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

ITA 1343/HYD/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5869 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 04-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2015
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAVI
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1343/HYD/2015 ASSESSMENT YEAR: 2008-09 THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD VS SMT. ZAHEEDA ALI, HYDERABAD [PAN: AGNPA8288P] (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI K.J. RAO, DR FOR ASSESSEE : SHRI S. RAVI, AR DATE OF HEARING : 08-12-2016 DATE OF PRONOUNCEMENT : 30-12-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERAB AD DATED 14-09-2015. REVENUE IS AGGRIEVED ON THE FOLLOWING G ROUNDS: 1. THE LEARNED CIT(A) ERRED IN DELETING THE ADDITI ON OF RS. 25,17,000 AS UNEXPLAINED INVESTMENT IN PURCHASE OF FLAT. 2(A). THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 94,54,622 TOWARDS UNEXPLAINED CREDITS. 2(B). THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS. 94,54,622 TOWARDS UNEXPLAINED CREDITS RELYING ON AD DITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME TAX RULES WITHOUT RECORDING REASONS FOR ADMITTING THE ADDITIONAL EVID ENCE, AND I.T.A. NO. 1343/HYD/2015 SMT. ZAHEEDA ALI :- 2 -: WITHOUT CONFRONTING THEM TO THE ASSESSING OFFICER I N ORDER TO REBUT THEM. GROUND NO. 3 IS GENERAL IN NATURE. 2. BRIEFLY STATED, ASSESSEE WAS ISSUED NOTICE U/S. 14 8 OF THE INCOME TAX ACT [ACT] ON 05-07-2012 FOR AY. 2008-09 A S CERTAIN INFORMATION WAS RECEIVED BY ASSESSING OFFICER (AO) R EGARDING INVESTMENTS MADE BY HER. ASSESSEE ALSO SOLD PROPERTY GIVING RISE TO CAPITAL GAINS. AO MADE VARIOUS ADDITIONS TOWARDS C APITAL GAINS AS WELL AS INVESTMENTS, THE CASH CREDITS IN THE BANK AC COUNTS AND ASSESSED THE TOTAL INCOME AT RS. 2,24,28,537/- AS AGAIN ST INCOME RETURNED AT RS. 4,01,254/-. LD.CIT(A) ADMITTING CERTAI N ADDITIONAL EVIDENCE, GAVE PARTIAL RELIEF IN THE ORDER. REVENUE IS AGGRIEVED ON THE ABOVE TWO ISSUES. 3. IN THE COURSE OF PRESENT PROCEEDINGS, BOTH THE PARTIE S FAIRLY ADMIT THAT THIS ISSUE WAS SIMILARLY CONSIDERED IN AY. 2009-10 IN ASSESSEE OWN CASE BY THE SMC B BENCH IN ITA NO. 1338/HYD/2015 FOR AY. 2009-10. IN THAT ORDER AS THERE WAS VIOLATION OF PRINCIPLES OF RULE 46A, THE BENCH HAS RE STORED THE MATTER TO THE FILE OF THE CIT(A) TO FOLLOW PROPER PROCE DURE AS PRESCRIBED. THE ORDER OF THE SMC BENCH IS AS UNDER: 6. I HAVE CONSIDERED THE ISSUE AND EXAMINED THE OR DERS PASSED BY THE AUTHORITIES. AS FAR AS THE CONTENTION THAT 2 7-03-2014 HAPPENED TO BE SATURDAY IS NOT CORRECT AS IT WAS THURSDAY AS PE R 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 WITHOUT GIVING AN OPPORTUNITY TO AO WHEN ADDITIONAL EVIDENCE HAS BEEN FILED FOR THE FIRST TIME BEFORE T HE CIT(A). RULE 46(A) IS AS UNDER: I.T.A. NO. 1343/HYD/2015 SMT. ZAHEEDA ALI :- 3 -: 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 THE 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 SUFFI CIENT OPPORTUNITY TO THE APPELLANT TO ADDUCE EVIDEN CE RELEVANT TO ANY GROUND OF APPEAL. (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 REBUTTAL 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 46A, I HAVE NO OPTION THAN TO SET ASIDE THE ORDER OF THE CIT(A) AND RESTO RE THE MATTER TO THE FILE OF CIT(A) TO FOLLOW THE PROCEDURE PRESCRIBED UNDER RUL E 46A TO GIVE AN OPPORTUNITY TO AO. ACCORDINGLY, THE ORDER OF CIT(A ) IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF CIT(A) TO FOLLOW P ROPER PROCEDURE AS PRESCRIBED. SINCE REVENUE HAS NOT QUESTIONED THE M ERITS OF THE DECISION, THERE IS NO NEED TO ADJUDICATE ON THE MERITS. THE GROUND OF REVENUE IS ACCORDINGLY ALLOWED. I.T.A. NO. 1343/HYD/2015 SMT. ZAHEEDA ALI :- 4 -: 4. HEREIN ALSO, THERE IS VIOLATION OF PROVISIONS OF RU LE 46A. WE ARE OF THE OPINION THAT THE APPEAL HAS TO BE SET ASIDE TO THE FILE OF CIT(A) TO FOLLOW THE PROCEDURE PRESCRIBED UNDER RULE 46A AND TO GIVE AN OPPORTUNITY TO AO. ACCORDINGLY, THE ORDER OF CIT(A ) IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF CIT(A) TO FOLLOW P ROPER PROCEDURE AS PRESCRIBED. LD.CIT(A) IS DIRECTED TO DECIDE THE MATTERS CONTESTED AFRESH, AFTER GIVING DUE OPPORTUNITY TO THE AO AND ASS ESSEE AS WELL. 5. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2016 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 30 TH DECEMBER, 2016 TNMM COPY TO : 1. THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD. 2. SMT. ZAHEEDA ALI, 5-8-36, NO. 103, HIMASAI APART MENT, NAMPALLY, HYDERABAD. 3. CIT (APPEALS)-4, HYDERABAD. 4. THE PR.CIT-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.