Sh. Arvind Kumar Nandal, Haryana V. ITO, Haryana

ITA 1639/DEL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6888 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: N K GOYAL
• Keywords: Depreciation; Opportunity of being heard; Additional evidence; Corroborative evidences

Judgement Text

ITA NO. 1639/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.S. REDDY, ACCOUNTANT MEMBER I.T.A. NO. 1639/DEL/2012 A.Y. : 2009-10 SHRI AR VIND KUMAR NANDAL, S/O SH. SUMER SINGH NANDAL, R/O : V.P.O. BOHAR, DISTT. ROHTAK (PAN: AHZPK9537A) VS. INCOME TAX OFFICER, WARD-4, SONEPAT HQ. AT ROHTAK, HARYANA (APPELLANT ) (RESPONDENT ) ASSESSEE BY : SH. N.K. GOYAL, CA DEPARTMENT BY : SH. K.K. JAISWAL, DR DATE OF HEARING: 28-01-2016 DATE OF ORDER : 05-02-2016 ORDER PER H.S. SIDHU, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ROHTAK DATED 21.02.2012 PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS. 34,66,289/- MADE BY THE AO, BEING C REDIT ENTRIES IN THE BANK STATEMENT OF THE ASSESSEE AS INCOME FROM O THER SOURCES, IGNORING THE FACT THAT THE ASSESSEE CARRYING ON BUS INESS U/.S 44AE OF PLYING HEAVY VEHICLES AND THERE ARE DEPOSIT AS W ELL AS WITHDRAWALS IN THE BANK STATEMENT FOR THE PURPOSE O F BUSINESS OF THE ASSESSEE AND INCOME SHOULD BE ESTIMATED ON THE BASIS OF PROVIVIIONS OF SECTION 44AE OF THE ACT. ITA NO. 1639/DEL/2012 2 2. THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY IGNO RING THE FACT THAT ADDITION OF RS. 34,66,289/- BEING TOTAL CREDIT ENTR IES IN THE BANK STATEMENT ALSO INCLUDES RETURNED INCOME OF RS. 21,0 000/- AND AGRICULTURE INCOME OFRS. 4,40,000/- AS SHOWN IN THE RETURN. 3. THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY UPH OLDING THE ADDITION OF RS. 4,40,000/- MADE BY THE AO, BEING AGRICULTURE INCOME DECLARED BY THE ASSESSEE DESPITE OF THE FACT THAT T HE ASSESSEE HAS SHOWING AGRICULTURE INCOME YEAR TO YEAR AND RETURNS WERE ACCEPTED BY THE DEPARTMENT AND FURTHER PRODUCE EVIDENCES IN HIS SUPPORT. 4. THE CIT(A) HAS ERRED IN LAW AND ON FACTS BY UPHO LDING THE ADDITION MADE BY THE AO, INSTEAD HE OUGHT TO HAVE PROVIDE JU STICE BY APPLYING GPINP RATE( AS APPLICABLE IN THE BUSINESS OF PLYING HEAVY VEHICLES) FOR DETERMINATION OF INCOME AND ALLOWING DEPRECIATION CLAIM, AS IT IS NOT DISPUTED THAT THE ASSESSEE OWNS 5 HEAVY VEHICLES AND CARRYING ON THE BUSINESS OF PLYING VEHICLES DUR ING THE YEAR. 5. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCE IN TERMS OF PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962 DESPITE OF THE FACT THAT THE ASSESS EE HAD DULY SUBMITTED THE APPLICATION UNDER PROVISIONS OF RULE 46A OF THE ACT WITH SUPPORTING EVIDENCES. 6. THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT ADMITTING THE ADDITIONAL EVIDENCE IN TERMS OF PROVISIONS OF RULE 46A OF THE INCOME TAX RULES, 1962 BY IGNORING THE FACT THAT APPELLANT WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE TO PRODUCE RELEV ANT DETAILS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL. 7. THE CIT (A) HAS ERRED IN LAW AND ON FACTS AND OU GHT TO HAVE ACCEPTED AND ADMITTED THE ADDITIONAL EVIDENCE FOR C ARRYING OUT THE ENDS OF THE JUSTICE. ITA NO. 1639/DEL/2012 3 8. THE CIT(A) HAS ERRED IN LAW BY NOT PROVIDING ANY OPPORTUNITY TO THE APPELLANT BEFORE REJECTING THE ADMITTANCE OF THE AD DITIONAL EVIDENCE UR/46A . 9. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING OFTHE.TAPP EAL, IF DEEMED NECESSARY, IN THE INTEREST OF JUSTICE AND EQUITY. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITIE S ARE NOT DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT BEING REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSESS EE REQUESTED FOR ANOTHER OPPORTUNITY OF BEING HEARD TO FILE THE PROPER APPLI CATION UNDER RULE 46A OF THE I.T. RULES, 1962. LD. DR HAS NOT RAISED ANY SERIOU S OBJECTION ON THE REQUEST OF THE LD. COUNSEL OF THE ASSESSEE. 4. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VI EW THAT THE LD. CIT(A) HAS REJECTED THE APPLICATION UNDER RULE 46A BY HOLDING AS UNDER VIDE PARA NO. 7 AT PAGE NO. 5OF THE IMPUGNED ORDER:- 7. I HAVE CONSIDERED THE ISSUE AND THE SUBMISSION S MADE BY THE AR ALONGWITH THE APPLICATION FOR ADMISSION OF ADDI TIONAL EVIDENCE. THE ONLY ADDITIONAL EVIDENCE SOUGHT TO BE PRODUCED WAS A PHOTO COPY OF AN ALLEGED LEASE AGREEMENT BY SH. RAM BHAJ REGARDING THE LEASE OF 10 ACRES OF LAND TO THE ASSESSEE. NO CASE HAS BEEN MADE OUT BY THE AR THAT THE ADMISSION OF THE ADDITIONAL EVIDENCE FALLS UNDER ANY FO THE FOUR PROVISIOS OF RULES 46A. IT C ANNOT BE ARGUED THAT THE ASSESSEE DID NOT HAVE THE LEASE AGREEMENT DATED 13.03.2007 TILL THE DATE OF COMPLETION OF ASSESSMEN T BY THE AO. IN VIEW OF THE ABOVE, THE ADDITIONAL EVIDENCE IS NOT A DMITTED IN TERMS OF THE PROVISIONS OF RULE 46A. ITA NO. 1639/DEL/2012 4 4.1 AFTER GOING THROUGH THE AFORESAID FINDING OF TH E LD. CIT(A), WE ARE OF THE VIEW THAT LD. CIT(A) HAS REJECTED THE APPLICATION OF THE ASSESSEE UNDER RULE 46A WITHOUT ANY COGENT REASONS. IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT APPLICATION FOR ADMISSION OF ADDITIONAL EVIDEN CE SHOULD BE ADMITTED BY THE LD. CIT(A), BECAUSE THE ADDITIONAL EVIDENCES AR E VERY MUCH ESSENTIAL TO DECIDE THE ISSUE IN DISPUTE. KEEPING IN VIEW OF THE ABOVE, WE SET ASIDE THE ISSUE IN DISPUTE TO THE FILE OF THE AO WITH THE DI RECTIONS TO DECIDE THE SAME AFRESH UNDER THE LAW, AFTER GIVING ADEQUATE OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. HOWEOVER, THE ASSESSEE THROUGH ITS AUTHO RISED REPRESENTATIVE IS DIRECTED TO FILE THE ADDITIONAL EVIDENCES, IF ANY, BEFORE THE AO, TO DECIDE THE SAME, AS PER RULES. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/2/2016. SD/- SD/- [J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 05-02-2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR