ITO, New Delhi V. M/s. Shanta Madan, Gurgaon

ITA 1353/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86959 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 23-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: RAJIV BHASIN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G , NEW DELHI) BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO. 1353/DEL/2013 ASSESSMENT YEAR : 2007-08 ITO, WARD 23(1), VS. MS. SHANTA MADAN, NEW DELHI APARTMENT NO.002, BLOCK D, MULTISTORIED BUILDINGS, LAGOON, RESIDENTIAL APARTMENTS COMPLEX, AMBIENCE ISLAND, NH-8, GURGAON GIR / PAN:AMEPM5657L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI BRR KUMAR, SR. DR RESPONDENT BY : SHRI RAJIV BHASIN, CA DATE OF HEARING : 23.02.2015 DATE OF PRONOUNCEMENT :25.02.2015 ORDER PER T.S. KAPOOR, AM: THIS APPEAL OF THE REVENUE HAS BEEN FILED AGAINST THE ORDER OF LD. CIT(A) DATED 20.12.2012. THE REVENUE HAS CHALLENGE D THE ORDER OF LD. CIT(A) BOTH ON MERITS AND FOR VIOLATION OF PROVISIO NS OF RULE 46A. 2. LD. D.R. AT THE OUTSET INVITED OUR ATTENTION TO ASSESSMENT ORDER AND SUBMITTED THAT DESPITE VARIOUS NOTICES WERE ISSUED ON VARIOUS DATES, THE ASSESSEE DID NOT FILE NECESSARY INFORMATION. LD. C IT(A) IN SPITE OF OBJECTION BY A.O. FOR ADMISSION OF ADDITIONAL EVIDENCES, ADMI TTED THE SAME AND DID NOT CONFRONT THE A.O. TO OFFER HIS COMMENTS ON MERI TS. THEREFORE, IT WAS PRAYED THAT THE CASE MAY BE REMITTED BACK TO THE FI LE OF A.O. FOR READJUDICATION ON THE BASIS OF HIS EXAMINATION OF A DDITIONAL EVIDENCES. 3. LD. A.R. ON THE OTHER HAND INVITED OUR ATTENTION TO PAPER BOOK PAGE 11 WHERE A COPY OF REMAND REPORT WAS PLACED AND SUBMIT TED THAT LD. CIT(A) ITA NO.1353/DEL/2013 2 HAS DULY OBTAINED THE REMAND REPORT AND HE HAD REMI TTED THE ADDITIONAL EVIDENCES TO A.O. BUT A.O. INSTEAD OF COMMENTING ON THE SAME, REQUESTED THAT ADDITIONAL EVIDENCES BE NOT ACCEPTED. 4. WE HAVE HEARD RIVAL PARITIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. FROM THE COPY OF REMAND REPORT P LACED AT PAPER BOOK PAGE 11 WE FIND THAT A.O. WAS CONFRONTED FOR ADMISS ION OF ADDITIONAL EVIDENCES BUT HE HAD NOT COMMENTED ON MERITS. LD. CIT(A) SHOULD HAVE AGAIN CONFRONTED THE A.O. TO FULFILL THE REQUIREMEN T OF SUB-RULE 3 OF RULE 46A. HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V S MANISH BUILD WELL PVT. LTD. VIDE PARA 24 HAS ANSWERED THE SIMILAR SIT UATION WHEREIN IT HAS BEEN HELD THAT A.O. SHOULD HAVE BEEN GIVEN REASONABLE OP PORTUNITY TO EXAMINE THE EVIDENCES ON MERITS AFTER ADMISSION OF THE SAME . RELEVANT PART OF THE ORDER OF HON'BLE HIGH COURT IN THE CASE OF MANISH B UILD WELL PVT. LTD. IS REPRODUCED BELOW: 24. IN THE PRESENT CASE, THE CIT(A) HAS OBSERVED T HAT THE ADDITIONAL EVIDENCE SHOULD BE ADMITTED BECAUSE THE ASSESSEE WA S PREVENTED BY ADDUCING THEM BEFORE THE A.O. THIS OBSERVATION TAK ES CARE OF D. (C) OF SUB-R. (1) OF R. 46A. THE OBSERVATION OF THE C!T(A) ALSO TAKES CARE OF SUB-R, (2) UNDER WHICH HE IS REQUIRED TO RECORD HIS REASONS FOR ADMITTING THE ADDITIONAL EVIDENCE. THUS, THE REQUIR EMENT OF SUB-RS, (1) AND (2) OF R. 46A HAVE BEEN COMPLIED WITH. HOWEVER, SUB-R, (3) WHICH INTERDICTS THE CIT(A) FROM TAKING INTO ACCOUNT ANY EVIDENCE PRODUCED 'FOR THE FIRST TIME BEFORE HIM UNLESS THE AO HAS HA D A REASONABLE OPPORTUNITY OF EXAMINING THE EVIDENCE AND REBUT THE SAME, HAS NOT BEEN COMPLIED WITH. THERE IS NOTHING IN THE ORDER O F THE C!T(A) TO SHOW THAT THE AO WAS CONFRONTED WITH THE CONFIRMATI ON LETTERS RECEIVED BY THE ASS E CUSTOMERS WHO PAID THE AMOUN TS BY CHEQUES AND ASKED FOR COMMENTS. THUS, THE END RESUL T HAS BEEN THAT ADDITIONAL EVIDENCE WAS ADMITTED AND ACCEPTED AS GE NUINE WITHOUT THE A.O. FURNISHING HIS COMMENTS AND WITHOUT VERIFICATI ON. SINCE THIS IS AN INDISPENSABLE REQUIREMENT, WE ARE OF THE VIEW TH AT THE TRIBUNAL OUGHT TO HAVE RESTORED THE MATTER TO THE CIT(A) WIT H THE DIRECTION TO ITA NO.1353/DEL/2013 3 HIM TO COMPLY WITH SUB-R, (3) OF R. 46A. IN OUR OPI NION AND WITH RESPECT, THE ERROR COMMITTED BY THE TRIBUNAL IS THA T IT PROCEEDED TO MIX UP THE POWERS OF THE C!T(A) UNDER SUB- S. (4) O F S. 250 WITH THE POWERS VESTED IN HIM UNDER R. 46A. THE TRIBUNAL SEE MS TO HAVE OVERLOOKED SUB-R. (4) OF R. 46A [SIC-SO 250] WHICH ITSELF TAKES NOTE OF THE DISTINCTION BETWEEN THE POWERS CONFERRED BY THE C!T(A) UNDER THE STATUTE WHILE DISPOSING OF THE ASSESSEE'S APPEAL AN D THE POWERS CONFERRED UPON HIM UNDER R. 46A. THE TRIBUNAL .ERRE D IN ITS INTERPRETATION OF THE PROVISIONS OF R. 46A VIS-A-VI S S. 250(4). ITS VIEW THAT SINCE IN ANY CASE THE CIT(A), BY VIRTUE OF HIS COTERMINOUS POWERS OVER THE ASSESSMENT ORDER, WAS EMPOWERED TO CALL FO R ANY DOCUMENT OR MAKE ANY FURTHER ENQUIRY AS HE THINKS FIT, THERE WAS NO VIOLATION OF R. 46A IS ERRONEOUS. THE TRIBUNAL APPEARS TO HAVE N OT APPRECIATED THE DISTINCTION BETWEEN THE TWO PROVISIONS. IF THE VIEW OF THE TRIBUNAL IS ACCEPTED, IT WOULD MAKE R. 46A OTIOSE AND IT WOULD OPEN UP THE POSSIBILITY OF THE ASSESSEES' CONTENDING THAT ANY A DDITIONAL EVIDENCE SOUGHT TO BE INTRODUCED BY THEM BEFORE THE C!T(A) C ANNOT BE SUBJECTED TO THE CONDITIONS PRESCRIBED IN R. 46A BE CAUSE IN ANY CASE THE C!T(A) IS VESTED WITH COTERMINOUS POWERS OVER T HE ASSESSMENT ORDERS OR POWERS OF INDEPENDENT ENQUIRY UNDER SUB-S O (4) OF S. 250. THAT IS A CONSEQUENCE WHICH CANNOT AT ALL BE COUNTE NANCED. 5. IN VIEW OF ABOVE, WE ALLOW GROUND NO.2 OF REVENU ES APPEAL AND REMIT THE MATTER BACK TO THE OFFICE OF A.O. FOR RE- ADJUDICATION ON THE BASIS OF ADDITIONAL EVIDENCES FILED BY ASSESSEE BEFORE LD. C IT(A). NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNI TY OF BEING HEARD. 6. IN VIEW OF THE ABOVE, APPEAL FILED BY REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH FEB., 2015. SD./- SD./- (G. C. GUPTA ) (T.S. KAPOOR) VICE PRESIDENT ACCOUNTANT MEMBER DATE: 25 TH FEB., 2015 SP ITA NO.1353/DEL/2013 4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 24/2 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 25,25/2 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER