDITIONS MADE BY THE AO WERE DELETED BY THE CIT(A) AS SUCH IN TERMS OF THE PRAYER IN GRO UND NO-6, THE MATTER BE RESTORED BACK. WE FIND THAT THE SAID REQUEST CANNO T BE ACCEPTED. WE HAVE ALREADY BROUGHT OUT IN DETAIL THE ARGUMENTS ADVANCED ON BEH ALF OF THE PARTIES BEFORE THE BENCH. IT MAY NOT BE OUT OF PLACE TO EXTRACT THE F INDINGS UNDER CHALLENGE. THESE ARE FOUND DISCUSSED IN PARAS 4.5 TO 4.9. THE SAME ARE REPRODUCED HEREUNDER FOR READY-REFERENCE:- 4.6 IN GROUND NO.4, THE APPELLANT HAS IMPUGNED THE DECISION OF THE AO IN NOT ALLOWING INTEREST PAID AMOUNTING TO RS.3,47,428/- U NDER THE HEAD INCOME FROM OTHER SOURCES. IN THE REMAND REPORT DATED 18.01.2012, THE AO SUBMITTED THAT THIS AMOUNT WAS NOT ALLOWED IN THE ABSENCE OF ANY DETAILS AND C ONFIRMATIONS FROM PEOPLE TO WHOM LOANS WERE GIVEN. HOWEVER, ON EXAMINING THE DOCUMEN TS FURNISHED UNDER RULE 46A, IT WAS OBSERVED THAT THE APPELLANT HAD PAID INTEREST O N OD ACCOUNT WHICH WAS NOT REFLECTED IN THE P&L A/C. OR THE B/S. THUS, THE AO SUBMITTED THAT SINCE, THE OD WAS NOT USED FOR BUSINESS PURPOSES, THE INTEREST PAID T HEREON AMOUNTING TO RS.3,47,428/- IS NOT ALLOWABLE. ON THE OTHER HAND, THE APPELLANT HAS CLAIMED THAT THIS INTEREST HAS BEEN PAID TO THE BANKS ON HIS BORROWINGS FROM THE BANK A GAINST FIXED DEPOSITS. THE APPELLANT HAS CLAIMED THAT THE. AMOUNT BORROWED FRO M THE BANKS AGAINST FDRS HAS BEEN UTILIZED FOR GIVING LOANS ON WHICH INTEREST HA S BEEN EARNED. THE APPELLANT SUBMITTED THAT THERE IS A DIRECT NEXUS BETWEEN INTE REST EARNED ON LOANS GIVEN AND INTEREST PAID ON LOANS TAKEN. HE SUBMITTED THAT HE HAD GIVEN LOANS OUT OF BANK LOANS TAKEN, ON WHICH HE HAD EARNED INTEREST OF RS.2,70,0 00/- AND THEREFORE, THE INTEREST PAID SHOULD BE ALLOWED AS A LEGITIMATE EXPENDITURE. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY BOTH THE AO IN THE REMAND REPORT AS WELL AS THE ITA NO. 2050 & C.O4 77.DEL.12 18 APPELLANT IN THE REJOINDER TO THE REMAND RE PORT. THERE IS MERIT IN THE ARGUMENT OF THE APPELLANT THAT HE HAS TAKEN LOANS FROM THE BANK AGAINST FDRS ON WHICH HE HAS PAID INTEREST, AND HE HAS UTILIZED THESE FUNDS TO GIVE LOANS ON WHICH HE HAS EARNED INTEREST. THEREFORE, IF HIS INTEREST EAR NED ON LOANS IS TAKEN AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES, HE SHOULD ALSO BE ALLOWED THE EXPENDITURE OF INTEREST PAID THEREON UNDER THE SAME HEAD. THEREFOR E, THE AO IS HEREBY DIRECTED TO ALLOW INTEREST PAID BY THE APPELLANT ON HIS BORROWI NGS FROM THE BANK AGAINST FDRS. 4.7. IN GROUND NOS. 5, 6 & 7, THE APPELLANT HAS IM PUGNED THE ADDITION OF RS.L,08,42,500/- TO HIS INCOME AS UNEXPLAINED INVES TMENT IN PROPERTY, OUT OF WHICH RS.99 LACS IS THE PURCHASE PRICE OF PROPERTY, RS.7, 42,500/- IS STAMP DUTY CHARGES THEREON AND RS.2 LACS AS BROKERAGE PAID ON THE SAME . ON PERUSAL OF THE REMAND REPORT DATED 18.01.2012, IT IS SEEN THAT THE AO HAS SIMPLY DISMISSED THE CLAIM OF THE APPELLANT ON THE GROUND THAT THE PAN NUMBER AACHM13 87C ON PAGE NO. .1.6/PB IS INVALID AND DOES NOT BELONG TO MAHENDER PAL PALIWAL (HUF) AS CLAIMED BY THE APPELLANT, AND THEREFORE, THE LOAN CANNOT BE VERIFI ED. THE APPELLANT SUBMITTED THAT DUE TO A TYPOGRAPHICAL ERROR, THE PAN NUMBER OF MAHENDE R PAL PALIWAL (HUF) WAS MENTIONED AS AACHM1387C, INSTEAD OF AACHM1327C. THE APPELLANT FURTHER SUBMITTED THAT MAHENDER PAL PALIWAL (HUF) IS ASSESS ED TO TAX FOR MANY YEARS AND THAT THE AO COULD EASILY TRACE THE CURRENT PAN THRO UGH THE DATABASE. FURTHER, THE AO NEVER BOTHERED TO CLARIFY THIS MISTAKE FROM MAHENDE R PAL PALIWAL (HUF) WHO IS ALSO HIS OWN ASSESSEE. AS REGARDS THE INVESTMENT IN PROP ERTY, THE APPELLANT HAS SUBMITTED THAT HE PURCHASED TWO PLOTS AT DELHI FOR A SUM OF RS.48 LACS AND RS.51 LACS TOTALING RS.99 LAC S AND THIS AMOUNT WAS PAID BY HIM TO SH. NARENDER KUMAR JAIN THROUGH VARIOUS DEMA ND DRAFTS NUMBERS 726476 TO 726487 ON 06.05.2005. IT HAS FURTHER BEEN SUBMITTED THAT THE MONEY FOR PURCHASE OF PLOTS HAS BEEN BORROWED BY THE APPELLAN T FROM HIS HUF, WHO, AS MENTIONED EARLIER, IS ALSO ASSESSED TO TAX WITH THE SAME AO. ALL THE DETAILS REGARDING CONFIRMATIONS AND SOURCES ETC. HAVE BEEN SUBMITTED AND THESE DOCUMENTS ARE FILED ON PAGES 4.1 TO 4.6/PB. THE APP ELLANT HAS ALSO EXPLAINED THE SOURCE OF SOURCE BY GIVING LOAN CONFIRMATIONS OF VA RIOUS PERSONS WHO HAVE ADVANCED LOANS TO MAHENDER PAL PALIWAL (HUF). ALL T HESE PERSONS HAVE RECEIVED COMPENSATION FROM LAND ACQUISITION DEPARTMENT FOR A CQUISITION OF LAND FOR METRO PROJECT. THEIR CONFIRMATIONS, BANK STATEMENTS , AFFIDAVITS, PHOTOCOPIES OF CHEQUES RECEIVED AS COMPENSATION, DOCUMENTARY EVIDE NCE REGARDING COMPENSATION, PAN NUMBERS AND OTHER ID PROOFS HAVE BEEN SUBMITTED BY THE APPELLANT AND PLACED ON RECORD IN THE PAPER BOOK. A S REGARDS STAMP DUTY PAID BY THE APPELLANT, IT HAS BEEN SUBMITTED THAT THIS E XPENDITURE HAS BEEN INCURRED FROM THE REGULAR BOOKS OF ACCOUNTS OF THE APPELLANT OUT OF LOANS TAKEN BY HIM FROM HIS HUF. AS REGARDS BROKERAGE PAID OF RS.2 LAC S, THE APPELLANT HAS SUBMITTED THAT THIS BEING A DIRECT TRANSACTION, NO BROKERAGE HAS BEEN PAID BY HIM ON PURCHASE OF PLOTS OF LAND AND THE AO HAS ASSUMED THAT THE APPELLANT MIGHT HAVE PAID BROKERAGE ON THIS TRANSACTION. THE APPELL ANT SUBMITTED THAT THIS ADDITION HAS BEEN MADE WITHOUT ANY EVIDENCE AND PUR ELY ON SUSPICION. 4.8 I HAVE GIVEN CAREFUL CONSIDERATION TO THE ASSES SMENT ORDER, THE REMAND REPORT AND THE PLETHORA OF EVIDENCE PLACED ON RECORD BY THE AP PELLANT. IN THE LIGHT OF THE ITA NO. 2050 & C.O4 77.DEL.12 19 OVERWHELMING EVIDENCE REGARDING INVESTMENT IN PROPE RTY MADE BY THE APPELLANT AND HIS EXPLANATIONS WITH DOCUMENTS REGARDING THE SOURC E OF SUCH INVESTMENT AS WELL AS THE SOURCE OF SOURCE THEREOF, THERE IS NO DOUBT THA T NO ADDITION CAN BE MADE TO THE INCOME OF THE APPELLANT ON THESE ISSUES SINCE, THES E INVESTMENTS NO MORE REMAIN UNEXPLAINED. AMPLE EXPLANATIONS REGARDING THE INVES TMENT AS WELL AS ITS SOURCES HAVE BEEN PLACED ON RECORD BY THE APPELLANT. IN VIEW OF THESE EVIDENCES, THE ADDITION MADE TO THE INCOME OF THE APPELLANT BY THE AO US UNEXPLA INED INVESTMENT IN PROPERTY AMOUNTING TO RS.L,08,42,500/- STANDS DELETED. 4.9 IN THE EIGHT GROUND OF APPEAL, THE APPELLANT HA S IMPUGNED THE DECISION OF THE AO TO TREAT HIS AGRICULTURAL INCOME AS INCOME FROM OTH ER SOURCES. THE AO HAS MENTIONED IN THE REMAND REPORT THAT THIS HAS BEEN D ONE IN VIEW OF THE FACT THAT NO DETAILS REGARDING KHASRA/KHATAUNI, JAMA BANDI AND D ETAILS OF EXPENSES INCURRED FOR EARNING AGRICULTURAL INCOME HAD BEEN FILED BY THE A PPELLANT. ON THE OTHER HAND, THE APPELLANT HAS SUBMITTED THAT HE IS A LANDLORD, OWNI NG APPROXIMATELY 17 ACRES OF AGRICULTURAL LAND IN TEHSIL HAMIRPUR AND GAJROLA AN D IS HAVING REGULAR AGRICULTURAL INCOME FROM THE SAID PROPERTY. THE DOCUMENTS REGARD ING OWNERSHIP OF LAND AND EARNING OF AGRICULTURAL INCOME IN THE FORM OF KHASR A/KHATAUNI ETC. HAVE BEEN PLACED ON RECORD AT PAGE NOS. 7.1 TO 7.2/PB. THE APPELLANT HAS BEEN EARNING AGRICULTURAL INCOME REGULARLY FOR THE PAST MANY YEARS AND HAS BE EN DECLARING THE SAME IN HIS RETURNS OF INCOME FOR A.YS. 2003-04, 2004-05 AND 20 05-06. COPIES OF ITRS FOR THESE YEARS HAVE BEEN PLACED ON RECORD. I HAVE CONSIDERED THE ISSUE IN DETAIL AND HAVE ALSO PERUSED THE DOCUMENTARY EVIDENCE SUBMITTED BY THE A PPELLANT. I HAVE ALSO SEEN THE ITRS SUBMITTED BY THE APPELLANT FOR EARLIER YEARS. I AM OF THE OPINION THAT ENOUGH DOCUMENTARY EVIDENCE REGARDING OWNERSHIP OF AGRICUL TURAL LAND AND INCOME THEREFROM HAS BEEN PLACED ON RECORD BY THE APPELLAN T. FURTHERMORE. IN MY OPINION, THE AO SHOULD HAVE BEEN CONSISTENT IN HIS APPROACH IN THE LIGHT OF THE FACT THAT AGRICULTURAL INCOME HAS BEEN ACCEPTED BY HIM IN THE APPELLANT'S CASE IN EARLIER YEARS. ALTHOUGH, THE PRINCIPLE OF RES-JUDICATA DOES NOT HO LD GOOD FOR TAXATION MATTERS. YET, ITS IMPERATIVE THAT WHERE FACTS REMAIN THE SAME, CONSIS TENCY OF APPROACH SHOULD BE FOLLOWED. THEREFORE, THE AO IS DIRECTED TO TREAT RS .95,000/- AS AGRICULTURAL INCOME AND NOT AS INCOME FROM OTHER SOURCES. 9.3. IN THE LIGHT OF THE ABOVE PECULIAR FACTS AND C IRCUMSTANCES AND TAKING INTO CONSIDERATION COPIES OF BOTH THE REMAND REPORTS AV AILABLE ON RECORD ALONGWITH THE RE-JOINDERS FILED BY THE ASSESSEE THERETO BEFO RE THE CIT(A) ALSO AVAILABLE IN THE PAPER BOOK WE ARE NOT INCLINED TO ACCEPT THE ARGUMENTS ON BEHALF OF THE REVENUE SEEKING A REMAND FOR A RE-CONSIDERATION OF THE ADDITIONAL EVIDENCE ONCE AGAIN. IT IS A MATTER OF RECORD THAT FRESH EVIDENC E HAS BEEN CONFRONTED TO THE AO BY THE CIT(A) AS PER THE REQUIREMENTS UNDER LAW. IT IS ALSO EVIDENCED BY THE IMPUGNED ORDER ITSELF THAT AFTER RECEIVING THE OBJECTIONS OF THE AO WHO OPPOSED THE ITA NO. 2050 & C.O4 77.DEL.12 20 ADMISSION OF FRESH EVIDENCE, THE CIT(A) EXERCISING THE POWERS VESTED IN HIM OVER- RULED THE OBJECTIONS OF THE AO AND HELD THAT THE AS SESSEE WAS PREVENTED BY A SUFFICIENT CAUSE IN PLACING THE EVIDENCE BEFORE THE AO. THE NEUROLOGICAL ILLNESS OF A CHRONIC DIABETIC PERSON WHO WAS ACTING AS ITP/ AC COUNTANT FOR THE ASSESSEE AND ITS FAMILY MEMBERS WAS ACCEPTED AS A SUFFICIENT CA USE. THIS FINDING OF THE CIT(A) HAS BEEN UPHELD BY US IN THE EARLIER PART OF THIS O RDER AND IS PART OF THIS ORDER AND IS FOUND SUPPORTED BY A FINDING BY THE ORDER OF A CO-O RDINATE BENCH. HOWEVER REVERTING BACK TO THE ISSUE AT HAND IT IS SEEN THAT AFTER ADMITTING THE FRESH EVIDENCE THE CIT(A) DIRECTED THE AO VIDE LETTER DATED 01.11. 2011 TO SUBMIT HIS COMMENTS ON THE EVIDENCE SUBMITTED AS THE EVIDENCE OVER-RULI NG THE AOS OBJECTION WAS ADMITTED BY HIM. THE RECORD SHOWS THAT CONSIDERING THE CIT(A)S DECISION THE AO SOUGHT THREE MONTHS TIME TO SUBMIT HIS REMAND REPO RT ON MERITS. THE SAID REPORT WAS MADE AVAILABLE ON 18.01.2012, COPY WHICH IS AVA ILABLE ON RECORD. A PERUSAL OF THE SAME SHOWS THAT THE AO MERELY REITERATES THE S TAND TAKEN ORIGINALLY. THE EVIDENCES AVAILABLE WERE NOT ASSAILED. THESE FACT S ARE FOUND RECORDED IN PARA 4.3 OF THE IMPUGNED ORDER WHICH ALSO HAS BEEN EXTRACTED IN THE EARLIER PART OF THIS ORDER.IN THE LIGHT OF THESE FACTS ALONE THE CASE OF THE REVENUE COULD HAVE BEEN DISMISSED, HOWEVER GOING FURTHER IT IS FURTHER SEEN ON A PERUSAL OF PARAS 4.5 TO 4.9 WHICH ALSO HAS BEEN EXTRACTED BY US IN THE EARLIER PART OF THIS ORDER THAT THE EVIDENCES TAKEN INTO CONSIDERATION BY THE CIT(A) HA VE NOT BEEN ASSAILED. THE FINDINGS UNDER CHALLENGE AS DISCUSSED ELABORATELY I N THE EARLIER PART OF THIS ORDER ARE DULY SUPPORTED BY THE RELEVANT PAGES IN THE PAP ER BOOK WHICH ALSO HAVE BEEN REFERRED TO IN THE COURSE OF THE ARGUMENTS BY THE L D. AR WHILE PLACING RELIANCE UPON THE IMPUGNED ORDER. THUS CONSIDERING THE DEPAR TMENTAL REQUEST WHEREIN NO EFFORT HAS BEEN MADE TO ASSAIL THE FINDING ARRIVED AT, WE FIND NO MERIT IN ACCEPTING THE REQUEST FOR RESTORING THE ISSUE YET AGAIN TO TH E AO FOR HIS CONSIDERATION.IT IS SEEN THAT THE RELEVANT DOCUMENTS HAVE BEEN LOOKED I NTO BY THE CIT(A) AND ON BEING ITA NO. 2050 & C.O4 77.DEL.12 21 SATISFIED BY THE CORRECTNESS OF THE CLAIM DELETION HAS BEEN ORDERED. THE REASONING OF THE CIT(A) ON EXAMINATION CANNOT BE FAULTED WITH AND IT IS NOT A CASE THAT DELETION HAS BEEN ORDERED MERELY BECAUSE NO NEGATI VE COMMENT IS MADE BY THE AO. WE HAVE SEEN THAT THE CIT(A) HAS GONE ON TO EX AMINE THESE EVIDENCES HIMSELF AND ONLY THEREAFTER ON SATISFYING HIMSELF O N THE BASIS OF THE DOCUMENTS QUA THE DEPRECIATION ON CAR OR THE INTEREST INCOME BY WAY OF DOCUMENTS THAT AMOUNTS BORROWED FROM THE BANKS AGAINST FDRS HAS BEEN UTILI ZED FOR GIVING LOANS ON WHICH INTEREST HAS BEEN EARNED AND THEREAFTER A FINDING A RRIVED AT THAT THERE WAS A DIRECT NEXUS WITH EXPENDITURE OF INTEREST PAID ON HIS BORR OWING FROM FDRS. SIMILARLY THE INVESTMENT IN PROPERTY SUPPORTED BY RECEIPT OF AWAR D OF COMPENSATION BY VARIOUS MEMBERS OF MAHENDRA PAL PALIWAL HUF AND MAHENDRA PA L PALIWAL HIMSELF ALONGWITH EVIDENCES OF AGRICULTURAL INCOME IN THE YEAR UNDER CONSIDERATION WHEREIN SUCH INCOME WAS BEING CLAIMED OVER THE YEAR S. THUS, WE FIND IN THE ABSENCE OF ANY COGENT ARGUMENT IN IMPEACHING THE AU THENTICITY OF THE DOCUMENTS RELIED UPON THE REQUEST FOR REMAND MERELY FOR THE S AKE OF ASKING CANNOT BE ACCEDED TO. BEFORE A REMAND IS WARRANTED THE PARTY SEEKING A REMAND MUST ATLEAST MAKE AN EFFORT TO DEMONSTRATE THAT A REMAND IS WARRANTED IN ORDER TO MEET THE ENDS OF JUSTICE WHICH EXERCISE HAS NOT BEEN ATTEMPTED. IN THE FAC TS OF THE PRESENT CASE AS FAR AS THE REVENUE IS CONCERNED THE CIT(A) HAS BEEN COMPLE TELY FAIR IN CONFRONTING THE AO WITH THE EVIDENCE ONCE AGAIN AFTER COMMUNICATING THAT THE FRESH EVIDENCE DESPITE THE OBJECTION OF THE AO ARE BEING ENTERTAIN ED. THE AO HAS SOUGHT SPECIFICALLY THREE MONTHS TO MAKE A REMAND REPORT O N MERIT AS OBSERVED AND AFTER THIS IN THE ABSENCE OF ANY REBUTTAL ON ANY DOCUMENT TAKING INTO CONSIDERATION BY THE CIT(A) TO GRANT RELIEF WE DONOT FIND ANY MERIT IN THE ARGUMENTS OF THE SR. DR THAT EVEN NOW A REMAND IS WARRANTED AS THE AO HAS N OT LOOKED INTO THE DOCUMENTS HOLISTICALLY. SUCH FACILE CASUAL AND CARELESS EXER CISE OF POWER ON THE PART OF THE AO CANNOT BE CONTEMPLATED AND CANNOT BE GIVEN A JUD ICIAL SANCTION. THE REQUEST ITA NO. 2050 & C.O4 77.DEL.12 22 MADE WHIMSICALLY IF GRANTED WOULD AMOUNT TO ABUSE O F THE PROCEDURES WHICH CANNOT BE ALLOWED. 10. ACCORDINGLY BEING SATISFIED BY THE REASONING AN D FINDING ARRIVED AT IN THE IMPUGNED ORDER, THE DEPARTMENTAL GROUNDS ARE DISMIS SED. SINCE THE DEPARTMENTAL APPEAL IS DISMISSED THE C.O. FILED BY THE ASSESSEE IS DISMISSED AS NON MAINTAINABLE. 11. IN THE RESULT THE APPEAL OF THE REVENUE AND C.O . IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH 2014. SD/- SD/- (B. C. MEENA) (DIVA SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED: 26 /03/2014 *R. NAHEED/AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI