Shri Kishorbhai B.Satasiya, Ahmedabad V. The Income tax Officer,Ward-11(3), Ahmedabad

ITA 1442/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94269 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2012
• Result in Favour of: Set Aside
• Court: TRIBUNAL
• Department Lawyers: D V SINGH
• Assessee Lawyers: S V AGARWAL
• Keywords: Unexplained investment; Source of fund; Additional evidence
• Section: 144; 143(3); 80G

Judgement Text

ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH , AHMEDABAD [CORAM: PRAMOD KUMAR AM AND KUL BHARAT JM ] ITA NO. 1 442 / AHD / 2 012 ASSESSMENT YEAR: 2008 - 09 KISHORBH A I B. SATASIYA, .......... .. . APPELLANT B/59, MATRU S HAKTI SOCIETY, INDIA C OLONY ROAD, BAPUNAGAR, AHMEDABAD . [PAN: A ZXPS 2245 R ] VS. I NCOME TAX OFFICER, .... ........ .... .. .. .... RESPONDENT WARD 11(3), AHMEDABAD. APPEARANCES BY: S.V. AGARWAL , FOR THE APPELLANT D.V. SINGH , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : A UGUST 11 TH , 201 5 DATE OF PRONOUNCING THE ORDER : AUGUST 14 TH , 2015 O R D E R PER PRAMOD KUMAR AM : BY WAY OF THIS A PPEAL, THE ASSESSEE APPELLANT HAS C HALLENGED CORRECTNESS OF LEARNED CIT(A) S ORDER DATED 23 RD APRIL 2012 , IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER), ON THE FOLLOWING EFFECTIVE GROUNDS: - THE ORDER OF LEARNED COMMISSIONER OF INCOME - TAX ( APPEALS ) XVI [CIT(A)] IS BAD IN LAW AS WELL ON FACTS ON T HE FOLLOWING GROUNDS ; ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 2 OF 10 (1) THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE DISALLOWANCE MADE BY A.O. OF RS.9,14,150/ - A S UNEXPLAINED INVESTMENT BEING CASH DEPOSITED IN SAVING BANK ACCOUNT WITH AHMEDABAD MERCANTILE CO - OP BANK LIMITED , BAPUNAGAR BRANCH , AHMEDABAD , IN AS MUCH AS, ( I) THE A.O. HA S NOT DECIDED THE CASE ON MERITS AND FACTS OF THE CASE. (II) THE AO HAS NOT EXAMINED THE PARTY I.E. FATHER OF ASSESSEE S HRI BALUBH A I SHAMBHUBHAI SATSIYA, WHO HAS OPENED THE SAVING B A NK ACCOUNT AND WHO DEPOSITED THE CASH IN SAID ACCOUNT. THE SAID ACCOUNT IS OWNED BY HIM. (III) THE A.O. HA S NOT CONSIDERED AGRICULTURAL INCOME OF SHRI BALUBHAI SHAMBHUBHAI SATASIYA, WHO DEPOSITED CASH IN SAVING ACCOUNT AND A.O. HAS NOT GIVEN ANY FINDING ON THIS CLAIM OF THE ASSESSEE. (2) THE LEARNED CITA HAS ERRED IN REJECTING THE ADDITIONAL EVIDENCES STATING THAT SAME CANNOT BE ADMITTED THOUGH A DDITIONAL EVIDENCES WERE ADMITTED AND REMAND REPORT WAS CALLED FOR. 2. BRIEFLY STATED, THE RELEVANT MATERIAL FACTS ARE LIKE THIS. DURING THE COURSE OF SCRUTINY ASSESSME NT PROCEEDINGS, THE A SSESSING OFFICER NOTICED THAT AS PER AIR INFORMATION AVAILABLE WITH HIM THE ASSESSEE HAS DEPOSITED RS.11,29,250/ - IN HIS SAVING BANK A CCOUNT WITH THE AHMEDABAD MERCANTILE CO - OPERATIVE BANK LIMITED, B A PUNAGAR B RANCH , AHMEDABAD, BUT THE SAID ACCOUNT WAS NOT REFLECTED IN THE BALANCE SHEET OF THE ASSESSEE. ON THESE FACTS, THE ASSESSING OFFICER INFERRED THAT THE DEPOSIT MADE BY THE ASSESSEE WERE OUT OF HIS UNDISCLOSED SOURCES AND REQUIRED THE ASSESSEE TO SHOW CAUSE A S TO WHY THIS AMOUNT NOT BE ADDED AS HIS UNDISCLOSED INCOME. THE EXPLANATION FURNISHED BY THE ASSESSEE, AS EVIDENT FROM THE FOLLOWING OBSERVATIONS IN THE A SSESSMENT O RDER, WAS PARTLY ACCEPTED A ND PARTLY BRUSHED ASIDE : - IN THIS REGARD, VIDE THE SUBMISSION FILED BY THE ASSESSEE DATED 13 - 12 - 2010, IT WA S SUBMITTED BY THE ASSESSEE THAT THE SAID BANK A/C . IN THE NAME OF THE ASSESSEE, WAS OPERATED BY HIS FATHER IN THE NAME OF THE ASSESSEE AND CASH DEPOSITED IN THE BANK ACCOUNT AS PER ABOVE WAS FROM HIS AGRICULTURE ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 3 OF 10 INCOME FOR THE YEAR UNDER CONSIDERATION AS WELL A S SAVINGS OF THE EARLIER YEAR. HIS FATHER SHRI BLUBHAI SHMBHUBHAI SATASIYA WAS HAVING AGRICULTURE LAND ROUND 13 VIGHAS AT VILLAGE GOVINDPUR, TA. DHARI, SAURASHTRA. A S THE ASSESSEE WAS S TAYING IN THE CITY, DUE TO HIS BUSINESS, THINKING THE FUTURE OF THE ASSESSEE AS A GUARDIAN AND WELL - WISHER OF THE FAMILY OF THE ASSESSEE, HE WANTED TO INVEST SOME MONEY IN SHARES AND SECURITIES FOR THE FAMILY OF THE ASSESSEE. HOWEVER, BEING AN AGRICULTURIST AND NOT A BUSINESSMAN , HE WAS NOT HAV ING PAN NO. W HICH WAS NECESSARY FOR THE OPENING OF BANK A/C . A S WELL AS OPENING OF DEMAT ACCOUNT FOR S HARE TRANSACTIONS . UNDER THE CIRCUMSTANCES, PAN NO. O F THE ASSESSEE WAS USED BY HIS FATHER TO OPEN THE BANK A/C AS WELL AS THE DEMAT ACCOUNT AN D T HE SAID BANK A/C AS WELL A THE DEMAT A/C W A S OPERATED BY HIS FATHER ONLY AND THE ENTIRE TRANSACTIONS INCLUDING THE SUM DEPOSITED IN THE BANK ACCOUNT AS WELL AS THE SHARE TRANSACTIONS ENTERED THROUGH THE BANK A/C . AS WELL AS T HE DEMAT A/C . WERE ENTERED BY HI S FAT HER ONLY AND NOT HE BUT HIS FATHER WAS ACCOUNTABLE AND RESPONSIBLE FOR THE SAME. IT WAS FURTHER STATED BY THE ASSESSEE THAT SUM OF RS.1,72,100/ - HAS BEEN RE DEPOSITED IN THE BANK ACCOUNT FROM THE WITHDRAWAL MADE ON EARLIER DATE AS WELL AS A SUM OF RS.48,00 0/ - H A S BEEN DEPOSITED FROM THE WITHDRAWAL M A DE FROM THE PROPRIETARY CONCERN OF THE AS S ES S EE M/S KUNJ TEXTILES . THE CLAIM OF THE ASSESSEE TO THE EXTENT OF R.2, 20,100/ - (1,72,100 + 48,000) S PER T HE ABOVE, IS HEREBY ACCEPTED AS T H E ASSESSEE HAS ADDUCED SUP PORTING DOCUMENTARY EVIDENCES IN THIS RE G ARD, HOWEVER, THE EXPLANATION SUBMITTED BY THE ASSESSEE AS PER THE A BOVE, FOR THE REST OF THE AMOUNT DEPOSITED OF RS.9,14,150/ - C ANNOT BE ACCEPTED AS THE A S SES S EE HAS FAILED TO EXPLAIN THE SOURCE OF THE S A ME WITH CO GENT EVIDENCES/SUPPORTING DOCUMENTARY EVIDENCES. UNDER THE CIRCUMSTANCES, IT IS APPARENT THAT THE SOURCE OF THE SUM DEPOSITED IN THE A BOVE BANK A CCOUNT W A S NOT ACCOUNTED FOR IN DUE COUR S E AND IT WAS NOT REFLECTED IN THE REGULAR BOOKS OF ACCOUNTS OF TH E AS SESSEE. UNDER THE CIRCUMSTANCE, THE SUM DEPOSITED AS PER T HE ABOVE, IN THE ABOVE MENTIONED BANK ACCOUNT, TO THE EXTENT OF RS.9,14,150/ - IS HEREBY CONSIDERED AS UNEXPLAINED INVESTMENT MADE DURING THE YEAR UNDER CONSIDERATION WHICH WAS NOT ACCOUNTED FOR IN HIS REGULAR BOOKS OF ACCOUNTS AND AN ADDITION OF RS.9,14,150/ - IS HEREBY MADE ON THIS SCORE CONSIDERING THE SAME AS HIS CONCEALED INCOME FROM THE UNDISCLOSED SOURCES FOR THE YEAR UNDER CONSIDERATION AND THE SAME IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE . 3 . AGGRIEVED BY THE STAND SO TAKEN BY THE ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD . C IT (A) . THE ASSESSEE ALSO SOUGHT PERMISSION TO PRODUCE ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 4 OF 10 ADDITIONAL EVIDENCE IN SUPPORT OF THE FACTUAL CONTENTIONS EMBEDDED IN HIS EXPLANAT ION, WHICH WAS NOTED AND BRUSHED ASIDE, BUT ALL IN VAIN. RELYING UPON HON BLE PUNJAB & HARYANA HIGH COURT S JUDGEMENT IN THE CASE OF RAJAT BANSAL VS. CIT [(2011) 200 TA X MANN.COM 72 (P&H)], HE DECLINED TO A DMIT THE ADDITIONAL EVIDENCES. ON MERITS, LEARNED CIT (A) REJECTED THE EXPLANATION OF THE ASSESSEE AS AN AFTERTHOUGHT AND A S SELF CONTRADICTORY PARTLY THE SOURCE OF FUNDS WAS EXPLAINED BY THE ASSESSEE OUT OF HIS OWN DRAWINGS . THE ASSESSEE IS AGGRIEVED AND IS IN A PP EA L BEFORE US. 4. W E HAVE HEARD THE R IVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LE G AL POSITION. 5. A PLAIN READING OF THE A SSESSMENT ORDER SHOWS THAT THE ASSESSING OFFICER HAS SIMPLY NOTED THE EXPLANATION OF THE ASSES SEE AND BRUSHED IT ASIDE . THE ASSESSING OFFICER DID NOT EVEN GO THROUGH THE MOTIONS OF EXAMINING THE EXPLANATION ON MERITS. SUCH A N APPROACH OF THE ASSESSING OFFICER CANNOT STAND ANY JUDICIAL SCRUTINY . IT IS ONLY ELEMENTARY THAT T HE AS S ESSING OFFICER IS UNDER A LEGAL OBLIGATION TO EX A MINE THE EXPLANATIONS OF THE ASSESSEE ON MERITS AND BY WAY OF A SPEAKING ORDER. THE RE A SON OF HIS REJECTING AN EXPLANATION MUST BE STATED CLEARLY. NO SUCH EXERCISE HAS BEEN CARRIED OUT IN THIS CASE. IN CASE THE ASSESSING OFFICER WAS OF THE VIEW THAT THE FACTUAL ELEMENTS EMBEDDED IN THE EXPLANATION NEED TO BE SUPPORTED BY EVIDENCES AND CORROBORATIVE MATERIAL, HE HAD TO PUT THE ASSESSEE ON NOTICE IN THIS RESPECT. AS FOR THE CIT(A) S STAND THAT IT WAS NOT A FIT CA S E FOR ADMI SSION OF ADDITIONAL EVIDENCE , IN SUPPORT OF A SSESSEE S EXPLANATION, WE ARE UNABLE TO SEE A NY LEGALLY SUSTAINABLE MERITS IN THIS APPROACH EITHER. ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 5 OF 10 IT WAS A CASE IN WHICH ASSESSEE S CLAIM REMAINED UNSUBSTANTIATED AND THE ASSESSEE WAS OFFERING EVIDENCE TO SUB STANTIATE THE SAME. WHILE ON THIS ASPECT OF THE MATTER, IT IS USEFUL TO TAKE NOTE OF THE FOLLOWING OBSE RVATIONS BY A CO - ORDINATE BENCH OF THIS TRIBUNAL, IN THE CASE OF ITO VS. BAJORIA FOUNDATION [(2001) 254 ITR (AT) 65 (CAL)], WHEREIN, FOLLOWING HON BLE B OMBAY HIGH COURT S JUDGEMENT IN THE CASE OF PRABHAVATI S. SHAH VS. CIT [(1998) 231 ITR 1 (BOM)], THE CO - ORDINATE BENCH HAD OBSERVED AS FOLLOWS : - IN THIS REGARD, WE MAY HOWEVER REFER TO OBSERVATIONS OF SHRI G. KRISHNAMURTY, THE THEN HON BLE PRESIDENT AND WHILE ARTICULATING VIEWS ON BEHALF OF JAIPUR BENCH OF THIS TRIBUNAL IN THE CASE OF ELECTRA (JAIPUR) (P) LTD. VS. IAC (1988) 26 ITD 236 (DEL), WHICH ARE REPRODUCED BELOW : 'AFTER GOING THROUGH THE EVIDENCE PLACED BEFORE US, CONSIDERING THE FACTS OF THIS AND GOING THROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD NOT BE DISQUALIFIED FROM PRODUCING THIS EVIDENCE MERELY ON THE GROUND THAT THE EVIDENCE WAS NOT PLACED BEFORE AUTHORITIES BELOW. THE SOLE PURPOSE OF JUDICIARY A S OF THE REVENUE IS TO GET AT THE TRUTH. IF THE TRUTH IS THAT PAYMENT OF COMMISSION WAS GENUINE AND WAS DICTATED BY THE BUSINESS NEEDS, SUCH A PAYMENT SHOULD NOT BE DISALLOWED MERELY ON THE GROUND THAT ASSESSEE WAS UNABLE TO LEAD PROPER EVIDENCE OR ON THE GROUND THAT EVIDENCE LEAD WAS OF SUCH A NATURE AS TO CREATE A VERY HIGH DEGREE OF SUSPICION. THERE SHOULD BE NO OBJECTION TO CONSIDER ANY EVIDENCE PRODUCED, TO TEST ITS AUTHENTICITY AND RELEVANCE AND THEN ACT ON IT. IF THE EVIDENCE IS GENUINE, RELIABLE, PR OVES ASSESSEE S CASE, THEN ASSESSEE SHOULD NOT BE DENIED THE OPPORTUNITY. BUT ON THE OTHER HAND, IF THE EVIDENCE LED TURNS OUT TO BE SPURIOUS, FABRICATED OR OF IRRELEVANT NATURE, SUCH CONSEQUENCES, AS PROVIDED UNDER THE LAW, WILL ENSURE. IT IS, THEREFORE, INCORRECT TO SHUT OUT THE ASSESSEE IN THE PROCESS OF ADMINISTRATION OF JUSTICE FROM LEADING EVIDENCE TO PROVE ITS CASE. THE EARLIER INABILITY TO LEAD THE EVIDENCE SHOULD NOT BE HELD AGAINST THE ASSESSEE UNLESS IT IS KNOWN TO THE COURT OR SUGGESTED TO THE C OURT OR THERE WAS EVIDENCE TO THE SUSPECT THAT EVIDENCE WAS FABRICATED. THERE IS NO SUCH SUGGESTION IN THIS CASE. WE ARE THEREFORE, OF THE OPINION THAT REQUEST OF THE LEARNED COUNSEL IS REASONABLE AND REQUEST MADE BY THE DEPARTMENT FOR THE REFUSAL OF ITS A DMISSION IS NOT PROPER......' 5. WE ALSO FIND THAT HON BLE ORISSA HIGH COURT IN THE CASE OF B.L. CHOWDHURY VS. CIT (1976) 105 ITR 371 (ORI) HAVE OBSERVED THAT BY THE VIRTUE OF S. 250 WIDE PROVISION HAS BEEN MADE CONFERRING JURISDICTION ON THE FIRST APPELLA TE AUTHORITY TO MAKE SUCH INQUIRY AS HE DEEM FIT AND THAT CIT(A) DOES NOT EXCEED HIS JURISDICTION IF HE ASKS OR ALLOWS THE APPELLANT TO FILE ADDITIONAL EVIDENCE IN THE MATTER HE THINKS FIT. HON BLE BOMBAY HIGH COURT, IN THE CASE ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 6 OF 10 OF SMT. PRABHAVATI S. SHAH VS. CIT (1998) 148 CTR (BOM) 192 : (1998) 231 ITR 1 (BOM), HAVE OBSERVED THAT R. 46A DOES FETTER THE RIGHT OF THE ASSESSEE TO PRODUCE EVIDENCE BUT IT DOES NOT RESTRAIN CIT(A) S POWERS UNDER S. 250(4) OR 250(5) OF THE IT ACT AND THAT THIS RULE APPEARS TO EN SURE THAT EVIDENCE IS PRIMARILY LED BEFORE THE AO. IN VIEW OF THIS JUDGMENT OF THE HON BLE BOMBAY HIGH COURT, IF PRIMA FACIE AN INFORMATION IS NECESSARY TO EXAMINE THE CLAIM OF THE ASSESSEE, THE CIT(A) SHOULD CONSIDER THE NECESSARY EVIDENCE IN EXERCISE OF HIS POWERS UNDER SUB - SS. (4) AND (5) OF S. 250. IT IS TRITE THAT RULES HAVE TO BE FRAMED WITHIN THE SCOPE OF MAIN, PROVISION AND THAT A RULE, WHICH TRAVELS BEYOND OR IS INCONSISTENT WITH OR IS REPUGNANT TO THE PROVISIONS IN THE STATUTE WILL BE ULTRA VIRES AND VOID. RULE 46A WAS INTRODUCED W.E.F. 1ST APRIL, 1973 AND AS A RESULT OF INSERTION OF S. 295(2)(MM) IN THE IT ACT WHICH EMPOWERED BOARD TO PROVIDE FOR THE CIRCUMSTANCES IN WHICH, THE CONDITION SUBJECT TO WHICH AND THE MANNER IN WHICH CIT(A) MAY PERMIT A N APPELLANT TO PRODUCE AN EVIDENCE WHICH THE APPELLANT DID NOT PRODUCE OR WAS NOT ALLOWED TO PRODUCE BEFORE THE AO. HOWEVER, THESE POWERS OF THE BOARD, WHICH HAVE BEEN VESTED IN THEM FOR CARRYING OUT FOR THE PURPOSES OF THE ACT, HAVE TO BE EXERCISED IN SUC H A JUDICIOUS MANNER SO AS NOT TO MAKE ANY STATUTORY PROVISION REDUNDANT AND NUGATORY. THE RULES MADE IN EXERCISE OF THESE POWERS SHOULD ALSO NOT BE INTERPRETED IN SUCH A MANNER AS TO NARROW DOWN, DILUTE OR CURTAIL THE STATUTORY POWERS, CONFERRED ON THE CI T(A), BY THE PROVISIONS OF S. 250(4) OR (5) OF THE IT ACT, 1961. THEREFORE, A HARMONIOUS INTERPRETATION OF S. 250, EVEN R/W R. 46A, CANNOT BUT MEAN THAT IF FACTS OF A CASE WARRANT THAT, BEFORE DISPOSAL OF ANY APPEAL, CIT(A) IS REQUIRED TO MAKE FURTHER INQU IRIES, EITHER ON HIS OWN OR THROUGH THE AO, HE IS NOT DENUDED OF THE POWERS TO DO SO BECAUSE OF THE PROVISIONS OF R.46A. 6. WE ARE CONSCIOUS TO THE ESTEEMED VIEWS OF HON BLE JURISDICTIONAL HIGH COURT THAT THERE HAS TO BE A REASONABLE EXPLANATION FOR NON FI LING OF SUCH ADDITIONAL EVIDENCE BEFORE THE AO. HON BLE CALCUTTA HIGH COURT, IN THE CASE OF RAJ KUMAR SRIMAL VS. CIT (1976) 102 ITR 525 (CAL), HAD AN OCCASION TO EXAMINE THIS ASPECT OF THE MATTER WHEREIN JUSTICE SABYASACHI MUKERJEE (AS HE THEN WAS) OBSERVE D : 'IT IS TRUE, AS CONTENDED BY THE COUNSEL OF THE ASSESSEE, THAT AAC HAS VERY VIDE POWERS AND THE INTEREST OF THE SUBSTANTIAL JUSTICE HE CAN MAKE FURTHER ENQUIRY AND HE CAN ADMIT A NEW GROUND OF APPEAL. HE CAN ALSO GIVE DEDUCTIONS NOT CLAIMED BY THE ASSE SSEE, AS WAS HELD BY THIS COURT IN THE CASE OF UNION COAL CO. LTD. VS. CIT (1968) 70 ITR 45 (CAL). IN THIS CASE, COUNSEL FOR THE REVENUE ALSO DID NOT DISPUTE THAT IN CERTAIN CIRCUMSTANCES THE AAC HAD JURISDICTION TO ADMIT NEW GROUNDS IF IT WAS NECESSARY TO ADMIT NEW EVIDENCE. THE POINT IN THIS CASE IS NOT WHETHER THE AAC IS ENTITLED TO ADMIT THE NEW GROUND OR EVIDENCE EITHER SUO MOTU OR AT THE INVITATION OF PARTIES. IN THIS CASE, THIS IS APPARENT THAT THE AAC WAS NOT ACTING SUO MOTU IN ADDITIONAL EVIDENCE. IF AAC WAS ACTING ON BEING INVITED BY THE ASSESSEE, THERE MUST BE SOME GROUND FOR ADMITTING NEW EVIDENCE IN THE SENSE THAT THERE MUST BE SOME EXPLANATION TO SHOW THAT THE FAILURE TO ADDUCE EVIDENCE EARLIER SOUGHT TO BE ADDUCED BEFORE THE AAC WAS NOT WILFUL AND NOT UNREASONABLE.......IF ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 7 OF 10 WITHOUT ANY EXPLANATION AT ALL, THE AAC ADMITS ADDITIONAL EVIDENCE AT THE INVITATION OF THE PARTIES, HE WOULD BE EXERCISING, IN OUR OPINION, A DISCRETION NOT PROPERLY. HE HAS UNDOUBTEDLY A DISCRETION VESTED IN HIM TO ADMIT AD DITIONAL EVIDENCE IN APPROPRIATE CASES BUT ADMISSION OF EVIDENCE AT THE INSTANCE OF AN APPELLANT WITHOUT ANY GROUND OR EXPLANATION WOULD NOT BE EXERCISING DISCRETION PROPERLY AND IN SUCH CASES THE APPELLATE AUTHORITY IS COMPETENT, IN OUR OPINION, TO INTERF ERE IN THE DISCRETION BY THE AAC.' IT IS, THEREFORE, NECESSARY THAT APPELLATE AUTHORITY HAS TO BE SATISFIED ON BONA FIDES OF THE REASONS OF FILING EVIDENCE - AN ASPECT WHICH HAS ALSO BEEN REFERRED TO IN ELECTRA S CASE, SUPRA. IN THE CASE BEFORE US, THE ASSES SEE S CLAIM BEFORE THE CIT(A) HAS BEEN THAT 'ADEQUATE OPPORTUNITY HAS NOT BEEN GIVEN FOR HEARING' AND THAT 'ORDER UNDER S. 144 IS NOT JUSTIFIED'. IT WAS IN THE BACKGROUND OF THESE FACTS THAT THE ASSESSEE SUBMITTED SOME FRESH EVIDENCE IN THE SHAPE OF S. 80G EXEMPTION CERTIFICATE OF ANANDLOK HOSPITAL AND PAPERS SUPPORTING THE CORPUS DONATIONS. ALL OTHER PAPERS LIKE AUDIT REPORT, LIST OF CHARITIES AND DONATIONS AND FINANCIAL STATEMENTS WERE ALREADY FILED BEFORE THE AO, ALONG WITH THE INCOME - TAX RETURN. IT IS A LSO NOT REVENUE S CASE THAT FILING OF ADDITIONAL EVIDENCE BEFORE THE CIT(A) SMACKS OF ANY MALA FIDES OR DELIBERATE INTENT TO ACT CONTRARY TO THE SCHEME OF THE IT ACT. WE, THEREFORE, SUPPORT ADMITTANCE OF ADDITIONAL EVIDENCE BY THE CIT(A). 7. WE HAVE ALREAD Y EXPRESSED OUR VIEW, IN PARA. 4 ABOVE, THAT ON THE GIVEN FACTS, FILING OF ADDITIONAL EVIDENCE BEFORE THE CIT(A) WAS COVERED BY R. 46A(1)(C) OF THE IT RULES, 1962. IN THE LIGHT OF THE SUBSEQUENT DELIBERATIONS, WE ALSO FIND THAT CIT(A) S ADMISSION OF ADDITI ONAL EVIDENCE WAS CLEARLY WITHIN THE SCHEME OF POWERS VESTED IN HIM UNDER S. 250(4) OF THE IT ACT BECAUSE, AS HELD BY BOMBAY HIGH COURT IN THE CASE OF PRABHAVATI S. SHAH (SUPRA), IF PRIMA FACIE AN INFORMATION IS NECESSARY TO EXAMINE THE CLAIM OF THE ASSESS EE, THE CIT(A) SHOULD CONSIDER THE NECESSARY EVIDENCE IN EXERCISE OF HIS POWERS UNDER S. 250(4). IT IS SETTLED IN LAW THAT WHEN A STATUTORY AUTHORITY HAS THE POWERS TO DO SOMETHING, THEN IT HAS A CORRESPONDING DUTY TO EXERCISE SUCH POWERS WHENEVER CIRCUMST ANCES WARRANTING EXERCISE OF SUCH POWERS EXIST. THE CASE BEFORE US, IN OUR CONSIDERED VIEW, WAS A FIT CASE WHERE THE CIT(A) SHOULD HAVE EXERCISED HIS POWERS TO MAKE FURTHER INQUIRIES. 6. ONCE WE T AKE NOTE OF THE FACT, AS WAS TAKEN NOTE BY HON BLE BOMB A Y HIGH COURT IN PRABHVATI S. SHAH S CASE (SUP R A), TH A T T HE CIT(A) HAS THE POWERS UNDER SECTION 250(4) TO MAKE SUCH FURTHER ENQUIRY AS HE DEEMS FIT, IT IS ONLY COROLLARY THERETO THAT IN A DESERVING CASE, WHERE FACTS AND CIRCUMSTANCES OF THE CASE WARR A NT OR JUSTIFY SUCH AN INQUIRY, THE CIT(A) HAS THE OBLIGATION TO DO SO. AS NOTED BY A CO - ORDINATE BENCH, IN THE ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 8 OF 10 CASE OF SABNIS ASHOK ANANT VS. ACIT [(2008) 10 DTR 203 (PUNE)] , A LL THE POWERS OF SOMEONE HOLDING A PUBLIC OFFICE ARE POWERS HELD IN TRUST FOR THE GO OD OF PUBLIC AT LARGE. THERE IS, THEREFORE, NO QUESTION OF DISCRETION TO USE OR NOT TO USE THESE POWERS. IT IS SO FOR THE REASON THAT WHEN A PUBLIC AUTHORITY HAS THE POWERS TO DO SOMETHING, HE HAS A CORRESPONDING DUTY TO EXERCISE THESE POWERS WHEN CIRCUMS TANCES SO WARRANT OR JUSTIFY A LEGAL POSITION WHICH HAS THE APPROVAL OF HON BLE SUPREME COURT. IN THE PRESENT CASE, IN OUR CONSI DERED VIEW, THE CIT(A) OUGHT TO HAVE EXAMINED THE CLAIM OF THE ASSESSEE ON MERIT IN THE LIGHT OF SUCH EVIDENCE AS HE WAS ABLE TO PRODUCE. IN ANY CASE, THE ASSESSING OFFICER WAS DULY HEARD IN RESPECT OF THESE EVIDENCES. 7. A S FOR THE RELIANCE PLACED ON RAJAT BANSL S CASE (SUPRA), WE FIND IT WAS A CASE IN WHICH THE TRIBUNAL WAS OF THE VIEW, AS NOTED BY THEIR LORDSHIPS, THAT THE ASSESSEE COULD NOT ESTABLISH THAT ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE BEFORE THE CIT(A) IS VERY MUCH ESSENTIAL FOR JUST AND PROPER DECISION IN THE CASE OF THE ASSESSEE . IN THE PRESENT CASE, QUITE TO THE CONTRARY OF THE ABOVE FINDING S , WE ARE OF THE CONSIDERED VIEW THAT EXAMINATION OF THESE ADDITIONAL EVIDENCES, PARTICULARLY IN VIEW OF THE FACT THAT ASSESSING OFFICER HAD SIMPLY BRUSHED ASIDE THE CLAIM RATHER THAN EXAMINING IT ON MERITS, IS ESSENTIAL FOR A FAIR AND JUST ADJUDICATION ON ASSESSEE S APPEAL. REVENUE, THUS, DESERVES NO SUPPORT FROM JUDICIAL PRECEDENT IN THE CASE OF RAJAT BANSL (SUPRA). 8. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION ON MERITS BY WAY OF A SPEAKING ORDER , IN ACCORDANCE WITH ITA NO . 1 442 /AHD/ 20 12 ASSESSMENT YEAR: 2008 - 09 PAGE 9 OF 10 THE LAW AND AFTER GIVING A FAIR AND REASONABLE OPPORTUNITY TO THE ASSESSEE. WHILE DOING SO, THE ASSESSING OFFICER SHALL ALSO CONSIDER, ON MER ITS, SUCH NEW /ADDITIONAL EVIDENCES AS ASSESSEE M A Y SEEK TO RELY UPON. WITH THESE DIRECTIONS, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. 9. A S THE MATTER HAS BEEN REMITTED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, WE S EE NO NEED TO DEAL WITH THE MATTER ON MERITS. WE ALSO MAKE IT CLEAR THAT NOTHING STATED HEREIN SHALL BE CONSTRUED AS OUR OBSERVATION ON MERITS OF THE MATTER. THE ASSESSING OFFICER WILL EXAMINE THE MATTER ON MERITS IN ACCORDANCE WITH THE LAW. 10. IN THE RESULT , APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S . (ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH AUGUST, 2015 ) SD/ - SD/ - KUL BHAR A T PRAMOD KUMAR (JUDICIAL MEMBER) (ACCO UNTANT MEMBER) AHMEDABAD , THE 14 TH DAY OF AUGUST, 201 5 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INC OME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD