ACIT, Sawai Madhopur V. KHILADI LAL BAIRWA, Sawai Madhopur

ITA 126/JPR/2011

• Counselvise Citation: 12623114 RSA 2011
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-12-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 14-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Unexplained cash credit; Unexplained investment; Opportunity of being heard; Additional evidence; Valuation report; Validity of assessment; Reason to believe; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO.126 /JP/2011 ASSESSMENT YEARS : 2004-05 PAN : ABWPB 0567 C THE ACIT VS. SHRI KHILADI LAL BAIRWA CIRCLE- SAWAI MADHOPUR PROP.: M/S. KHILADI LAL & BROS SAWAI MADHOPUR SAWAI MADHOPUR (APPELLANT) (RESPONDENT) C.O. NO.80/JP/2011 (ARISING OUT OF ITA NO.126 /JP/2011) ASSESSMENT YEARS : 2004-05 PAN : ABWPB 0567 C SHRI KHILADI LAL BAIRWA VS. THE ACIT PROP.: M/S. KHILADI LAL & BROS CIRCLE- SAWAI MADH OPUR SAWAI MADHOPUR SAWAI MADHOPUR (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : WRITTEN SUBMISSION DATE OF HEARING: 17-07-2014 DATE OF PRONOUNCEMENT: 08-08-2014 ORDER PER R.P. TOLANI, JM THE REVENUE HAS FILED AN APPEAL AGAINST ORDER OF THE LD. CIT(A), AJMER DATED 10-12-2010 FOR THE ASSESSMENT YEAR 200 4-05 AND THE ASSESSEE HAS FILED THE CROSS OBJECTION. 2 2. THE GROUNDS RAISED BY THE REVENUE IN ITS APPEAL ARE AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN:- (I) DELETING TRADING ADDITION OF RS. 1,69,845/- IN KEROSENE BUSINESS. (II) DELETING ADDITION OF RS. 1,79,666/- ON ACCOUNT OF LESS INCOME SHOWN IN TRANSPORTATION. (III) DELETING TRADING ADDITION OF RS. 1,46,401/- I N HOTEL BUSINESS. (IV) DELETING UNEXPLAINED INVESTMENT IN CONSTRUCTIO N OF HOTEL BUILDING OF RS. 7,34,180/-. (V) DELETING ADDITION OF RS. 5,19,097/- ON ACCOUNT OF FURNITURE AND FIXTURE. (VI) DELETING ADDITION OF RS. 1,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT. (VII) THE APPELLANT CRAVES LIBERTY TO RAISE ADDITIO NAL GROUND AND TO MODIFY/ AMEND THE GROUND OF APPEAL AT THE TIME OF HEARING. 3. THE GROUND RAISED BY THE ASSESSEE IN HIS C.O. I S AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN NO T CANCELING THE ENTIRE ASSESSMENT ORDER AS THE ADDITI ON OF RS. 1,79,666/- IN TRANSPORTATION CHARGES WAS DELETE D WHICH WAS THE BASIC AND ONLY REASON FOR ISSUE OF NO TICE U/S 148, IN VIEW OF BINDING JUDGEMENT OF JURISDICTI ONAL HIGH COURT IN THE CASE OF CIT VS. SHRI RAM SINGH 30 6 ITR 343. 3 4. NONE APPEARED FOR THE ASSESSEE RESPONDENT ON T HE DATE OF HEARING. THE WRITTEN SUBMISSIONS ARE FILED BY THE LD. AR OF THE ASSESSEE. HENCE, THE APPEAL OF THE DEPARTMENT AND THE C.O. OF THE ASSESS EE ARE DECIDED ON THE BASIS OF WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND AFTER HEARING THE LD. DR AS WELL AS PERUSING THE MATERIALS AVAILABLE ON R ECORD. 5. SINCE THE ASSESSEE HAS CHALLENGED THE PROCEEDING S U/S 148 OF THE ACT, THEREFORE, THEY ARE DECIDED FIRST. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DEALER OF KEROSENE OF INDIAN OIL CORPORATION AND IS ALSO TRANSPORTING KEROSENE FOR INDIAN OIL CORPORATION. THE ASSESSEE IS ALSO RUNNING A HOTEL I N THE NAME OF HOTEL SHANNI VILAS AT SAWAI MADHOPUR. THE ORIGINAL ASSES SMENT WAS FRAMED U/S 143(1) OF INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) ON 22-11-2004. SUBSEQUENTLY, THE AO CAME ACROSS INFORMATION THAT A SSESSEES INCOME HAS ESCAPED ASSESSMENT AS THERE WERE DISCREPANCIES IN T HE TRANSPORTATION RECEIPTS AND TDS CERTIFICATES AND ON THAT BASIS THE NOTICE U /S 148 OF THE ACT WAS ISSUED. 7. THE GROUND IS TAKEN BY THE ASSESSEE IN HIS C.O. CHALLENGING THE VALIDITY OF ISSUANCE OF NOTICE U/S 148 OF THE ACT. THE WRITTEN SUBMISSION FILED BY THE ASSESSEE TO THIS EFFECT IS AS UNDER. 31. THERE IS ONLY ONE GROUND IN ASSESSEE'S C.O. IN WHICH IT IS SUBMITTED THAT THE LD. C.I.T. (APPEALS) ERRED IN 4 NOT CANCELLING THE ENTIRE ASSESSMENT ORDER AS THE A DDITION OF RS.1,79,666/- IN TRANSPORTATION CHARGES WAS DELE TED WHICH WAS THE SOLE REASON FOR ISSUE OF NOTICE U/S 1 48 IN VIEW OF BINDING JUDGEMENT OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. SHRI RAM SINGH 306 ITR 343. 32. THE ASSESSEE MADE A SPECIFIC REQUEST TO THE LD. C.I.T. (APPEALS) FOR DOING SO IN HIS WRITTEN SU BMISSION (PB -7). IN THE ABOVE REFERRED JUDGMENT IT WAS HELD - HELD - DISMISSING THE APPEAL, THAT THE TRIBUNAL WA S JUSTIFIED IN HOLDING THAT THE PROCEEDINGS FOR REASS ESSMENT UNDER SECTION 148 OF THE ACT WERE INITIATED BY THE ASSESSING OFFICER BASED ON NON-EXISTING FACTS, BECAUSE ULTIMA TELY THE ASSESSEE HAD BEEN ABLE TO EXPLAIN THE INCOME, WHICH THE ASSESSING OFFICER BELIEVED TO HAVE ESCAPED ASSESSME NT. THE ASSESSING OFFICER WAS JUSTIFIED IN INITIATING THE P ROCEEDINGS UNDER SECTION 147 OF THE ACT. BUT ONCE THE ASSESSIN G OFFICER REACHED THE CONCLUSION THAT THE INCOME WHICH HE BEL IEVED TO HAVE ESCAPED INVESTMENT HAD BEEN EXPLAINED, THE ASS ESSING OFFICER DID NOT CONTINUE TO POSSESS JURISDICTION TO TAX ANY OTHER INCOME, WHICH CAME TO HIS NOTICE SUBSEQUENTLY IN TH E COURSE OF THE PROCEEDINGS. THIS CASE HAS BEEN CONSISTENTLY BEEN FOLLOWED BY HON'BLE RAJASTHAN HIGH COURT AND OTHER JUDICIAL AUTHORITIES. TO QUOTE FEW OF THEM- 1. CIT VS. DR . DEVENDRA GUPTA 174 TAXMAN 438 (RAJ.) 2. DOUBLE DOT FIN. LTD. VS. ACIT, 33 DTR 442 (MUM.TRIB ) 3. RANBAXY LAB. LTD. VS. CIT (2011) 242 CTR 117 (DEL.) 8. THE LD. DR CONTENDS THAT THE GROUND TAKEN BY THE ASSESSEE HAS NO BASIS. THE CASE LAW OF CIT VS. SHRI RAM SINGH, 306 ITR 343(RAJ.) CITED BY THE ASSESSEE HAS NO APPLICATION OF IT IN ASSESSEE'S CASE . IN THE CASE OF CIT VS. SHRI RAM SINGH (SUPRA), THE AO HIMSELF DID NOT MAKE ADDITION IN RESPECT OF THE REASONS RECORDED FOR REOPENING OF THE ASSESSMEN T. HOWEVER, IN THIS CASE, 5 THE AO MADE ADDITIONS WHICH WERE DELETED BY THE LD. CIT(A). THE LD. DR RELIED ON THE LD. CIT(A)S ORDER TO HOLD THAT THE P ROCEEDINGS U/S 148 OF THE ACT ARE VALID IN LAW. 9. THE LD. CIT(A) UPHELD THE PROCEEDINGS U/S 148 OF THE ACT BY FOLLOWING OBSERVATIONS. 5.2 ARGUMENT OF THE APPELLANT IS NOT ACCEPTABLE. IN VIEW OF DECISION OF HON'BLE SUPREME COURT IN THE C ASE OF RAJESH JHAVERI STOCK BROKERS (P) LTD. (291 ITR 500) , THE ONLY REQUIREMENT FOR ISSUE OF NOTICE U/S 148 IS PRIMA FA CIE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. I THERE FORE, HOLD THAT IN THIS CASE AO WAS JUSTIFIED IN ISSUING NOTIC E U/S 148. THE REASSESSMENT PROCEEDINGS ARE THEREFORE, VALID. GROU ND NO. 1 & 2 ARE THUS DISMISSED. 10. WE HAVE PERUSED THE ASSESSEES WRITTEN SUBMISSI ON, MATERIALS AVAILABLE ON RECORD AND HEARD THE ARGUMENTS OF THE LD. DR. IN OUR CONSIDERED VIEW, THERE IS NO MERIT IN THE OBJECTION S RAISED BY THE ASSESSEE INASMUCH AS THE ISSUE ON WHICH NOTICE U/S 148 OF TH E ACT WAS ISSUED AND THE ADDITIONS IN THAT RESPECT HAVE BEEN MADE BY THE AO. IN THIS EVENTUALITY, THE CASE OF CIT VS. SHRI RAM SINGH (SUPRA) AS CITED BY THE ASSESSEE IS NOT APPLICABLE. HENCE, THE C.O. OF THE ASSESSEE IS DISM ISSED. 11. COMING TO REVENUES APPEAL, THE AO HAS RECORDED THE FINDINGS THAT THE ASSESSEE WAS NOT COOPERATING DURING THE COURSE OF REASSESSMENT PROCEEDINGS AND RELEVANT INFORMATION WAS NOT FILED. THEREFORE, THE BOOKS OF 6 ACCOUNT OF THE ASSESSEE WERE REJECTED U/S 145(3) OF THE ACT AND MADE THE ABOVE ADDITIONS. 12. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL. 13. FROM THE GROUNDS OF APPEAL FILED BEFORE THE LD. CIT(A), IT EMERGES THAT THE ASSESSEE DID NOT CHALLENGE THE REJECTION O F BOOKS OF ACCOUNT U/S 145(3) OF THE ACT. FURTHER THE PAPER BOOK PAGE 67 I S A COPY OF POLICE REPORT DATED 28-11-2008 COMPLAINING ABOUT THE LOSS OF RECO RD FOR IMPUGNED FINANCIAL YEAR 2003-04. IT MAY BE MENTIONED THAT TH E ASSESSMENT ORDER HAS BEEN PASSED ON 30-12-2008 REJECTING THE BOOKS OF A CCOUNT. 14. THE LD. DR CONTENDS THAT WHEN THE BOOKS OF ACCO UNT OF THE ASSESSEE ARE MYSTERIOUSLY LOST ONE MONTH BEFORE THE ASSESSME NT THEN THE AO WAS PERFECTLY JUSTIFIED IN PUTTING THE ASSESSEE'S INTEN TION WITH REGARD TO NON-FILING OF THE RELEVANT INFORMATION. THE ORIGINAL ASSESSMEN T WAS SUMMARY ASSESSMENT U/S 143(1) OF THE ACT WHICH DOES NOT AMO UNT TO PROPER ASSESSMENT IN TERMS OF HON'BLE SUPREME COURT JUDG EMENT IN THE CASE OF RAJESH JHAVERI STOCK BROKERS (P) LTD. (SUPRA). DESP ITE THESE IMPEDIMENTS AND NON-PRODUCTION OF RECORDS, THE LD. CIT(A) DELET ED THE ENTIRE ADDITION AS UNDER:- 8.3 KEROSENE IS A CONTROLLED ITEM. THE SALE OF KEROSENE IS ALSO SUPERVISED BY DISTRICT ADMINISTRAT ION. MOREOVER, THE ACCOUNTS OF APPELLANT ARE AUDITED AND THERE ARE NO ADVERSE COMMENTS OF AUDITOR. NO INDEPENDENT INQU IRY WAS 7 MADE BY AO TO PROVE THAT SALE AND PURCHASE DECLARED BY APPELLANT IS NOT CORRECT. REGARDING NON-PRODUCTION OF BOOKS OF ACCOUNTS, IT WAS INTIMATED THAT THE SAME ARE LOST I N TRANSIT AND FIR FOR THE SAME WAS ALSO LODGED. FURTHER ON THE BA SIS OF DATA GENERATED FROM THE COMPUTER, BOOKS WERE PRODUCED BE FORE AO DURING REMAND PROCEEDINGS. AO HAS REFUSED TO EXAMIN E THESE BOOKS ON THE GROUND THAT THE SAME ARE PREPARED SUBS EQUENTLY AND THEREFORE, NOT ACCEPTABLE. THIS ACTION OF AO IS NOT JUSTIFIED. HE SHOULD HAVE EXAMINED THE BOOKS TO FIND OUT WHETH ER THERE IS ANY DISCREPANCY WITH RESPECTED TO AUDITED ACCOUNTS FURNISHED ALONGWITH THE RETURN. IN THE ABSENCE OF ANY SPECIFI C MATERIAL BROUGHT ON RECORD BY AO AND IN VIEW OF DECISION OF HON'BLE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF GO TAN LIME KHANIZ UDYOG, I HOLD THAT TRADING ADDITION OF RS. 1 ,69,845/- IS NOT JUSTIFIED AND THE SAME IS DIRECTED TO BE DELETE D. GROUND NO. 5 & 6 ARE THUS ALLOWED. 15. THE LD. DR CONTENDS THAT THE WHEN ASSESSEE WAS NOT ABLE TO PRODUCE THE BOOKS OF ACCOUNT THEN IT CANNOT BE ENSURED THAT AS TO HOW THE NEW SET OF COMPUTERIZED BOOKS OF ACCOUNT WAS PRODUCED. IF THE ASSESSEE HAD LOST THE BOOKS OF ACCOUNT AND COMPUTER BACK UP WAS AVAILABLE THEN THE SAME SHOULD HAVE BEEN PRODUCED BEFORE THE AO. THE ASSESSEE ING ENUOUSLY DID NOT PRODUCE THE SO CALLED COMPUTERIZED BOOKS OF ACCOUNT BEFORE THE AO AND THE LD. CIT(A) ADMITTED THE ADDITIONAL EVIDENCE BY FOLL OWING OBSERVATIONS. 4.1 FROM THE ASSESSMENT ORDER IT IS FOUND THAT IN THS CASE COPY OF VALUATION REPORT OF DVO WAS PROVIDED T O THE APPELLANT ON 19-12-2008 AND HE WAS ASKED TO FURNISH HIS OBJECTIONS BEFORE 23-12-2008. MOREOVER, THE CASE WA S GETTING TIME BARRED ON 31-12-2008, SO THE AO COMPLETED THE ASSESSMENT ON 30-12-2008. SIMILARLY BOOKS OF ACCOUN TS OF M/S. KHILADILAL & BROTHERS WERE LOST IN TRANSIT, WHICH W ERE 8 SUBSEQUENTLY GENERATED AGAIN WITH THE HELP OF DATA STORED IN COMPUTER OF APPELLANT. I THEREFORE, HOLD THAT APPEL LANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE AO ABOVE MENTIONED EVIDENCE, WHICH ARE RELEVANT TO THE GROUNDS OF APPEAL. THE ADDITIONAL EVIDENCE IS THEREFORE, ALLOW ED TO BE ADMITTED UNDER RULE 46A. AO WAS ASKED TO FURNISH A REMAND REPORT IN THIS MATTER. REPORT OF AO WAS OBTAINED VI DE LETTER NO. 147 DATED 06-08-2010. THE SAME HAS BEEN CONSIDERED FOR DECIDING THE APPEAL. 16. THE LD. DR FURTHER CONTENDS THAT THE LD. CIT(A) HAS NEITHER GIVEN ANY COGENT FINDING AS TO HOW THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT PRODUCING THE RELEVANT EVIDENCE BEFORE THE AO N OR THERE IS FINDING THAT ADDITIONAL EVIDENCE WAS ADMITTED. THESE ARE THE MAN DATORY REQUIREMENTS IN TERMS OF RULE 46A OF INCOME TAX RULES AND WITHOUT C OMPLYING WITH THE STATUTORY CONDITIONS ADDITIONAL EVIDENCE CANNOT BE ADMITTED. THUS THE ADMISSION OF ADDITIONAL EVIDENCE BY THE LD. CIT(A) IS CONTRARY TO THE LAW AND UNTENABLE. IF THE COMPUTER BACK WAS AVAILABLE WITH THE ASSESSEE THEN IN THAT CASE A REQUEST TO THAT EFFECT OUGHT TO HAVE BEEN MA DE BEFORE THE AO BY THE ASSESSEE. THE ASSESSEE CLANDESTINELY DID NOT PRODUC E THE BOOKS OF ACCOUNT BEFORE THE AO. THE JUDGEMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. MANISH BUILD WELL (P) LTD. (2011) 245 CTR 397 IS PLACED TO THE EFFECT THAT ADMISSION OF ADDITIONAL EVIDENCE BY THE LD. CIT(A) IN CONTRAVENTION OF RULE 46A IS BAD IN LAW. CONSEQUENT LY, THE REMAND REPORT SUBMITTED BY THE AO IN THIS BEHALF IS NOT IN ACCORD ANCE WITH RULE 46A. 9 17. THE LD. CIT(A) FURTHER DELETED ALL THE ADDITION S EVEN THOUGH THE REMAND REPORT OPPOSED THE ADMISSION OF ADDITIONAL E VIDENCE AND CONTROVERTED THE ASSESSEE'S SUBMISSION, BEING AFTER THOUGHT. THE OTHER ADDITIONS DELETED BY THE LD. CIT(A) ARE AS UNDER:- 9.3 AS INTIMATED BY APPELLANT, THE RECEIPTS OF RS. 1,79,666/- ARE INCLUDED IN HIS INCOME OF THE PRECED ING YEAR I.E. A.Y. 2003-04. THEREFORE, THERE IS NO JUSTIFICATION FOR ADDITION OF THIS AMOUNT AGAIN IN THIS YEAR. MOREOVER REPLY IN T HIS REGARD WAS FURNISHED TO THE AO AS EARLY AS ON 29-09-2005. AO SHOULD HAVE EXAMINED THE SAME BEFORE MAKING THIS ADDITION. ADDITION OF RS. 1,79,666/- FOR THIS YEAR IS THEREFORE, WITHO UT ANY BASIS AND THE SAME IS DIRECTED TO BE DELETED. GROUND NO. 7 IS THUS ALLOWED. 18. THE GROUND NO. 3 OF THE REVENUE IS REGARDING HO TEL BUSINESS WHEREIN THE LD. CIT(A) HAS OBSERVED AS UNDER:- 10.3 AO HAS MADE THIS ADDITION WITHOUT MAKING ANY INQUIRY AND WITHOUT BRINING ANY SPECIFIC MATERI AL ON RECORD. THEREFORE, ADDITION OF RS. 1,46,401/- IS NO T JUSTIFIED AND THE SAME IS DIRECTED TO BE DELETED. GROUND NO. 8 IS THUS ALLOWED. 19. THE GROUND NO. 4 OF THE REVENUE IS REGARDING UN EXPLAINED INVESTMENT IN CONSTRUCTION OF HOTEL BUILDING WHEREI N THE LD. CIT(A) HAS OBSERVED AS UNDER:- 11.4 IT HAS BEEN HELD BY HON'BLE ITAT JAIPUR AND JODHPUR BENCHES IN VARIOUS CASES AND HON'BLE JURISDICTIONAL HIGH COURT THAT FOR ESTIMATING COST OF CONSTRUCTION, CPWD RATES ARE TO BE SCALED DOWN BY 2 0%. FURTHER DEDUCTION OF 10% TO 12.5% IS TO BE ALLOWED ON ACCOUNT OF SELF SUPERVISION. IN THIS CASE IF DEDUCTION OF 20% ON ACCOUNT 10 OF DIFFERENCE OF RATES BETWEEN CPWD AND PWD AND FU RTHER DEDUCTION OF 10% IS ALLOWED FOR SELF SUPERVISION, T HEN THE REMAINING DIFFERENCE IS NEGLIGIBLE. MOREOVER, DVO H AS REJECTED REPORT OF REGISTERED VALUER WITHOUT POINTING OUT AN Y SPECIFIC DEFECTS IN THE METHOD OF VALUATION ADOPTED BY HIM. THE HOTEL IS SITUATED IN SAWAI MADHOPUR AND THEREFORE, RATES OF THAT PLACE ONLY SHOULD HAVE BEEN ADOPTED. KEEPING ALL THESE FA CTS IN VIEW I HOLD THAT ADDITION OF RS. 7,34,180/- IN THIS YEAR O N ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION IS NOT JUSTI FIED AND THE SAME IS DIRECTED TO BE DELETED. GROUND NO. 9 IS THU S ALLOWED. 20. THE GROUND NO. 5 OF THE REVENUE IS REGARDING DE LETING THE ADDITION OF RS. 5,19,097/- ON ACCOUNT OF FURNITURE AND FIXTURE WHEREIN THE LD. CIT(A) HAS OBSERVED AS UNDER:- 13.3 THE ADDITION HAS BEEN MADE BY AO WITHOUT MAKING ANY INQUIRY AND WITHOUT BRINGING ANY SPECIFI C MATERIAL ON RECORD. ON THE BASIS OF REPORT OF DVO, AO PRESUM ED THAT APPELLANT HAS SHOWN ONLY 55% OF ACTUAL INVESTMENT O N FURNITURE AND FIXTURE IN HIS BOOKS OF ACCOUNTS. AS MENTIONED EARLIER, THE DIFFERENCE BETWEEN ESTIMATION OF COST OF DVO AND TH E REGISTERED VALUER IS ALSO ON ACCOUNT OF DIFFERENCE BETWEEN CP WD AND LOCAL PWD RATES AND NON-ALLOWANCE OF DEDUCTION ON A CCOUNT OF SELF SUPERVISION. THERE IS NO MATERIAL ON RECORD TO INDICATE THAT THE TOTAL INVESTMENT DECLARED BY APPELLANT ON FURNI TURE AND FIXTURE IS UNDERSTATED. THEREFORE, ADDITION OF RS. 5,19,097/- IS WITHOUT ANY BASIS AND THE SAME IS DIRECTED TO BE DE LETED. GROUND NO. 11 IS THUS ALLOWED. 21. THE GROUND NO. 6 OF THE REVENUE IS REGARDING DE LETION OF ADDITION OF RS. 1.00 LAC MADE ON ACCOUNT OF UNEXPLAINED CASH C REDIT WHEREIN THE LD. CIT(A) HAS OBSERVED AS UNDER:- 14.3 IN THIS CASE NO UNSECURED LOANS WERE ACCEPTED DURING THE YEAR. BALANCES OF RS. 60,000/- AND 11 RS. 40,000/- IN THE NAME OF ABOVE MENTIONED TWO CREDITORS ARE OPENING BALANCES AND THERE ARE NO TRANSACTIONS IN THEIR ACCOUNT DURING THE YEAR. THER EFORE, NO ADDITION U/S 68 IS JUSTIFIED FOR THIS YEAR. ADDI TION OF RS. 1,00,000/- IS DIRECTED TO BE DELETED. GROUND NO . 12 IS THUS ALLOWED. 22. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSION FILED BY TH E LD. AR OF THE ASSESSEE. WE HAVE ALREADY UPHELD THE VALIDITY OF ASSESSMENT R EJECTING THE C.O. OF THE ASSESSEE. 23. APROPOS REVENUES APPEAL, WE FIND THAT THE ADMI SSION OF ADDITIONAL EVIDENCE BY THE LD. CIT(A) IS NOT IN CONFORMITY OF RULE 46A OF INCOME TAX RULES. THERE IS NEITHER ANY FINDING THAT THE ASSESS EE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT PRODUCING THE ADDITIONAL EV IDENCE BEFORE THE AO. WE FIND MERIT IN THE ARGUMENTS OF THE LD. DR THAT IF T HE ASSESSEE'S BOOKS MYSTERIOUSLY VANISHED A COUPLE OF DAYS BEFORE ASSE SSMENT AND THE COMPUTER BACK UP WAS READY REGARDING STORAGE OF DATA THEN A REQUEST TO THAT EFFECT SHOULD HAVE BEEN MADE BY THE ASSESSEE BEFORE THE AO SO AS TO SUBMIT THE BOOKS OF ACCOUNT. SUCH COMPUTER RECORD OUGHT TO HAV E BEEN PRODUCED BEFORE THE AO BUT IT WAS NO SO. IT APPEARS THAT THERE IS S OME DOUBT IN ASSESSEE'S ACTIVITIES. THE LD. CIT(A) HAS NOT CONSIDERED THIS RELEVANT ASPECT AND TOTAL RELIEF HAS BEEN GRANTED TO THE ASSESSEE WITHOUT APP RECIATING THE REMAND REPORT PROPERLY. THUS IN VIEW OF THE ABOVE FACTS AN D CIRCUMSTANCES OF THE 12 CASE, WE ARE NOT INCLINED TO UPHOLD THE ORDER OF TH E LD. CIT(A). IT WILL BE IN THE INTEREST OF JUSTICE FOR BOTH THE PARTIES IF THE ENTIRE ISSUE IS SET ASIDE TO THE FILE OF THE AO TO DECIDE THE ISSUES AFRESH BUT BY P ROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS TH E APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES AND THE C.O. OF TH E ASSESSEE IS DISMISSED. 24. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES AND C.O. OF THE ASSESSEE IS DISMISSED. THE ORDER PRONOUNCED IN OPEN COURT ON 08 TH AUG. 2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 08 TH AUG 2014 *MISHRA COPY FORWARDED TO:- 1. THE ACIT, CIRCLE- SAWAI MADHOPUR 2. SHRI KHILADI LAL BAIRWA, SAWAI MADHOPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR 5..THE LD. DR BY ORDER 6.THE GUARD FILE (IT NO.126/JP/2011) AR ITAT, JAIPUR 13 14 15 16 17