Dipak Dogamber Naik, Pune V. Deputy Commissioner of Income-tax,

ITA 2233/PUN/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1700 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 2233/PN/2013 %' ( ')( / ASSESSMENT YEAR : 2009-10 SHRI DIPAK DIGAMBER NAIK, PLOT NO. 41, S. NO. 48, PUNE EX-SERVICEMEN CO-OP. SOCIETY, PAUD ROAD, ERANDWANE, PUNE 411038 PAN : AANPN7399G ....... / APPELLANT ' / V/S. DCIT, CIRCLE-3, PUNE / RESPONDENT ASSESSEE BY : MS. DEEPA KHARE REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 06-06-2016 / DATE OF PRONOUNCEMENT : 08-06-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 30-09 -2013 FOR THE ASSESSMENT YEAR 2009-10. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS AN EX-SERVICEMAN. AFTER RETIREMENT FROM INDIA N NAVY, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROVIDING MAN POWE R SERVICES 2 ITA NO. 2233/PN/2013, A.Y. 2009-10 RELATED TO HOUSEKEEPING AND SECURITY SERVICES. THE ASSE SSEE IS ALSO ENGAGED IN RUNNING TRAINING CENTRE IN THE NAME OF DDA T RAINING SOLUTION FOR IMPORTING TECHNICAL TRAINING. APART FROM THE A BOVE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SALE AND PURCHAS E OF SECOND HAND PRE-OWNED CAR UNDER TRADE NAME MILLENNIUM MOTOR M ALL. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESS MENT YEAR ON 28-10-2009 DECLARING TOTAL INCOME OF ` 27,42,790/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND ACCO RDINGLY NOTICE U/S. 143(2) WAS ISSUED TO THE ASSESSEE ON 08-09-2010. D URING THE COURSE OF SCRUTINY ASSESSMENT, THE ASSESSING OFFICER ASKED FOR VARIOUS DETAILS AND DOCUMENTS. DESPITE THE FACT THAT SEVERAL OPPORTUNITIES WERE GRANTED TO THE ASSESSEE BY THE ASSESSING OFFICER, THE AS SESSEE COULD NOT FURNISH THE DETAILS/INFORMATION/DOCUMENTS/BOOKS AS SOUGHT BY THE ASSESSING OFFICER. THE ASSESSING OFFICER WAS CONSTRAINED TO PASS ASSESSMENT ORDER U/S. 144(1) R.W.S. 145 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). AGGRIEVED BY THE ASSESSMENT ORDER DATED 24-12-2011, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). DURING THE FIRST APPELLATE PROCEEDINGS THE ASSES SEE FILED AUDIT REPORT AND VARIOUS OTHER DOCUMENTS IN SUPPORT OF HIS SUBMISSIONS. THE COMMISSIONER OF INCOME TAX (APPEALS) SOUGH T REMAND REPORT FROM THE ASSESSING OFFICER ON THE DOCUMENT S FURNISHED BY THE ASSESSEE. IN THE REMAND REPORT THE ASSESSING OFFICER STRONGLY OBJECTED TO FURNISH OF THE FRESH EVIDENCE IN VIOLATION OF RUL E 46A OF THE INCOME TAX RULES, 1962. THE COMMISSIONER OF INCOME TAX (A PPEALS) REJECTED THE REQUEST OF THE ASSESSEE FOR ADMISSION OF TH E ADDITIONAL EVIDENCE AND PROCEEDED TO DECIDE THE APPEAL ON MERITS. THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER DIS MISSED 3 ITA NO. 2233/PN/2013, A.Y. 2009-10 THE APPEAL OF THE ASSESSEE IN TOTO. AGAINST THE ORDER OF FIRST APPELLATE AUTHORITY THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. MS. DEEPA KHARE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS DECIDED THE APPEA L OF THE ASSESSEE ON MERITS WITHOUT CONSIDERING THE ADDITIONAL EVIDE NCE FILED BY THE ASSESSEE. THE ASSESSEE HAD EXPLAINED AND FILED AFFIDAVIT IN SUPPORT OF REASONS FOR NOT FURNISHING THE DOCUMENTS/INFORMATION/BO OKS AT THE TIME OF ASSESSMENT PROCEEDINGS. THE LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE ASSESSEE IS MAINTAINING REGULAR BOOKS OF ACCOUNT WHICH ARE DULY AUDITED U/S. 44AB OF THE ACT. THE ASSE SSEE COULD NOT FURNISH THE REQUISITE INFORMATION/DOCUMENTS BEFORE THE ASSE SSING OFFICER AS THE COUNSEL FOR THE ASSESSEE WHO HAD POSSESSIO N OF THE DOCUMENT HAD GONE OUT OF INDIA AT THAT POINT OF TIME. THE ASSESSEE HAD ENGAGED A NEW COUNSEL, IN THE ABSENCE OF COMPLETE INFORMA TION AND DOCUMENTS, THE ASSESSEE COULD NOT PRODUCE THE REQUISITE INFORMATION/DOCUMENTS BEFORE HE ASSESSING OFFICER. THE ASSE SSEE COULD OBTAIN AUDIT REPORT FROM THE OFFICE OF PREVIOUS COUNSE L ON 27-12-2011. HOWEVER, BY THAT TIME THE ASSESSMENT ORDE R WAS PASSED ON 14-12-2011. THE ASSESSEE FILED ALL THE RELEVANT DETAILS INCLUDING FINANCIAL STATEMENT, AUDIT REPORT, BANK STATEMENT, ETC. BEFO RE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THE SAME W ERE REJECTED BY THE COMMISSIONER OF INCOME TAX (APPEALS). THE ASSESSEE HAD FILED AN AFFIDAVIT CITING REASONS AND INABILITY TO PLACE ON R ECORD NECESSARY DOCUMENTS DURING THE COURSE OF ASSESSMENT P ROCEEDINGS. THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIAT E THE SAME AND REJECTED THE REASONS GIVEN BY ASSESSEE. THE LD. COUNSEL CONTENDED THAT IF AN OPPORTUNITY IS GRANTED TO THE ASSE SSEE TO PLACE ON RECORD THE ENTIRE SET OF DOCUMENTS AND REQUISITE INFORMAT ION WHICH THE ASSESSEE COULD NOT FURNISH BEFORE THE ASSESSING OFFICER IN THE FIRST 4 ITA NO. 2233/PN/2013, A.Y. 2009-10 INSTANCE THE ASSESSEE WOULD MEET ALL THE QUERIES OF THE A SSESSING OFFICER. PRODUCTION OF DOCUMENTS IN THE FIRST INSTANCE BEFORE THE ASSESSING OFFICER WAS BEYOND THE CONTROL OF ASSESSEE. TH E LD. COUNSEL FURTHER SUBMITTED THAT ON MERITS THE ASSESSEE HAS PRIMA FACIE GOOD CASE. 4. ON THE OTHER HAND SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ACTION OF COMMISSIONER OF INCO ME TAX (APPEALS) IN REJECTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE DURING THE FIRST APPELLATE PROCEEDINGS. THE LD. AR SUBMITTE D THAT THE ASSESSING OFFICER HAD GRANTED SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR FURNISHING THE NECESSARY INFORMATION/DOCUMENTS/BOOKS. HOW EVER, THE ASSESSEE CHOSE NOT TO FILE THE SAME BEFORE THE ASSESSING OFFICER. THE LD. DR PRAYED FOR DISMISSING THE APPEAL OF THE ASSESSEE AND U PHOLDING THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT DESPITE SEV ERAL OPPORTUNITIES GRANTED BY THE ASSESSING OFFICER THE ASSESS EE DID NOT FURNISH THE REQUISITE DOCUMENTS/INFORMATION SOUGHT BY THE ASSESSING OFFICER. BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) THE ASSESSEE HAD FURNISHED THE DOCUMENTS AND GAVE REASONS FOR NOT FU RNISHING THE INFORMATION/DETAILS/DOCUMENTS/BOOKS BEFORE THE ASSESSING OFFICER. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) ALTHOUGH SOUG HT REMAND REPORT FROM THE ASSESSING OFFICER ON THE DOCUMENT S FURNISHED BY THE ASSESSEE, HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE UND ER THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES. THE ASSES SEE HAS FILED A PAPER BOOK CONTAINING 285 PAGES BEFORE THE TRIBUNAL. THESE ARE THE 5 ITA NO. 2233/PN/2013, A.Y. 2009-10 DOCUMENTS WHICH WERE FILED BY THE ASSESSEE BEFORE THE CO MMISSIONER OF INCOME TAX (APPEALS). WE ARE OF THE CONSIDERED VIEW THAT THE EXPLANATION FURNISHED BY THE ASSESSEE FOR NON-FILING OF THE DOCUMENTS BEFORE THE ASSESSING OFFICER SEEMS TO BE BONAFIDE. BY NOT FILING THE DOCUMENTS BEFORE THE ASSESSING OFFICER, NO USEFUL PURPOSE W OULD HAVE BEEN SERVED FOR THE ASSESSEE. WITHOUT GOING INTO THE ME RITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REM IT THE FILE BACK TO THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DECIDE THE MATTER AFRESH AFTER CONSIDERING THE DOCUMENTS FURNISHED BY THE A SSESSEE, IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE IMPUGNED ORDER IS SET ASIDE AND T HE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 08 TH DAY OF JUNE, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 08 TH JUNE, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE