SUDHIR AJIT JAIN( PROP OF M.S, JAYNA AUTO AGENCIES), MUMBAI V. ITO 25(2)3, MUMBAI

ITA 2465/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93198 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C W ANGOLKAR D R
• Keywords: Income from undisclosed sources; Additional evidence

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI A.D. JAIN, JM AND SHRI N.K. BILLAIYA, A M .. , . . , ./ I.T.A. NO. 2465 /MUM/2013 ( / ASSESSMENT YEAR : 2009-10 SHRI SUDHIR AJIT JAIN, (PROP. OF M/S JAYNA AUTO AGENCIES), SHOP NO. 1/5, SUMER NAGAR CHS LTD., S.V. ROAD, BORIVALI (W), MUMBAI 400 092. / VS. INCOME TAX OFFICER - 25(2)(3), MUMBAI.. ./ PAN : ADDPJ9670M ( ! / APPELLANT ) .. ( '# ! / RESPONDENT ) A PPELLANT BY SHRI VIMAL PUNMIYA R E SPONDENT BY : SHRI C.W. ANGOLKAR (D.R.) $ % & ' ( ) / DATE OF HEARING : 15-07-2015 *+,- ' ( ) / DATE OF PRONOUNCEMENT : 15-07-2015 [ . / O R D E R PER A.D. JAIN, J.M . : .. , THIS IS ASSESSEES APPEAL FOR A.Y. 2009-10. THE AS SESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.5,46,60,093/- ON ACCOUNT OF NET PROFIT OF THE PROPRIETARY BUSINES S OR- MIS JAYNA AUTO AGENCIES AS AGAINST DECLARED NET PROFIT OF THE ASSE SSEE AT RS. 4,69~604/-. ~ ITA 2465/M/13 2 2. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 7,74,771/- ON ACCOUNT OF AN AMOUNT IN THE CLOSING STOCK OF THE AS SESSEE AND THEREBY WRONGLY ALLEGED 1 AT THE SAID CLOSING STOCK OF RS.7 ,74,771/- IS UNDISCLOSED BY THE ASSESSEE. 3. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 5,55,000/- ON ACCOUNT OF LOW AND ADDED THE SAME TO THE TOTAL INCO ME OF THE ASSESSEE. 4. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 23,80,500/- ON ACCOUNT OF CASH DEPOSITS IN THE SAVING BANK ACCOUNT IN BANK OF BARODA AS INCOME FROM UNDISCLOSED SOURCES AND THEREBY TREA TED THE SAME AS SALES OF THE ASSESSEE AND THEREBY ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 5. THE LD. CIT(A) ERRED IN CONFIRMING CHARGING INTE REST U/S 234A, 234B, 234C OF THE I.T ACT, 1961. 6. THE LD. CIT(A) ERRED IN CONFIRMING INVOKING THE PENALTY U/S. 271(L)(C) OF THE LT. ACT, 1961. 2. THE ASSESSE HAS TAKEN THE FOLLOWING ADDITIONAL G ROUND OF APPEAL ALSO:- WHETHER AS PER FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THOUGH THE LD.CIT(A) REJECTED THE ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, HE ERRED IN NOT CONSID ERING THE EVIDENCE FURNISHED BY THE ASSESSEE IN EXERCISE OF THE POWERS CONFERRED ON HIM U/S 250(4) OF THE INCOME TAX ACT, 1961, IN ORDER TO CORRECTLY EXAMINE THE CLAIM OF THE ASSESSEE. 3. SO FAR AS REGARDS THE ADDITIONAL GROUND, THE LD. CIT(A) REMITTED THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE TO THE A. O. AS PER THE REMAND REPORT, THE A.O. STATED THAT ADMISSION OF EVIDENCE HAD NEVE R BEEN REFUSED TO THE ASSESSEE. THIS STAND OF THE A.O. WAS ACCEPTED BY TH E LD. CIT(A). THE ASSESSEE HAD SUBMITTED THAT HE HAD FALLEN ILL. IN THIS REGAR D, A MEDICAL CERTIFICATE DTD. 17.2.2013 FROM AN ORTHOPEDIC SURGEON HAD BEEN FILED . THE SURGEON CERTIFIED THAT THE ASSESSEE HAD REMAINED UNDER HIS TREATMENT FOR ACUTE PHD FROM 15-10-2012 AND THAT HE HAD ADVISED THE ASSESSEE COM PLETE BED REST FOR SIX WEEKS, WHEREAFTER, THE ASSESSEE HAD BEEN ADVISED TO WEAR L.S. BELT FOR THREE MONTHS. THE ASSESSEE ALSO FILED A COPY OF PRESCRIPT ION DATED 15.12.2010. THE LD. CIT(A) OBSERVED THAT WHEREAS THE MEDICAL ADVICE AS PER THE PRESCRIPTION WAS DTD. 15.10.2012, THE ASSESSMENT ORDER WAS PASSE D ON 28.10.11 AND THAT ITA 2465/M/13 3 SO, DURING THE PERIOD FROM AUGUST TO DECEMBER, 2011 , I.E., DURING THE ASSESSMENT PROCEEDINGS BEFORE THE A.O., THE ASSESSE E WAS NOT SUFFERING FROM ANY AILMENT. IT WAS, ON THIS BASIS, THAT THE LD. CI T(A) REFUSED TO ACCEPT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 4. BEFORE US, IT HAS BEEN SUBMITTED ON BEHALF OF TH E ASSESSEE THAT THE ASSESSEE IS EDUCATED ONLY UP TO CLASS VIII IN THE H INDI MEDIUM, AND IS NOT AWARE ABOUT THE INCOME TAX ACT/RULES; THAT THE YEAR UNDER CONSIDERATION IS THE FIRST YEAR WHEN SCRUTINY PROCEEDINGS WERE CARRI ED OUT; THAT ALL THE TAX RELATED MATTERS WERE HANDLED BY THE ACCOUNTANT OF T HE ASSESSEE, WHO WENT TO HIS NATIVE PLACE FOR A LONG PERIOD AND HAD TOLD THE ASSESSEE THAT HE WOULD RESPOND TO THE NOTICES AFTER RETURNING FROM HIS NAT IVE PLACE; THAT IT WAS DURING THIS PERIOD, THAT THE SCRUTINY PROCEEDINGS WERE CAR RIED OUT AND THE ASSESSEE REMAINED UNABLE TO PRODUCE THE EVIDENCE BEFORE THE A.O.; THAT THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) REMANDED THE MATTER TO THE A.O. TO EXAMINE THE EVIDENCE AND TO G IVE A FACTUAL FINDING; THAT, HOWEVER, IN THE REMAND REPORT, THE A.O. STATED THAT THE EVIDENCE FILED WAS NOT TO BE ALLOWED TO BE SUBMITTED; THAT THIS WAS IN SPI TEOF THE FACT THAT THE LD. CIT(A) HAD SPECIFICALLY DIRECTED THE A.O. TO EXAMIN E THE DOCUMENTS FILED BY THE ASSESSEE AND TO GIVE A FACTUAL REPORT; AND THAT ON REMAND, THOUGH THE A.O. ISSUED A NOTICE TO THE ASSESSEE ASKING FOR SPE CIFIC DETAILS, WHICH WERE DULY FILED BY THE ASSESSEE, THE ADMISSION OF THE EV IDENCE WERE OBJECTED TO BY THE A.O, WHICH OBJECTION WAS ILLEGALLY SUSTAINED BY THE LD. CIT(A). 5. THE LD. D.R., ON THE HAND, HAS PLACED STRONG REL IANCE ON THE IMPUGNED ORDER, CONTENDING THAT THE ASSESSEE HAD UTTERLY FAI LED TO MEET THE REQUIREMENTS OF RULES 46A OF THE INCOME TAX RULES, 1962 AND THAT, THEREFORE, THE LD. CIT(A) HAS RIGHTLY REJECTED THE REQUEST OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCE. ITA 2465/M/13 4 6. HAVING CONSIDERED THE MATTER IN THE LIGHT OF THE RIVAL CONTENTIONS AND THE MATERIAL PLACED ON RECORD, WE ARE OF THE VIEW T HAT PROCEEDINGS UNDER THE INCOME TAX ACT NOT BEING IN THE NATURE OF ADVERSARI AL PROCEEDINGS, FACTS AND CIRCUMSTANCES PERMITTING, THE RULES OF EVIDENCE ARE NOT TO BE APPLIED TOO STRICTLY TO SUCH MATTERS. IN THE PRESENT CASE, DESP ITE THE OBSERVATIONS MADE BY THE LD. CIT(A), THE FACT REMAINS THAT THE MATERI AL SOUGHT TO BE PLACED ON RECORD BY THE ASSESSEE GOES TO THE ROOT OF THE ADDI TION MADE AND, AS SUCH, IT REQUIRES TO BE EXAMINED BY THE TAXING AUTHORITIES I N ORDER TO ARRIVE AT THE CORRECT INCOME OF THE ASSESSEE. THEREFORE, THE ADD ITIONAL EVIDENCE FILED BY THE ASSESSEE IS ADMITTED AND THE MATTER IS REMANDED TO THE FILE OF THE A.O., TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, IN THE LIGHT OF THIS ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. THE ASSESSEE SHALL BE AFFOR DED ADEQUATE OPPORTUNITY OF HEARING AND THE ASSESSEE SHALL CO-OPERATE IN THE RE MAND PROCEEDINGS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2015 . ' *+,- $ /0 1 2 15-7-2015. + ' 3& SD/- SD/- (N.K. BILLAIYA) (A.D. JAIN ) ACCOUNTANT MEMBER /J UDICIAL MEMBER / $ & MUMBAI ; 1 DATED 22-7-2015 [ %.../ R.K. R.K. R.K. R.K. , SR. PS ITA 2465/M/13 5 ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '# ! / THE RESPONDENT. 3. $ E( () / THE CIT(A)- 32, MUMBAI 4. $ E( / CIT- CITY-= 21, MUMBAI 5. H%I 3 '(JK , ) JK- , / $ & / DR, ITAT, MUMBAI G BENCH 6. 3 L M & / GUARD FILE. ! ( / BY ORDER, # H( '( //TRUE COPY// )/(* + ( DY./ASSTT. REGISTRAR) , / $ & / ITAT, MUMBAI