Shri Bhanubhai Prabhudas Patel, Patan V. The Income Tax Officer, Ward-1, Patan

ITA 1463/AHD/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9344 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-08-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G C DAXINI
• Assessee Lawyers: AKSHAT KHARA
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 143(3); 201; 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, AHMEDABAD BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 1463/AHD/2013 / ASSTT. YEAR: 2008 - 2009 SHRI BHANUBHAI PRABHUDAS PATEL , 14, RAMBAUG SOCIETY , AT. & P.O. BALISANA , DIST. PATAN - 384110 . PAN : ABSPP0966B VS. INCOME TAX OFFICER , WARD - 1, PATAN . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI AKSHAT KHARA , A .R REVENUE BY : SHRI G.C. DAXINI , SR. D.R / DATE OF HEARING : 28 / 08 / 201 9 / DATE OF PRONOUNCEMENT: 01 / 10 /201 9 / O R D E R PER BENCH : THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - G HAN DHI NAGAR , DATED 01 /03/2019 (IN SHORT LD.CIT(A) ) ARISING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') D ATED 28 / 11/2011 RELEVANT TO THE ASSESSMENT YEAR 2008 - 20 09 . ITA NO.1463/AHD/2013 ASSTT. YEAR 2008 - 09 2 1. THE LD.CIT(A) GANDHINAGAR ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS.26,34,800/ - AS UNEXPLAINED CASH DEPOSITE S WITH THE BANK. THE APPELLANT HAS FILED ALL THE DETAILS PERTAINING THE SAID AMOUNT BEFORE THE A.O. AS WELL AS THE LD. CIT (A) GANDHINAGAR, BUT THE SAME HAD NOT BEEN ACCEPTED AND THE ADDITION MADE BY THE A.O. HAD BEEN CONFIRMED BY THE CIT(A) GANDHINAGAR, WHICH MAY KINDLY BE DELETED. 2. THE ADDITION MADE BY THE A.O. AT RS.4,38,136/ - AS UNDISCLOSED SHORT TERM CAPITAL GAIN BEING RECEIVED IN INVESTMENT IN SHARES MAY KINDLY BE DELETED, AS THE APPELLANT HAS FILED ALL THE DETAILS TO THE SATISFACTION OF THE A.O. AS WELL AS THE LD. CIT (A) GANDHINAGA R, DURING THE COURSE OF THE HEARING OF THE APPEAL. HENCE IT IS REQUESTED THAT, THE AMOUNT OF ADDITION ON THIS SCORE AT RS.4,38,136/ - MAY KINDLY BE DELETED. 3. THE APPELLANT DESERVES THE RIGHT TO ADD, ALTER, AMEND ANY OF THE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 2. THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO. 1 & 2 RELATES TO THE CONFIRMATION OF ADDITION OF RS. 26,34,800/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT WITH THE BANK UNDER THE PROVISION OF SECTION 69 OF THE ACT AND RS. 4,38,1 36 AS UNDISCLOSED SHORT TERM CAPITAL GAIN. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO HAD MADE ADDITION OF RS. 26,24,800 BEING CASH RECEIVED FROM FARMERS AGGREGATING TO RS. 10,10,000 FOR INVESTMENT IN SHARES AS THEY DON T HAVE D MAT AC COUNT AND RS. 16,24, 8 00 FOR CASH DEPOSIT WITH BANK. 3.1 THE LEARNED COUNSEL FOR THE ASSESSEE HAD FILED ADDITIONAL EVIDENCE S IN SUPPORT OF HIS CLAIM THAT THE CASH RECEIVED FROM FARMER FOR INVESTMENT IN SHARES HAS BEEN RETURNED TO RESPECTIVE FARMERS . FURTH ER , THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCE WITH RESPECT TO CLAIM THAT THE CASH DEPOSIT HAS BEEN MADE OUT LOAN TAKEN FROM HIS COLLEAGUE AS WELL AS AGRICULTURAL INCOME. ACCORDINGLY, THE LD. AR PRAYED TO ADMIT THE ADDITIONAL EVIDENCES AND RESTORE THE MAT TER TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. ITA NO.1463/AHD/2013 ASSTT. YEAR 2008 - 09 3 4. ON THE OTHER HAND , THE LD. DR. DID NOT RAISE ANY OBJECTION IF THE MATTER IS SET ASIDE TO THE AO FOR FRESH ADJUDICATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE RELEVANT MATERIAL S ON RECORD . WE FIND THAT THE ASSESSEE HAD FILED ADDITIONAL EVIDENCE S IN SUPPORT OF HIS CLAIM AS DISCUSSED ABOVE. THESE EVIDENCES WERE NOT FILED BEFORE THE AO AND THE LD. CIT (A) AS EVIDENT FROM THE ASSE SSMENT ORDER AS WELL AS FROM APPELLATE ORDER. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE URGED BEFORE US TO ADMIT THE SAME IN EXERCISE THE POWERS UNDER RULE 29 TO 31 OF INCOME TAX APPELLATE TRIBUNAL RULES, 1963 . T HESE ADDITIONAL EVIDENCE S ARE IN FORM OF AFFIDAVIT BY FARMERS AND THEIR IDENTITY PROOF AND DEATH CERTIFICATE, DECLARATION OF LOAN AND COPY OF RECEIPT SHOWING MONEY RECEIVED ON ACCOUNT OF AGRICULTURAL PROCEEDS. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, WE ARE OF THE VIEW THAT THESE ADDITIONAL EVIDENCES FILED UNDER RULE 29 TO 31 OF INCOME T AX APPELLATE TRIBUNAL RULES 1963, BEFORE THE TRIBUNAL BY THE ASSESSEE ARE NECESSARY FOR PROPER APPRECIATION OF THE ISSUE UNDER APPEAL AND WOULD CAUSE OF SUBSTANTIAL JUSTICE. SUCH EVIDENCE MAY ULTIMATELY TURN OUT TO THE BENEFIT OF EITHER TAXPAYER OR THE REVENUE. 5.1 WE PLACE RELIANCE IN THE CASE OF CIT V. TEXT HUNDRED INDIA (P.) LTD. [2011] 9 TAXMANN.COM 149 /197 TAXMAN 128/[2013] 351 ITR 57 (DELHI) WHEREIN IT WAS OBSERVED AS IN P ARA 13 AS FOLLOWS: '13. THE AFORESAID CASE LAW CLEARLY LAYS DOWN A NEAT PRINCIPLE OF LAW THAT DISCRETION LIES WITH THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE ONCE THE TRIBUNAL AFFIRMS THE OPINION THAT DOING SO WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER. THIS CAN BE DONE EVEN WHEN APPLICATION IS FILED BY ONE OF THE PARTIES TO THE APPEAL AND IT NEED NOT TO BE A SUO MOTO ACTION OF THE TRIBUNAL. THE AFORESAID RULES IS MADE ENABLING THE TRIBUNAL TO ADMIT THE ADDITIONAL EVIDENCE IN ITS DISCRETION IF THE TRIBUNAL HOLDS THE VIEW THAT SUCH ADDITIONAL EVIDENCE WOULD BE NECESSARY TO DO SUBSTANTIAL JUSTICE IN THE MATTER. IT IS WELL SETTLED THAT THE PROCEDURE IS HANDMADE OF JUSTICE AND JUSTICE SHOULD NOT BE ALLOWED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTENT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LEAD EVIDENCE AT THE ITA NO.1463/AHD/2013 ASSTT. YEAR 2008 - 09 4 APPROPRIATE STAGE. ONCE IT IS FOUND THAT THE PARTY INTENDING TO LEAD EVIDENC E BEFORE THE TRIBUNAL FOR THE FIRST TIME WAS PREVENTED BY SUFFICIENT CAUSE TO LEAD SUCH AN EVIDENCE AND THAT THIS EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDS TO BE DECIDED BY THE TRIBUNAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SUCH AN EV IDENCE, THE TRIBUNAL CAN PASS AN ORDER TO THAT EFFECT.' IN THE LIGHT OF ABOVE FACTS AND CIRCUMSTANCES AND RELYING ON ABOVE CITED JUDGMENT, WE ALLOW TO ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AS THESE ARE NECESSARY TO DECIDE THE ISSUE IN PROPER PERSPECTIVE IN THE INTEREST OF JUSTICE AND FAIR PLAY. THEREFORE, IN EXERCISE OF POWERS CONFERRED UNDER RULE 2 9 OF TRIBUNAL RULES 1963, WE RESTORE THIS APPEAL TO THE FILE OF AO FOR ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHE LESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON AND IF THE ASSESSEE FAILED TO ADDUCE NECESSARY EVIDENCE BEFORE THE AO, THEN THE AO IS AT LIBERTY TO TAKE ADVERSE VIEW IN THE MA TTER IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME TAX ACT, 1961. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE COURT ON 01 /10 / 2019 AT AHMEDABAD. - SD - - SD - ( KUL BHARAT ) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 01 / 10 /2019 MANISH