Sh. Pawan Singh Bundela, Lalitpur V. I.T.O, Ward-6(4), Lalitpur

ITA 144/AGR/2012

• Counselvise Citation: 14420314 RSA 2012
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K AGARWAL
• Keywords: Principle of natural justice; Additional evidence
• Section: 80C; 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 144/AGRA/2012 ASSTT. YEAR : 2008-09 PAWAN SINGH BUNDELA, VS. INCOME-TAX OFFICER, 334, CIVIL LINES, LALITPUR. WARD 6(4), LALITPUR . (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. AGARWAL, C.A. RESPONDENT BY : SHRI WASEEM ARSHAD, SR. D.R. DATE OF HEARING : 10.09.2012 DATE OF PRONOUNCEMENT OF ORDER : 14.09.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II, AGRA DATED 31.01.2012 FOR THE ASSESSMENT YEAR 2008- 09 ON THE FOLLOWING GROUNDS : 1. THE LD. CIT(APPEALS)-II, AGRA HAS GROSSLY ERRED IN LAW AND ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ADD ITION MADE BY AO WARD 6(4), LALITPUR IGNORING THE SUB RULE 4 OF RULE 46A OF THE ACT. 2. THE LD. CIT(APPEALS)-II, AGRA HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE IN NOT ACCEPTING THE EVIDENCE UNDER RULE 4 6A OF THE IT RULES 1962 THOUGH THE PROVISIONS OF SECTION 250(4) OF THE IT A CT 1961 HAVE BEEN INVOKED. 3. THE LD. CIT(A)-II, AGRA HAS GROSSLY ERRED IN LAW AND ON THE FACTS OF THE CASE AND IS AGAINST THE NATURAL JUSTICE AS PROVIDED IN THE CONSTITUTION OF INDIA. ITA NO. 144/AGRA/2012 2 4. THE ORDER OF LD. CIT(A)-II, AGRA IS BAD IN LAW B Y NOT CONSIDERING THE OTHER GROUNDS OF APPEAL AND AS SUCH IT IS A NON SPE AKING ORDER. 5. THE APPELLANT SEEKS PERMISSION TO ADD OR MODIFY ANY GROUNDS OF APPEAL AS THE CIRCUMSTANCES OF THE CASE MIGHT REQUIRE TO JUST IFY. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAS SHOWN INCOME FROM OTHER SOURCES AND FROM LONG TERM CAPITAL GAINS DURI NG THE ASSESSMENT YEAR UNDER CONSIDERATION. THE CASE OF THE ASSESSEE WAS SELECTE D FOR SCRUTINY ASSESSMENT. THE AO ISSUED STATUTORY NOTICE U/S. 143(2) ON 26.08.200 9, BUT THERE WAS NO COMPLIANCE. THEREAFTER, THE AO ISSUED FURTHER NOTICES U/S. 142( 1) ON 06.05.2010 MENTIONING THEREIN THE DETAILED QUESTIONNAIRE AND SHRI SANJEEV JAIN, C.A. ATTENDED AND FILED HIS POWER OF ATTORNEY ON 05.05.2010. THEREAFTER, THE AO FURTHER ISSUED NOTICES ON 03.06.2010, 18.06.2010, 29.06.2010, 14.07.2010 AND 18.08.2010 FIXING VARIOUS DATES FOR COMPLIANCE. ALL THE NOTICES WERE SERVED U PON THE ASSESSEE THROUGH REGISTERED POST AND SPEED POST, BUT THE ASSESSEE DI D NOT ATTEND THE PROCEEDINGS. THEREAFTER, SHOW CAUSE NOTICE U/S. 144 WAS ISSUED O N 01.09.2010, 04.10.2010, 19.10.2010, 09.11.2010, BUT THE ASSESSEE DID NOT AT TEND ANY PROCEEDINGS AND DID NOT COMPLY WITH THE DIRECTIONS OF NOTICES. DESPITE GIVING SEVERAL OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE, THE ASSESSEE DID NOT P RODUCE ANY EVIDENCE BEFORE THE AO. THEREFORE, THE ASSESSMENT WAS COMPLETED U/S. 14 4 OF THE IT ACT. THE ADDITION WAS MADE ON ACCOUNT OF CAPITAL GAINS AS WELL AS DIS ALLOWANCE WAS MADE U/S. 80C OF THE IT ACT. THE ASSESSEE FILED APPLICATION U/R 4 6A BEFORE THE LD. CIT(A) FOR ITA NO. 144/AGRA/2012 3 ADMISSION OF THE ADDITIONAL EVIDENCES, ON WHICH REM AND REPORT WAS CALLED FOR FROM THE AO AND THE AO IN THE REMAND REPORT HIGHLIGHTED SEVERAL NON-COMPLIANCES AT THE ASSESSMENT STAGE AND SUBMITTED THAT THE ASSESSE E DID NOT SATISFY ANY OF THE CONDITIONS OF RULE 46A OF THE IT RULES FOR PRODUCIN G ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). THEREFORE, HE OBJECTED THE ADMISSIO N OF THE ADDITIONAL EVIDENCES. THE LD. CIT(A), CONSIDERING THE OBJECTIONS OF THE A O AND THE REJOINDER OF THE ASSESSEE, FOUND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF RULE 46A OF THE IT RULES AND NO REASONS HAVE BEEN EXPLAINED AS TO WHY THE EVIDENCES WERE NOT PRODUCED BEFORE THE AO. HE HAS NOTED THAT NO CA SE IS MADE OUT BY THE ASSESSEE OF ANY EXCEPTION UNDER RULE 46A. HE HAS RELIED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAM PRASAD SHAR MA VS. CIT, 119 ITR 367 IN WHICH DESPITE GIVING OPPORTUNITIES TO THE ASSESSEE, NO EVIDENCES, WHATSOEVER, WERE GIVEN. IT WAS, THEREFORE, HELD THAT IT CANNOT BE SA ID IN THESE CIRCUMSTANCES THAT THE AAC HAS EXERCISED HIS DISCRETION ARBITRARILY OR CAP RICIOUSLY WHILE REFUSING TO ADMIT FRESH EVIDENCE AT THE APPELLATE STAGE. THE LD. CIT( A), ACCORDINGLY, DECLINED TO ADMIT THE ADDITIONAL EVIDENCES UNDER RULE 46A. THE LD. CIT(A) ALSO CONFIRMED PASSING OF THE EXPARTE ASSESSMENT ORDER AND REJECTE D THAT GROUND ALSO AND RESULTANTLY, THE ADDITIONS ON MERITS WERE CONFIRMED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED. ITA NO. 144/AGRA/2012 4 3. THE SOLE GRIEVANCE OF THE LD. COUNSEL OF THE ASS ESSEE HAS BEEN THAT THE LD. CIT(A) SHOULD NOT REFUSE TO ADMIT THE ADDITIONAL EV IDENCES AT THE FIRST APPELLATE STAGE. HE HAS REFERRED TO THE APPLICATION FILED U/R . 46A AND REFERRED TO PB-12 IN WHICH THE ASSESSEE HAS GIVEN REASONS FOR NON-FILING OF THE EVIDENCES BEFORE THE AO AT THE ASSESSMENT STAGE BECAUSE THE SHOW CAUSE NOTI CES MENTIONED IN THE ASSESSMENT ORDER WERE NOT PROPERLY SERVED UPON THE ASSESSEE. NO OTHER REASON HAS BEEN GIVEN FOR NON-PRODUCING OF EVIDENCES AT THE AS SESSMENT STAGE. HE HAS, THEREFORE, SUBMITTED THAT THE ADDITIONAL EVIDENCE S HOULD BE ADMITTED BY THE LD. CIT(A) FOR HEARING. ON THE OTHER HAND, THE LD. DR R ELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE F AILED TO COMPLY WITH THE DIRECTIONS AND THE CONDITIONS OF RULE 46A, THEREFOR E, THE LD. CIT(A) RIGHTLY REJECTED THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENC E. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. RULE 4 6A OF THE IT RULES PROVIDES AS UNDER : PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUT Y COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS). 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUC E BEFORE THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY B E, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : ITA NO. 144/AGRA/2012 5 (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMI T EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICI ENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPO N TO PRODUCE BY THE ASSESSING OFFICER ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICI ENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVI DENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORD ER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO TH E APPELLANT TO ADDUCE EVIDENCE 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 B E, THE COMMISSIONER (APPEALS) RECORDS IN WRITING THE REASO NS FOR ITS ADMISSION. (3) THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE C ASE MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OF FICER 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 W ITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLAN T. (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 DISPOS E OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHAN CEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE ASSESSING OFFICER) UNDER CLAUSE (A) OF SUB-SECT ION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. ITA NO. 144/AGRA/2012 6 5. CONSIDERING THE FINDINGS OF THE AUTHORITIES BELO W WE FIND THAT NONE OF THE CONDITIONS OF RULE 46A HAVE BEEN SATISFIED BY THE A SSESSEE IN THE PRESENT CASE FOR ADMISSION OF THE ADDITIONAL EVIDENCES. THE ASSESSEE HAS MENTIONED IN THE APPLICATION UNDER RULE 46A FOR NOT PRODUCING THE EV IDENCES BEFORE THE AO BECAUSE SHOW CAUSE NOTICES WERE NOT PROPERLY SERVED UPON TH E ASSESSEE. THE CLAIM OF THE ASSESSEE IS CONTRARY TO THE RECORD. IN RESPONSE TO THE NOTICE U/S. 142(1) ISSUED ON 06.05.2010, SHRI SANJEEV JAIN, FCA, THE LD. REPRESE NTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND FILED HIS POWER OF ATTOR NEY. THEREFORE, THERE IS NO QUESTION OF NON-SERVICE UPON THE ASSESSEE. THEREAFT ER SEVERAL NOTICES WERE SERVED UPON THE ASSESSEE U/S. 142(1) AND U/S. 144 OF THE I T ACT. THE ASSESSEE HAS NOT MADE ANY CLAIM THAT THE NOTICES WERE NOT SENT AT THE COR RECT ADDRESS OF THE ASSESSEE. MOREOVER ONCE THE REPRESENTATIVE OF THE ASSESSEE AP PEARED BEFORE THE AO AND FILED HIS POWER OF ATTORNEY AT THE INITIAL STAGE, IT IS T HE DUTY OF THE ASSESSEE TO APPEAR BEFORE THE AO ON ALL SUBSEQUENT DATES OF HEARING. H OWEVER, IN THE PRESENT CASE DESPITE SERVICE OF SEVERAL STATUTORY NOTICES, THE A SSESSEE DID NOT COMPLY WITH ANY OF THE NOTICES AND DID NOT PRODUCE EVIDENCES BEFORE TH E AO. THEREFORE, CONDITIONS OF RULE 46A ABOVE HAVE NOT BEEN SATISFIED BY THE ASSES SEE. THE LD. CIT(A), THEREFORE, RIGHTLY RELIED UPON THE DECISION OF HONBLE ALLAHAB AD HIGH COURT IN THE CASE OF RAM PRASAD SHARMA (SUPRA) AND, THEREFORE, RIGHTLY R EFUSED TO ADMIT THE ADDITIONAL EVIDENCES AT THE FIRST APPELLATE STAGE. EXPARTE ASS ESSMENT ORDER WAS ALSO CORRECTLY ITA NO. 144/AGRA/2012 7 FRAMED BY THE ASSESSING OFFICER FOR NON-COMPLIANCE. RESULTANTLY, THERE IS NO EVIDENCE AVAILABLE ON RECORD TO DISPUTE THE CORRECT NESS OF THE ADDITION MADE BY THE AO. THE ASSESSEE IN GROUND NO. 1 REFERRED TO SUB-RU LE (4) OF RULE 46A IN THE MATTER, WHICH IS NOT APPLICABLE IN THE MATTER BECAU SE THE LD. CIT(A) HAS NOT DIRECTED FOR PRODUCTION OF ANY EVIDENCE. CONSIDERIN G THE TOTALITY OF FACTS AND CIRCUMSTANCES AND THAT NO OTHER REASONS HAVE BEEN G IVEN FOR NOT FILING THE EVIDENCES BEFORE THE AO AT THE ASSESSMENT STAGE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DISMISSING THE APPEA L OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY