Income Tax Officer, Ward-2 (2), Panaji,Goa., Panaji V. M/s Sai Prasad Properties Pvt. Ltd., Panaji

ITA 286/PAN/2014

• Counselvise Citation: 28624114 RSA 2014
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHORE B PHADKE
• Assessee Lawyers: ASHA DESAI LD
• Keywords: Additional evidence; Reasonable cause; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P. K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO.214/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) M/S. SAI PRASAD PROPERTIES LTD. REGISTERED OFFICE NO. 402, 4 TH FLOOR , SAI PLAZA, OPP. GOMANTAK TIMES, PANAJI, GOA. VS. THE JT. COMMISSIONER O F INCOME TAX, RANGE - 2, PANAJI, GOA. (RESPONDENT) P AN: AAMCS2738N (APPELLANT) ITA NO.286 /PNJ/2014 (ASSESSMENT YEAR 2010 - 11) THE INCOME TAX OFFICER, WARD - 2(2), PANAJI, GOA. (APPELLANT) VS. M/S. SAI PRASAD PROPERTIES LTD. REGISTERED OFFICE NO. 402, 4 TH FLOOR, SAI PLAZA, OPP. GOMANTAK TIMES, PANAJI, GOA. PAN:AAMCS2738N (RESPONDENT) APPELL ANT BY : SHRI KISHORE B. PHADKE, CA. RESP ONDENT BY : SMT. ASHA DESAI , LD. DR. DATE OF HEARING : 28/08 /2014 DATE OF PRONOUNCEMENT : 26 /09 /2014 O R D E R PER: D.T. GARASIA THESE CROSS APPEALS HAVE BEEN FILED AGAINST THE ORDER OF CIT(A) - PANAJI DATED 19.06.2014 FOR THE ASSESSMENT YEAR 2010 - 11. 2. THE FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE. 1. THE LEARNED CIT(A) - PANAJI, ERRED IN LAW AND ON FACTS IN HOLDING THAT THE 271D PENALTY ORDER PASSED BY THE JCIT ON 29/01/2014 WAS BARRED BY LIMITATION SINCE PASSED BEYOND THE PERMISSIBLE TIME LIMIT AS PROVIDED UNDER THE LAW; ESPECIALLY WHEN IN A SIMILAR CASE ITAT JAIPUR BENCH HAS HELD IT THAT WAY. 2 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) 2. THE LEARNED CIT(A), PANAJI ERRED IN LAW AND ON FACTS IN NOT HOLDING THAT THE AO HAD CHANGED HIS OPINION FROM HIS OWN FINDINGS DURING THE ASSESSMENT ORDE R. THE LEARNED CIT(A), PANAJI OUGHT TO HAVE APPRECIATED THAT THE AMOUNTS ACCEPTED BY THE APPELLANT WE RE OBSERVED BY THE AO AS JV PARTICIPATIONS IN THE 143(3) ORDER WHEREAS, THE SAME AMOUNTS WERE CLASSIFIED BY HIM AS DEPOSITS IN HIS REFERENCE DATED 26/3 /2013 MADE TO JCIT, PANAJI. 3. THE LEARNED CIT(A), PANAJI ERRED IN LAW AND ON FACTS IN NOT HOLDING TH AT THE AO WAS FUNCTUS OFFICIO AT THE TIME OF MAKING REFERENCE TO THE JCIT AND HENCE, IN TURN, THE JURISDICTION ASSUMED BY THE LEARNED JCIT WAS INVALID. 4. THE LEARNED CIT(A), PANAJI ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE AMOUNTS RECEIVED BY THE APPELLANT WERE IV PARTICIPATIONS AND NOT DEPOSITS W HICH VIOLATE PROVISIONS OF 269 SS OF THE ITA, 1961. THE LEARNED CIT(A), PANAJI OUGHT TO HAVE AP PRECI ATED THAT CONSIDERING THE J V PARTICIPATION AGREEMENT, ITS CONTENTS AND RELATED DOCUMENTS, ETC.; THE SAID AMOUNTS COULD NOT HAVE BEEN CHARACTERIZED AS DEPOSITS. 5. THE LEARNED CIT(A), PANAJI, FURTHER ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT CHARA CTERIZING THE AMOUNTS RECEIVED BY THE APPELLANT AS DEPOSITS WAS CONTRARY TO FINDINGS OF THE REGULATORY AUTHORITIES I.E. MINISTRY OF CORPORATE AFFAIRS, SEBI & CBI, ETC. WHO HAVE CATEGORICALLY HELD THAT THE SAID AMOUNTS AS COLLECTIVE INVESTMENT SCHEME, I.E . CIS; (AND NOT INTO DEPOSITS). 6. THE LEARNED CIT(A), PANAJI ERRED IN LAW AND ON FACTS IN NOT DELETING THE ENTIRE 271D PENALTY OF RS. 96 CR WHEN HE WAS SATISFIED THAT MOST OF THE IV PARTICIPANTS HAIL FROM MOFUSSIL & RURAL AREAS AND HAVE AGRICULTURAL BACKG ROUND. THE LEARNED CIT(A), PANAJI ERRED IN RETAINING PART OF 271D PENALTY IN AN ARBITRARY MANNER. 7. WITHOUT PREJUDICE TO ANY OF THE ABOVE GROUNDS, THE LEARNED CIT(A), PANAJI ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THAT THE APPELLANT HAD A REASONABLE CAUSE TO HAVE A BONAFIED BELIEF THAT THERE W AS NO VIOLATION OF SECTION 269SS . THE APPELLANT CARRIED A BELIEF THAT; THE FORM AND THE NATURE OF TRANSACTION WAS THAT OF JV PARTICIPATION AND NOT DEPOSIT AND THAT STRINGENT PENALTIES WERE NEVER MEANT FOR GENUI NE TRANSACTIONS. 8. WITHOUT PREJUDICE TO ANY OF THE ABOVE GROUNDS THE LEARNED CIT(A) ERRED IN FACTS AND LAW IN NOT DELETING THE 271D PENALTY ON THE BASIS OF CRITICAL ANALYSIS ON THE BASIS OF GOOGLE MAPS, THOUGH FOR A SAMPLE OF 1887 CASES. 9. WITHOUT PREJUD ICE TO ANY O F THE ABOVE GROUNDS THE LEARNED CIT(A) ERRED IN FACTS AND LAW IN SUSTAINING THE 271D PENALTY TO A ROUNDED AD - HOC AMOUNT OF RS.20 CR. THE LEARNED CIT(A), PANAJI OUGHT TO HAVE SUSTAINED THE 271D PENALTY AT RS. 16.95 CR CONSIDERING THE TEST & METH OD OF OBJECTIVE FILTERS USED ON THE DATA - FILE . WHEREIN THE DEPARTMENT HAS RAISED THE FOLLOWING GROUNDS . 3 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) 1. THE LD. CIT(A) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE IT RULES IN ADMITTING THE NEW EVIDENCES ON THE ISSUE THAT OUT OF TOTAL NUMBER OF 17419 RECORDS, THE URBAN APPLICANT RECORDS ARE 2885 AND THE REMAINING APPLICANTS ARE FROM RURAL AREAS WHERE BANKS ARE NOT EXISTING WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO VERIFY THE NEW EVIDENCE SUBMITTED BY THE ASSESSEE FIRST TIME BEFORE THE CIT(A). T HE AO WAS ALSO NOT PRESENT FOR HEARING BEFORE CIT(A) WHEN THIS EVIDENCE WAS ADMITTED BY THE CIT(A). 2. THE LD. CIT (A) HAS ALSO VIOLATED THE PROVISIONS OF RULE 46A OF THE I.T. RULES IN ADMITTING THE NEW EVIDENCE THAT THE AMOUNT OF DEPOSITS COLLECTED FROM U RBAN AREA IS ONLY RS16.95 CRORES AND THE BALANCE AMOUNT OF RS.106 CRORES RELATES TO THE DEPOSITS COLLECTED FROM RURAL AREAS WHERE BANKING FACILITIES ARE NOT EXISTING WITHOUT GIVING ANY OPPORTUNITY TO THE AO TO VERIFY THE NEW EVIDENCE SUBMITTED BY THE ASSES SEE FIRS T TIME BEFORE THE CIT(A). THE AO WAS ALSO NOT PRESENT FO R HEARING BEFORE CI T(A) WHEN THIS EVIDENCE WAS ADMITTED BY THE CIT(A). 3. THE LD. CIT (A) ERRED IN WORKING OUT THE URBAN AND RURAL AREA DEPOSITS BASED ON THE RATIO OF NUMBER OF RECORDS OF URBA N AND RURAL AREA WITHOUT ACTUALLY VERIFYING THE DEPOSITS RECORD - WISE. 4. THE CIT(A) ERRED IN ACCEPTING THE DISTANCE ANALYSIS METHOD BASED ON THE DEPOSITORS ADDRESSES THROUGH GOOGLE MAPS TO SEGREGATE THE URBAN AND RURAL AREA DEPOS ITORS WITHOUT ACTUALLY VERI FYING THE AVAILABILITY OF THE BANKING FACILITIES IN THE AREAS OF THE DEPOSITORS CONSIDERING THE FACT THAT THESE DAYS BANKING FAC ILITIES ARE AVAILABLE IN ALMOST ALL THE RURAL AREAS. 5. THE LD. CIT ( A) ERRED IN NOT APPRECIATING THE SUPREME COURT DECISION IN THE CASE OF ADIT VS. A. B. SHANTI REPORTED IN 255 ITR 258 WHEREIN IT WAS CLEARLY LAID DOWN THAT THE ASSESSEE HA S TO PROVE THE REASONABLE CAUSE/ URGENCY OF SITUATION FOR ACCEPTANCE OF DEPOSITS IN CASH TO COVER ITS CASE U/S 273B. 6. THE CIT (A) FAILED TO APPRECIATE THE DECISION OF MADRAS HIGH COURT IN THE CASE OF KASI CONSULTANT CORPN. VS. DCI T REPORTED IN 311 ITR 419 WHEREIN IT HELD THAT IT IS THE DUTY OF ASSESSEE TO PRODUCE THE EVIDENCE TO PROVE THAT THE DEPOSITORS HAVE NO BANK A CCOUNTS AND CONSEQUENTLY TO ACCEPT THE DEPOSITS IN CASH AND HENCE THE FACTS OF THIS CASE IS SQUA RELY APPLICABLE TO THE ASSESSEE S CASE WHEREIN ASSESSEE COMPANY ALSO FAILED TO PRODUCE ANY EVIDENCE TO PROVE THAT DEPOSITORS HAVE NO BANK ACCOUNTS AND HENCE IT WAS FORCED TO ACCEPT THE DEPOS I TS IN CASH. 7, THE CIT(A) FAILED TO APPRECIATE THE DECISION OF MADRAS HIGH COURT IN THE CASE OF P. BHASKAR VS CIT REPORTED IN 350 ITR 560 THAT UNLESS THE ASSESSEE PROVES THAT THE DEPOSITS IN CASH AC CEPTED FOR THE BUSINESS EXI GENCY TO MEET THE LIQUIDITY, THE PENALTY IS LEVIABLE U/S. 271D OF THE IT ACT. 8. THE LD. CIT(A) ERRED IN RELYING ON THE DELHI HIGH COURT DECISION IN THE CASE OF M/S. SAHARA INDIA CORPORATION LTD R EPORTED IN (2012) 26 TAXMAN.COM 269 (DELHI) AS 4 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) THE F ACTS AND CIRCUMSTANCES OF THE CASES ARE NOT IDENTICAL AND THE DECISION IS BLINDLY APPLIED WITHOUT ACTUALLY VERIFYING THE ASSESSEE S SUBMISSION REGARDING NUMBER OF URBAN AND RURAL APPLICANT S AND THE AMOUNT INVOLVED AND W ITHOUT GIVING ANY OPPORTUNITY TO THE AO TO VE RIFY THE ASSESSEES SUBMISS IO N ON THE ABOVE ISSUE, WHICH RESULTED IN MISCARRIAGE OF JUSTICE AND THEREFORE PERVERSE IN LAW. 2.1. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR THE A.Y.2010 - 11 DECLARING THE TOTAL INCOME OF RS.62,86,200/ - . THE ASSESSEE COMPANY IS INCORPORATED WITH BUSINESS OBJECTIVE OF ESTABLISHING A BUSINESS ENTERPRISE FOR BUYING AND SELLING OF PROPERTIES AND REAL ESTATE HAVING ITS CORPORATE OFFICE SITUATED AT PUNE AND REGISTERED OFFICE AT SAI PLAZ A COMPLEX, 4 TH FLOOR, NO. 402, GOMANTAK TIMES, PANAJI, GOA. THE ASSESSEE HAS ACCEPTED CASH DEPOSITS TO THE TUNE OF RS. 96 CRORES WHICH IS CONTRADICTORY TO THE PROVISIONS OF SECTION 269SS OF THE I.T. ACT AND LIABLE FOR PENALTY PROCEEDINGS U/S. 27ID OF THE A CT. 2. 2. THE MATTER CARRIED TO CIT(A) AND CIT(A) HAS PARTLY ALLOWED THE APPEAL. THEREFORE, THE ASSESSEE IS IN APPEAL AND DEPARTMENT IS ALSO IN APPEAL BEFORE US. 2.3. DURING THE COURSE OF HEARIN G LEARNED DR SUBMITTED THAT THE CIT(A) HAS ADMITTED THE FRESH EV IDENCE. THE CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCE REGARDING THE ADDRESSES OF THE JV PARTICIPANTS GIVEN IN FOUR (4) COLUMNS. THESE ADDRESS COLUMNS CONTAIN THE DATA. (I) ADRESS - 1 INFORMATION OF VILLAGE/ POST OF APPLICANT. (II) ADDRESS - 2 - NEARBY TALUKA/ TEHSIL/ KNOWN PLACE (III) ADDRESS - 3 - CITY/ DISTRICT AND STATE (IV) ADDRESS - 4 - STATE THE ASSESSEE HAS MAPPED THE DISTANCE BETWEEN VILLAGE (ADDRESS - 1) TALUKA (ADDRESS - 2) AND PROFILED THE SAME AS PRIMARY DISTANCE. THE DISTANCE BETWEEN TALUKA AND CI TY IS PROFILED AS SECONDARY DISTANCE . THERE ARE TOTAL LY 232 PAGES OF LISTING . ABOUT 7 - 8 CASES ON EACH PAGE WERE SELECTED AT RANDOM FOR THE SAID GOOGLE MAPPING. THE SAID EXERCISE WAS BASED GOOGLE MAPS WEBSITE. 5 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) THIS EXERCISE WAS CARRIED OUT FOR 1887 CASES. SUMMARY OF SUCH DISTANCES IS ENCLOSE D HEREWITH AND MARKED AS ANNESURE - 21 . ALONG WITH THE SAID SUMMARY, PRINTOUTS OF ALL GOOGLE MAPS DOWNLOADED FOR EACH SUCH DISTANCE MAPPING WAS ALSO ENCLOSED. FROM THE SAID SUMMARY, IT WILL TRANSPIRE THAT IN ABOUT 1.32% CASES ARE BETWEEN 0 - 2 KM PRIMARY DISTANCE RANGE, 1.70% CASES ARE IN 2.5 KM PRIMARY DISTANCE RANGE AND SO ON. THE BANKING CHANNELS HAVE REACHED UPTO TEHSIL LEVELS YET, MAJORITY OF THE JV PARTICIPANTS ARE STAYING AT PL A CES WHICH ARE BEYOND 5 KM FROM THE TEHS IL PLACES. THE ASSESSE E HAS SUBMITTED THE DAT A FILTERING EXERCISE AND THE DATA RELATES TO MANY PERSONS FROM THE VILLAGES AND URBAN APPLICANTS ARE 2885 IN NUMBER. THE LEARNED D R SUBMITTED THAT THIS ADDITIONA L EVIDENCE WAS SUBMITTED BEFORE CIT(A) FOR THE FIR ST TIME. 2.4. THE LEARNED AR OBJECTED THE REMANDING OF MATTER BACK TO THE CIT(A) ON THE GROUND THAT THE JT. CIT WAS PRESENT AT THE DATE OF HEARING, THEREFORE, MATTER CANNOT BE RESTORE D . THE LEARNED AR FURTHER SUBMITTED THAT IF THE MATTER IS RESTORE D TO THE CIT(A) THEN THE ASSESSEES APPEAL MAY ALSO BE RESTORED TO THE FILE OF CIT(A) AND CIT(A) SHOULD BE DIRECTED TO CONSI DER HIS ARGUMENTS ON MERIT. THE CIT(A) HAS NOT CONSIDERED HIS ARGUMENT ON MERIT AND THERE IS NO DISCUSSION ON THIS ISSUE, THEREFORE, THE COMMISSIONER MAY BE DIRECTED TO DEC IDED THE APPEAL ON MERIT ALSO. LEARNED AR HAS NO OBJECTION IF BOTH THE MATTERS ARE RESTORED TO THE FILE OF CIT(A) TO CONSIDER THE MATTER AFRESH. 3. WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF TH E CASE, WE FIND THAT BEFORE THE CIT(A) THE ASSESSEE HAS SUBMITTED THE ADDITIONAL EVIDENCE WHICH IS ON PAGE 77 OF THE CIT(A)S ORDER. THE ASSESSEE HAS SUBMITTED THE FOLLOWING EVIDENCE WHICH READ AS UNDER: A)DISTANCE ANALYS IS OF ADDRESSES OF THE PARTICIPANTS - THE ADDRESSES OF THE JV PARTICIPANTS ARE GIVEN IN FOUR (4) COLUMNS. THESE ADDRESS COLUMNS CONTAIN THE FOLLOWING DATA. (I) ADDRESS - 1 - INFORMATION OF VILLAGE / POST OF APPLICANT (II) ADDRESS - 2 - NEARBY TALUKA / TEH SIL / KNO WN PLACE 6 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) (III)ADDRESS - 3 - CITY/ DISTRICT AND STATE (IV) ADDRESS - 4 STATE IN THE ANALYSIS, THE APPELLANT HAS MAPPED THE DISTANCE BETWEEN VILLAGE (ADDRE SS - I) AND TALUKA (ADDRESS - 2) AND PROFILED THE SAME AS PRIMARY DISTANCE. FURTHER, THE DISTANCE BETWEEN TALUKA AND CITY IS PROFILED AS SECONDARY DISTANCE. THERE ARE TOTALLY 232 PAGES OF LISTING. ABOUT 7 - 8 CASES ON EACH PAGE WERE SELECTED AT RANDOM FOR THE SAID GOOGLE MAPPING. THE SAID EXERCISE WAS BASED ON GOOGLE MAPS WEBSITE. THIS EXERCISE WAS CARRIED OUT F OR 1887 CASES (OUT OF TOTAL 17,410 CASES). ABOUT 10% CASES WERE ACCORDINGLY ANALYZED. S UMMARY OF SUCH DISTANCES IS ENCLOSED HEREWITH AND MARKED AS ANNEXURE - 2 1. ALONG WITH THE SAID SUMMARY, PRINTOUTS OF ALL GOOGLE M APS DOWNLOADED FOR EACH SUCH DISTANCE MAPP ING IS ALSO ENCLOSED. F ROM THE SAID SUMMARY, IT WILL TRANSPIRE THAT IN ABOUT 1.32% CASES ARE BETWEEN 0 - 2 KM PRIMARY DISTAN CE RANGE, 1.70% CASES ARE IN 2 5 KM PRIMARY DISTANCE RANGE AND SO ON. SIMILAR RANGE DISTANCE IS MAPPED AND WORKED OUT FOR SECONDARY DI STANCE. IT IS A BELIEF THAT BANKING CHANNELS HAVE REACHED UPTO TEHSIL LEVELS, THOUGH, AT TIMES, THIS IS NOT THE CASE. ASSUMING THAT BANKING CHANNELS EXIST AT TEHSIL LEVELS, YET, MAJORITY OF THE JV PARTICIPANTS ARE STAYING AT PLACES WHICH ARE BEYOND 5 KM FROM THE TEHSIL PLACES. B) DATA FILTERING EXERCISE - THE DETAILED LISTING OF CASH JV PARTICIPATIONS IS AVAILABLE IN SOFT FORM. THE SAID DATA IS IN AN EXCEL FILE. APPELLANT HAS APPLIED FILTERS TO THE COLUMNS ADDRESS - 1 , ADDRESS - 2, AD DRESS - 3 AND ADDRESS - 4. AD DRESS - 1 AND ADDRESS - 2 FIELDS CONTAIN ACTUAL VILLAGE / VASTI / WADI DETAILS OF THE JV PARTICIPANT. BY USING EXCEL FILTER FACILITY, APPELLANT HAS FILTERED OUT ALL THOSE RECORDS WHICH CONTAIN THE FOLLOWING KEY WORDS IN ADDRESS - 1 AND ADDRESS - 2 FILEDS . (I) VIL (II) PO (III) P.O. (IV) AT AT EACH STEP OF FILTERING, THE WORK RURAL IS ADDED TO THE FLAT FILE AT THE END OF THE COLUMNAR DATA. THUS, AFTER ADDING THE FLAG RURAL, THE RECORDS WHICH COULD BE LOGICALLY ATTRIBUTED TO THE RURAL (NON - URBAN) AREA CAN BE CU LLED OUT. IN OTHER WORDS, BY APPLYING THE FILTER OF (BLANK) IN THE LAST COLUMN (I.E. FLAG COLUMN), THE NET URBAN TRANSACTIONS CAN BE LOCATED. PURPOSE OF FILTERING OUT THE RECORDS BY USAGE OF THESE FILTERS WAS TO RETAIN ONLY SUCH RECORDS WHICH LOGICALLY REL ATE TO JV PARTICIPANTS FROM URBAN AREAS. RESULT OF THE PROCESS DEMONSTRATES THAT AS AGAINST 17,419 RECORDS, THE URBAN APPL ICANTS RECORDS REMAIN AT 2885 NUMBER. NOW, AS AGAINST THE TOTAL AMT OF RS. 106 CR, THE EMERGING AMOUNT RELATING TO URBAN AREA COLLECTI ON WORKS OUT TO RS. 16.95 CR. OUT OF THE SAID AMOUNT OF RS. 16.95 CR, SOME AMOUNT IS FROM CHQ TRANSACTIONS. CONSIDERING FOR THE SAME MAY PLEASE BE APPRECIATED. THE SAID EXERCISE CAN BE DEMONSTRATED LIVE AND CAN ALSO BE CARRIED OUT INDEPENDENTLY BY USING TH E ABOVE STATED FILTERS. 7 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) AGAINST THE DISALL OWANCE MADE IN ASSESSMENT ORDER, THE ASSESSEE FILED THE APPEAL TO T HE CIT(A). M ANY TIMES SO HAPPENS THAT FOR THE SEVERAL REASONS LIKE NOT GETTING PROPER OPPORTUNITY TO SUBMIT THE DETAILS FOR NOT INFORMING PROPERLY ON WHAT GROUNDS, AO IS NOT SATISFIED WITH EXPLANATION FURNISHED OR HE WANTS ADDITIONAL INFORMATION, AND SUDDENLY WITHOUT INFORMING OR GIVING OPPORTUNITY AO MAKES THE ADDITION OR DISALLOWANCE ON DIFFERENT POINTS OR SOME TIME S THE ASSESSEE IS PREVENTED BY SUFFICIENT CAUSE FROM BEING ABLE TO SUBMIT THE DETAILS CALLED FOR. IN SUCH CASES WHEN THE MATTER COMES UP FOR APPEAL BEFORE FIRST APPELLATE AUTHORITY, THE ADDITIONAL EVIDENCE IS REQUIRED TO BE FURNISHED AT APPELLATE STAGE. WE FIND THAT IN THIS CASE THE ASSESSEE HAS SUBMITTED THE ADDITIONAL EVIDENCE IN SUPPORT OF DISTANCE ANALYSIS OF ADDRESSES OF THE PARTICIPANTS FROM THE GOOGL E MAPS THAT ASSESSEE COULD NOT SUBMIT BEFORE AO, THEREFORE, THIS ADDITIONA L EVIDENCE WAS SUBMITTED BEFORE CIT(A). THE CIT(A) IN HIS ORDER ON PAGE 77 HAS HELD THAT ASSESSEE HAS SUBMITTED THE ADDITIONAL EVIDENCE. WHILE DISPOSING THE APPEAL THE CIT (A) HAS POWER EITHER TO CONFIRM, REDUCE, ENHANCE AND ANNUL THE ASSESSMENT AND IN CASE OF PENALTY , HE MAY CONFIRM, CANCEL OR V A RY THE PENALTY AND HE HAS ALS O POWER TO PASS AN ORDER AS HE THINKS FIT UNDER SECTION 251(1) OF THE IT ACT. AS PER PROVISIONS OF SECTION 250(4) AND 250(5) OF THE INCOME TAX ACT THE CIT(A) MAY DISPOSE OF THE APPEAL AFTER MAKING SUCH ENQUIRY AS HE THINK S FIT OR MAY ASK THE AO TO CARRY O UT CERTAIN FURTHER ENQUIRY. THE CIT(A) CAN ALSO ADMIT SUCH OTHER ADDITIONAL GROUND WHICH IS NOT SPE CIFIED IN THE GROUND OF THE APPEAL IF HE IS SATISFIED TH AT THE OMISSION OF THE GROUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASON ABLE. AS PER RULE 46A OF THE IT ACT THE ASSESSEE IS NOT ENTITLED TO PRODUCE ANY EVIDENCE ORALLY OR DOCUMENTARY OTHER THAN THE EVIDENCE PRODUCE BEF ORE AO. T HE FOLLOWING EXCEPTION HAVE BEEN PROVIDED IN THE SAID RULE. (A) THE AO HAS REFUSED TO ADMIT THE EVIDENCE WHICH OUGHT TO HAVE ADMITTED . (B) T HE ASSESSEE 8 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHIC H HE WAS CALLED UPON TO PRODUCE BY THE AO. (C) THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE BEFORE THE AO WHICH IS RELEVA NT TO THE GROUND OF THE APPEAL. THE AO HAS MADE THE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE AS SESSEE TO ADDUCE THE EVIDENCE RELEVANT TO ANY GROUND IN APPEAL. BEFORE ADMISSION OF ADDITIONAL EVIDENCE THE CIT(A) HAS TO GIVE REASONABLE OPPORTUNITY TO THE AO EITHER TO EXAMINE THE A DDITIONAL EVIDENC E OR TO PRODUCE ANY EVIDENCE OR DOCUMENT AS ANY WITN E SS IN REBUTTAL TO THE ADDITIONAL EVIDENCE PRODUCE BY THE ASSESS EE. AS PER RULE 46A(IV), NOTWITHSTANDING ANYTHING CONTENDED IN 46A(I V ) THE CIT(A) HAS POWER TO DIRECT THE ASSESSEE FOR PRODUCTION OF ANY DOCUMENT OR THE EXAMINATION OF ANY WITNESS , TO ENABLE HIM T O DISPOSE OF THE APPEAL , OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING ENHANCE OR IMPOSING THE PENALTY. THE POWER OF CIT(A) BY IT ACT ARE WIDER THEN POWER OF AN ORDINARY COURT OF APPEAL. ONCE THE ASSESSMENT COMES BEFORE THE CIT(A), HIS JURISDICTION IS NOT RESTRICTED TO EXAMINING ONLY THOSE ASPECT OF ASSESSMENT WHICH ARE COMPLAINT BY THE ASSESSEE , BUT RANGES OVER THE WHOLE ASSESSMENT AND IT IS OPEN TO HIM TO CORRECT THE ASSESSMENT ORDER NOT ONLY WITH REGARD S TO THE MATTERS RAISED BY THE ASSESSEE IN APPEAL B UT ALSO WITH REGARDS TO ANY MATTER CONSIDERED BY AO AND DETERMINED IN COURSE OF ASSESSMENT. HOWEVER, CIT (A) CANNOT INTRODUCE IN ASSESSMENT , NEW SOURCE OF INCOME AND HE SHOULD CONFINE TO THE SUBJECT MATTER OF ORIGINAL ASSESSMENT ORDER ONLY. IN OTHER WORDS T HE POWER OF CIT (A) IS CO - TERMINUS WITH THAT OF THE ASSESSING OFFICER. HE CAN DO WHATEVER AO CAN DO AND CAN ALSO DIRECT AO TO DO WHAT HE HAS FAILED TO DO. IN THE CASE OF CIT VS. KANPUR COAL SYNDICATE (SC) 53 ITR 225 WHEREIN THE HONBLE SUPREME COURT HAS TAKEN VIEW THAT THERE IS NO REASON TO JUSTI F Y THE CURTAILMENT OF POWER OF CIT(A) TO ENTERTAIN THE ADDITIONAL GROUNDS OF APPEAL RAISED BY ASSESSEE IN SEEKING MODIFICATION OF ASSESSMENT ORDER PASSED BY AO. SECTION 250( 4) AND 9 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) 250 (5) OF THE INCOME TAX ACT PERMITS THE CIT (A) TO MAKE FURTH ER ENQUIRY ON HIS OWN AND DIRECT AO TO DO SO HE MAY THINKS FIT. THEREFORE, CIT(A) IS WITHIN HIS POWERS IF HE ASKS OR ALLOWS TO PRODUCE OR FILE THE ADDITIONAL EVIDENCE OR PAPERS IN THE MATTER HE THINKS FIT. I N THE CASE OF SMT. PRA B HAWATI S. SHAH VS. CIT (BOM) 231 ITR 01 HA D OCCASION ED TO CONSIDER WHETHER R ULE 46A IS INTENDED TO PUT FETTERS ON THE RIGHT OF THE ASSESSEE TO PRODUCE BEFORE CIT(A) ANY ADDITIONAL SUPPORTING E VIDENCE. AFTER CONSIDERING THE SECTION 250 RULE 46A THE BOMBAY HIGH COURT HAS HELD THAT IF THE CERTAIN EVIDENCE IS NECESSARY FOR DECIDING THE CONTROVERSY THE CIT(A) HAS ALL THE RIGHT S CALLED FOR ADDITIONAL EVIDENCE. HOWEVER BEFORE ADMITTING THE ADDI TIONAL EVIDENCE THE CIT(A) HAS TO GIVE OPPORTUNITY TO THE ASSESSI NG OFFICER TO CONSIDER OR CROSS EXAMINE OR REBUT THE ADDITIONAL SUPPORTING EVIDENCE FURNISHED BY THE ASSESSEE. IN THE C ASE OF CIT VS GANI BHAI WAHAB BHAI (MP) 232 ITR 900 , WE FIND THAT THE ADDITIONAL EVIDENCE CAN BE ADMITTED AT ANY STAGE BUT WHILE ADMITTING THE ADDITIONAL EVIDENCE CIT(A) SHOULD ENSURE THAT WHENEVER THE ADDITIONAL EVIDENCE FILED BEFORE CIT(A) . S UBJECT TO HIS APPROVAL GAPS HIS FILE WITH AO OR REQUEST IS MADE TO CIT TO AO FOR HIS COMMENTS . WE FIND THAT IN THE INSTANT CASE THE CIT(A) HAS ADMITTED THE ADDITIONAL EVIDENCE BUT NOT CALLED FOR REMAND REPORT OR HE HAS NOT EXAMINED THE EVIDENCE PRODUCE BEF ORE HIM. IN THIS CIRCUMSTANCES WE HAVE NO ALTERNATIVE EXCEPT TO RESTORE THE MATTER BACK TO THE FILE OF CIT(A) TO PASS AN ORDER AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. DURING THE COURSE OF HEARING THE LEARNED AR OBJECTED TO RESTORE THE MATTER ON THE GROUND THAT THE ASSESSING OFFICER WAS PRESENT DURING THE COURSE OF HEARING. THEREFORE, MATTER MAY BE DECIDED ON MERIT. THE SECOND LIMB OF HIS ARGUMENT THAT THE CIT(A) HAS NOT DECIDED THE MATTER ON MERIT THOUGH THE WRITTEN 10 . ITA NOS.214 & 286/PNJ/2014 (ASSESSMENT YEAR 2010 - 11) SUBMISSION WAS MADE THEREFORE , IF THE MATTER IS RESTORED TO CIT(A) THE CIT(A) SHOULD BE DIRECTED TO DECIDE THE APPEAL ON MERIT AS WELL AS. AFTER HEARING BOTH THE PARTIES WE ARE OF THE VIEW THAT CIT(A) HAS NOT GIVEN PROPER OPPORTUNITY TO THE AO, THEREFORE, WE REVERSE THE FI NDING OF THE CIT(A) AND WE REMAND BACK TO THE FILE OF CIT(A) TO DECIDE THE APPEAL ON MERIT AFTER GIVING SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSING OFFICER. 4. IN THE RESULT, TH E ABOVE CROSS APPEALS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONO UNCED IN TH E OPEN COURT ON 26 .09. 2014. SD/ - SD/ - ( P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 26 .09 .2014 P.S. - *PK* COPY TO : ( 1 ) APPELLANT ( 2 ) RESPONDENT ( 3 ) CIT CONCERNED ( 4 ) CIT(A) CONCERNED ( 5 ) D.R ( 6 ) GUARD FILE TRUE COPY, BY ORDER