ITO, New Delhi V. Smt. Durga Mohan Joshi, New Delhi

ITA 2404/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3816 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: PRAMOD PATANKA R
• Keywords: Set aside
• Section: 143(2); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 2404/DEL/2010 ASSESSMENT YEAR: 2006-07 INCOME-TAX OFFICER, VS. SMT. DURGA MOHAN JOSHI, WARD 32(3), F-11/29, NEW DELHI. LAJPAT NAGAR, NEW DELHI. (PAN:ADVPJ8575F) (APPELLANT) (RESPONDENT) APPELLANT BY: MS. Y. KAKKAR, SR .DR RESPONDENT BY: SHRI PRAMOD PATANKA R, CA ORDER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 15.03.2010 PASSED FOR ASSESSMENT YEAR 2006-07. THE REVENUE HAS TAKEN FIVE GROUNDS OF APPEAL. IN GROUND NO.5, IT HAS PLEADED THAT LEARNED CIT(APPEALS) HAS ENTERTAINED EVIDENCE IN VI OLATION TO MANDATORY CONDITIONS EMPLOYED IN RULE 46A OF THE INCOME-TAX R ULES, 1962. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED HER RETURN OF INCOME ON 28.3.2007, DECLARING TAXABLE INCOME AT RS .1,26,742. AN ASSESSMENT ORDER UNDER SECTION 144 OF THE ACT WAS P ASSED ON 13.12.2008 WHEREBY ASSESSING OFFICER HAS DETERMINED THE TAXABL E INCOME OF THE 2 ASSESSEE AT RS.55,26,740. ASSESSING OFFICER FOUND I NVESTMENT IN THE MUTUAL FUND AT RS.54 LACS WHICH REMAINED UNVERIFIED AND HE NCE HE MADE THE ADDITION. 3. DISSATISFIED WITH THE ACTION OF THE ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS ). SHE POINTED OUT THAT AS PER ASSESSMENT ORDER FIRST NOTICE WAS ISSUED UNDER SEC. 143(2) ON 22.10.2007 BUT ASSESSING OFFICER DID NOT CONDUCT ANY PROCEEDIN G UP TO FEBRUARY 2008. HE STARTED THE INVESTIGATION IN APRIL 2008 AND PASS ED THE ASSESSMENT ORDER IN DECEMBER, 2008. THE ASSESSEE SUBMITTED BEFORE THE L EARNED CIT(APPEALS) THAT THE NOTICES ISSUED BY THE ASSESSING OFFICER WE RE REMAINED UNCOMPLIED BECAUSE SHE HAS SHIFTED HER BASE FROM DELHI TO MUMB AI AFTER THE SUDDEN DEATH OF HER HUSBAND WHO WAS PRACTICING AS AN ADVOC ATE IN NEW DELHI. 4. LEARNED CIT(APPEALS) CALLED FOR VARIOUS DETAILS IN ORDER TO VERIFY THE INVESTMENT IN THE MUTUAL FUND. AFTER CONSIDERING TH OSE DETAILS, HE HAD DELETED THE ADDITION. LEARNED DR POINTED OUT THAT N O DOUBT LEARNED CIT(APPEALS) HAS POWERS TO CALL FOR ANY EVIDENCE UN DER SUB-RULE (4) OF RULE 46A OF THE RULES BUT THE CONDITIONS ENUMERATED IN S UB-RULE (3) WOULD COME IN THE WAY OF LEARNED FIRST APPELLATE AUTHORITY FOR CONSIDERING THAT EVIDENCE. THE EVIDENCE PERMITTED TO PRODUCE EITHER UNDER SUB-RULE (1) OR 3 SUB-RULE (4) COULD NOT BE USED UNLESS THE ASSESSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXAMINE THE EVIDENCE OR DOCUMENTS OR TO CROSS- EXAMINE THE WITNESSES PRODUCED BY THE ASSESSEE. ASS ESSING OFFICER HAS TO BE ALLOWED TO PRODUCE ANY EVIDENCE IN REBUTTAL. LEARNE D CIT(APPEALS) HAS NOT FOLLOWED THIS CONDITION, THEREFORE, HER ORDER DESER VES TO BE SET ASIDE. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER HAND WAS UNABLE TO CONTROVERT THIS CONTENTION RATHER HE AGREED FOR SETTING ASIDE THIS ISSUE TO THE FILE OF THE LEARNED CIT(APPEALS). 5. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. SUB-RULE(3) OF RULE 46A PROVIDES THAT THE LEARNED FIRST APPELLATE AUTHORITY SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS ASSESSING OFFICER HAS BEEN ALLO WED A REASONABLE OPPORTUNITY. IN PARAGRAPH NOS.4.2 AND 5, LEARNED CI T(APPEALS) HAS OBSERVED THAT VARIOUS EVIDENCE WERE PRODUCED AS PER HER DIRECTIONS AND ARE BEING TREATED AS ORIGINAL EVIDENCE AND NOT AN ADDIT IONAL EVIDENCE UNDER RULE 46A. WE ARE OF THE VIEW THAT FROM PERUSAL OF THIS F INDING, IT IS DISCERNIBLE THAT EVIDENCE WAS ENTERTAINED UNDER SUB-RULE (4) OF RULE 46A OF THE ACT AND CONDITION IMPOSED UNDER SUB-RULE(3) IS APPLICABLE T O THE EVIDENCE ALLOWED UNDER SUB-RULE (1), BUT IN OUR OPINION, LEARNED FIR ST APPELLATE AUTHORITY IS 4 NOT EXAMINING THE ISSUE FOR THE FIRST TIME RATHER, SHE IS DELIBERATING UPON THE ADDITION MADE BY THE ASSESSING OFFICER. THE ASSESS EE HAS NOT FILED ANY DOCUMENT BEFORE THE ASSESSING OFFICER. IT IS THE AS SESSEE WHO HAS FILED THE DOCUMENTARY EVIDENCE FOR EXPLAINING THE INVESTMENT IN THE MUTUAL FUNDS. LEARNED CIT(APPEALS) OUGHT TO HAVE GIVEN AN OPPORTU NITY TO THE ASSESSING OFFICER TO VERIFY THOSE DOCUMENTS AND TO PRODUCE EV IDENCE, IF ANY, IN REBUTTAL. THEREFORE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(APPEALS) AND RESTORE THIS ISSUE TO THE FILE OF THE LEARNED FIRST APPELLATE AUTHORITY FOR READJUDICATING THE ISSUES. LEARNED CIT(APPEALS) SHA LL AFFORD DUE OPPORTUNITY OF HEARING TO BOTH PARTIES I.E. THE ASSESSEE AS WEL L AS THE ASSESSING OFFICER. ASSESSEE WILL BE AT LIBERTY TO PRODUCE ANY EVIDENCE IN SUPPORT OF HER EXPLANATION. LEARNED FIRST APPELLATE AUTHORITY WOUL D GIVE DUE OPPORTUNITY TO THE ASSESSING OFFICER, ASSESSING OFFICER FOR SUB MITTING ANY EVIDENCE IN REBUTTAL TO THE EVIDENCE PRODUCED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 13.06.2011 SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13/06/2011 5 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR