Sh. Daljit Singh Sra Prop., Bathinda V. The Assistant Commissioner of Income Tax, Bathinda

ITA 125/ASR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9625 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 03-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SANKAR
• Assessee Lawyers: A K PERIWAL
• Keywords: Additional evidence; Condonation of delay; Bonafide mistake
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.125(ASR)/2014 ASSESSMENT YEAR: 2007-08 DALJIT SINGH SRA PROP. M/S. SRA CONSTRUCTION CO. BATHINDA. PAN: AXWPS9271J VS. ASST. CIT, BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SUDHIR SEHGAL & SH. A.K. PERIWA L (CA) RESPONDENT BY: SH. BHAWANI SANKAR (DR) DATE OF HEARING: 15.06.2016 DATE OF PRONO UNCEMENT: 02.08.2016 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LEARNED CIT(A), BATHINDA, DATED 22.03.2013 FOR ASST. YEAR: 2007-08. 2. THE APPEAL WAS EARLIER DISMISSED FOR NOT REMOVIN G THE DEFECTS WITHIN THE STIPULATED PERIOD VIDE TRIBUNAL ORDER DA TED 23.05.2015, HOWEVER, THE SAID TRIBUNAL ORDER WAS RECALLED VIDE TRIBUNAL ORDER 11.3.2016. 3. AT THE OUTSET, THE LEARNED AR INVITED OUR ATTENT ION TO AN APPLICATION FILED FOR CONDONATION OF DELAY OF 265 D AYS. THE LEARNED AR SUBMITTED THAT THE ORDER WAS KEPT IN THE COUNSELS OFFICE AND DUE TO OVERSIGHT HE FORGOT TO CONVEY TO THE APPELLANT AND IT ONLY CAME TO THE ITA NO.125 (ASR)/2014 ASST. YEA R: 2007-08 2 NOTICE WHEN FILE WAS EXAMINED FOR SOME OTHER PURPOS ES, THEREFORE, IT WAS PLEADED THAT THE ASSESSEE WAS NOT GUILTY OF NEGLIGE NCE AND IT WAS A BONAFIDE MISTAKE AND THEREFORE, IT WAS PRAYED THAT THE DELAY MAY BE CONDONED. 4. THE LEARNED DR HAD NO OBJECTION TO CONDONATION O F DELAY, THEREFORE, KEEPING IN VIEW THE SUBSTANTIAL JUSTICE, WE CONDONED THE DELAY AND LEARNED AR WAS ASKED TO PROCEED WITH HIS ARGUME NTS. 5. THE LEARNED AR SUBMITTED THAT ASSESSING OFFICER HAD PASSED THE ORDER U/S 144 OF THE ACT AND LEARNED CIT(A) HAD ALS O REFUSED TO ADMIT ADDITIONAL EVIDENCE UNDER RULE 46 OF THE I.T. RULES . IT WAS PRAYED THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE ASSESSEE M AY BE PROVIDED ANOTHER OPPORTUNITY TO EXPLAIN HIS CASE. THE LEARNED DR HAD NO OBJECTION IF THE CASE WAS REMITTED BACK TO LEARNED CIT(A) FOR FRESH ADJUDICATION. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GON E THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT IT IS AN UNDISPUTED FACT THAT ASSESSMENT IN THIS CASE HAS BEEN COMPLETED U/S 144 OF THE ACT AS THE ASSESSEE DID NOT COOPERATE IN ASSESSMENT PROCEEDINGS. IT IS ALSO A FACT THAT BEFORE LEARNED CIT(A) THE REASON FOR NON APPEARANCE BEFORE THE ASSESSING OFFICER WAS EXPLAINED TO BE SICKNESS OF ASSESSEE AN D ASSESSEE WANTED TO FILE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE RULE S. HOWEVER, THE LEARNED CIT(A) DID NOT AGREE WITH THE CONTENTION OF ASSESSEE AND DID NOT ADMIT THE ADDITIONAL EVIDENCE BY HOLDING AS UNDER: ITA NO.125 (ASR)/2014 ASST. YEA R: 2007-08 3 FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT IS FO UND THAT THE AO AT NO STAGE REFUSED TO ADMIT ANY EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED. IT IS ALSO FOUND THAT DURING THE PERIOD 18-09-2008 TO 8-12-2009 EIGHT OPPORTUNITIES WERE AFFORDED TO THE APPELLANT FOR PR ODUCTION OF BOOKS OF ACCOUNT AND BILLS/VOUCHERS OF EXPENSES BUT THE SAME WERE NOT PRODUCED. THE CONTENTION OF THE APPELLANT THAT THE DETAILS OF VARIOUS ACCOUNTS WERE SUBMITTED DURING ASSESSMENT PROCEEDINGS HAS NO FORC E BECAUSE IN THE ABSENCE OF BOOKS OF ACCOUNT, THE SAME COULD NOT BE VERIFIED BY THE AO. IN HIS AFFIDAVIT DATED 04-03- 2010. THE APPELLANT HAS STATED THAT ABOUT TWO YEARS BACK HE HAD UNDERGONE HEART SURGERY AND IN TH E FIRST WEEK OF DEC., 2009, HE AGAIN GOT HIMSELF EXAMINED FROM MOHALI WHE RE THE DOCTORS ADVISED HIM BED REST AND FOR THAT MATTER, NECESSARY COMPLIANCE REGARDING PRODUCTION OF ACCOUNT BOOKS AND BILLS/VOUCHERS ETC. COULD NOT BE MADE. THIS CIRCUMSTANCE ALSO DOES NOT HELP THE APPELLANT BECAUSE EVEN PRIOR TO DEC., 2009, THE AO HAD SPECIFICALLY ASKED HIM TO PR ODUCE THE BOOKS OF ACCOUNT AND OTHER RECORDS WHICH HE DID NOT COMPLY. IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH WAS CALLED UPON TO PRO DUCE BY THE AO. FURTHER, BE THAT AS IT MAY, THE APPELLANT COULD VER Y WELL ASK THE ACCOUNTANT OR HIS COUNSEL OR ANY OTHER A/R FOR MAKI NG COMPLIANCE FOR PRODUCING THE ACCOUNT BOOKS BUT HE DID NOT DO SO. A GAIN, THE AO VIDE HIS REPORT NO.ACIT/CIRCLE- L/BTI/2010-11/172 DATED 03-0 5-2010 HAS ALSO OBJECTED THE ADMISSION OF ADDITIONAL EVIDENCE BY TH E APPELLANT BECAUSE AMPLE OPPORTUNITY TO PRODUCE THE ACCOUNT BOOKS AND OTHER BILLS/VOUCHERS WAS AFFORDED DURING ASSESSMENT PROCEEDINGS WHICH WA S NOT AVAILED OF. THE SEQUENCE OF EVENTS AND CIRCUMSTANCES LEAD TO AN IRRESISTIBLE CONCLUSION THAT THE APPELLANT INTENTIONALLY AVOIDED TO PRODUCE BOOKS OF ACCOUNT AND OTHER BILLS/VOUCHERS SO THAT THE SHORTC OMINGS IN THE ACCOUNTS MAY NOT COME TO THE NOTICE OF THE AO. AS MENTIONED ABOVE, SUFFICIENT OPPORTUNITY WAS AFFORDED TO THE APPELLANT BUT HE DI D NOT AVAIL OF IT. IN THIS VIEW OF THE MATTER, THE APPLICATION OF THE APPELLAN T U/S 250 OF THE ACT READ WITH RULE 46A OF THE IT RULES CANNOT BE ENTERTAINED AND THE SAME IS REJECTED. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FI ND THAT NO DOUBT ASSESSEE DID NOT COOPERATE WITH THE ASSESSING OFFIC ER IN COMPLETION OF ASSESSMENT PROCEEDINGS BUT THE FACT REMAINS THAT IN THE DELIVERY OF JUSTICE THE REAL INCOME OF ASSESSEE HAS TO BE ASSES SED AND THAT TOO AFTER HEARING THE ASSESSEE. THE LEARNED CIT(A) HAS NOT CO MMENTED UPON THE NATURE OF EVIDENCE FILED UNDER RULE 46A OF THE ACT. SUCH EVIDENCE MIGHT HAVE BEEN RELEVANT FOR THE CALCULATION OF REAL INCO ME OF THE ASSESSEE, ITA NO.125 (ASR)/2014 ASST. YEA R: 2007-08 4 THEREFORE, IN VIEW OF THE SUBSTANTIAL JUSTICE, WE D IRECT THE LEARNED CIT(A) TO ADMIT ADDITIONAL EVIDENCE AND DECIDE THE CASE AF RESH AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEA RD. 7. IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02 .08.2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED:02.08.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER