Income Tax Officer (International Taxation), Ward-1(1), Bangalore V. Amit Malhotra, Bangalore

ITA 32/BANG/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5677 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 11-01-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRIYADARSHINI BESAGANNI
• Keywords: Additional evidence; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “C”, BANGALORE Before Shri George George K, JM & Ms.Padmavathy S, AM IT(IT)A No.32/Bang/2022 : Asst.Year 2011-2012 The Income Tax Officer (International Taxation) Ward 1(1) Bangalore. v. Sri.Amit Malhotra Villa 24, Arvind Expansia 55 Puttapa Estate Main Road Bangalore – 560 048. PAN : AHPPA7168K. (Appellant) (Respondent) Appellant by : Sri.B.Veeresh, CA Respondent by : Smt.Priyadarshini Besaganni, JCIT-DR Date of Hearing : 30.03.2022 Date of Pronouncement : 30.03.2022 O R D E R Per George George K, JM This appeal at the instance of the Revenue is directed against CIT(A)’s order dated 08.10.2021. The relevant assessment year is 2011-2012. 2. The grounds raised read as follows:- “1. The order of the learned CIT(A) is opposed to law and facts of the case. 2. The learned CIT(A) has erred in deleting the addition made under the head Short Term Capital Gains of Rs.2,10,32,000/- 3. The learned CIT(Appeals) erred in admitting additional evidence submitted by appellant and given relief to the assessee even without calling for any remand report from the concerned Assessing Officer. 4. The learned CIT(A) erred as per Rule 46A(3) of Income Tax Rules, 1962 by not providing opportunity to Assessing Officer to examine the evidence or documents. IT(IT)A No.32/Bang/2022 Sri.Amit Malhotra. 2 5. For the above and other grounds that may be urged at the time of hearing, it is prayed that the appeal may be allowed. 6. The appellant craves leave to add, alter, amend and / or delete any of the grounds mentioned above.” 3. Brief facts of the case are as follows: The assessee is an individual. For the relevant assessment year, the Revenue received information from AIR/CIB/26AS on the finance activities of the assessee. As per the information, it has been found that the assessee had sold an immovable property for a sum of Rs.2,10,32,000 and no return was filed for the relevant assessment year. Hence, notice u/s 148 of the I.T.Act was issued, and thereafter, several notices were issued u/s 142(1) of the I.T.Act. Since there was no response to any of the notices issued, the assessment u/s 144 r.w.s. 147 of the I.T.Act was completed vide order dated 31.12.2017, wherein the entire sale proceeds amounting to Rs.2,10,32,000 was brought to tax. 4. Aggrieved, the assessee preferred an appeal to the first appellate authority. Before the first appellate authority, the assessee furnished proof with regard to the purchase and sale of immovable property. The CIT(A), without calling for a remand report from the Assessing Officer, deleted the addition made by the Assessing Officer. 5. Aggrieved by the order of the CIT(A), the Revenue is in appeal before the Tribunal. The limited submission of the IT(IT)A No.32/Bang/2022 Sri.Amit Malhotra. 3 learned Departmental Representative is that the CIT(A) has erred in admitting additional evidences and has granted relief to the assessee without calling for a remand report from the concerned Assessing Officer, thereby violating the provisions of Rule 46A(3) of the I.T.Rules, 1962. 6. The learned Authorised Representative, fairly submitted that the assessee has produced the additional evidence before the CIT(A) and does not have any objection if the matter to be restored to the A.O. for de novo consideration. 7. We have heard rival submissions and perused the material on record. Admittedly in this case, the assessee has filed the additional evidences before the CIT(A). The CIT(A) without giving an opportunity to the A.O. to examine the additional evidence had deleted the addition made in the assessment completed u/s 144 of the Act. The prescription of Rule 46A of the I.T.Rules is clear. The assessee is ordinarily not entitled to produce additional evidence before the CIT(A) other than that furnished to the A.O. except in four circumstances enumerated in clause (a) to (d) of sub-rule (1). Sub-rule (2), however, provides that no evidence shall be admitted under sub-rule (1) unless the CIT(A) records in writing the reasons for its admission. Sub-rule (3) further stipulates that the CIT(A) shall not take into account any evidence produced under sub-rule (1) unless the A.O. has been allowed a reasonable opportunity – IT(IT)A No.32/Bang/2022 Sri.Amit Malhotra. 4 (a) to examine the evidence or document or to cross examine the witness produced by the assessee or; (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the assessee. 7.1 In the instant case, the CIT(A) has examined fresh evidence such as purchase deed, sale deed, copy of the bank statement, etc. as additional evidence in disregard to the mandate of sub-rule (3). If the CIT(A) wanted to entertain the additional evidence, he ought to have called for the comments of the A.O. on the same, more specifically in the light of the fact that the assessment was completed u/s 144 of the Act. Accordingly, the CIT(A)’s order is set aside and the matter is remitted to the A.O. to decide the issue afresh. The A.O. shall afford a reasonable opportunity of being heard to the assessee. The assessee shall extend full cooperation to the A.O. so as to facilitate the framing of a proper assessment and would also be entitled to file any additional evidence before the A.O. in support of his case. It is ordered accordingly. 8. In the result, the appeal filed by the Revenue is allowed for statistical purposes. Order pronounced on this 30 th day of March, 2022. Sd/- (Padmavathy S) Sd/- (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore; Dated : 30 th March, 2022. Devadas G* IT(IT)A No.32/Bang/2022 Sri.Amit Malhotra. 5 Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A) -12, Bangalore. 4. The CIT (International Taxation), Bangalore. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore