Asstt. Commissione of Income Tax 1, Kanpur V. M/s. Sri Sai Drugs Distributors, Kanpur

ITA 191/LKW/2012

• Counselvise Citation: 19123714 RSA 2012
• Duration Of Justice: 2 year(s) 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-05-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 191/LKW/2012 ASSESSMENT YEAR: 2005 - 06 ASSTT. CIT - 1 KANPUR V. M/S SRI SAI DRUGS DISTRI BUTORS 25/25, KARACHI KHANA KANPUR PAN: AAUFS1934R (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ALOK MITRA, D.R. RESPONDENT BY: SHRI. RAKESH GARG, ADVOCATE DATE OF HEARING: 29 05 2014 DATE OF PRONOUNCEMENT: 10 0 6 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS, WHICH ARE AS UNDER: - 1 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.9,20,000/ - ON ACCOUNT OF INCENTIVE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 69 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 2 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.9,20,000/ - ON ACCOUNT OF INCENTIVE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 69 OF THE INCOME TAX ACT, 1961 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : BY ADMITTING ADDITIONAL EVIDENCE SUBMITTED DUR ING THE APPELLATE PROCEEDINGS IN CONTRAVENTION OF THE PROVISIONS OF RULE 46 A OF THE INCOME TAX RULES, 1962. 3 . THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - II, KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.49,572/ - ON ACCOUNT OF DEPREC IATION ON CAR, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SHOWING THAT ASSESSEE WAS NOT THE OWNER OF THE CAR. 4 . THAT THE ORDER OF THE LD. CIT (A) - II, KANPUR DATED 27.01.2012 NEEDS TO BE QUASHED AND THE ORDER PASSED BY THE ASSESSING OFFICER DATED 10.12.2007 TO BE RESTORED. 2 . DURING THE COURSE OF HEARING, THE LD. D.R. HAS INVITED OUR ATTENTION TO THE ORDER S OF THE LD. CIT(A) AND THE ASSESSING OFFICER WITH THE SUBMISSION THAT BEFORE THE AS SESSING OFFICER ASSESSEE HAS NOT FILED CONFIRMATORY LETTERS AND OTHER EVIDENCE DESPITE THE DIRECTION OF THE ASSESSING OFFICER ; WHEREAS THE ASSESSEE HAS FILED THE ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) H AS ADMITTED THE SAME WITHOUT CON FRONTING IT TO THE ASSESSING OFFICER. THEREFORE, THERE IS A VIOLATION OF PROVISIONS OF RULE 46A OF THE INCOME - TAX RULES, 1962. 3 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, HAS SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE RELEVANT EVIDENCE DURING THE COURSE OF HEARING BY THE FIRST APPELLATE AUTHORITY AND BEING CONVINCED WITH THE EXPLANATIONS /EVIDENCE FURNISHED BY THE ASSESSEE, THE LD. CIT(A) DELETED THE ADDITION. HE HAS ALSO PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A). 4 . HAVING GIVEN A THOUGHTF UL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO FURNISH CONFIRMATORY LETTERS AND OTHER RE LEVANT PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : EVIDENCE, BUT THE ASSESSEE COULD NOT FILE THE SAME. BEFORE THE LD. CIT(A) , ASSESSEE HAS FILED ADDITIONAL EVIDENCE WHICH WAS TAKEN INTO ACCOUNT BY THE LD. CIT(A) FOR ADJUDICATING THE IMPUGNED ISSUE WITHOUT CONFRONTING IT TO THE ASSESSING OFFICER. T HERE IS NOTHING IN THE LD. CIT(A)S ORDER WHEREFROM INFERENCE CAN BE DRAWN THAT THE LD. CIT(A) HAS EVER CONFRONTED THE ASSESSING OFFICER WITH THE ADDITIONAL EVIDENCE FILED BEFORE HIM OR CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER. MOREOVER, THE AS SESSEE COULD NOT LAY ANY EVIDENCE TO ESTABLISH THAT THE LD. CIT(A) HAS EVER CALLED REMAND REPORT FROM THE ASSESSING OFFICER ON THE ADDITIONAL EVIDENCE. THEREFORE, THE ADDITIONAL EVIDENCE ADMITTED BY THE LD. CIT(A) FOR ADJUDICATING THE IMPUGNED ISSUE IS IN GROSS VIOLATION OF THE PROVISIONS OF RULE 46A OF THE RULES. THEREFORE, THE ORDER OF THE LD. CIT(A) SUFFERS FROM ILLEGALITY, AS THE ADDITIONAL EVIDENCE WAS ADMITTED IN GROSS VIOLATION OF PROVISIONS OF RULE 46A OF THE INCOME - TAX RULES, 1962. WE, THEREFORE , SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH IN THE LIGHT OF EVIDENCE FILED BY THE ASSESSEE AFTER CONFRONTING THE SAME TO THE ASSESSING OFFICER. NEEDLESS TO MENTION HERE THAT THE LD. CIT(A) WILL ALSO AFFORD AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10.6.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH JUNE , 2014 JJ: 2905 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )