SHRI AKHILESH AGARWAL, JAIPUR V. ITO, WARD 6(3), JAIPUR

ITA 1206/JPR/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0302 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 21-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ROONIPAL
• Keywords: Onus to prove; Reassessment proceedings
• Section: 43CA; 143(3); 133(6); 139(4); 131; 68; 148; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 1206/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2014-15 SHRI AKHILESH AGARWAL 15, JAI JAWAN COLONY, SCHEME NO. 1, TONK ROAD, JAIPUR. CUKE VS. THE ITO, WARD-6(3), JAIPUR. TOLFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAYPA 6485 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONIPAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 10/12/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 23/12/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-2, JAIPUR DATED 26.08.2019 FOR THE ASSESSMEN T YEAR 2014-15 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND OF APPEAL: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO OF MAKING ADDITION U/S 68 OF THE EXTENT OF RS. 22,50,000/-. T HE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED AND ARBITRARY AN D AGAINST THE FACTS ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 2 OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETI NG THE SAID ADDITION OF RS. 22,50,000/- 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 8,59,010/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) VIDE ORDER DATED 09.11.201 6 AT THE TOTAL INCOME OF RS. 32,78,890 WHEREIN AN ADDITION OF RS. 22,50,000 WAS MADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED C ASH CREDIT UNDER SECTION 68 OF THE ACT. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS SUSTAINED THE ADDITION SO MADE BY THE ASSESSING OFFICER HENCE, TH E ASSESSEE IN APPEAL BEFORE US. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AS WELL AS DURING THE APPELLATE PROCEEDINGS HAS DULY DISCHARGED HIS ONUS BY PROVIDING NAME, PAN, ADDRESS AS WELL AS CONFIRMATIONS, ITR, F INANCIAL STATEMENTS AND BANK STATEMENTS IN RESPECT OF UNSECU RED LOAN OBTAINED FROM MR. S.L SOLANKI AND M/S MEWAD INFRAST RUCTURE (P) LTD. IT WAS SUBMITTED THAT THESE LOANS WERE TAKEN T HROUGH BANKING CHANNEL AND THE LOAN OF M/S MEWAD INFRASTRUCTURE (P ) LTD. HAS SINCE BEEN REPAID IN F.Y. 2018-19. IT WAS SUBMITTED THAT THE ASSESSING OFFICER ISSUED NOTICED U/S 133(6) AS WELL AS SUMMONS U/S 131 OF THE IT ACT WHICH WAS DULY SERVED ON MR. S.L SOLANKI HOWEVER, THE SAME WERE NOT SERVED ON M/S MEWAD INFR ASTRUCTURE (P) LTD. ON ACCOUNT OF WRONG ADDRESS. IT WAS SUBMIT TED THAT BOTH THE PARTIES APPEARED BEFORE AO, HOWEVER, LD. AO DEN IED TO RECORD THEIR STATEMENTS AS BOTH THE PARTIES REACHED LITTLE LATE ON THE GIVEN ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 3 DATE. IT WAS SUBMITTED THAT THE AO DID NOT DENY THE SAID FACT IN HIS REMAND REPORT. IT WAS SUBMITTED THAT THE ADDITION W AS CONFIRMED ONLY BECAUSE THE ASSESSEE COULD NOT PRESENT MR S.L SOLANKI AND COULD NOT PRODUCE BOOKS OF ACCOUNTS OF M/S MEWAD IN FRASTRUCTURE (P) LTD. IT WAS SUBMITTED THAT MR S.L. SOLANKI DUE TO CARDIAC PROBLEM COULD NOT APPEAR BEFORE AO, HOWEVER, SENT H IS CONFIRMATION, ITR AND BANK STATEMENT . FURTHER, M/S MEWAD INFRASTRUCTURE (P) LTD. IS HAVING REGISTERED OFFICE IN INDORE, MADHYA PRADESH AND, THEREFORE, ITS BOOKS, AT THE TI ME OF STATEMENTS, WERE NOT AVAILABLE WITH THE ASSESSEE IN JAIPUR. IT WAS ACCORDINGLY SUBMITTED THAT WHERE THE ASSESSEE HAS S UBMITTED THE REQUISITE INFORMATION/DOCUMENTATION, THE INITIAL ON US CAST ON HIM UNDER SECTION 68 HAS BEEN DISCHARGED AND NO ADDITIO N SHOULD BE MADE IN HIS HANDS. FURTHER RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF CIT VS. ORISSA COR PN PVT. LTD. (1986) 25 TAXMAN 80F AND HONBLE RAJASTHAN HIGH COU RT IN CASE OF PR. CIT VS. SHUBH MINES PVT. LTD. REGARDING TRANSA CTION WITH MR ARVIND, IT WAS SUBMITTED THAT INADVERTENTLY, THE AS SESSEE CATEGORIZED THE SAID TRANSACTION UNDER THE HEAD UN SECURED LOAN INSTEAD OF THE HEAD ADVANCE RECEIVED FROM CUSTOMER S AND THE IDENTITY OF MR. ARVIND STOOD ESTABLISHED AS NOTICE U/S 131 OF THE ACT WAS DULY SERVED UPON HIM. 4. PER CONTRA, THE LD. DR HAS RELIED ON THE FINDING S OF THE LOWER AUTHORITIES AND OUR REFERENCE DRAWN TO THE FINDINGS OF THE LD. CIT(A) WHICH READS AS UNDER:- ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 4 2.5 GROUND NO. 1 AND 2 ARE BEING TAKEN UP TOGETHER WHICH ARE INTERRELATED. I HAVE PERUSED THE FACTS OF THE CASE, THE ASSESSMENT ORDER, THE SUBMISSIONS OF THE APPELLANT AND REMAND REPORT ALONGWITH REJOINDER. ON PERUSAL OF OVERALL FACTS, IT IS SEEN THAT THE AS SESSING OFFICER OBSERVED THAT NOTICE ISSUED TO THESE PERSONS WERE R ETURNED BACK BY POSTAL AUTHORITIES WITH REMARK ' NOT KNOWN' AND ASS ESSEE FAILED TO PRODUCE THESE PARTIES FOR VERIFICATION. 2.5.1 THE ASSESSEE FILED CONFIRMATION, BALANCE SHEE T AND BANK ACCOUNT WHICH WERE FORWARDED TO ASSESSING OFFICER. IN REMAND REPORT, ASSESSING OFFICER EXAMINED AND STATED THAT IN RESPE CT OF LOAN OF RS. 18,50,000/- FROM MEWAR INFRASTRUCTURE (P) LTD. IN W HICH ASSESSEE IS A DIRECTOR DID NOT PRODUCE BOOKS OF ACCOUNTS TO SUPPO RT THE TRANSACTIONS. IN RESPECT OF SHRI S.L. SOLANKI FROM WHOM LOAN OF R S. 200,000/- WAS TAKEN, HE WAS NOT PRODUCED. THEREFORE, THE SAME CAN NOT BE TREATED AS GENUINE. FOR THIRD CREDITOR, SHRI ARVIND, THE ASSESSEE CHANG ED HIS STAND AND STATED THAT IT IS NOT LOAN BUT ADVANCE. ON PERUSAL OF OVERALL FACTS, I FIND THAT THE ASSESSEE DID NOT DISCHARGE HIS BURDEN TO PROVE THE 2 CASH CREDITORS I.E. SHRI SOLANKI AND M/S. MEWAR INF RASTRUCTURE (P) LTD. IN SPITE OF AMPLE OPPORTUNITY, NO BOOKS OF ACC OUNTS OF M/S MEWAR INFRASTRUCTURE (P) LTD IN WHICH ASSESSEE HIMS ELF WAS DIRECTOR WAS PRODUCED. SHRI S.L. SOLANKI WAS ALSO NOT PRODUC ED. FOR MR. ARVIND, THE ASSESSEE CHANGED HIS STAND THAT IT IS AN ADVANCE BUT DOES NOT CHANGE THE NATURE OF THE TRANS ACTIONS. ONUS OF PROOF WHICH BY UPON THE ASSESSEE WAS NOT DISCHAR GED ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 5 THEREFORE, THE SAME IS CONFIRMED. THESE GROUNDS OF APPEAL IS DISMISSED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. IN RESPECT OF TRANSACTION WIT H MR S L SOLANKI, THE ASSESSEE HAS FILED THE NECESSARY INFORMATION IN TERMS OF NAME AND ADDRESS, PAN NUMBER, ITR, BANK STATEMENT AND CO NFIRMATION OF MR S L SOLANKI. FURTHER, THE NOTICE ISSUED U/S 133 (6) AND U/S 131 HAVE BEEN DULY SERVED ON HIM, HOWEVER, HE HAS EXPLA INED HIS NON- APPEARANCE DUE TO HEALTH PROBLEM. IN ABSENCE OF AN Y ADVERSE FINDING OF THE ASSESSING OFFICER ON THE DOCUMENTS S O SUBMITTED, MERELY ON ACCOUNT OF NON-APPEARANCE FOR WHICH REASO NABLE CAUSE HAS BEEN EXPLAINED, NO ADDITION IS CALLED FOR IN HA NDS OF THE ASSESSEE. 6. IN RESPECT OF TRANSACTION WITH M/S MEWAD INFRAST RUCTURE (P) LTD, WE FIND THAT DURING THE REMAND PROCEEDINGS, TH E ASSESSEE IN CAPACITY OF DIRECTOR OF THE SAID COMPANY APPEARED B EFORE THE ASSESSING OFFICER AND SUBMITTED CONFIRMATION OF THE LOAN TRANSACTION, BANK STATEMENT AND COMPUTATION OF INCOME OF M/S MEW AD INFRASTRUCTURE (P) LTD. THESE FACTS ARE DULY RECOR DED IN THE REMAND REPORT SUBMITTED BY THE AO BEFORE THE LD CIT(A) AND ARE NOT IN DISPUTE. AT THE SAME TIME, THE AO IN THE REMAND RE PORT HAS STATED THAT THE ASSESSEE HAS SHOWN HIS INABILITY TO PRODUC E THE BOOKS OF ACCOUNTS OF M/S MEWAD INFRASTRUCTURE (P) LTD. AND P RIMA FACIE, THE COMPANY IS A PAPER COMPANY. DURING THE COURSE OF H EARING, THE LD AR HAS OBJECTED TO THE SAID FINDINGS OF THE AO IN T HE REMAND ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 6 PROCEEDINGS AND SUBMITTED THAT THE ASSESSEE HAS FIL ED THE NECESSARY INFORMATION IN TERMS OF NAME AND ADDRESS, PAN NUMBE R, ITR, BANK STATEMENT AND COPY OF CONFIRMATION AS WELL AS COPY OF FINANCIAL STATEMENTS. IT WAS FURTHER SUBMITTED THAT M/S MEWA D INFRASTRUCTURE (P) LTD HAS REPORTED REVENUES FROM OPERATIONS (SALE OF FLATS) AMOUNTING TO RS 1,53,46,000 DURING THE FINANCIAL YE AR RELEVANT TO IMPUNGED ASSESSMENT YEAR AND THE TRANSACTION WITH T HE ASSESSEE HAS BEEN DULY REFLECTED IN ITS BOOKS OF ACCOUNTS. W E HAVE GONE THROUGH THE FINANCIAL STATEMENTS OF M/S MEWAD INFRA STRUCTURE (P) LTD AND FIND THAT IT HAS REPORTED OPERATING REVENUE S FROM SALE OF FLATS OF RS 1,53,46,000 AND NET PROFITS FROM OPERAT IONS AMOUNTING TO RS 525,645 WITH CUMULATIVE RESERVES OF RS 65,14,045 AND THEREFORE, THE FINDING OF THE AO THAT IT IS A PAPER COMPANY IS NOT BORNE OUT OF THE RECORDS AND CANNOT BE ACCEPTED. FURTHER, WE FI ND THAT THE ASSESSEE HAS SUBMITTED THE NECESSARY DOCUMENTATION IN DISCHARGE OF HIS PRIMARY ONUS AND THE ADDITION SO MADE U/S 68 CANNOT BE SUSTAINED. IN ABSENCE OF ANY ADVERSE FINDING OF TH E ASSESSING OFFICER ON THE DOCUMENTS SO SUBMITTED, NO ADDITION IS CALLED FOR IN HANDS OF THE ASSESSEE AND THE SAME IS DIRECTED TO B E DELETED. 7. REGARDING TRANSACTION WITH MR ARVIND, IT WAS SUB MITTED THAT BY THE LD AR THAT INADVERTENTLY, THE ASSESSEE CATEG ORIZED THE SAID TRANSACTION UNDER THE HEAD UNSECURED LOAN INSTEAD OF THE HEAD ADVANCE RECEIVED FROM CUSTOMERS AND THE IDENTITY OF MR. ARVIND STOOD ESTABLISHED AS NOTICE U/S 131 OF THE ACT WAS DULY SERVED UPON HIM, HOWEVER, THERE IS NOTHING ON RECORD IN TE RMS OF BASIC DOCUMENTATION TO SUPPORT THE SAID CONTENTION THAT T HE TRANSACTION ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 7 WAS IN NATURE OF ADVANCE FROM CUSTOMERS IN REGULAR BUSINESS DEALINGS OF THE ASSESSEE AND WHETHER THE SAME HAS B EEN ADJUSTED AND OFFERED TO TAX AS INCOME EITHER IN THE YEAR UND ER CONSIDERATION OR IN THE SUBSEQUENT YEARS. THEREFORE, THE AMOUNT S O FOUND CREDITED IN THE BOOKS OF ACCOUNTS IS HEREBY CONFIRMED AS UNE XPLAINED CREDIT U/S 68 OF THE ACT AND THE ADDITION TO THIS EXTENT I S CONFIRMED. 8. IN THE RESULT, THE GROUND IS PARTLY ALLOWED. 9. FURTHER, THE LD. AR REQUESTED FOR PERMISSION TO RAISE ADDITIONAL GROUND OF APPEAL AS UNDER:- ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LA W THE LD. AO HAS ERRED IN MAKING ADDITION OF RS. 1,69,878/- U/S 43CA OF THE IT ACT, 1961. THE ACTION OF THE LD. AO IS ILLEGAL, UNJ USTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEAS E BE GRANTED BY DELETING THE SAID ADDITION OF RS. 1,69,878/- 10. IT WAS SUBMITTED THAT THE ASSESSEE TOOK THE SAI D GROUND BEFORE THE LD. CIT(A) HOWEVER, THE SAME WAS NOT PRE SSED AND DISMISSED. IT WAS SUBMITTED THAT THE ASSESSEE WISH ES TO TAKE THIS GROUND BEFORE THE TRIBUNAL AND HAS MOVED PRAYER AN APPLICATION FOR ADMISSION OF THE ADDITIONAL GROUND. RELIANCE WAS PL ACED ON THE HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF VI JAY KUMAR JAIN VS. CIT 99 ITR 345 WHEREIN IT WAS HELD THAT THE ASSESSE E IS NOT PRECLUDED FROM URGING THAT GROUND BEFORE THE TRIBUNAL WHICH W AS TAKEN BEFORE THE LD. CIT(A) BUT WAS NOT PRESSED AND THE RELEVANT FIN DINGS OF THE HONBLE HIGH COURT READS AS UNDER:- ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 8 THERE IS NO MATERIAL ON THE RECORD TO SHOW THAT ANY DECISION WAS MADE BY THE INCOME-TAX OFFICER TO ISSUE A NOTICE UN DER SECTION 148 ON THE BASIS THAT THE ASSESSEE HAD FAILED TO DI SCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSME NT FOR THAT YEAR AND THAT THE INCOME CHARGEABLE TO TAX HAD ESCAPED A SSESSMENT FOR THAT YEAR. THE NOTICE WAS ISSUED ON THE BASIS T HAT THERE WAS OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 FOR ANY ASSESSMENT YEAR. IT IS MA INTAINED THAT IN VIEW OF THE CLEAR PROVISIONS OF SECTION 139(4) T HERE WAS A VALID RETURN BEFORE THE INCOME-TAX OFFICER. THAT RETURN C OULD NOT BE TREATED AS INVALID AND NO GROUND WAS MADE OUT FOR T AKING ACTION UNDER SECTION 148 READ WITH SECTION 147. ONCE IT IS HELD THAT THE RETURN DATED 28TH MARCH, 1969, WAS A VALID RETURN, THE MERE FACT THAT THE ASSESSEE GAVE UP GROUNDS NOS. 2 TO 5 BEFOR E THE APPELLATE ASSISTANT COMMISSIONER WOULD BE OF NO CON SEQUENCE. IT IS AXIOMATIC THAT WHAT IS VOID IS NON EST. IN TH IS SITUATION, THE ASSESSEE WAS NOT PRECLUDED FROM URGING THE GROUNDS NOS. 2 TO 5. BY GIVING THEM UP THE ASSESSEE COULD NOT CONFER JUR ISDICTION ON THE INCOME-TAX OFFICER WHERE HE HAD NONE. THEREFORE , THE TRIBUNAL WAS BOUND TO HEAR THE ASSESSEE AND COULD N OT REJECT THE APPEAL ON THE GROUND THAT GROUNDS NOS. 2 TO 5 WERE NOT AGITATED BEFORE THE APPELLATE ASSISTANT COMMISSIONER. 11. THE LD. AR HAS SUBMITTED THAT THE ADDITIONAL GR OUND IS PURELY A LEGAL GROUND AND IT GOES TO THE ROOT OF THE MATTER, THE SAME SHOULD BE ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 9 ADMITTED IN THE INTEREST OF JUSTICE. IN SUPPORT, RE LIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF NA TIONAL THERMAL POWER CORPORATION LTD. VS. CIT 229 ITR 383. 12. PER CONTRA, THE LD DR SUBMITTED THAT THE ADDI TIONAL GROUND TAKEN BY THE ASSESSEE SHOULD NOT BE ADMITTED AS THE SAID GROUND THOUGH TAKEN BEFORE THE LD CIT(A) WAS NOT PRESSED BEFORE H IM AND ONCE THE SAME HAS BEEN DISMISSED BY THE LD. CIT(A), THE ASSE SSEE CANNOT BE ALLOWED A SECOND CHANCE TO RAISE THE GROUND WHICH H AS NOT BEEN PRESSED BEFORE THE LD CIT(A). 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE TOOK A SPECIFIC GROUND BEFORE THE LD CIT(A) AGAINST THE ACTION OF THE ASSE SSING OFFICER IN MAKING AN ADDITION OF RS 1,69,878 U/S 43CA OF THE A CT. THE LD CIT(A) HAS THEREAFTER RECORDED A CLEAR FINDING AND DISMISS ED THE SAID GROUND OF APPEAL STATING THAT THE GROUND OF APPEAL WAS NOT PR ESSED BY THE APPELLANT, HENCE DISMISSED. NO DOUBT, THE MATTER I S EMERGING FROM THE IMPUGNED ORDER SO PASSED BY THE LD CIT(A). AT THE SAME TIME, WHEN THE SAME WAS RAISED BEFORE THE LD CIT(A) AND THE AS SESSEE HAS GIVEN UP ITS CLAIM BEFORE THE LD CIT(A) BY SPECIFICALLY S TATING THAT HE DOESNT WISHES TO PRESS THE SAME AND FOLLOWING THE SAID SUB MISSION OF THE ASSESSEE, THE LD CIT(A) HAS DISMISSED THE SAID GROU ND, WE DO NOT SEE ANY INFIRMITY IN THE SAID ORDER OF THE LD CIT(A). FURTHER, ONCE THE ASSESSEE HAS GIVEN UP ITS CLAIM AND THE SAME HAS BE EN ACCEPTED BY THE LD CIT(A), THERE IS NO PREJUDICE AND CAUSE OF ACTIO N WHICH LIES WITH THE ASSESSEE TO RAISE THE SAID GROUND AGAIN BEFORE THE TRIBUNAL AGAINST THE ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 10 SAID ORDER OF THE LD CIT(A). THE DECISION OF THE HO NBLE HIGH COURT IN CASE OF VIJAY KUMAR JAIN (SUPRA) IS ON THE JURISDIC TIONAL ISSUE OF VALIDITY OF THE REASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTI CE U/S 148 AND IN THAT CONTEXT, THE HONBLE HIGH COURT HAS HELD THAT BY GIVING UP THE GROUNDS OF APPEAL, THE ASSESSEE COULD NOT CONFER JU RISDICTION ON THE ITO WHICH HE HAD NONE AT THE BEGINNING. HOWEVER, IN TH E INSTANT CASE, THE MATTER IS NOT RELATING TO JURISDICTION OF PASSING T HE IMPUGNED ORDER BY THE AO OR THE APPLICABILITY OF SECTION 43CA OF THE ACT. RATHER, WHAT THE ASSESSEE WISHES TO RAISE BY WAY OF ADDITIONAL GROUN D OF APPEAL IS THE DELETION OF ADDITION SO MADE BY THE AO READING THE RETROSPECTIVE APPLICABILITY OF TOLERANCE BAND OF 5% INTRODUCED BY THE FINANCE ACT, 2018 TO THE PROVISIONS OF SECTION 43CA OF THE ACT. THEREFORE, THE AFORESAID DECISION DOESNT SUPPORT THE CASE OF THE ASSESSEE AND THE ADDITIONAL GROUND OF APPEAL CANNOT BE ADMITTED. 14. FURTHER, WE FIND THAT THE ASSESSEE HAS MOVED TH E PRAYER FOR ACCEPTANCE OF ADDITIONAL GROUND OF APPEAL UNDER RUL E 11 ON 2.12.2019 WHEREAS THE MEMORANDUM OF APPEAL WAS FILED ON 21.10 .2019 AND THUS, THERE IS A DELAY IN FILING THE PRAYER FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL. UNDER RULE 11 OF THE APPELLATE TRIBUNAL RU LES, 1963, THE APPELLANT, SHALL NOT, EXCEPT BY LEAVE OF THE TRIBUN AL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORAND UM OF APPEAL. ONE OF THE RELEVANT CONSIDERATIONS WHICH THE TRIBUNAL H AS TO CONSIDER WHILE ALLOWING THE PRAYER FOR ADMISSION OF ADDITIONAL GRO UND OF APPEAL IS WHAT PRECLUDED THE APPELLANT FROM TAKING THE ADDITIONAL GROUND OF APPEAL AT THE TIME OF FILING THE MEMORANDUM OF APPEAL AND TO EXPLAIN THE DELAY, IF ANY, IN FILING SUCH ADDITIONAL GROUND OF APPEAL. M ERELY BY STATING THAT ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 11 THE GROUND IS LEGAL IN NATURE AND THE SAME MAY BE A DMITTED IS NOT SUFFICIENT FOR ADMISSION OF ADDITIONAL GROUND OF AP PEAL WITHOUT EXPLAINING THE DELAY IN TAKING SUCH ADDITIONAL GROU ND OF APPEAL. WHERE THE FILING OF THE ORIGINAL MEMORANDUM OF APPEAL IS DELAYED AND THE APPELLANT IS REQUIRED TO EXPLAIN THE DELAY IN FILIN G THE MEMORANDUM OF APPEAL TO THE SATISFACTION OF THE TRIBUNAL, ON THE SAME FOOTING, WHERE THERE IS A DELAY IN FILING THE ADDITIONAL GROUND OF APPEAL, THE APPELLANT IS EQUALLY REQUIRED TO EXPLAIN THE REASONS FOR THE SAI D DELAY TO THE SATISFACTION OF THE TRIBUNAL. IN THE INSTANCE CASE, THERE IS NOTHING WHICH HAS BEEN STATED BY THE LD AR AS TO THE REASONS FOR DELAY IN FILING THE ADDITIONAL GROUND OF APPEAL. THE AMENDMENTS BROUGHT IN BY FINANCE ACT, 2018, TO WHICH RECOURSE HAS BEEN TAKEN, WERE V ERY MUCH ON STATUE BOOK AT THE TIME OF FILING THE MEMORANDUM OF APPEAL . SIMILARLY, THE DECISIONS OF COORDINATE BENCHES RELIED UPON BY THE LD AR NAMELY, SITA BAI KHETAN VS ITO (ITA NO. 826/JP/2013 DATED 27.06.2016) AND CHANDRA PRAKASH JHUNJUNWALA VS DCIT (ITA NO. 2351/KOL/2017 DATED 9.08.2019) WERE PRONOUNCED AND WERE IN PUBLIC DOMAIN AT THE T IME OF FILING THE MEMORANDUM OF APPEAL. THEREFORE, IT IS NOT A CASE WHERE AS A RESULT OF ANY AMENDMENT IN THE STATUE OR ANY JUDI CIAL DECISION GIVEN WHILE THE APPEAL OF THE ASSESSEE IS PENDING BEFORE THE TRIBUNAL, THE ASSESSEE COULDNT TAKE THE ADDITIONAL GROUND OF APP EAL AND WHICH EXPLAINS THE DELAY SO HAPPENED IN TAKING SUCH ADDIT IONAL GROUND OF APPEAL. THEREFORE, ON THIS ACCOUNT AS WELL, THE ADD ITIONAL GROUND OF APPEAL CANNOT BE ADMITTED. ITA NO. 1206/JP/2019 SHRI AKHILESH AGARWAL VS. ITO 12 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S DISPOSED OFF IN LIGHT OF ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 23/12/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:-23/12/2019. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI AKHILESH AGARWAL, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-6(3), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 1206/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR