Sh. Gurmeet Singh, Kharar V. ITO, Mohali

ITA 1142/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8932 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 1142/CHD/2016 ASSESSMENT YEAR: 2008-09 SHRI GURMEET SINGH, VS THE ITO, S/O SHRI SHER SINGH, WARD 6(2), VILLAGE MANAKPUR SHARIF, MOHALI. TEHSIL KHARAR, MOHALI. PAN: AUGPS2934K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGA L RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 07.12.2016 DATE OF PRONOUNCEMENT : 08.12.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-2 CHANDIGARH DATED 17.08. 2016 FOR ASSESSMENT YEAR 2008-09. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSING OFFICER MADE ADDITION OF RS. 13 LACS ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE DEPOSITED CASH OF RS. 13 LACS DURING THE R ELEVANT YEAR IN HIS BANK ACCOUNT MAINTAINED WITH HDFC BANK, KURALI. SINCE THE ASSESSEE FAILED TO EXPLAIN SOURC E OF THE SAME CASH DEPOSIT, THEREFORE, ASSESSING OFFICER MAD E 2 ADDITION OF RS. 13 LACS UNDER SECTION 68 OF THE INC OME TAX ACT. 3. THE ASSESSEE CHALLENGED THIS ADDITION BEFORE LD. CIT(APPEALS) AND IT WAS SUBMITTED THAT ASSESSEE IS ILLITERATE AND WAS NOT AWARE OF THE COMPLEX LEGAL P ROVISIONS OF THE ACT AND NOW HE CAME TO KNOW AFTER GETTING LE GAL OPINION THAT EVIDENCE OF THE SALE DEED, THE PROCEED S OUT OF WHICH CASH WAS DEPOSITED, COULD NOT BE FILED BEFORE ASSESSING OFFICER. THE ASSESSEE HAD SOLD AGRICULTU RAL LAND IN DISTRICT BARNALA, PUNJAB FOR RS. 60,05,500/- OUT OF WHICH CASH HAD BEEN DEPOSITED AMOUNTING TO RS. 13 L ACS IN HDFC BANK. THE ASSESSEE FILED COPY OF THE SALE DEE D BEFORE LD. CIT(APPEALS) AND REQUESTED THAT SAME MAY BE ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A OF T HE IT RULES BECAUSE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE COPY OF THE SALE DEED BEFORE ASSE SSING OFFICER. THE SUBMISSIONS OF THE ASSESSEE WERE FORWA RDED TO THE ASSESSING OFFICER FOR HIS COMMENT. THE ASSESSI NG OFFICER IN THE REMAND REPORT SUBMITTED THAT ASSESSE E HAS NOT MADE OUT A CASE OF ADMISSION OF ADDITIONAL EVID ENCE UNDER RULE 46, THEREFORE, SAME MAY NOT BE ENTERTAIN ED. 4. THE LD. CIT(APPEALS) DID NOT ADMIT THE ADDITIONA L EVIDENCE AND ON MERIT, DISMISSED APPEAL OF THE ASSE SSEE ON THIS GROUND. 5. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. THE 3 ASSESSEE IN THE PRESENT APPEAL CHALLENGED THE ADDIT ION OF RS. 13 LACS AS WELL AS ORDER OF LD. CIT(APPEALS) IN REFUSING TO ADMIT ADDITIONAL EVIDENCE. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SALE DEED IS RELEVANT EVIDE NCE AND GOES TO THE ROOT OF THE MATTER, THEREFORE, IT SHOUL D BE ADMITTED BY THE LD. CIT(APPEALS). ON CONSIDERATION OF THE RIVAL SUBMISSIONS, I AM OF THE VIEW THE ADDITIONAL EVIDENCE IN THE FORM OF SALE DEED SHOULD NOT BE REFUSED TO B E ADMITTED BY THE LD. CIT(APPEALS). HON'BLE SUPREME COURT IN THE CASE OF TEK RAM 262 CTR 118 AND HIGH COURT I N THE CASE OF MUKTA METAL WORKS 336 ITR 555 HAVE HELD THA T ADDITIONAL EVIDENCE BE ADMITTED AS RELEVANT AND RE QUIRED TO BE LOOKED INTO. THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(APPEALS) THAT HE IS ILLITERATE AND WAS NOT KNOW ING COMPLEXITY OF THE LEGAL PROVISIONS. THIS WAS THE SU FFICIENT REASON FOR ASSESSEE FOR NOT FILING COPY OF THE SALE DEED BEFORE ASSESSING OFFICER. SINCE THE ASSESSEE SOLD THE AGRICULTURAL LAND AND INFORMED THAT THE SALE PROCEE DS OUT OF THE SALE CONSIDERATION WERE DEPOSITED IN THE BAN K ACCOUNT, THEREFORE, COPY OF THE SALE DEED IS RELEVA NT AND SHOULD BE LOOKED INTO BY THE AUTHORITIES BELOW. 6. CONSIDERING THE ABOVE FACTS, I SET ASIDE THE ORD ER OF THE LD. CIT(APPEALS) IN NOT ADMITTING THE ADDITIONA L EVIDENCE AND ADMIT THE ADDITIONAL EVIDENCE. SINCE ADDITIONAL EVIDENCE IS NOT CONSIDERED ON MERIT BY T HE LD. CIT(APPEALS), THEREFORE, THE ORDER OF THE LD. CIT(A PPEALS) ON MERIT IS ALSO SET ASIDE AND MATTER IN ISSUE IS REST ORED TO THE FILE OF LD. CIT(APPEALS) WITH DIRECTION TO RE-D ECIDE THIS 4 ISSUE IN ACCORDANCE WITH LAW ON MERITS, CONSIDERING THE ADDITIONAL EVIDENCE SO ADMITTED ABOVE BY GIVING REA SONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE AS WELL AS TO THE ASSESSING OFFICER. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 8 TH DECEMBER,2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH