Mohd. Riyaz Gulam Rasul Lacewala, Surat V. The Income Tax Officer, Ward-9(3), Surat

ITA 1870/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9875 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N VEPARI
• Keywords: Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.1870/AHD/2013 / ASSTT. YEAR: 2008-2009 MOHD. RIYAZ GULAM RASUL LAC E WALA PROP. LUCKY STORES SHOP NO.L-1, KHAYBER PALACE SURAT 395 003. PAN : ABWPL 9079 K. VS. ITO, WARD - 9(3) SURAT. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI R.N. VEPARI, AR, REVENUE BY : SHRI PRASOON KABRA, SR.DR / DATE OF HEARING : 21/11/2016 / DATE OF PRONOUNCEMENT: 30 /11/2016 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-V, SURAT DATED 4.3.2013 PASSED FOR THE AS STT.YEAR 2008-09. 2. SOLITARY SUBSTANTIAL GRIEVANCE OF THE ASSESSEE I S THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.10,50,400/-. 3. THE ASSESSEE HAS SAVING BANK ACCOUNT WITH VIJAY BANK. THIS ACCOUNT WAS NOT DISCLOSED BY THE ASSESSEE TO THE DEPARTMENT . IT CAME TO THE NOTICE OF THE AO DURING THE COURSE OF SCRUTINY ASSESSMENT, AN D ON A PERUSAL OF THE BANK ACCOUNT IT REVEALED TO THE AO THAT A SUM OF RS.10,5 0,400/- WAS DEPOSITED IN CASH. THE AO HAS ENQUIRED SOURCE OF CASH FROM THE ASSESSEE. ACCORDING TO ITA NO.1870/AHD/2013 2 THE AO, A LETTER TO THIS EFFECT WAS ISSUED TO THE A SSESSEE ON 30.11.2010. THE ASSESSEE WAS ALSO ASKED TO SUBMIT DOCUMENTARY EVIDE NCE VIDE ORDER SHEET ENTRY. AFTER THIS INQUIRY, THE ASSESSEE DID NOT TU RN UP AND THE ASSESSMENT ORDER WAS PASSED EX PARTE . THE LD.AO HAS MADE ADDITION OF RS.10,50,400/-. 4. DISSATISFIED WITH THE ASSESSMENT ORDER, THE ASSE SSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(A). HE FILED AN APPLIC ATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962 FOR PERMISSION TO ADDUCE ADD ITIONAL EVIDENCE. THE LD.CIT(A) HAS REJECTED APPLICATION OF THE ASSESSEE AND ALSO CONCUR WITH THE CONCLUSIONS OF THE AO. BEFORE US, THE ASSESSEE HAS FILED AN APPLICATION FOR PERMISSION TO LEAD ADDITIONAL EVIDENCE. IT IS CONT ENDED IN THE APPLICATION THAT CASH WAS WITHDRAWN ON EARLIER OCCASIONS FROM OTHER ACCOUNTS, AND IT WAS DULY REFLECTED IN THE CASH BOOK. ALL THESE DOCUMENTS HA VE BEEN GIVEN TO THE ADVOCATE FOR PRODUCTION BEFORE THE AO. BUT HE FAIL ED TO SUBMIT THESE DOCUMENTS. THE ASSESSEE PRAYED THAT FOR SUBSTANTIA L CAUSE OF JUSTICE, HE BE PERMITTED TO PRODUCE EVIDENCE. 5. ON THE OTHER HAND, THE LD.DR CONTENDED THAT THE ASSESSEE HAS DELIBERATELY NOT SUBMITTED REQUISITE DETAILS, AND T HEREFORE, THE LD.CIT(A) HAS RIGHTLY DECLINED THE PRAYER FOR PERMITTING TO PRODU CE ADDITIONAL EVIDENCE. 6. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE CASE OF THE ASSESSEE IS THAT HE HAD SUFFICIENT CASH BALANCE WHICH REFLECTED IN THE CASH BOOK TO MAKE DEPOSITS I N THE VIJAY BANK. THE CASH WAS WITHDRAWN ON EARLIER OCCASION FROM OTHER A CCOUNTS, AND IT WAS DULY REFLECTED IN THE CASH BOOK. ALL THESE DOCUMENTS WH ICH SOUGHT TO BE PRODUCED AS ADDITIONAL EVIDENCES WERE GIVEN TO THE COUNSEL, BUT HE DID NOT PRODUCE THEM BEFORE THE AO. ON THE OTHER HAND, THE LD.DR S UBMITTED THAT THE ASSESSEE HIMSELF HAS ATTENDED THE PROCEEDINGS BEFORE THE AO AND WHEN THE LD.AO HAS DIRECTED HIM TO EXPLAIN THE SOURCE OF DEPOSITS IN V IJAY BANK, HE NEVER ITA NO.1870/AHD/2013 3 APPEARED BEFORE THE AO. IT APPEARS THAT HE HAS CON COCTED THE STORY. IN OUR OPINION, THERE CAN BE TWO ANGLES TO APPROACH THIS C ONTROVERSY VIZ. (A) THE LD.AO HAS GIVEN SUFFICIENT OPPORTUNITY AND THE ASSE SSEE DID NOT DISCLOSE THIS ACCOUNT IN THE RETURN AND FAILED TO SUBMIT THE EVID ENCE WHEN CALLED FOR. THEREFORE, THERE IS NO NEED TO PERMIT HIM TO LEAD A DDITIONAL EVIDENCE, (B) THE ASSESSEE HAS ANNEXED HIS AFFIDAVIT THAT HE HAS GIVE N DOCUMENTS TO HIS ADVOCATE AND THE TAX CONSULTANTS FAILED TO PRODUCE THEM. TH ERE IS NOTHING ON RECORD TO DOUBT THIS STATEMENT. THE LD.CIT(A) HAS OPTED FIRS T ANGLE WHICH IS IN THE LINE OF FOLLOWING PROCEDURE IN TECHNICAL MANNER. RULE 4 6A OF THE INCOME TAX RULES, 1962 AND RULE 29 OF INCOME TAX (APPELLATE) T RIBUNAL RULES 1963 AUTHORISED APPELLATE AUTHORITIES TO PERMIT THE PART IES TO LEAD ADDITIONAL EVIDENCE FOR SUBSTANTIAL CAUSE OF JUSTICE, WHICH MA Y HELP THE APPELLATE AUTHORITY TO DECIDE THE CONTROVERSY IN MORE JUSTIFI ABLE MANNER. IT IS ALSO APTLY SAID THAT FACTS SHOULD BE VIEWED IN NATURAL PERSPEC TIVE HAVING REGARD TO THE COMPULSION OF THE CIRCUMSTANCES OF CASE. WHERE IT IS POSSIBLE TO DRAW TWO INFERENCES FROM THE FACTS, THEN IT WOULD BE JUST AN D EQUITABLE TO DRAW SUCH INFERENCE IN SUCH MANNER THAT WOULD LEAD TO EQUITY AND JUSTICE UNLESS THERE WAS A DISHONEST OR IMPROPER MOTIVE AT THE END OF TH E ASSESSEE. IN THE PRESENT CASE, THOUGH THE ASSESSEE IS NOT POSSESSING ANY DEM ONSTRATIVE PROOF THAT HE HAS HANDED OVER THE PAPERS TO THE ADVOCATE IN TIME. EXCEPT HIS STATEMENT, HE HAS NOT WRITTEN ANY LETTER OR MADE ANY COMPLAINT AG AINST THE ADVOCATE. THUS, ASSUMING THAT THERE WAS SOME NEGLIGENCE AT THE END OF THE ASSESSEE IN PROSECUTING THE PROCEEDING BEFORE THE AO, THEN ALSO PUNISHMENT IN THE SHAPE OF TAX LIABILITY IS DISPROPORTIONATE TO THE NEGLIGE NCE. CONSIDERING TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE CANNOT ABSOLVE THE ASSESSEE FROM THE ALLEGATION OF UNNECESSARY DRAGGING THE LITIGATION I N THE SECOND ROUND. IN OUR OPINION, THE ENDS OF JUSTICE WOULD MEET IF WE IMPOS E A COST OF RS.5,000/- (RUPEES FIVE THOUSAND) UPON THE ASSESSEE FOR HIS NE GLIGENCE. THE ASSESSEE SHALL PAY A SUM OF RS.5,000/- WITHIN ONE MONTH FROM THE RECEIPT OF THIS ORDER. ITA NO.1870/AHD/2013 4 IN CASE THE ASSESSEE PAID THE COST AND FURNISH THE EVIDENCE TO THE AO, THEN THE LD.AO SHALL PERMIT THE ASSESSEE TO PRODUCE EVIDENCE IN SUPPORT OF HIS EXPLANATION. IN VIEW OF THE ABOVE, WE ALLOW THIS A PPEAL OF THE ASSESSEE AND SET ASIDE BOTH THE ORDERS OF THE REVENUE AUTHORITIE S. WE RESTORE THE ISSUE TO THE FILE OF AO FOR RE-ADJUDICATION. IN CASE THE AS SESSEE FAILED TO MAKE THE PAYMENT OF RS.5,000/-, WITHIN 30 DAYS, FROM THE REC EIPT OF THIS ORDER, THEN, THIS APPEAL WOULD BE DEEMED TO HAVE BEEN DISMISSED, AND THE AO WILL NOT ENTERTAIN ANY EXPLANATION OR EVIDENCE. 7. WITH THE ABOVE DIRECTIONS, THE APPEAL OF THE ASS ESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 30 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 30/11/2016