Manoj Kumar Bang, Hyderabad V. JCIT, Range -4, Hyderabad

ITA 204/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66609 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 07-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M JAGDISH BABU
• Assessee Lawyers: AJAY GANDHI
• Keywords: Principle of natural justice; Additional evidence; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A. NO. 204/HYD/2012 ASSESSMENT YEAR 2008-09 SRI MANOJ KUMAR BANG HYDERABAD PAN: ACVPP8148B VS. JOINT COMMISSIONER OF INCOME- TAX, RANGE-4, HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI AJAY GANDHI RESPONDENT BY: SRI M. JAGDISH BABU DATE OF HEARING: 21.11.2012 DATE OF PRONOUNCEMENT: 20.12.2012 O R D E R PER CHANDRA POOJARI, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-V, HYDERABAD DATED 5.12.2011. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : A) THE ORDER OF THE CIT(A) IS IN GROSS VIOLATION OF TH E PROVISIONS OF LAW, HENCE IS BAD IN LAW. B) THE ORDER OF THE CIT(A) IS IN GROSS VIOLATION OF PR INCIPLES OF NATURAL JUSTICE, HENCE IS BAD IN LAW. C) THE CIT(A) HAS ERRED IN GIVING A FINDING THAT THERE IS ABSOLUTELY NO EVIDENCE REGARDING THE NATURE OF AGREEMENTS. D) THE CIT(A) HAS ERRED IN UPHOLDING THE REJECTION OF REVISED RETURN BY ASSESSING OFFICER. E) THE CIT(A) HAS ERRED IN UPHOLDING THE ASSESSMENT OF TOTAL INCOME AT RS. 6,35,72,690 3. BEFORE US THE ASSESSEE FILED THE FOLLOWING ADDITION AL EVIDENCE: A) CONTRACT BETWEEN NITCO TILES LTD., AND ASSESSEE DAT ED APRIL 18,2007. I.T.A. NO. 204/HYD/2012 SRI MANOJ KUMAR BANG =================== 2 B) CONTRACT BETWEEN MANTRI DEVELOPERS PVT. LTD. AND ASSESSEE DATED MAY 8, 2007. C) CONTRACT BETWEEN HOTEL LEELA VENTURE LTD. AND ASSES SEE DATED JUNE 12,2007. D) LETTER FROM MANTRI DEVELOPERS PVT. LTD. DATED MARCH 15, 2008. E) LETTER FROM MANTRI DEVELOPERS PVT. LTD. DATED SEPTE MBER 6, 2010. F) LETTER FROM LEELA LACE HOLDINGS PVT. LTD. DATED DEC EMBER 30, 2010. 4. HE ALSO FILED AN AFFIDAVIT EXPLAINING THE REASONS F OR NOT FILING THESE EVIDENCES BEFORE THE LOWER AUTHORITIES AS FOLLOWS: A) THE ASSESSEE WAS UNABLE TO PRODUCE AND FURNISH SOME OF THE DOCUMENTS AS THEY WERE MISPLACED AT THE TIME OF ASSESSMENT. B) DOCUMENTS DATED AFTER THE ASSESSMENT ORDER ARE EXTREMELY RELEVANT TO CONSIDER THE CORRECTNESS OF T HE CLAIMS OF THE ASSESSEE. C) THE ASSESSEE WAS PREVENTED FROM SUFFICIENT CAUSE, A ND DOES NOT BENEFIT BY NOT FURNISHING THE SAID DOCUMEN TS EARLIER. D) MERITS OF THE MATTER BECOMES SIGNIFICANTLY MORE IMP ORTANT THAN THE TECHNICALITIES AND CONSIDERATION OF THE EV IDENCE CAN ONLY HELP ARRIVE AT A FAIR AND JUST DECISION. 5. THE LEARNED AR SUBMITTED THAT THESE ADDITIONAL EVID ENCES ARE VERY IMPORTANT FOR DUE ADJUDICATION OF THE ASSESSEES AP PEAL AND THE SAME MAY BE ADMITTED. 6. THE LEARNED DR STRONGLY OPPOSED ADMISSION OF THE AD DITIONAL EVIDENCES. 7. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF ADMI TTING ADDITIONAL EVIDENCES. IN THIS CASE THE ASSESSEE FILED ORIGINA L RETURN OF INCOME ON 30.9.2008 DECLARING INCOME AT RS. 6,35,72,690. LAT ER THE ASSESSEE FILED A I.T.A. NO. 204/HYD/2012 SRI MANOJ KUMAR BANG =================== 3 REVISED RETURN OF INCOME DECLARING INCOME AT RS. 2, 99,44,890. THE ASSESSEE ALSO FILED THE RE-AUDITED FINANCIAL STATEM ENT ALONG WITH THE REVISED RETURN OF INCOME. BETWEEN THE TWO RETURNS OF INCOM E THERE WAS A DIFFERENCE OF RS. 3.36 CRORES IN THE PROFESSIONAL RECEIPTS SHO WN. FURTHER THE ASSESSING OFFICER FOUND SOME DIFFERENCE BETWEEN THE AMOUNT ME NTIONED IN THE TDS CERTIFICATE AND THE AMOUNTS DISCLOSED. ADMITTEDLY, THE ASSESSEE IS A CONSULTANT WHO WORKS WITH THE CLIENTS AND HELP THEM IN GETTING SANCTIONED THEIR INDUSTRIAL PARK APPLICATIONS. BEFORE THE LOW ER AUTHORITIES, THE ASSESSEE PLEADED THE REASONS FOR FILING THE REVISED RETURN O F INCOME AND THE SAME DID NOT FIND FAVOUR WITH THE LOWER AUTHORITIES. BEFORE US THE ASSESSEE FILED THE ABOVE ADDITIONAL EVIDENCES AS STATED IN PARA 3 AND EXPLAINED THAT EITHER THEY WERE MISPLACED OR FOUND AFTER COMPLETION OF AS SESSMENT. IN OUR OPINION, AS EXPLAINED BY THE ASSESSEE THESE EVIDENC ES GO TO THE ROOT OF THE ISSUE IN DISPUTE BEFORE US. 8. OSTENSIBLY, THE POWER OF THE TRIBUNAL IN TERMS OF S ECTION 29 TO ADMIT FRESH EVIDENCE ENTAILS AN ELEMENT OF DISCRETION WHI CH IS REQUIRED TO BE EXERCISED IN A JUDICIOUS MANNER. THE POWER OF THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCES IS NOT ONLY IN A SITUATION WHE RE THE EVIDENCE COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORITIES OWING TO L ACK OF ADEQUATE OPPORTUNITY BUT ALSO IN SITUATIONS WHERE THE FRESH EVIDENCE WOULD ENABLE THE TRIBUNAL TO PASS ORDER OR FOR ANY OTHER SUBSTANTIAL CAUSE. OF COURSE, THE POWER OF THE TRIBUNAL IS TO BE EXERCISED JUDICIOUSL Y AND FOR REASONS TO BE RECORDED. IN THE INSTANT CASE, AS SEEN FROM THE EV IDENCES PRODUCED BEFORE US AS ENUMERATED IN EARLIER PARAS, THE ASSESSEE HAS SUFFICIENT CAUSE NOT TO PRODUCE THE SAME BEFORE THE LOWER AUTHORITIES AS TH ESE ARE NOT AVAILABLE AT THAT TIME. THE FRESH EVIDENCES NOW BEING PRODUCED ARE VERY MUCH REQUIRED TO APPRECIATE THE FACTS OF THE CASE CORRECTLY AND T HE ADMISSION OF THE SAME IS VERY MUCH WITHIN THE REALM OF THE EXPRESSION FO R ANY OTHER SUBSTANTIAL CAUSE FOUND IN RULE 29 OF ITAT RULES. THEREFORE, THE SAID EVIDENCES PRODUCED BY THE ASSESSEE DESERVE TO BE ADMITTED IN THE INTEREST OF JUSTICE SO AS TO REMOVE OBSCURITY IN THE ORDER OF THE LOWER AUTHORITIES ON THE IMPUGNED ISSUE. I.T.A. NO. 204/HYD/2012 SRI MANOJ KUMAR BANG =================== 4 9. HAVING CONSIDERED THE NATURE OF DOCUMENTS AND CIRCU MSTANCES, WE FEEL IT APPROPRIATE TO REMIT THE SAME TO THE LOWER AUTHORITIES. THE LOWER AUTHORITIES HAVE NO OCCASION TO CONSIDER THESE DOCU MENTS. AT ALL FAIRNESS, WE FEEL IT APPROPRIATE TO GIVEN AN OPPORTUNITY TO T HE ASSESSING OFFICER. ACCORDINGLY, WE REMIT THE ENTIRE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE SAME AND ADJUDICATE THEREUPON AFRESH I N THE LIGHT OF OUR OBSERVATIONS. AT THIS STAGE, WE ARE REFRAINING OUR SELVES FROM GOING INTO THE MERIT OF THE OTHER ISSUES RAISED BEFORE US. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DECEMBER, 2012. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 20 TH DECEMBER, 2012 TPRAO COPY FORWARDED TO: 1. SRI MANOJ KUMAR BANG, C/O. M/S. GANDHI & GANDHI, CHARTERED ACCOUNTANTS, 1002, PAIGAH PLAZA, BASHEERBAGH, HYDER ABAD-500063. 2. THE JT. COMMISSIONER OF INCOME-AX, RANGE-4, AAYA KAR BHAVAN, HYDERABAD. 3. THE CIT(A)-V, HYDERABAD. 4. THE CIT-IV, HYDERABAD. 5. THE DR B BENCH, ITAT, HYDERABAD.