ACIT, Meerut V. Shri Ashwini Talwar, New Delhi

ITA 3090/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61637 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-04-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 10-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GEETMALA MOHANANEY
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `A : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NOS.2681 & 2682/DEL./2011 (ASSESSMENT YEARS : 2006-07 & 05-06) ASHWANI TALWAR, VS. ACIT, CENTRAL CIRCLE C/O DEEPAK KAPOOR, ADV. MEERUT. 59, NEHRU APARTMENTS, OUTER RING ROAD, KALKAJI, NEW DELHI. (PAN/GIR NO.AAAPT0920E) AND ITA NOS.3089, 3090, 3148 & 2706/DEL./2011 (ASSESSMENT YEARS : 2003-04, 05-06, 06-07 & 08- 09) ACIT, MEERUT. VS. ASHWANI TALWAR, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DEEPAK KAPOOR, ADV. REVENUE BY : MS. GEETMALA MOHANANEY, CIT(DR) ORDER PER BENCH: TWO APPEALS OF THE ASSESSEE AND FOUR APPEALS OF THE REVENUE ARE DIRECTED AGAINST SEPARATE ORDERS PASSED BY THE CIT(A), MEERUT. THES E APPEALS WERE HEARD TOGETHER AND INVOLVE IDENTICAL FACTS AND COMMON ISSUES, THEREFOR E, BEING DISPOSED OF BY A SINGLE ORDER FOR THE SAKE OF CONVENIENCE. 2. IT IS COMMON GROUND OF BOTH THE SIDES THAT IMPUG NED ADDITIONS AS MADE BY THE ASSESSING OFFICER WERE CHALLENGED BEFORE CIT(A) IN THESE CASES, WHO GAVE PARTIAL RELIEF/CONFIRMED CERTAIN ADDITIONS AFTER ADMITTING THE ADDITIONAL EVIDENCE WITHOUT APPROPRIATELY COMPLYING WITH THE PROVISIONS OF RULE 46A OF THE I.T. RULES, 1962 AND I.T.A. NOS.2681,2682 & 2089,3090,3148 2706/DEL./2011 (A.YS. : 2003-04, 05-06, 06-07 & 08-09) 2 2 SINCE THE ORDER PASSED BY THE CIT(A) IS IN VIOLATIO N OF RULE 46A OF THE I.T. RULES, THEREFORE, ORDERS OF CIT(A) FOR ALL THE YEARS NEED TO BE SET ASIDE AND TO RESTORE THE MATTERS ON HIS FILE FOR RE-CONSIDERATION OF THE APPEALS AFR ESH AFTER FOLLOWING PROVISIONS OF RULE 46A OF THE RULES AND THE LATEST DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MANISH BUILDWELL PVT. LTD., (2012) 204 TAXMAN 106. 3. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE MATERIAL ON RECORD, WE FIND THAT NO DOUBT CERTAIN ADDITIONS WERE MADE IN ALL THESE Y EARS AND CIT(A) GAVE SOME RELIEF TO THE ASSESSEE BY ADMITTING AND CONSIDERING ADDITIONA L EVIDENCE AGAINST WHICH DEPARTMENT HAS COME UP IN APPEALS AND WHERE ADDITIONS WERE CON FIRMED, ASSESSEE HAS COME UP IN APPEALS AND IT IS THE COMMON GROUND OF BOTH THE SID ES THAT CERTAIN ADDITIONAL EVIDENCE HAS BEEN ADMITTED BY CIT(A) AND CONSIDERED FOR GIVING R ELIEF/CONFIRMING ADDITIONS WITHOUT COMPLYING WITH THE PROVISIONS OF RULE 46A OF THE I. T. RULES AS SUCH EVIDENCE IS NOT GOT VERIFIED BY THE LD.CIT(A) FROM THE ASSESSING OFFICE R. 4. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT MANISH BUILDWELL PVT. LTD., REPORTED IN (2012) 204 TAXMAN 106, HAS HELD AS UN DER. U/S 250(4), THE CIT (A) HAS THE POWER TO DIRECT E NQUIRY AND CALL FOR EVIDENCE FROM THE ASSESSEE. UNDER RULE 46A, THE ASSESSEE HAS THE RIGHT TO ASK F OR THE ADMISSION OF ADDITIONAL EVIDENCE. IF THE CIT (A) EXERCISES HIS POWERS U/S 250(4) TO CALL FOR ADDITIONAL EVIDENCE, THE AO NEED NOT BE GIVEN AN OPPORTUNITY TO SHOW-CAUSE. HOWEVER, IF THE CIT (A) ACTS ON AN APPLICATION UNDER RULE 46A, THEN THE REQUIREMENT OF GIVING THE AO AN OPPORTUNITY AS PER RULE 46A(3) IS MANDATORY . THE ARGUMENT THAT IN ALL CASES WHERE ADDITIONAL E VIDENCE IS ADMITTED, THE CIT (A) SHOULD BE CONSIDERED TO HAVE EXERCISED HIS POWERS U /S 250(4) IS NOT ACCEPTABLE AS IT WILL RENDER RULE 46A REDUNDANT . ON FACTS, AS THE ASSESSEE HAD PRODUCED THE EVIDEN CE, THE CIT (A) OUGHT TO HAVE FOLLOWED RULE 46A(3) AND REMANDED THE EVIDENCE TO THE AO FOR COMMENTS AND VERIFICATION (MATTER REMANDED TO THE CIT(A)). 5. SINCE ORDER PASSED BY THE CIT(A) IS IN VIOLATION OF RULE 46A OF THE I.T. RULES, THEREFORE, FOLLOWING THE RATIO OF THE DECISION IN T HE CASE OF MANISH BUILDWELL PVT. LTD.(SUPRA), WE SET ASIDE THE ORDERS OF CIT(A) AND RESTORE THE MATTERS BACK ON HIS FILE WITH THE DIRECTION TO RE-DECIDE THE APPEALS AFRESH AFTER COMPLYING WITH THE PROVISIONS OF RULE 46A OF THE I.T. RULES AND FOLLOWING HONBLE DE LHI HIGH COURT DECISION CITED SUPRA. NEEDLESS TO MENTION THAT CIT(A) WHILE RE-DECIDING T HE APPEALS WILL GIVE ADEQUATE OPPORTUNITY TO THE ASSESSEE AS WELL AS TO THE ASSES SING OFFICER. I.T.A. NOS.2681,2682 & 2089,3090,3148 2706/DEL./2011 (A.YS. : 2003-04, 05-06, 06-07 & 08-09) 3 3 6. AS A RESULT, ALL THE APPEALS OF THE ASSESSEE AS WELL AS OF THE DEPARTMENT GET ACCEPTED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT SOON AFTER THE CONC LUSION OF THE HEARING ON 25.04.2012. SD/- SD/- (S.V. MEHROTRA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : APRIL 25, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A), MEERUT. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT