Income Tax Officer, Bangalore V. Smt.Tara Jain, Bangalore

ITA 1729/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5460 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 03-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RENUGADEVI JT
• Assessee Lawyers: H N KHINCHA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.1729/BANG/2016 ASSESSMENT YEAR : 2012-13 THE INCOME TAX OFFICER, WARD 7(2)(1), BENGALURU. VS. SMT. TARA JAIN, NO.151/14, 36 TH CROSS, 7 TH BLOCK, JAYANAGAR, BENGALURU 560 011. PAN: AFBPJ 1358J APPELLANT RESPONDENT APPELLANT BY : MS. RENUGADEVI, JT.CIT(DR) RESPONDENT BY : SHRI H.N. KHINCHA, CA DATE OF HEARING : 27.04.2017 DATE OF PRONOUNCEMENT : 28.04.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST T HE ORDER OF CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED CIT(A) IS OPPOSED TO L AW AND FACTS OF THE CASE. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN LAW IN ADMITTING FRESH EVIDE NCES/PROOF SUBMITTED BY THE ASSESSEE WITHOUT PUTTING FORTH THE SAME BEFORE THE AO FOR COMMENTS AND FOR VERIFYING T HE ITA NO.1729/BANG/2016 PAGE 2 OF 4 GENUINENESS AS REQUIRED UNDER RULE 46(A)(3) OF THE INCOME-TAX RULES? 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT (A) IS JUSTIFIED IN LAW IN NOT ASCERTAINING THE CREDIT WORTHINESS OF THE LOAN CREDITOR, THOUGH THE SAID PA YMENT IS RECEIVED IN THE FORM OF A CHEQUE? 4. WHETHER THE CIT(A) WAS JUSTIFIED IN LAW IN NOT APPLYING THE SECTION 68 OF THE I. T. ACT, WHEREIN ANY SUM IS FOUND CREDITED IN ASSESSEE'S BOOKS OF ACCOUNTS FOR THE PREVIOUS YE AR AND THE ASSESSEE OFFERS NO EXPLANATION OF THE NATUR E AND SOURCE OF SUCH INCOME? 5. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED A T THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE CIT( A) IN SO FAR AS IT RELATES TO THE ABOVE GROUNDS MAY BE REVERSED AND TH AT OF THE ASSESSING OFFICER MAY BE RESTORED. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR DELETE ANY OF THE GROUNDS MENTIONED ABOVE. 2. DURING THE COURSE OF HEARING, THE LD. DR HAS IN VITED OUR ATTENTION THAT BEFORE THE AO, THE ASSESSEE HAS NOT FILED THE CONFIRMATION OF MR. TEJRAJ GULECHA AND THE AO HAS MADE THE ADDITION OF RS.50 L AKHS LOAN RECEIVED FROM HIM. BEFORE THE CIT(APPEALS), THE ASSESSEE HA S FILED THE CONFIRMATION LETTER WHICH WAS TAKEN INTO ACCOUNT BY THE CIT(A) W HILE DELETING THE ADDITIONS, WITHOUT CONFRONTING THE SAME TO THE AO. THEREFORE, THERE IS A VIOLATION OF THE PROVISIONS OF RULE 46A OF THE I.T. RULES. IN THE LIGHT OF THESE FACTS, THE ORDER OF CIT(APPEALS) HAS TO BE SET ASID E AND MATTER BE RESTORED TO HIM TO ADJUDICATE THE ISSUE AFRESH, AFTER CONFRO NTING THE ADDITIONAL EVIDENCE FILED BEFORE HIM TO THE AO. ITA NO.1729/BANG/2016 PAGE 3 OF 4 3. THE LD. AR INITIALLY DISPUTED THE CONTENTION OF THE REVENUE, BUT LATER ON HE HAS AGREED THAT LET THE MATTER BE SENT BACK T O THE LOWER AUTHORITIES FOR EXAMINATION OF THIS ASPECT. 4. HAVING CAREFULLY EXAMINED THE CONTENTIONS OF BOT H THE PARTIES, WE FIND THAT UNDISPUTEDLY THE ADDITIONAL EVIDENCE WAS CONSIDERED BY THE CIT(APPEALS) WITHOUT CONFRONTING THE SAME TO THE AO . THEREFORE, THERE IS A VIOLATION OF PROVISIONS OF RULE 46A OF THE I.T. RUL ES. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(APPEALS) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE ISSUE AFRESH, AFTER C ONFRONTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE TO THE AO AND AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF APRIL, 2017. SD/- SD/- ( A.K. GARODIA ) (SUNIL KUMAR YA DAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 28 TH APRIL, 2017. / D ESAI S MURTHY / ITA NO.1729/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.