The DCIT, Circle-14, Ahmedabad V. Shri Deepakkumar R.Darji, Ahmedabad

ITA 1580/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89504 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 06-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: S N DIVETIA
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.) I.T. A. NO. 1580/AHD/2011 (ASSESSM ENT YEAR: 2008-09) THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-14, AHMEDABAD V/S SHRI DEEPAKKUMAR R. DARJI B/104, ANAND TENAMENTS, OPP. SMRUTI MANDIR, CENTRAL ROAD, GHODASAR,AHMEDABAD- 380050 (APPELLANT) (RESPONDENT) PAN: AHCPD 0851F APPELLANT BY : SMT. SONIA KUMAR, SR. D.R. RESPONDENT BY : SHRI S.N. DIVETIA, A.R. ( )/ ORDER DATE OF HEARING : 04-06-2015 DATE OF PRONOUNCEMENT : 10 -06-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER. 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XXI, AHMEDABAD DATED 04.03.2011 FOR A.Y. 2008-09. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING INCOM E FROM SALARY. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 30.0 7.2009 DECLARING TOTAL INCOME OF RS. 1,93,790/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 03.12.2010 ITA NO 1580/ AHD/2011 . A.Y. 2008-09 2 AND THE TOTAL INCOME WAS DETERMINED AT RS. 22,62,93 3/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO VIDE ORDER DATED 04.03.2011 GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REVENUE IS NOW IN AP PEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS OF RS. 17,54,312/- IN ICICI BANK, (A/C NO.034501505691), RS.2,67,831/- IN ICICI BANK (A/C NO'034501504796 AND RS.47,000/- IN HSBC BANK (A/C NO. 101-260123). 2. THE CIT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE IT. RULES BY ADMITTING ADDITIONAL EVIDENCE WITHOUT GIVING ANY OPPORTUNITY TO THE A.O. 4. BEFORE US, LD. D.R. SUBMITTED THAT BOTH THE GROUNDS RAISED BY REVENUE ARE INTERCONNECTED. HE SUBMITTED THAT WHILE GRANTING RE LIEF TO ASSESSEE, LD. CIT(A) HAD VIOLATED PROVISIONS OF RULE 46A OF THE I .T. RULES BY ADMITTING ADDITIONAL EVIDENCE WITHOUT GRANTING ANY OPPORTUNIT Y TO THE A.O TO EXAMINE THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. LD . D.R. THUS SUBMITTED THAT THERE WAS VIOLATION OF RULE 46A OF I.T. RULES AND T HEREFORE THE ORDER OF LD.CIT(A) BE SET ASIDE. 5. THE LD. A.R ON THE OTHER HAND FAIRLY CONCEDED THAT CERTAIN EVIDENCES IN SUPPORT OF HIS CLAIM WERE FILED BEFORE LD. CIT(A) A ND THOSE WERE NOT FILED BEFORE A.O. HE ALSO FAIRLY CONCEDED THAT NO REMAND REPORT WAS CALLED FOR BY LD. CIT(A). HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT ADDITION ON ACCOUNT OF UNEXPLAINED INVEST MENT AGGREGATING TO RS. 20,69,143/- WAS MADE BY THE A.O. A.O IN THE ASSESSM ENT ORDER HAS NOTED ITA NO 1580/ AHD/2011 . A.Y. 2008-09 3 THAT VARIOUS NOTICES WERE ISSUED TO THE ASSESSEE WH EREBY ASSESSEE WAS ASKED TO ATTEND AND PRODUCE THE DOCUMENTS/DETAILS C ALLED FOR IN SUPPORT OF THE RETURN OF INCOME FILED BY THE ASSESSEE. HE HAS NOTED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICES. HE THEREFORE ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD PROCEEDED AND MADE ADDITIONS. I N THE PRESENT CASE, WE FIND THAT LD. CIT(A) ON THE BASIS OF THE SUBMISSION S AND THE OTHER DOCUMENTS LIKE CASH ACCOUNT WHICH WAS PRODUCED FOR THE FIRST TIME BY ASSESSEE DECIDED THE ISSUE BY GRANTING PART RELIEF TO THE ASSESSEE. WE FURTHER FIND THAT WHILE DECIDING THE ISSUE NO REMAND REPORT WAS CALLED FOR BY LD. CIT(A) FROM THE A.O BEFORE US, ONE OF THE GROUND RAISED BY REVENUE IS VIOLATION OF PROVISIONS OF RULE 46A BY LD. CIT(A). ON PERUSING R ULE 46A IT IS SEEN THAT SUB RULE 3 OF RULE 46A MANDATES THAT LD. CIT(A) SHA LL NOT TAKE INTO ACCOUNT ANY FRESH EVIDENCE FILED BY THE ASSESSEE BEFORE HIM UNLESS THE A.O HAS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXAMINE SUCH EVIDENCE OR DOCUMENTS ETC FILED BY THE ASSESSEE OR TO PRODUCE ANY DOCUMEN T OR EVIDENCE ETC IN REBUTTAL OF SUCH ADDITIONAL EVIDENCE PRODUCED BY TH E ASSESSEE BEFORE HIM. THUS IT IS SEEN THAT THE REQUIREMENT OF RULE 46A IS THAT UNLESS THE A.O IS ALLOWED A REASONABLE OPPORTUNITY TO DO THIS, THE LD. CIT(A) CANNOT TAKE INTO ACCOUNT SUCH ADDITIONAL EVIDENCE PRODUCED BY T HE ASSESSEE BEFORE HIM. CONSIDERING THE FACTUAL POSITION OF THE PRESENT CAS E AND SEEN IN THE LIGHT OF THE PROVISION OF RULE 46A, WE ARE OF THE VIEW THAT LD. CIT(A) HAS FAILED TO GIVE A REASONABLE OPPORTUNITY TO A.O AND THUS THE MANDATE OF RULE 46A HAS NOT BEEN COMPLIED WITH. WE THEREFORE RESTORE TH E ISSUE BACK TO THE FILE OF LD. CIT(A) TO RE-DECIDE THE ISSUE AS PER LAW AND AF TER COMPLYING WITH THE PROVISIONS OF RULE 46A AND AFTER GIVING A REASONABL E OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THUS THE GROUNDS OF REVENUE AR E ALLOWED. ITA NO 1580/ AHD/2011 . A.Y. 2008-09 4 7. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 10 - 06 - 2015. SD/- SD/- (SHAILENDRA KR. YADAV) (AN IL CHATURVEDI) JUDICIALMEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD