M/S. A.K. YADAV, MUMBAI V. THE ITO 9(1)-4,

ITA 2647/MUM/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2690 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 29-06-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 15-04-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHWIN S CHHAG
• Assessee Lawyers: S K PAHAD
• Keywords: Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI `H BENCH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A.NO.2647/MUM/2008 - A.Y 1998-99 SHRI Y.K.YADAV, 4 TH HAJI KASAM CHAWL, PRABAT NAGAR, S.V.ROAD, DAHISAR [EAST], MUMBAI 400 068. PAN NO. AAAPY 1088 J VS. INCOME TAX OFFICER 9(1), MUMBAI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI ASHWIN S.CHHAG. ASSESSEE BY : SHRI S.K.PAHAD CIT. O R D E R PER T.R.SOOD, AM: IN THIS APPEAL VARIOUS GROUNDS HAVE BEEN RAISED, B UT AT THE TIME OF HEARING THE LD. COUNSEL OF THE ASSESSEE SUBMITTE D THAT THE ONLY DISPUTE INVOLVED IS WHETHER THE CIT[A] WAS JUSTIFIE D IN DISMISSING ASSESSEES APPEAL INSTEAD OF CONFRONTING THE AO WIT H THE ADDITIONAL EVIDENCE ON THE BASIS OF WHICH IN THE EARLIER ROUND ASSESSEES APPEAL WAS ALLOWED BY HER PREDECESSOR AND MATTER WAS REMAN DED BY THE TRIBUNAL TO CIT[A] FOR CONFRONTING THE ADDITIONAL E VIDENCE TO THE AO. 2. AFTER HEARING BOTH THE PARTIES, WE FIND THAT THI S MATTER HAD TRAVELLED UPTO THE TRIBUNAL EARLIER ALSO. CERTAIN A DDITIONS WERE MADE WHICH WERE DELETED BY THE CIT[A] AGAINST WHICH REVE NUE HAD FILED AN APPEAL WHICH WAS ADJUDICATED BY THE TRIBUNAL IN I.T.A.NO.1911/MUM/2003 VIDE PARA-2, WHICH IS AS UND ER: 2 2. WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE ORDERS PASSED BY THE ASSESSING OFFICER AND THE CIT[A]. IN OUR VIEW, THE MATTER NEEDS TO GO BACK TO THE CIT[A] FOR FRESH ADJ UDICATION OF ALL THE ISSUES RAISED BY THE DEPARTMENT. IT IS SEEN THAT TH E ASSESSING OFFICER HAD GIVEN SEVERAL OPPORTUNITIES TO THE ASSESSEE TO EXPLAIN THE DEPOSITS OF RS.3,50,000/- BUT THE ASSESSEE DID NOT GIVE THE REQUISITE INFORMATION TO THE ASSESSING OFFICER ON THE GROUND THAT HE WAS IN THE PROCESS OF COLLECTING THE INFORMATION. LD. CIT[A] H AS DELETED THE ADDITION AFTER ACCEPTING THE EVIDENCE AND EXPLANATI ON FILED BY THE ASSESSEE BEFORE HIM ON THE BACK OF THE ASSESSING OF FICER. SIMILAR IS THE CASE WITH REGARD TO OTHER ADDITIONS MADE BY THE ASSESSING OFFICER AND DELETED OR REPRODUCED BY THE CIT[A]. THE CIT[A] SHALL NOW RE-HEAR THE MATTER AND DECIDE ALL THE ISSUES AFRESH AFTER G IVING A REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. HE WILL CONSIDER THE ADMISSION OF ADDITIONAL EVIDENCE STRICTLY IN ACCORD ANCE WITH THE PROVISIONS OF RULE 46A OF THE I.T.RULES. 3. AGAINST THIS ORDER, THE ASSESSEE FILED A MISCELL ANEOUS APPLICATION BUT THE SAME WAS DISMISSED VIDE M.A.NO.357/MUM/2004 . ON THE BASIS OF THE ORDER OF THE TRIBUNAL, CIT[A] ISSUED NOTICES TO THE ASSESSEE ON VARIOUS OCCASIONS MOST OF WHICH WERE NOT ATTENDED A S PER DETAILS GIVEN IN PARA-5 OF CIT[A]S ORDER, WHICH IS AS UNDER: THE UNDERSIGNED ISSUED FOLLOWING NOTICES FOR HEARI NG TO THE APPELLANT. I) NOTICE DATED 31-102006 FOR HEARING ON 1-1-2007- NON ATTENDED II) NOTICE DATED 3-1-2007 FOR HEARING ON 18-01-200 7- NON ATTENDED III) NOTICE DATED 22-2-2007 FOR HEARING ON 23-3-08 APPELLANT TOOK ADJOURNMENT WITH THE PLEA THAT HE IS FILING MISCELL ANEOUS PETITION. IV) NOTICE DATED 25-7-2007 FOR HEARING ON 6-8-07 NONE ATTENDED V) NOTICE DATED 21-9-07 FOR HEARING ON 5-10-07 AP PELLANT AGAIN TOOK ADJOURNMENT. VI) NOTICE DATED 20-12-2007 FOR HEARING ON 17-1-07 NONE ATTENDED. 4. ULTIMATELY THE ISSUE WAS ADJUDICATED BY THE CIT[ A] VIDE PARA-6, WHICH IS AS UNDER: 6. ABOVE DETAILS CLEARLY SHOW THAT THE APPELLANT I S NOT INTERESTED IN PURSUING THE APPEAL. ON MERIT ALSO IT IS SEEN TH AT THE ITO HAS GIVEN CATEGORICAL FINDING IN THE ASSESSMENT ORDER THAT RE NT IS TAXABLE AT RS.1,44,000/-. ABOUT ADDITION OF RS.3 LAKH AS UNE XPLAINED CASH DEPOSITS IN THE BANK ACCOUNT AND RS.3,50,000/- AS U NEXPLAINED INCOME OF THE APPELLANT. NO EVIDENCE IS GIVEN TO TH E UNDERSIGNED WHICH CAN LEAD TO REVERSE THE FINDING OF THE ITO. I N VIEW OF THE ABOVE, 3 ADDITION MADE BY THE ITO IN THE ORDER FOR A.Y 1998- 99 ARE CONFIRMED AND APPEAL STANDS DISMISSED. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMI TTED THAT THE CIT[A] HAS MISGUIDED HERSELF BY ISSUING FRESH NOTIC ES TO THE ASSESSEE, BECAUSE THE REMAND PROCEEDINGS WERE NOT TO CONDUCT FRESH PROCEEDINGS BUT TO CURE THE LACUNA WHICH REMAINED I N EARLIER PROCEEDINGS BECAUSE OF RULE 46A. HE FURTHER ARGUED THAT CIT[A] NEVER CALLED THE AO AND CONFRONTED THE ADDITIONAL MATERIA L BEFORE HER ON THE BASIS OF WHICH IN THE REMAND ROUND RELIEF WAS GRANT ED. HE ALSO REFERRED THE FOLLOWING OBSERVATIONS OF THE HON'BLE GUJARAT H IGH COURT IN THE CASE OF CIT VS. VALIMOHMED AHMEDBHAI [134 ITR 215] : .NOTICE OF APPEAL CANNOT BE EQUATED WITH NOTICE OF A FUTURE APPLICATION TO LEAD ADDITIONAL EVIDENCE WHICH NO ON E COULD HAVE ANTICIPATED OR REASONABLY FORESEEN. ORDINARILY, THE APPEAL WOULD BE DECIDED ON THE EVIDENCE RECORDED IN THE COURSE OF A SSESSMENT PROCEEDINGS. THE ITO, THEREFORE, MAY NOT, IN A GIVE N CASE, THINK IT NECESSARY TO REMAIN PRESENT AT THE HEARING OF THE A PPEAL. HE, HOWEVER, CANNOT BE EXPECTED TO ANTICIPATE THE ADDIT IONAL EVIDENCE MIGHT BE PRODUCED BY THE ASSESSEE IN HIS APPEAL. IT IS FOR THIS REASON THAT IT IS NECESSARY TO GIVE HIM AN OPPORTUNITY TO MEET THE ADDITIONAL EVIDENCE. IN VIEW OF THE ABOVE, HE SUBMITTED THAT EARLIER ORD ER OF THE CIT[A] SHOULD BE RESTORED. 6. ON THE OTHER HAND, LD. DR SUBMITTED THAT ASSESSE E NEVER MADE ANY REPRESENTATION BEFORE THE AO AND UNLESS AND UNT IL ASSESSEE ATTEND THE PROCEEDINGS, AO CANNOT BE CALLED BECAUSE IF THE APPEAL HAD BEEN DECIDED IN THE ABSENCE OF THE ASSESSEE, EVEN THEN A SSESSEE WOULD AGITATE BY SAYING THAT OPPORTUNITY HAS NOT BEEN GIV EN. IN ANY CASE, IN 4 THE EARLIER ORDER OF THE TRIBUNAL DIRECTION WAS GIV EN TO GIVE FRESH HEARING TO BOTH THE PARTIES. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. WE FIND THAT ASSESSEE HAD ALSO NOT ATTENDED THE PROCEEDINGS IN S PITE OF VARIOUS NOTICES AND TO THAT EXTENT THE FAULT LIES WITH THE ASSESSEE. AT THE SAME TIME, CIT[A] HAS CONSIDERED THIS APPEAL AS A FRESH MATTER WHICH IS NOT CORRECT BECAUSE THE TRIBUNAL HAD REMITTED THE MATTE R FOR THE PURPOSE OF CONFRONTING THE ADDITIONAL MATERIAL FILED IN THE EARLIER ROUND BEFORE THE CIT[A]. THEREFORE, IN THE INTERESTS OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT[A] AND RESTORE THE MATTER BACK TO HE R FILE WITH A DIRECTION THAT AO SHOULD BE CONFRONTED WITH THE SO CALLED ADD ITIONAL MATERIAL AS POINTED OUT BY THE TRIBUNAL IN ITS EARLIER ORDER IN I.T.A.NO.1911/MUM/2003 AND THE ASSESSEE SHOULD ALSO BE GIVEN AN OPPORTUNITY OF HEARING. THE ASSESSEE IS DIRECTED TO CO-OPERATE IN THE PROCEEDINGS. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JULY, 2010. SD/- SD/- (V.DURGA RAO) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 2 ND JULY, 2010. P/-*