Santosh Bhartiya, New Delhi V. ITO, New Delhi

ITA 2349/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97972 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 10-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 10-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RICHA RASTOGI SENIOR
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reassessment proceedings

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.2349/DEL./2011 (ASSESSMENT YEAR : 2005-06) SHRI SANTOSH BHARTIYA, VS. ITO, WARD 23 (1), C-47, 1 ST FLOOR, GREATER KAILASH I, NEW DELHI. NEW DELHI 110 048. (PAN : AFDPB8543B) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL KUMAR GUPTA, FCA REVENUE BY : SMT. RICHA RASTOGI, SENIOR DR DATE OF HEARING : 10.11.2015 DATE OF PRONOUNCEMENT : 27.11.2015 O R D E R PER A.T. VARKEY, JUDICIAL MEMBER : THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS FI LED AGAINST THE ORDER OF CIT (APPEALS)-XXIII, NEW DELHI DATED 28.02.2011 FOR THE ASSESSMENT YEAR 2005-06. 2. AT THE OUTSET OF THE HEARING, THE LD. AR FOR THE ASSESSEE RAISED THE GROUND NO.4 OF GROUNDS OF APPEAL REGARDING NON-ADMI SSION OF ADDITIONAL EVIDENCES BY THE LOWER AUTHORITIES AND THE SAID GRO UND READ AS UNDER :- ITA NO.2349/DEL./2011 2 4. BOTH LD. CIT (APPEALS) AS WELL AS LD. ITO HAVE DEFIED THE PRINCIPLES OF NATURAL JUSTICE & EQUITY WHILE DENYIN G THE ADMISSION & DUE COGNIZANCE OF SO-CALLED ADDITIONAL EVIDENCES VIZ. AFFIDAVITS, ITR (S), BANK STATEMENTS ETC. OF D ONORS (PERTAINING TO RS.30 LAKHS ADDITION, WHICH WAS NOT SHOW-CAUSED EVEN DURING THE IMPUGNED RE-ASSESSMENT PROCEEDINGS) DURING THE COURSE OF FIRST APPELLATE PROCEEDINGS, AND, WHI LE SO DOING INSTEAD OF STATING THE MERITS & LOGICS FOR ADMISSIO N (OR NON- ADMISSION), THE COMMENTS UPON THE QUALITY OF ADDITI ONAL EVIDENCES HAVE BEEN MADE BY BOTH THE AUTHORITIES. LD. AR SUBMITTED THAT THE ADDITIONAL EVIDENCES FILE D BY THE ASSESSEE WERE NOT ACCEPTED BY THE LD. CIT (A) WHICH GOES TO THE ROOT OF THE ISSUES INVOLVED IN THE INSTANT APPEAL. HE SUBMITTED THAT THE COMMENTS OF THE AO WERE ASKED BY THE LD. CIT (A) ON THE ADDITIONAL EVIDENCES FURNISH ED BY THE ASSESSEE AND THE AO IN THE REMAND REPORT SUBMITTED THAT DURING THE C OURSE OF REASSESSMENT PROCEEDINGS THE ASSESSEE DID NOT SUBMIT THE DETAILS AS ASKED FOR EVEN AFTER TAKING ADJOURNMENTS. LD. AR FURTHER SUBMITTED THAT THE AR, IN HIS REJOINDER TO THE AOS REMAND REPORT BEFORE THE LD. CIT (A), S UBMITTED THAT THE AO HAD COMMENTED ON THE QUALITY OF THE SUFFICIENCY OF ADDI TIONAL EVIDENCE AND NO COMMENTS HAD BEEN MADE WITH REGARD TO THE PRIMA FAC IE ADMISSIBILITY OF THE SAME. HE, THEREFORE, PLEADED THAT THE LD. CIT (A) MAY BE DIRECTED TO ADMIT THE ADDITIONAL EVIDENCES AND THEN DECIDE THE ISSUES ON MERITS AND PRAYED THAT THE MATTER BE RESTORED TO THE FILE OF THE ASSESSEE. 3. ON THE OTHER HAND, LD. DR OPPOSED THE PLEA TAKEN BY THE LD. AR AND PLEADED NOT TO INTERFERE WITH THE ORDER OF THE AUTH ORITIES BELOW ON THIS ISSUE. ITA NO.2349/DEL./2011 3 4. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. IN R ESPECT TO ADMISSIBILITY OF ADDITIONAL EVIDENCE, THE FINDINGS OF THE LD. CIT (A) IS REPRODUCED BELOW :- (4) I HAVE CONSIDERED THE ISSUE OF ADMISSION OF ADD ITIONAL EVIDENCE AND IT IS SEEN THAT THE ASSESSING OFFICER HAS SPECIFICALLY RECORDED IN THE ASSESSMENT ORDER THAT DETAILS REGARDING THE CREDIT OF RS. 30 LAKHS IN ASSESSEE'S BANK ACCOUNT HAD BEEN CALLED FOR BUT NOT SUBMITTED DESPITE SUFFI CIENT OPPORTUNITIES GRANTED IN THIS REGARD. THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS HAS ALSO REITERATED THE SAME COMMENT ON THE ISSUE. THE AUTHORIZED REPRESENTATIVE HAS CLA IMED THAT THE REQUISITE DETAILS WERE NEVER ASKED AT THE RE-AS SESSMENT STAGE WHICH IS NOT BORNE OUT OF FACTS AS PER RECORD. IT I S CLEAR THAT THE NON SUBMISSION OF INFORMATION ASKED FOR IS NOT CAUS ED BY ANY REASONS BEYOND THE CONTROL OF THE APPELLANT. THE EV IDENCE SOUGHT TO ADMIT TO BE CONSIDERED AT THE APPELLATE S TAGE WAS CLEARLY AVAILABLE WITH THE ASSESSEE AND THEREFORE, SHOULD HAVE BEEN SUBMITTED BEFORE THE ASSESSING OFFICER TO ENAB LE HIM TO CARRY OUT NECESSARY VERIFICATION. AS SUCH, THERE IS NO CASE FOR ADMISSION OF ADDITIONAL EVIDENCE. WE FIND FROM THE SUBMISSIONS MADE BY THE LD. AR BEF ORE THE LD. CIT (A) THAT THE AO HAD NOT ASKED THE ASSESSEE FOR THE DETAILS R EGARDING IMPUGNED CREDIT OF RS.30 LAKHS, WHICH HAS NOT BEEN CONTROVERTED BY THE CIT(A) BY GOING THROUGH THE ASSESSMENT PROCEEDING WHEREIN, THE CORR ESPONDENCE, IF ANY, BETWEEN THE AO AND THE ASSESSEE, COULD HAVE THROWN LIGHT REGARDING THE SAID CONTENTION OF THE ASSESSEE. WITHOUT DOING THE SAID EXERCISE A BALD STATEMENT TO THE EFFECT THAT THIS CONTENTION IS NOT BORNE OUT OF FACTS CANNOT BE COUNTENANCED AND SO WE FIND THAT THERE WAS SUFFICIE NT REASON FOR THE ASSESSEE NOT TO PRODUCE THE SAID DETAILS BEFORE THE AO DURIN G REASSESSMENT. WE NOTE THAT THE AO HAD NOT MADE ANY COMMENTS WITH REGARD T O THE PRIMA FACIE ITA NO.2349/DEL./2011 4 ADMISSIBILITY OF THE SAME. WE ALSO FIND FORCE IN T HE SUBMISSIONS OF THE LD. AR THAT THE ADDITIONAL EVIDENCES ARE REQUIRED TO SUBST ANTIATE THE CLAIM OF THE ASSESSEE AND IT GOES TO THE ROOT OF THE ISSUES IN D ISPUTE. THEREFORE, WE ARE OF THE OPINION THAT THE NON-ACCEPTANCE OF THE ADDITION AL EVIDENCES BY THE LD. CIT (A) IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTIC E. THEREFORE, AFTER HEARING BOTH THE SIDES AND KEEPING IN VIEW THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, EQUITY AND PRINCIPLES OF NATURAL JUSTICE, WE DIRECT THE ASSESSEE TO FILE THE ADDITIONAL EVIDENCES FOR SUBSTANTIATING ITS CLA IM BEFORE THE LD. CIT (A) AND DIRECT THE LD. CIT (A) TO ACCEPT AND ADMIT THE SAME . ACCORDINGLY, WE RESTORE THE APPEAL OF THE ASSESSEE TO THE FILE OF THE LD. C IT (A) ON ALL THE ISSUES AND DIRECT THE LD. CIT (A) TO DECIDE THE APPEAL DE NOVO AFTER ADMITTING THE ADDITIONAL EVIDENCES, OF COURSE, AFTER PROVIDING AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF NOVEMBER, 2015. SD/- SD/- (N.K. SAINI) (A.T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27 TH DAY OF NOVEMBER, 2015 TS ITA NO.2349/DEL./2011 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) -XXIII, NEW DELHI . 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.