ITO, Ward-5(3), Hyderabad, Hyderabad V. Zaheeda Ali, Hyd, Hyderabad

ITA 1338/HYD/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6034 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 31-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2015
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Assessee Lawyers: S RAVI
• Keywords: Additional evidence
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1338/HYD/2015 ASSESSMENT YEAR: 2009-10 THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD VS SMT. ZAHEEDA ALI, HYDERABAD [PAN: AGNPA8288P] (APPELLANT) (RESPONDENT) FOR REVENUE : SMT. U. MINICHANDRAN, DR FOR ASSESSEE : SHRI S. RAVI, AR DATE OF HEARING : 01-11-2016 DATE OF PRONOUNCEMENT : 04-11-2016 O R D E R THIS IS AN APPEAL BY REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD D ATED NIL. REVENUE HAS RAISED ONLY ONE GROUND THAT CIT(A) ERRED IN DELETING THE ADDITION OF RS. 37 LAKHS, RELYING ON ADDI TIONAL EVIDENCES VIOLATING RULE 46A OF INCOME TAX RULES, W ITHOUT RECORDING THE REASONS FOR ADMITTING THE ADDITIONAL EVID ENCES AND WITHOUT CONFRONTING THEM TO THE AO IN ORDER TO REBUT THEM. 2. BRIEFLY STATED, ASSESSEE WAS ISSUED NOTICE U/S. 148 OF THE ACT ON 05-07-2012 FOR AY. 2009-10 AS CERTAIN INFORMATION WAS RECEIVED BY THE AO REGARDING INVESTMENTS MADE BY ASSESSEE TO AN EXTENT OF RS. 39 LAKHS IN M/S. NEW VISTA CONSTRUCTIONS DURING TH E FY. 2008-09 RELEVANT TO AY. 2009-10. IN THE COURSE OF ASS ESSMENT PROCEEDINGS, EVEN THOUGH THE CASE WAS POSTED ON 03-06 -2016 AND 11-02-2014 ASSESSEE COULD NOT FURNISH ANY EVIDENCE. THE FINAL DATE OF HEARING WAS ON 27-03-2014 AND AN ORDER U/S. 143(3) I.T.A. NO. 1338/HYD/2015 SMT. ZAHEEDA ALI :- 2 -: DT. 31-12-2014 WAS COMPLETED BRINGING THE AMOUNT ON I NVESTMENT OF RS. 39 LAKHS TO TAX AS UNEXPLAINED INCOME. 3. BEFORE THE LD.CIT(A), ASSESSEE CONTENDED THAT PROPER OPPORTUNITY WAS NOT GIVEN BY THE AO AND SHE DID NOT HAV E ENOUGH TIME TO FURNISH NECESSARY EVIDENCES AND SHE FURNISHED CERTAIN ADDITIONAL EVIDENCE WITH DETAILED SUBMISSIONS BEFORE TH E CIT(A) WHICH ARE EXTRACTED IN THE ORDER ITSELF. LD.CIT(A) DE LETED THE AMOUNT BY STATING AS UNDER: 4. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E AND THE ASSESSMENT ORDER. THE ASSESSING OFFICER MADE THE AD DITION OF RS. 39,00,000/- AS THE APPELLANT HAS INVESTED IN M/S NE W VISTA CONSTRUCTIONS. THE ASSESSING OFFICER MAINLY MADE TH IS ADDITION BY STATING THAT THE APPELLANT HAS NOT EXPLAINED THE SOURCES OF INVESTMENT AND NOT PROVED THE ONUS IDENTITY OR CREDIT WORTHINESS OF TH E PERSONS FROM WHOM SHE HAS BORROWED THE FUNDS. FROM THE COPY OF BANK A CCOUNT OF DCB AVAILABLE WITH THE ASSESSING OFFICER AND ALSO FILED BEFORE ME, THESE AMOUNTS WERE RECEIVED ON 08-07-2008, 18-07,2008 AND 23-07-2008 FROM GHULAM GHOUSE THROUGH CLEARING OF RS. 25,27,793/-. AN AMOUNT OF RS. 2,11,500 WAS EXPLAINED AS NRI LOAN FROM MR. WAJEED AND AN AMOUNT OF RS.9,70,000/AS SCB LOAN FROM DCB BANK AND BALANCE O F RS. 2.00 LAKHS AS CASH ON HAND. THE APPELLANT EXPLAINED THAT MR. G HULAM GHOUSE AND MR. WAJEED ARE NRIS AND COPIES OF THE CONFIRMATION LETTERS WERE ALSO FILED. THEREBY THE IDENTITY OF THESE PERSONS TO BE TREATED AS PROVED SINCE THESE AMOUNTS WERE TRANSFERRED FROM THEIR NRI ACCOUNT. TH E REMAINING AMOUNT OF RS. 9,70,000/- ALSO TO BE ACCEPTED BECAUSE THIS IS SCB LOAN. THEREFORE, THE BALANCE AMOUNT OF RS. 2,00,000/- WHICH WAS CASH ON HAND WAS TO BE TREATED AS UNEXPLAINED AND HENCE THE AMOUNT OF RS. 2,00,000/- CONFIRMED AND BALANCE AMOUNT IS DELETED. 4. LD. DR SUBMITTED THAT ASSESSEE HAS TAKEN OPPORTUNITY TO FILE ADDITIONAL EVIDENCE BEFORE THE LD.CIT(A), BUT THE LD.CI T(A) HAS NOT FOLLOWED RULE 46A WHILE ADMITTING THE ADDITIONAL EVIDEN CE OR ADJUDICATING THEREON. IT WAS SUBMITTED THAT THE REASONS F OR ADMITTING THE ADDITIONAL EVIDENCE ALSO WERE NOT RECORDED BY THE CIT(A). I.T.A. NO. 1338/HYD/2015 SMT. ZAHEEDA ALI :- 3 -: 5. LD. COUNSEL IN REPLY, SUBMITTED THAT THE LAST OPPORTUN ITY GIVEN BY THE AO HAPPENED TO BE A SATURDAY AND WHEN AS SESSEE APPROACHED THE OFFICER ON 31-03-2014 WITH NECESSARY C ONFIRMATION LETTERS, THE OFFICER INDICATED THAT ORDER HAS ALREADY BE EN PASSED. THEREFORE, ASSESSEE HAS FURNISHED THE NECESSARY EVID ENCE BEFORE THE LD.CIT(A). HE FAIRLY ADMITTED THAT CIT(A) HAS NOT R EFERRED THE MATTER TO AO, BUT CONTENDED THAT CIT(A) HAS EXAMINED AND ADJUDICATED ON MERITS. HE SUPPORTED THE ORDER OF THE CI T(A). 6. I HAVE CONSIDERED THE ISSUE AND EXAMINED THE ORDER S PASSED BY THE AUTHORITIES. AS FAR AS THE CONTENTION THAT 27-03-20 14 HAPPENED TO BE SATURDAY IS NOT CORRECT AS IT WAS THURSDA Y AS PER THE CALENDAR OF YEAR 2014. WHETHER IT WAS HOLIDAY FOR ANY OTHER REASON IS NOT FORTHCOMING ON RECORD. BE THAT AS IT MAY, IT IS NOT PROPER ON THE PART OF CIT(A) TO ADJUDICATE THE ISSUE W ITHOUT GIVING AN OPPORTUNITY TO AO WHEN ADDITIONAL EVIDENCE HAS BEE N FILED FOR THE FIRST TIME BEFORE THE CIT(A). RULE 46(A) IS AS UND ER: PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUT Y COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS). 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUC ED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT EVIDENCE WHI CH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING T HE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPEALED AGAIN ST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO ADDUCE E VIDENCE RELEVANT TO ANY GROUND OF APPEAL. I.T.A. NO. 1338/HYD/2015 SMT. ZAHEEDA ALI :- 4 -: (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CA SE MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS- EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTA L OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDIN G THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQ UEST OF THE ASSESSING OFFICER UNDER CLAUSE (A) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. 6.1. SINCE THERE IS VIOLATION OF PROVISIONS OF RULE 4 6A, I HAVE NO OPTION THAN TO SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF CIT(A) TO FOLLOW THE PROCEDURE P RESCRIBED UNDER RULE 46A TO GIVE AN OPPORTUNITY TO AO. ACCORDINGLY, T HE ORDER OF CIT(A) IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FIL E OF CIT(A) TO FOLLOW PROPER PROCEDURE AS PRESCRIBED. SINCE REVEN UE HAS NOT QUESTIONED THE MERITS OF THE DECISION, THERE IS NO NEED TO ADJUDICATE ON THE MERITS. THE GROUND OF REVENUE IS A CCORDINGLY ALLOWED. 7. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH NOVEMBER, 2016 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 4 TH NOVEMBER, 2016 TNMM I.T.A. NO. 1338/HYD/2015 SMT. ZAHEEDA ALI :- 5 -: COPY TO : 1. THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD. 2. SMT. ZAHEEDA ALI, 5-8-36, NO. 103, HIMASAI APART MENTS, NAMPALLY, HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-4, HYDERABAD 4. PR. COMMISSIONER OF INCOME TAX-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.