The DCIT, Circle-14, Ahmedabad V. Shri Pravin Naranbhai Patel, Ahmedabad

ITA 2408/AHD/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2167 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 27-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S N DIVATIA
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

ITA NO 2408 /AHD/2010 . A.Y. 2007- 08 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T. A. NO. 2408/AHD/2010 (ASSESSMENT YEAR:2007-08) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-14, AHMEDABAD (APPELLANT) VS. SHRI PRAVIN NARANBHAI PATEL 22, SILVER HOME, NR. SCIENCE CITY WATER TANK GALI, SOLA, AHMEDABAD (RESPONDENT) PAN: AGAOO 2018H APPELLANT BY : SHRI O.P. BATHEJA SR. D.R. RESPONDENT BY : SHRI S.N. DIVATIA. A.R. ( )/ ORDER DATE OF HEARING : 12-07-201 3 DATE OF PRONOUNCEMENT : 26 -07-2013 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-XXI, AHMEDABAD DATED 20.05.2010 FOR ASSESSMENT YEAR 2007 -08. 2. THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL WHO HAS DECLARED INCOM E UNDER THE HEAD SALARY. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2007-0 8 ON 31.07.2007 DECLARING TOTAL INCOME OF RS. 6,59,650/-. THE CASE WAS SELEC TED FOR SCRUTINY AND ITA NO 2408 /AHD/2010 . A.Y. 2007- 08 2 THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 31.12.2009 AND THE TOTAL INCOME WAS DETERMINED AT R S. 61,07,350/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESS EE CARRIED THE MATTER BEFORE CIT(A). CIT(A) VIDE ORDER DATED 20.05.2010 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF C IT(A) REVENUE IS NOW IN APPEAL BEFORE US. THE GROUNDS RAISED READS AS UNDE R: 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITIONS OF RS. 55,07,700/- MADE BY THE ASSESSING OFFICER BE ING UNEXPLAINED CASH OF RS. 1,45,000/-, UNDISCLOSED INCOME OF RS. 60,000 /- AND UNDISCLOSED INVESTMENT OF RS. 53,02,700/-. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN ENTERTAINING THE ADDITIONAL EVIDENCES AND SUBMISSIONS REGARDING UNEX PLAINED CASH, UNDISCLOSED INCOME AND UNDISCLOSED INVESTMENT WITHO UT GIVING OPPORTUNITY TO THE ASSESSING OFFICER, THUS VIOLATING RULE 46A O F THE INCOME-TAX RULES. 4. BEFORE US, THE LEARNED D.R. SUBMITTED THAT DURIN G THE COURSE OF APPELLATE PROCEEDINGS, ASSESSEE HAD FILED VARIOUS DOCUMENTS W HICH WERE NOT FILED BEFORE THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. HE FURTHER SUBMITTED THAT THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND THE ADDITIONAL EVIDENCE FURNISHED BEFORE HIM DECIDED THE MATTERS WITHOUT GIVING AN OPPORTUNITY T O ASSESSING OFFICER TO EXAMINE THE ADDITIONAL EVIDENCE. HE FURTHER SUBMIT TED THAT ON THE ADDITIONAL EVIDENCE FURNISHED BEFORE CIT(A), NO REMAND REPORT WAS CALLED FOR NOR ANY COMMENTS WERE OBTAINED FROM ASSESSING OFFICER. HE T HUS SUBMITTED THAT THE CONSIDERATION OF ADDITIONAL EVIDENCE WITHOUT GIVING AN OPPORTUNITY TO ASSESSING OFFICER TO EXAMINE THE SAME VIOLATES RULE 46 OF THE IT RULES. HE THUS URGED THAT THE MATTER BE SENT BACK TO CIT(A) B Y GIVING NECESSARY DIRECTIONS. ITA NO 2408 /AHD/2010 . A.Y. 2007- 08 3 5. THE LEARNED A.R. ON THE OTHER HAND DID NOT SERIO USLY OPPOSED THE PRAYER OF LEARNED D.R. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE ORDER OF CIT(A), WE FIND THAT ASSESSEE HAS SUBMITTED VARIOUS DOCUMENTS LIKE COPIES OF LEDGER, COPIES OF RETURN O F INCOME, STATEMENT OF INCOME, COPY OF SALE DEED OF LAND ETC. BEFORE CIT(A ). THE AFORESAID DOCUMENT WERE NOT SENT TO ASSESSING OFFICER BY CIT( A) NOR ANY COMMENTS FROM ASSESSING OFFICER WERE CALLED FOR. 7. RULE 46A(1) STIPULATES THE GROUNDS ON WHICH THE APPELLATE AUTHORITY CAN ALLOW ADDITIONAL EVIDENCE. SUB RULE (2) PROVIDES THAT TH E APPELLATE AUTHORITY WHILE ADMITTING SUCH EVIDENCE MUST RECORD ITS REASONS IN WRITING. SUB RULE (3) PROVIDES THAT NO EVIDENCE PRODUCED UNDER SUB RULE(1 ) SHALL BE TAKEN INTO ACCOUNT UNLESS THE ASSESSING OFFICER HAS BEEN GIVEN A REASONABLE OPPORTUNITY OF EXAMINING THE EVIDENCE OR DOCUMENTS PRODUCED OR PERMITTED TO CROSS EXAMINE THE WITNESSES EXAMINED OR PERMITTED T O PRODUCE ANY EVIDENCE OR DOCUMENT IN REBUTTAL TO THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. ONE OF THE CONDITIONS LAID DOWN IN RULE 46A IS THAT THE ASSESSEE IS ENTITLED TO SUBMIT ADDITIONAL EVIDENCE IF PROPER OPPORTUNITY IS NOT GIVEN BY THE ASSESSING OFFICER, DURING THE COURSE OF ASSESSMENT PROCEEDING S, BUT IN THAT CASE CIT(A) IS BOUND TO RECORD REASONS IN WRITING FOR ADMISSION OF SUCH ADDITIONAL EVIDENCE. IN THE PRESENT CASE SUCH EXERCISE HAS NOT BEEN DONE BY CIT(A). HE HAS ALSO NOT PASSED SPEAKING ORDER WITH REGARD T O NATURE OF ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE AND ITS CONTENTS NOR HAS HE OBTAINED ANY REMAND REPORT FROM THE ASSESSING OFFICER. CONS IDERING THE AFORESAID FACTS AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE MATTER SHOULD BE RESTORED TO THE FILE OF CIT(A). WE ACCORDINGLY RESTORE THE MATTER TO THE FILE OF CIT(A) WITH THE DIRECTION TO FOLLOW THE PROCEDUR E LAID DOWN IN RULE 46A OF THE INCOME TAX RULES WITH RESPECT TO THE ADDITIONAL EVIDENCE FILED BY ASSESSEE AND THEN RE-ADJUDICATE THE MATTER ON MERIT S AS PER THE PROVISIONS OF ITA NO 2408 /AHD/2010 . A.Y. 2007- 08 4 LAW AND TO PASS A SPEAKING ORDER THEREON. NEEDLESS TO SAY, THAT HE SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BOTH THE P ARTIES. THUS THIS GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 26 - 07- 2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT ,AHMEDABAD