Shri Rakesh Bansal, Khandwa V. THE DCIT CIRCLE, Khandwa

ITA 260/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5784 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 21-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence
• Section: 143(3)

Judgement Text

RAKESH BANSAL ITANO. 260/ IND/2015 AY:11-12 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER RAKESH BANSAL KHANDWA VS. DCIT CIRCLE KHANDWA APPELLANT RESPONDENT APPELLANT BY SHRI DEEPAK MANTRI RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 6.9.2016 DATE OF PRONOUNCEMENT 6.9.2016 O R D E R PER O.P. MEENA ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-II, INDORE [HEREINAFTER REFERRED TO AS THE CIT(A)] DATED 30.11 .2015 AND PERTAINS TO ASSESSMENT YEAR 2011-12 AS AGAINST APPE AL DECIDED IN ASSESSMENT ORDER U/S. 143(3) OF INCOME TAX ACT,1961( HEREIN AFTER REFERRED TO AS 'THE ACT) DAT ED 29.3.2014 OF ITO WARD 5(1) INDORE [HEREINAFTER REFE RRED TO AS THE AO]. I.T.A. NO. 260/IND/2016 ASSESSMENT YEAR: 2011-12 RAKESH BANSAL ITANO. 260/ IND/2015 AY:11-12 PAGE 2 OF 5 2. THE SUM AND SUBSTANCES OF THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IS THAT THE LEARNED CIT(A) WA S NOT JUSTIFIED IN NOT ALLOWING THE ADDITIONAL EVIDENCE F ILED BY THE ASSESSEE BEFORE HIM. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF STONE CRUSHI NG. THE ASSESSEE FILED THE RETURN OF INCOME ON 30.9.2011 DE CLARING TOTAL INCOME AT RS. 33,79,300/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT BY MAKING ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS AMOUNTING TO RS.16,28,684/- AND BANK DEPOSITS AMOUNTING TO RS.40,50,000/- WITH BANK OF INDIA ON THE GROUND OF NON- FURNISHING OF CONFIRMATIONS FROM THE CREDITORS AS A LSO ON THE GROUND THAT THE ASSESSEE FAILED TO EXPLAIN THE SOUR CE OF DEPOSITS, AS REQUIRED BY THE ASSESSING OFFICER. 4. THE ASSESSEE FILED APPEAL BEFORE THE LEARNED CIT (A) WITH ADDITIONAL EVIDENCES REQUESTING THAT THE SAME MAY BE ADMITTED AS PER RULE 46A OF THE INCOME TAX RULES. H OWEVER, THE LEARNED CIT(A) HAS UPHELD THE ADDITION MADE BY THE RAKESH BANSAL ITANO. 260/ IND/2015 AY:11-12 PAGE 3 OF 5 ASSESSING OFFICER BY OBSERVING THAT THE ASSESSEE HA S NOT MADE ANY APPLICATION UNDER RULE 46A OF THE INCOME T AX RULES. THE LEARNED CIT(A), THEREFORE, HELD THAT THE EVIDENCES FILED AT THIS LEVEL BY THE ASSESSEE ARE NOT MAINTAI NABLE. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED THAT THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS BY NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEED INGS. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDE RS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE LD. CIT(A) HAS NOT CONSID ERED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING T HE APPELLATE PROCEEDINGS. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRES SION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RI GHT TO PRESENT RAKESH BANSAL ITANO. 260/ IND/2015 AY:11-12 PAGE 4 OF 5 CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, D ISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDE RS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HO N'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNIO N OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ADDITIONAL EVIDENCES WERE NOT CONSIDERED BY THE LEA RNED CIT(A). THEREFORE, WE ARE OF THE VIEW THAT THE LEAR NED CIT(A) SHOULD CONSIDER THE ADDITIONAL EVIDENCES. THEREFORE , WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) WITH THE DIRECTION TO CONSIDER THE ADDITIONAL EVIDENCES FILED BEFORE H IM BY THE ASSESSEE AFTER PROVIDING PROPER OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. NEVERTHELES S TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APP EAL RAKESH BANSAL ITANO. 260/ IND/2015 AY:11-12 PAGE 5 OF 5 PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH H E WANTS TO RELY UPON. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (D.T.GARASIA) JUDICIAL MEMBER (O.P.MEENA) ACCOUNTANT MEMBER DATED :_6 TH SEPTEMBER, 2016. DN/- COPY FORWARDED TO:- 1. THE ASSESSEE/2. THE AO CONCERNED/3. THE LD. PCIT CONCERNED 4. THE LD. CIT(A)/5. THE LD. DR, INDORE/6. THE GUAR D FILE BY ORDER A.R. ITAT, INDORE