Sri, Bettaiah Ramaiah, Bangalore V. Income Tax Officer, Ward-3(2)(1), Bangalore

ITA 1898/BANG/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5507 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 22-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R RAMESH
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER S.P. NO. 57 /BANG/2018 & ITA NO. 1898 /BANG/201 7 ASSESSMENT YEAR : 20 12 - 13 SHRI BETTAIAH RAMAIAH, NO. 78, SRI MANJUNATHA NILAYA, SANJEEVINI NAGAR, MOODALAPALYA, NAGARBHAVI ROAD, BANGALORE 560 072. PAN: ADRPR 7798G VS. THE INCOME TAX OFFICER, WARD 3(2)(1), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI RAVISHANKAR, ADVOCATE REVENUE BY : SHRI B.R. RAMESH, JCIT (DR) DATE OF HEARING : 23 . 02 .201 8 DATE OF PRONOUNCEMENT : 26 . 0 2.201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; THE ASSESSEE HAS FILED THIS STAY PETITION SEEKING S TAY OF OUTSTANDING DEMAND OF RS. 41,78,640/-. 2. IN THE COURSE OF HEARING THE STAY PETITION, IT W AS SUBMITTED BY LD. AR OF ASSESSEE THAT PROPER COMPLIANCE COULD NOT BE MADE B Y THE ASSESSEE BEFORE THE AO AND BEFORE CIT (A), THE ASSESSEE PRODUCED AD DITIONAL EVIDENCE BUT CIT (A) DID NOT ADMIT THE ADDITIONAL EVIDENCE. HE SUBM ITTED THAT THE ADDITIONAL EVIDENCE GOES TO THE ROOT OF THE MATTER AND THEREFO RE, THE SAME SHOULD BE ADMITTED AND IF THE SAME IS ADMITTED, THE MATTER MA Y BE RESTORED BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AFTER CONSIDERIN G THE ADDITIONAL EVIDENCE AND IF THAT IS DONE, THE STAY PETITION WILL BECOME INFRUCT UOUS. THE LD. DR OF REVENUE SUBMITTED THAT IN VIEW OF RULE 46A OF IT RULES, THE ADDITIONAL EVIDENCE SHOULD NOT BE ADMITTED. S.P. NO. 57/BANG/2018 & ITA NO. 1898/BANG/2017 PAGE 2 OF 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IT IS NOTED BY CIT (A) IN PARA 6 OF HIS ORDER THAT THE ASSESSEE HAS FURNIS HED THE CONFIRMATIONS IN RESPECT OF LOAN CREDITORS AND THE SUNDRY CREDITORS ONLY ON 27.03.2015 AND IN SPITE OF DELAY IN FURNISHING THE RELEVANT DETAILS, THE AO HAD EXAMINED THE CONFIRMATION LETTERS BUT IT WAS OBSERVED BY THE AO THAT THE CONFIRMATIONS WERE RECEIVED FROM AGRICULTURISTS AND SUCH CONFIRMATION LETTERS DID NOT HAVE THE PAN. WE ALSO FIND THAT ADDITIONAL EVIDENCE WAS SUBMITTED BY THE ASSESSEE BEFORE THE CIT(A) BUT THE SAME WAS NOT ADMITTED BY CIT(A) BY S AYING THAT THERE IS NO SPECIFIC REQUEST FOR ADMISSION OF ADDITIONAL EVIDEN CE UNDER RULE 46A. WE ALSO FIND THAT AS PER GROUND NO. 3B RAISED BEFORE US, IT IS THE CLAIM OF THE ASSESSEE THAT CREDITS OF RS. 60,08,264/- OUT OF ADDITION U/S . 68 OF RS. 85,04,764/- WAS OPENING BALANCE AS ON 01.04.2011 AND THEREFORE, THE SAME CANNOT BE ADDED IN THE PRESENT YEAR U/S. 68. 4. ALTHOUGH THERE IS NO SUCH GROUND WAS RAISED BEFO RE CIT(A) AND THERE IS NO SUCH DECISION ON THIS ASPECT OF THE MATTER BUT STIL L, WE FEEL IT PROPER IN THE INTEREST OF JUSTICE THAT THE ENTIRE MATTER SHOULD G O BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER CONSIDERING THE ADDITIONAL EVI DENCE AND ALSO AFTER CONSIDERING THIS ASPECT OF THE MATTER AS TO WHETHER ANY PART OF THE AMOUNT ADDED U/S. 68 WAS NOT THE NEW CREDIT IN THE PRESENT YEAR BUT WAS OPENING BALANCE BECAUSE IF THIS CONTENTION IS CORRECT THEN NO ADDITION CAN BE MADE U/S. 68 IN THE PRESENT YEAR IN RESPECT OF OPENING BALANC E IN THE ACCOUNT OF THE CREDITORS. HENCE WE SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION AND WE DO NOT MAKE ANY COMMENT ON THE MERIT OF THE CASE. THE CIT(A) SHOULD DECIDE THIS APPEAL AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES AND AFTER ADMITTING THE ADDITIONAL EVIDENCE IF ANY FILED BEFORE HIM. T HE APPEAL OF THE ASSESSEE IS ALLOWED. IN VIEW OF THIS DECISIONAS PER WHICH WE H AVE DECIDED THE APPEAL OF THE ASSESSEE, THE STAY PETITION HAS BECOME INFRUCTU OUS AND DISMISSED ACCORDINGLY. S.P. NO. 57/BANG/2018 & ITA NO. 1898/BANG/2017 PAGE 3 OF 3 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES AND THE STAY PETITION FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 26 TH FEBRUARY, 2018. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.