Shri Rambadal Dhuman Yadav, Ahmedabad V. The Income Tax Officer, Ward-2(6), Baroda

ITA 1846/AHD/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2009 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD TALWANI
• Assessee Lawyers: ANIL R SHAH
• Keywords: Additional evidence; Reasonable cause; Tax effect
• Section: 143(3); 80G

Judgement Text

ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: JUSTICE P P BHATT, PRESIDENT AND PRAMOD KUM AR, VICE PRESIDENT] ITA NO. 1846/AHD/2014 ASSESSMENT YEAR: 2010-11 RAMBADAL DHUMUN YADAV ..................APPE LLANT B/46, PARTH HOUSING COMPLEX, NR. AKOTA GARDEN CHAR RASTA, BPC ROAD, AKOTA, BARODA [PAN : AAMPY 9110 D] VS. INCOME TAX OFFICER ............................ RESPONDENT WARD 2(6), BARODA APPEARANCES BY: ANIL R SHAH & KINJAL SHAH, FOR THE APPELLANT VINOD TALWANI, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 31.10.2018 DATE OF PRONOUNCING THE ORDER : 16.11.2018 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 28 TH MARCH 2014, PASSED BY THE LEARNED CIT(A)-II, BAROD A, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 144 OF THE I NCOME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2010-11. 2. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT IT IS A CASE IN WHICH THE IMPUGNED ASSESSMENT PROCEEDINGS WERE EX-PARTE PROCEEDINGS AND THE ASSESSMENT ORDER WAS FRAMED ON THE BASIS OF MATERIALS ON RECORD, AND YET THE ADDITIONAL EVIDENC ES IN SUPPORT OF THE CLAIMS OF THE ASSESSEE WERE DECLINED BY THE CIT(A) ON THE GROUND THAT THE ADDITIONAL EVIDENCES WERE FILED WITHOUT ANY APPLICATION FOR ADMITTING THE SAME AND WITHOUT CITING ANY REASONABLE CAUSE THAT PREVENTED HIM TO PRODUCE SUCH EVIDENCE B EFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT AS TH E ASSESSMENT WAS FRAMED EX-PARTE , DUE TO FACTORS BEYOND THE CONTROL OF THE ASSESSEE , IT WAS A FIT CASE IN WHICH THE ADDITIONAL EVIDENCES SH OULD HAVE BEEN ADMITTED BY THE ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 2 OF 9 LEARNED CIT(A). HE HUMBLY PRAYS THAT THE MATTER MAY KINDLY BE REMITTED TO THE FILE OF THE LEARNED CIT(A) FOR ADJUDICATION ON MERITS AFTER ADM ITTING THE ADDITIONAL EVIDENCES. AS REGARDS THE REASON AS TO WHY THESE EVIDENCES COULD NOT BE FILED IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED AN AFFIDAVIT WH ICH READS AS FOLLOWS:- AFFIDAVIT I THE UNDERSIGNED, SHRI RAMBADAL DHUMUN YADAV, AGED ABOUT 59 YEARS, RESIDING AT B-46, PARTH HOUSING SOCIETY, OPP. AKOTA GARDEN, AKOTA, BARODA STATE ON OATH AS UNDER: 1. THAT I AM ASSESSED TO INCOME-TAX SINCE LAST SE VERAL YEARS IN MY INDIVIDUAL CAPACITY DOING BUSINESS OF LABOUR SUPPLIES AND LABO UR RELATED CONTRACTS. 2. THAT FOR A.Y.2010-11, RETURN OF INCOME WAS FI LED ON 29-9-2010 DECLARING TOTAL INCOME AT RS.6,12,540/- TO THE INCOME-TAX OFF ICER, WARD 2(6), BARODA AT PAN :AAMPY9110D. 3. THAT I AM A TECHNOCRAT AND KEEP EXTREMELY BUSY AND FULLY ENGAGED IN MY BUSINESS ACTIVITY AND HAVE TO DEPEND ON SERVICE OF OUTSIDING TO ATTEND TO MY INCOME-TAX AND ACCOUNTING MATTER WHOLLY AND FULLY A ND KEEP TRUST TOWARDS THEIR EXPERIENCE AS WELL AS THEIR BUSINESS ABILITY, DILIGENCE AND FAITH REGARDING THEIR ATTENDING TO ALL MY IMPORTANT MATTE R FOR TIME TO TIME BEFORE INCOME-TAX OFFICER AS WELL AS BEFORE COMM. OF INCOM E TAX (A) AND OTHER OFFICERS OF INCOME-TAX DEPARTMENT. 4. THAT I HAVE BEEN MAINTAINING REGULAR AND PROPER BOO KS OF ACCOUNTS DULY AUDIT U/S.44AB OF THE ACT AND FOR A.Y.2010-11 ALONG WITH RETURN OF INCOME AUDITED ACCOUNTS WERE FILED AND SUBMITTED TO THE AS SESSING OFFICER. 5. THAT THE INCOME-TAX OFFICER TOOK UP THE ASSES SMENT PROCEEDINGS INITIALLY ON 13-9-2011 AND THEREFORE AFTER PASSING OF CONSIDERAB LE TIME AO TOOK UP MY ASSESSMENT PROCEEDINGS IN HIS HANDS SOMETIME IN MON TH OF SEPTEMBER 2011 AND PROCEEDED TILL NOVEMBER 2012 ISSUING NOTIC E AS UNDER: SR. NO DATE OF NOTICE HEARING ON REMARK 1 U/S.143(2) 13-9-2011 THE NOTICE WAS RECEIVED AT THE OFFICE PREMISES OF THE APPELLANT HOWEVER COULD NOT BE DELIVERED TO THE APPELLANT AS ACCOUNTANT WAS SICK AND IT WAS LYING ON HIS TABLE. 2 U/S.143(1) 15-2-2012 29-2-2012 THE NOTICE WAS RECEIVED BY DRIVER OF THE APPELLANT AND IT WAS LYING AT ACCOUNTED TABLE AND HE WAS NOT ATTENDING OFFICE ON REGULAR BASIS ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 3 OF 9 3 U/S.143 (1) 2-8-2012 THE AUTHORISED REPRESEN TATIVE MR. NIMESH GANDHI CA DID APPEARED, HOWEVER CA NIMESH GANDHI IS NOT IN CONTACT WITH TH E APPELLANT AND ITS ASSOCIATES, AND ACCORDINGLY I AM NOT AWARE ABOUT THE DETAILS SU BMITTED BY HIM. 4 U/S.143 (1) 20-9-2012 THIS NOTICE WAS ALSO RE FERRED TO CA NIMESH GANDHI, HOWEVER CA NIMESH GANDHI IS NOT IN CONTACT WITH THE APPELLANT AND ITS ASSOCIATES AND ACCORDINGLY VERY DIFFICULT TO GET THE DETAILS FROM HIM.. 5 ON REQUEST OF CA 9-11-2012 THOUGH THE LETT ER WAS SUBMITTED BY CA HOWEVER COPY I S NOT AVAILABLE WITH APPELLANT. 6 SHOW CAUSE NOTICE 24- 1 2-2012 3-1-2013 THE LETTER WAS RECEIVED AND HAND OVER TO CA NAIMESH GANDHI HOWEVER DUE TO NON - AVAILABLE OF ACCOUNTANT DETAILS COULD NOT BE PROVIDED. 6. THAT FOR ASSESSMENT PROCEEDINGS, I HAD ENTRUSTE D THE MATTER TO CHARTERED ACCOUNTANTS SHRI NIMISH GANDHI TO ATTEND BEFORE THE ASSESSING OFFICER AS WELL AS TO SUBMIT IN PAPERS ON MY BEHALF IN SUPPORT OF THE INCOME AND FURTHER TO ALL QUERIES, RAISED DOING THE ASSESSMENT PROCEEDINGS. 7. THAT THE ASSESSING OFFICER PASSED AN EX-PARTY ORDER U/S.143 R.W.S.144 DATED 10-1-2013 AND I WAS SURPRISED AND SHOCKED TO RECEIV E THE SAME COMPUTING TOTAL INCOME AT RS.76,52,900/- MAKING VARIOUS ADDIT IONS TOTALLING TO RS.70,40,362/- RESULTING VERY HEAVY TAX DEMAND PAYA BLE BEYOND MY MEANS AND RESOURCES. 8. THAT THE AFORESAID HEAVY ADDITIONS SHOCKED ME AND UNNERVED ME AND I WAS COMPLETELY DISTURBED AND AT A LOSS AS TO HOW I SHOU LD PROCEED FURTHER IN THE MATTER AND NOT BEING VERY WELL VERSED WITH INCOME-T AX AND THE INCOME-TAX PROCEEDINGS, I WAS COMPLETELY, MENTALLY & PHYSICALL Y SHOCKED WITH REGARD TO VARIOUS ADDITION AND MORE PARTICULARLY THE FOLLOWIN G. (A) INTEREST DISALLOWED ON HOUSING LOAN OF - RS. 36,092/- (B) UNSECURED LOAN ADDED U/S.68 - RS. 23,43,705/- (C) UNDISCLOSED RECEIPT FROM SHIV PHARMA P. LTD.- R S. 24,22,305/- THAT THE ABOVE HIGHLY DISPUTED ADDITION WAS DONE DE SPITE MY GIVING FULL INFORMATION, EXPLANATIONS, DETAILS IN PROOF OF ABOV E ADDITIONS TO MY CHARTERED ACCOUNTANT SHRI NIMISH GANDHI I AM AT A L OSS AND NOT ON ACCOUNT OF ANY FAULT OF MINE AND NOW I CANNOT UNDERSTAND AS TO HOW AND WHY HE FAILED TO PRESENT THE DETAILS TO THE ASSESSING OFFI CER. 9. THAT DURING THE PROCEEDINGS BEFORE ASSESSING OFFICER AND DURING THIS PERIOD FROM TIME TO TIME AND PARTICULARLY TOWARDS THE COMP LETION OF PROCEEDINGS OF PASSING ORDER IN THE MONTH OF NOVEMBER/ DECEMBER MY ACCOUNTANT WAS KEEPING INDISPOSED HEALTH AND WAS GOING OUT OF TOWN ON ACCOUNT OF SOCIAL OCCASION AND NOT REGULARLY ATTENDING AND NOT SUPPLY ING INFORMATION TO MY CHARTERED ACCOUNTANT IN TIME. ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 4 OF 9 10. THAT DURING THE COURSE OF ASSESSMENT PROCEEDING S BETWEEN THE ABOUT TWO MONTHS PERIOD, ASSESSING OFFICER HAD ISSUED VARIOUS NOTICES TO WHICH I HAD MADE PARTIAL COMPLIANCES AS PER CHART REFERRED ABOV E AND WHATEVER DATA ASKED BY ASSESSING OFFICER WAS SUBMITTED TO HIM FOR HIS CONSIDERATION. 11. THAT IN EARLY AUGUST, 2012 MY CHARTERED ACCOUNT ANT SHRI NIMESH GANDHI HAD APPEARED BEFORE THE ASSESSING OFFICER AND AS PE R ORDER SHEET ENTRY RECORDED IN THE ASSESSMENT ORDER HE HAD SUPPLIED PA RTIAL DETAILS AND INFORMATION AS ASKED FOR. 12. THAT FURTHER IN NOVEMBER, 2012 AND ON 9-11-12 S INCE MY CHARTERED ACCOUNTANT SHRI NIMESH GANDHI ON ACCOUNT OF SOME PE RSONAL REASONS COULD NOT APPEAR BEFORE THE ASSESSING OFFICER AND H AD MADE AN APPLICATION FOR ADJOURNMENT. 13. THAT IN RESPONSE TO THE SHOW CAUSE NOTICE OF 24 -12-2012 FIXING THE HEARING ON 3-1-2013, I UNDERSTAND THAT PERSONALLY, DATA AND INFORMATION WERE DULY SUPPLIED THE RECORD OF WHICH IS NOT ON MY FILE, WHI CH IS ADMITTED WITH REGRET. 14. THAT ALONG WITH THE RETURN OF INCOME, TAX AUDIT REPORT, BALANCE SHEET ETC. WERE DULY FILED AND IN MY OPINION SUFFICIENT DATA A ND INFORMATION WERE BEFORE THE ASSESSING OFFICER SO AS TO COMPUTE THE TOTAL IN COME WITHOUT MAKING HUGE ADDITIONS IN ARBITRARY FASHION. 15. THAT THE ASSESSMENT WAS GETTING TIME BARRED IN MONTH MARCH OF 2013, AND I RESPECTFULLY SUBMIT THAT THE ASSESSING OFFICER CO ULD HAVE GIVEN ONE MORE OPPORTUNITY AND TO SHOW CAUSE NOTICE OF HIS INTENTI ON TO MAKE SUCH HUGE ADDITION NOT CONSIDERING FACTS OF THE CASE. 16. THAT BEING DISSATISFIED WITH THE ASSESSMENT PR OCEEDINGS AND VARIOUS ADDITIONS MADE THEREIN, I WAS ADVISED BY MY BUSINES S ASSOCIATES AND FRIENDS TO HANDOVER THE MATTER OF APPEAL TO SENIOR AND EXPERIENCED CHARTERED ACCOUNTANT OF BARODA WHO COULD UNDERSTAND AND APPRECIATE THE FACTS OF THE CASE AND GET JUSTICE TO ME FROM APPELL ATE AUTHORITY. 17. THAT AT THE TIME OF HEARING OF APPEAL BEFORE LD. CIT(A) AN APPLICATION ON 5- 7-2013 WAS FILED WITH PAPERS AND DOCUMENTS TO BE AD MITTED A ADDITIONAL EVIDENCE FOR REASONS MENTIONED THEREIN. 18. THAT ALONG WITH THE APPLICATION, I HAD SUBMITTE D FULL AND COMPLETE DATA AND INFORMATION IN RESPECT OF VARIOUS GROUNDS WHICH COU LD NOT BE FILED BEFORE THE ASSESSING OFFICER FOR REASONS STATED ABOVE. 19. THAT THE LD. CIT(A) FORWARDED THE ENTIRE PAPE R BOOK WITH THE EVIDENCE TO THE ASSESSING OFFICER ON 26-9-2013 FOR HIS COMMENTS AND REPORT. 20. THAT THE ASSESSING OFFICER SUBMITTED HIS REMA ND REPORT DATED 14-2-2014 ON ALL THE POINTS INCLUDING WITH REGARD TO ADDITION AL EVIDENCE. 21. THAT THE LD. CIT(A) FORWARDED THE REMAND REPORT TO ME, TO WHICH REJOINDER HAS BEEN FILED DATED 28-2-2014 BOTH ON POINT OF LAW AND ON POINT OF FACTS. ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 5 OF 9 22. THAT LD. CIT(A) IN HIS APPELLATE ORDER DATED 28-3-2 014, WHICH IS SUBJECT MATTER OF APPEAL BEFORE HON. TRIBUNAL, HAS MENTIONE D WITH REGARD TO THE ADDITIONAL EVIDENCES REJECTING DIE SOME STATING AS UNDER: 'CONSIDERING THE REMAND REPORT OF THE ASSESSING OFF ICER WHICH IS BASED ON INSPECTORS FIELD REPORT, THIS GROUND OF APPEAL I S DISMISSED'. 23. THAT WITH RESPECT, IT IS SUBMITTED THAT, I HA VE NOT ABLE TO FIND ANY MENTION OF INSPECTORS REPORT IN THE REMAND REPORT OF THE ASSES SING OFFICER AND THE REMARK OF THE LD. CIT(A) BE RECONSIDERED ON MERITS. 24. THAT PRESUMING WITHOUT ADMITTING THAT INSPECTO RS FIELD REPORT WAS GIVEN TO THE LD. CIT(A) I HAVE NOT BEEN GIVEN COPY OF SUCH R EPORT AND ALSO AN OPPORTUNITY TO CROSS EXAMINE THE INSPECTOR OF THE I NCOME-TAX DEPARTMENT AS PER PROVISIONS OF LAW 25. THAT I RESPECTFULLY SUBMI T THAT IN VIEW OF 'FACTS AND CIRCUMSTANCES OF THE CASE AND THE NEW EVIDENCE WHIC H IS SOUGHT TO BE ADMITTED TO THE CIT(A) GOES TO THE ROOT OF HEAVY AS SESSMENT, THE HON. TRIBUNAL BE KIND ENOUGH TO ADMIT ADDITIONAL EVIDENC E FOR CONSIDERATION. 25. THAT I HAVE BEEN SERIOUSLY EFFECTED FINANCIALLY AND THAT I AM SERIOUS IN CONTESTING HEAVY ADDITION AND TAX EFFECT THEREON AN D THAT I AM LAW ABIDING CONSCIOUS CITIZEN EAGER TO COOPERATE WITH THE INCOM E-TAX DEPARTMENT AND THAT I WAS NOT NEGLIGENT OR HAD NO MALAFIDE OR DISR EGARD TO THE PROVISION OF INCOME TAX ACT ON MY RESPONSIBILITY TO THE NATION. 26. THAT THIS AFFIDAVIT IS PREPARED TO BE PRESENTE D TO HON. INCOME-TAX APPELLATE TRIBUNAL, 'D' BENCH, IN LTA NO. 1846/AHD/2014 FOR A .Y.2010-11 WHAT IS STATED ABOVE IS TRUE TO THE BEST OF MY KNOW LEDGE AND INFORMATION. SOLEMNLY AFFIRMED AT VADODARA ON 6TH DAY OF NOVEMBE R, 2017. SD/- (RAMBADAL DHUMAN YADAV) 3. EVEN AS LEARNED DEPARTMENTAL REPRESENTATIVE RELI ED UPON THE STAND OF THE CIT(A), HE DID NOT SERIOUSLY OPPOSE THE PRAYER MADE BY THE ASSESSEE. HE, HOWEVER, PRAYED THAT THE ASSESSEE SHOULD BE DIRECTED TO ENSU RE THAT HE FULLY CO-OPERATES IN EXPEDITIOUS DISPOSAL OF THE APPEAL. 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT IT IS INDEED A F IT CASE IN WHICH THE ADDITIONAL EVIDENCES SHOULD HAVE BEEN ADMITTED AND THE MATTER SHOULD HAVE BEEN EXAMINED ON MERITS IN THE LIGHT OF ADDITIONAL EVIDENCES, PARTIC ULARLY AS THE ASSESSEE HAS NOT BEEN ABLE TO PRESENT HIS CASE BEFORE THE ASSESSING OFFIC ER. WHILE ON THIS ISSUE, WE MAY ALSO REFER TO A DECISION OF THE CO-ORDINATE BENCH IN THE CASE OF ITO VS. BAJORIA FOUNDATION, [2001] 117 TAXMAN 126 (CAL.), WHEREIN THE TRIBUNAL HAS OBSERVED AS FOLLOWS:- ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 6 OF 9 4. WE HAVE NOTICED THAT SOLE GRIEVANCE OF THE REV ENUE IS AGAINST VIOLATION OF RULE 46A BY THE LEARNED CIT(A) AND THAT THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT MADE ANY SUBMISSIONS ON MERI TS OF THE CASE. RULE 46A OF THE IT RULES 1962, PROVIDES THAT THE APPELLANT S HALL NOT BE ENTITLED TO PRODUCE BEFORE THE CIT(A) ANY EVIDENCE, WHETHER ORAL OR DOC UMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCE EDINGS BEFORE THE ASSESSING OFFICER EXCEPT IN FOLLOWING CIRCUMSTANCES : (A)WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT THE EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; OR (B)WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH WAS CALLED UPON TO BE PRODUCED BY TH E ASSESSING OFFICER, OR (C)WHERE THE APPELLANT WAS PREVENTED BY THE SUFFICI ENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR (D)WHERE THE ASSESSING OFFICER HAS MADE THE ORDER A PPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO A DDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. IN THE PRESENT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSMENT WAS DONE UNDER SECTION 144 OF THE IT ACT AND THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER WERE BASED ON INFERENCES DRAWN BY HIM. IT I S, THEREFORE, SETTLED FACT THE SUFFICIENT INQUIRIES WERE NOT CONDUCTED WITH REGARD TO THE CLAIMS MADE IN THE RETURN OF THE ASSESSEE AND THAT THE CASE WAS FIXED FOR HEARING ON ONLY TWO DATES I.E. ON 29-9-1993 AND ON 16-3-1994, ON WHICH THERE WAS NO COMPLIANCE. WE HAVE ALSO NOTICED THAT THE ASSESSEE HAS, IN FIRS T PARAGRAPH OF THE STATEMENT OF FACTS FILED BEFORE THE FIRST APPELLANT AUTHORITY , SUBMITTED THAT THE NOTICES FOR THESE TWO HEARINGS WERE NOT RECEIVED BY THEM. WE HA VE ALSO OBSERVED THAT FIRST HEARING WAS FIXED ON JUST A DAY BEFORE LIMITATION U NDER SECTION 143(2) WAS TO EXPIRE AND THEREAFTER NEXT DATE WAS FIXED SHORTLY B EFORE THE ASSESSMENT ITSELF WAS GETTING TIME-BARRED BETWEEN THESE TWO DATES, AS SESSMENT PROCEEDINGS DID NOT GET ANY ATTENTION FROM THE LEARNED ASSESSING OF FICER. WHEN THE ASSESSMENT ITSELF WAS DONE UNDER SECTION 144, THE ASSESSEE OBV IOUSLY DID NOT HAVE OPPORTUNITY OF PRODUCING THE EVIDENCE BEFORE THE AS SESSING OFFICER. ON THESE FACTS WE ARE OF THE VIEW THAT FILING OF ADDITIONAL EVIDENCE BEFORE THE CIT(A) WAS CLEARLY COVERED BY CLAUSE (C ) ABOVE. A VIEW MAY IN DEED BE TAKEN, AS TAKEN BY HONBLE GUJRAT HIGH COURT IN THE CASE OF CITV. VALI MOHD AHMED BHAI [1982] 27 CTR (GUJ.) 97 : [1982] 134 ITR 214 (GUJ.), THAT THE CIT(A) CANNOT ADMIT ANY ADDITIONAL EVIDENCE PLACED UNDER RULE 46A(1) UNLESS THE ITO HAS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXAMINE THE EVIDENCE, BUT IT IS NOT NECESSARY TO CONSIDER THAT ASPECT OF THE MATTER SINCE IN THE CAS E BEFORE US THE ASSESSING OFFICER NOT ONLY HAD AN OPPORTUNITY TO EXAMINE ALL THE EVIDENCE FILED BY THE ASSESSEE BUT, AVAILING THIS OPPORTUNITY, HE EVEN FI LED A REJOINDER ON THE SAME WHICH WAS DULY CONSIDERED BY THE LEARNED CIT(A). IN THIS REGARD, WE MAY HOWEVER REFER TO OBSERVATIONS OF SHRI G. KRISHNAMUR TY, THE THEN HONBLE PRESIDENT AND WHILE ARTICULATING VIEWS ON BEHALF OF JAIPUR BENCH OF THIS TRIBUNAL IN THE CASE OF ELECTRA (JAIPUR) (P.) LTD. V. IAC [1 988] 26 ITD 236 (DEL.), WHICH ARE REPRODUCED BELOW : ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 7 OF 9 'AFTER GOING THROUGH THE EVIDENCE PLACED BEFORE US, CONSIDERING THE FACTS OF THIS AND GOING THROUGH THE ORDERS OF THE AUTHORITIE S BELOW, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD NOT BE DISQUALIFIED FROM P RODUCING THIS EVIDENCE MERELY ON THE GROUND THAT THE EVIDENCE WAS NOT PLAC ED BEFORE AUTHORITIES BELOW. THE SOLE PURPOSE OF JUDICIARY AS OF THE REVE NUE 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 DISALL OWED MERELY ON THE GROUND THAT ASSESSEE WAS UNABLE TO LEAD PROPER EVID ENCE OR ON THE GROUND THAT EVIDENCE LEAD WAS OF SUCH A NATURE AS TO CREAT E 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, PROVES ASSESSEES CASE, THEN ASS ESSEE SHOULD NOT BE DENIED THE OPPORTUNITY. BUT ON THE OTHER HAND, IF T HE EVIDENCE LED TURNS OUT TO BE SPURIOUS, FABRICATED OR OF IRRELEVANT NATURE, SU CH CONSEQUENCE, AS PROVIDED UNDER THE LAW, WILL ENSURE. IT IS, THEREFORE, INCOR RECT TO SHUT OUT THE ASSESSEE IN THE PROCESS OF ADMINISTRATION OF JUSTICE FROM LEADI NG EVIDENCE TO PROVE ITS CASE. THE EARLIER INABILITY TO LEAD THE EVIDENCE SH OULD NOT BE HELD AGAINST THE ASSESSEE UNLESS IT IS KNOWN TO THE COURT OR SUGGEST ED TO THE COURT OR THERE WAS EVIDENCE TO THE SUSPECT THAT EVIDENCE WAS FABRI CATED. THERE IS NO SUCH SUGGESTION IN THIS CASE. WE ARE THEREFORE, OF THE O PINION THAT REQUEST OF THE LEARNED COUNSEL IS REASONABLE AND REQUEST MADE BY T HE DEPARTMENT FOR THE REFUSAL OF ITS ADMISSION IS NOT PROPER.....' 5. WE ALSO FIND THAT HONBLE ORISSA COURT IN THE CA SE OF B.L. CHOWDHURY V. CIT [1976] 105 ITR 371 (ORI.) HAVE OBS ERVED THAT BY THE VIRTUE OF SECTION 250 WIDE PROVISION HAS BEEN MADE CONFERRING JURISDICTION ON THE FIRST APPELLANT AUTHORITY TO MAKE SUCH INQUIRY AS HE DEEM FIT AND THAT CIT(A) DOES NOT EXCEED HIS JURISDICTION IF HE ASKS OR ALLOWED THE A PPELLANT TO FILE ADDITIONAL EVIDENCE IN THE MATTER HE THINKS FIT. HONBLE BOMBA Y HIGH COURT, IN THE CASE OF SMT. PRABHAVATI S. SHAH V. CIT [1998] 148 CTR (B OM.) 192 : [1998] 231 ITR 1 (BOM.), HAVE OBSERVED THAT RULE 46A DOES FETTER T HE RIGHT OF THE ASSESSEE TO PRODUCE EVIDENCE BUT IT DOES NOT RESTRAIN CIT(A)S POWERS UNDER SECTION 250(4) OR 250(5) OF THE IT ACT AND THAT THIS RULE APPEARS TO ENSURE THT EVIDENCE IS PRIMARILY LED BEFORE THE ASSESSING OFFICER. IN VIEW OF THIS JUDGMENT OF THE HONBLE A BOMBAY HIGH COURT, IF PRIMA FACIE AN INFORMATION IS NECESSARY TO EXAMINE THE CLAIM OF THE ASSESSEE, THE CIT(A) SHOULD CONSIDER T HE NECESSARY EVIDENCE IN EXERCISE OF HIS POWERS UNDER SUB-SECTIONS (4) AND ( 5) OF SECTION 250. IT IS TRITE THAT RULE HAVE TO BE FRAMED WITHIN THE SCOPE OF MAI N, PROVISION AND THAT A RULE, WHICH TRAVELS BEYOND OR IS INCONSISTENT WITH OR IS REPUGNANT TO THE PROVISIONS IN THE STATURE WILL BE ULTRA VIRES AND VOID. RULE 46A WAS INTRODUCED W.E.F. 1-4-1973 AND AS A RESULT OF INSERTION OF SECTION 295(2)(MM) IN THE IT ACT WHICH EMPOWERED BOARD TO PROVIDE FOR THE CIRCUMSTANCES IN WHICH, TH E CONDITION SUBJECT TO WHICH AND THE MANNER IN WHICH CIT(A) MAY PERMIT AN APPELL ANT TO PRODUCE AN EVIDENCE WHICH THE APPELLANT DID NOT PRODUCE OR WAS NOT ALLO WED TO PRODUCE BEFORE THE ASSESSING OFFICER. HOWEVER, THESE POWERS OF THE BOA RD, WHICH HAVE BEEN VESTED IN THEM FOR CARRYING OUT FOR THE PURPOSES OF THE AC T, HAVE TO BE EXERCISED IN SUCH A JUDICIOUS MANNER SO AS NOT TO MAKE ANY STATUTORY PROVISION REDUNDANT AND NUGATORY. THE RULES MADE IN EXERCISE OF THESE POWER S SHOULD ALSO NOT BE INTERPRETED IN SUCH MANNER AS TO NARROW DOWN, DILUT E OR CURTAIL THE STATUTORY POWERS, CONFERRED ON THE CIT(A), BY THE PROVISIONS OF SECTION 250(4) OR (5) OF THE ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 8 OF 9 IT ACT, 1961. THEREFORE, A HARMONIOUS INTERPRETATIO N OF SECTION 250, EVEN READ WITH RULE 46A, CANNOT BUT MEAN THAT IF FACTS OF A C ASE WARRANT THAT, BEFORE DISPOSAL OF ANY APPEAL, CIT(A) IS REQUIRED TO MAKE FURTHER INQUIRIES, EITHER ON HIS OWN OR THROUGH THE ASSESSING OFFICER HE IS NOT DENU DED OF THE POWERS TO DO SO BECAUSE OF THE PROVISIONS OF RULE 46A. 6. WE ARE CONSCIOUS TO THE ESTEEMED VIEWS OF HONBL E JURISDICTIONAL HIGH COURT THAT THERE HAS TO BE A REASONABLE EXPLANATION FOR N ON FILING OF SUCH ADDITIONAL EVIDENCE BEFORE THE ASSESSING OFFICER. HONBLE CALC UTTA HIGH COURT, IN THE CASE OF RAJ KUMAR SRIMAL V. CIT[1976] 102 ITR 525 (CAL.) , HAD NO OCCASION TO EXAMINE THIS ASPECT OF THE MATTER WHEREIN JUSTICE S ABYASACHI MUKERJEE (AS HE THEN WAS) OBSERVED : 'IT IS TRUE, AS CONTENDED BY THE COUNSEL OF THE ASS ESSEE, THAT AAC HAS VERY VIDE POWERS AND THE INTEREST OF THE SUBSTANTIAL JUS TICE HE CAN MAKE FURTHER ENQUIRY AND HE CAN ADMIT A NEW GROUND OF APPEAL. HE CAN ALSO GIVE DEDUCTIONS NOT CLAIMED BY THE ASSESSEE, AS WAS HELD BY THIS COURT IN THE CASE OF UNION COAL CO. LTD. V. CIT [1968] 70 ITR 45 (CAL .). IN THIS CASE, COUNSEL FOR THE REVENUE ALSO DID NOT DISPUTE THAT IN CERTAIN CI RCUMSTANCES THE AAC HAD JURISDICTION TO ADMIT NEW GROUNDS IF IT WAS NECESSA RY TO ADMIT NEW EVIDENCE. THE POINT IN THIS CASE IS NOT WHETHER THE AAC IS EN TITLED TO ADMIT THE NEW GROUND OR EVIDENCE EITHER SUO MOTU OR AT THE INVITA TION OF PARTIES. IN THIS, CASE, THIS IS APPARENT THAT THE AAC WAS NOT ACTING SUO MO TU IN ADDITIONAL EVIDENCE. IF AAC WAS ACTING ON BEING INVITED BY THE ASSESSEE, TH ERE MUST BE SOME GROUND FOR ADMITTING NEW EVIDENCE IN THE SENSE THAT THERE MUST BE SOME EXPLANATION OF SHOW THAT THE FAILURE TO ADDUCE EVID ENCE EARLIER SOUGHT TO BE ADDUCED BEFORE AAC WAS NOT WILFUL AND NOT UNREASONA BLE..... IF WITHOUT ANY EXPLANATION AT ALL, THE AAC ADMITS ADDITIONAL EVIDE NCE 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 ADDITIONAL EVIDENCE IN APPROPRIATE CASES BUT ADMISSION OF EVIDENCE AT THE INSTANCE OF AN APPELLANT WITHOUT ANY GROUND OR EXPLANATION WOULD NOT BE EXER CISING DISCRETION PROPERLY AND IN SUCH CASES THE APPELLATE AUTHORITY IS COMPET ENT, IN OUR OPINION, TO INTERFERE 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 W HICH HAS ALSO BEEN REFERRED TO IN ELECTRAS CASE, SUPRA. IN THE CASE BEFORE US, TH E ASSESSEES CLAIM BEFORE THE CIT(A) HAS BEEN THAT 'ADEQUATE OPPORTUNITY HAS NOT BEEN GIVEN FOR HEARING' AND THAT 'ORDER UNDER SECTION 144 IS NOT JUSTIFIED'. IT WAS IN THE BACKGROUND OF THESE FACTS THAT THE ASSESSEE SUBMITTED SOME FRESH EVIDEN CE IN THE SHAPE OF SECTION 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 ASSESSING OFFICER, ALONG WITH THE INCOME-TAX RETURN. IT IS ALSO NOT REVENUES CAS E 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, ADMITTANCE OF ADDITIONAL EVIDENCE BY THE CIT(A). 7. WE HAVE ALREADY EXPRESSED OUR VIEW, IN PARA. 4 A BOVE, THAT ON THE GIVEN FACTS, FILING OF ADDITIONAL EVIDENCE BEFORE THE CIT(A) WAS COVERED BY RULE 46A(1)(C) OF THE IT RULES, 1962. IN THE LIGHT OF THE SUBSEQUENT DELIBERATIONS, WE ALSO FIND THE ITA NO. 1846/AHD2014 RAMBADAL DHUMUN YADAV VS. ITO ASSESSMENT YEAR: 2010-11 PAGE 9 OF 9 CIT(A)S ADMISSION OF ADDITIONAL EVIDENCE WAS CLEAR LY WITHIN THE SCHEME OF POWERS VESTED IN HIM UNDER SECTION 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 EVIDENCE IN EXAMINE THE CL AIM OF THE ASSESSEE, THE CIT(A) SHOULD CONSIDER THE NECESSARY EVIDENCE IN EX ERCISE OF HIS POWER UNDER SECTION 250(4). IT IS SETTLED IN LAW THAT WHEN A ST ATUTORY AUTHORITY HAS THE POWERS TO DO SOMETHING, THEN IT HAS A CORRESPONDING DUTY T O EXERCISE SUCH POWERS WHENEVER CIRCUMSTANCES WARRANTING EXERCISE OF SUCH POWERS EXIST. THE CASE BEFORE US, IN OUR CONSIDERED VIEW, WAS A FIT CASE W HERE THE CIT(A) SHOULD HAVE EXERCISED HIS POWERS TO MAKE FURTHER INQUIRIES. WE, THEREFORE SEE NO LEGAL INFIRMITY IN CIT(A) PRECEDING ON MERITS OF THE CLAI M AND ADMITTING NECESSARY ADDITIONAL EVIDENCE FOR THAT PURPOSE. WE ALSO FIND SUPPORT FROM THE VIEW TAKEN BY A CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ELECTRA (JAIPUR) (P.) LTD., (SUPRA). 5. IN VIEW OF THE ABOVE DISCUSSIONS, AS ALSO BEARIN G IN MIND ENTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE F ILE OF THE LEARNED CIT(A) WITH THE DIRECTION TO ADMIT THE ADDITIONAL EVIDENCES AND ADJ UDICATE THE MATTER ON MERITS. WHILE DOING SO, THE LEARNED CIT(A) SHALL GIVE DUE AND FAI R OPPORTUNITY OF HEARING TO THE ASSESSEE, DECIDE THE MATTER IN ACCORDANCE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. WE ORDER SO. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 1 6 TH NOVEMBER, 2018 SD/- SD/- JUSTICE P P BHATT PRAMOD KUMAR (PRESIDENT) (VICE PRESIDENT) AHMEDABAD, THE 16 TH DAY OF NOVEMBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD