ITO, New Delhi V. M/s Ashian Needles (P) Ltd., Delhi

ITA 3235/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53013 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-10-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 16-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Assessee Lawyers: SURESH ANANTHARAMAN
• Keywords: Opportunity of being heard; Additional evidence; Assessment record; Reason to believe; Reassessment proceedings
• Section: 260A; 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NOS.3234 TO 3237/DEL/2009 ASSESSMENT YEARS : 2001-02 TO 2004-05 INCOME TAX OFFICER, WARD 2 (2), NEW DELHI. VS. M/S ASHIAN NEEDLES (P) LTD., C-15,ACHARYA NIKETAN, MAYUR VIHAR PHASE I, DELHI 110 091. PAN : AADCA1338D C.O. NOS.83 TO 86/DEL/2011 (ITA NOS.3234 TO 3237/DEL/2009) ASSESSMENT YEARS : 2001-02 TO 2004-05 M/S ASHIAN NEEDLES (P) LTD., C-15,ACHARYA NIKETAN, MAYUR VIHAR PHASE I, DELHI 110 091. PAN : AADCA1338D VS. INCOME TAX OFFICER, WARD 2 (2), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH ANANTHARAMAN, CA REVENUE BY : MRS. ANUSHA KHURANA, SR.DR ORDER PER I.P. BANSAL: THE APPEALS ARE FILED BY THE REVENUE. THEY WERE EA RLIER DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 6 TH NOVEMBER, 2009 WHEREIN THE MATTER WAS RESTORED BACK TO THE FILE OF ASSESSING OFFICER WITH THE FOLLOWING OBSERVATIONS:- ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 2 WE HAVE CONSIDERED THE SUBMISSIONS AS MADE BY THE LE ARNED DR AND PERUSED THE RECORD. WE ARE IN AGREEMENT WITH TH E SUBMISSIONS OF THE LEARNED DR. WHEN THE ASSESSEE WAS SPECIFICALLY CALLED UPON TO FILE EVIDENCE IN SUPPORT OF GENUINENESS OF CASH CREDIT ENTRIES, THE ASSESSEE CANNO T AVOID THE OFFICE OF THE A.O. FROM FILING SUCH EVIDENCE BEFO RE HIM AND CAN JUSTIFY HIS CLAIM BEFORE THE COMMISSIONER (APPEAL S) ONLY. THOUGH THE COMMISSIONER (APPEALS) IS ENTITLED TO ADMIT ADDITIONAL EVIDENCE, YET THE PROVISION OF RULE 46A REQ UIRES THE COMMISSIONER (APPEALS) TO AFFORD REASONABLE OPPORTUNI TY TO THE A.O. TO CONSIDER SUCH EVIDENCE. TO THIS EXTENT THE COMMISSIONER (APPEALS) FAILED IN PROPERLY CONSIDERI NG RULE 46A OF THE INCOME-TAX RULES, 1962. WE, THEREFORE, SET ASID E THE IMPUGNED ORDER AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. THE ASSESSING OFFICER WILL PASS THE ASSESSMENT ORDERS AFRESH AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ALSO. 7. FOR STATISTICAL PURPOSES THE APPEALS ARE TREATED AS AL LOWED. 2. THE AFOREMENTIONED ORDER OF THE TRIBUNAL WAS CARR IED IN APPEALS FILED BEFORE THE HONBLE DELHI HIGH COURT UNDER THE PROVISIONS OF SECTION 260A WHICH ARE DECIDED BY THE HONBLE HIGH COURT VIDE ORDER DATED 13 TH JUNE, 2010. AS IT APPEARS FROM THE ORDER OF HONBLE DELHI HIGH COURT, IT WAS THE CASE OF THE ASSESSEE THAT AS NOTICE S WERE NOT SERVED UPON THE TRIBUNAL AND HAD THE COUNSEL OF THE A SSESSEE APPEARED BEFORE THE TRIBUNAL, HE WOULD HAVE BEEN IN A POSITION TO SATISFY THE TRIBUNAL THAT IT IS NOT A CASE FOR REMAND I NASMUCH AS IN ALL CIRCUMSTANCES AS ENVISAGED UNDER RULE 46A OF ITAT RULES, 1962, THE REMIT IS NOT ALWAYS IMPERATIVE. APART FROM THAT, IT WAS ALSO THE CASE OF THE ASSESSEE THAT THE ASSESSING OFFICER WAS NOTICED BY THE C IT (A) AND AFTER DUE DELIBERATION, AS IS REFLECTED FROM THE ORDE R PASSED BY HIM, IT WOULD BE VIVID THAT OPPORTUNITY WAS AFFORDED TO THE SAID AUTHORITY. THESE CONTENTIONS OF THE ASSESSEE WERE CONTESTED BY THE DE PARTMENT. IT MAY ALSO BE MENTIONED HERE THAT LD. COUNSEL OF THE ASSESSEE HAD TRIED TO IMPRESS BEFORE HONBLE HIGH COURT THAT THE N OTICES WERE NOT SERVED AND, THEREFORE, THE ORDER SHOULD BE DEEMED TO BE AN EX PARTE ORDER. ON THESE SUBMISSIONS, THEIR LORDSHIPS HAVE OBSERVED : ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 3 AS ADVISED, AT PRESENT WE ARE NOT INCLINED TO DWELL IN TO THE SAID ISSUE AS WE ARE OF THE CONSIDERED OPINION THAT THE MATTER HAS TO BE REMANDED TO THE TRIBUNAL ON THE OTHER ISSUE. 3. THEREAFTER, THEIR LORDSHIPS HAVE REPRODUCED RULE 4 6A IN ITS ENTIRETY AND AFTER REPRODUCING RULE 46A, THEIR LORD SHIPS HAVE REMITTED THIS MATTER BACK TO THE FILE OF THE TRIBUNAL WITH TH E FOLLOWING OBSERVATIONS:- ON A SCANNING OF THE AFORESAID RULE, WE ARE OF THE CONSIDERED OPINION THAT IT IS INCUMBENT ON THE TRIBUNAL TO ADDRESS ITSELF WHETHER THE CIRCUMSTANCES ARE SUCH THAT A REMAND IS IMPERATIVE. ON A STUDIED SCRUTINY OF THE ORD ER PASSED BY THE TRIBUNAL, IT IS NOTICEABLE THE TRIBUNAL HAS REFERR ED TO THE ORDER PASSED BY THE CIT AND THEREAFTER REMANDED THE MATTE R. IN VIEW OF THE AFORESAID ANALYSIS, WE HAVE NO OTHER OPTIO N BUT TO SET ASIDE THE SAID ORDER PASSED BY THE TRIBUNAL AND DIR ECT THE TRIBUNAL TO ADJUDICATE THE MATTER AFRESH ON THE ANVIL OF R ULE 46A WHETHER IN THE OBTAINING FACTUAL MATRIX THE ONLY OPTION WA S TO REMIT THE MATTER TO THE ASSESSING OFFICER. WE MAY HASTEN TO CLARIFY WE HAVE NOT EXPRESSED ANY OPINION WITH REGARD TO THE CONTENTIONS TO BE CANVASSED BEFORE THE TRIBUNAL THOUGH SA ME WERE VIGOROUSLY PUT FORTH BEFORE US. THE TRIBUNAL SHA LL ON ITS OWN SCRUTINIZE THE FACTUAL MATRIX ON THE TOUCHSTONE OF LAW AS ENGRAFTED UNDER RULE 46A OF THE 1962 RULES AND DECIDE THE CONTROVERSY ASCRIBING COGENT AND GERMANE REASONS. IN THE RESULT, THE APPEALS ARE ALLOWED TO THE EXTENT INDIC ATED ABOVE. THERE SHALL BE NO ORDER AS TO COSTS. 4. AS IT CAN BE SEEN FROM THE ABOVE ORDER OF HONBLE DELHI HIGH COURT, THE MATTER HAS BEEN REMITTED BACK TO THE TRIB UNAL ON THE SINGLE ISSUE I.E., WHETHER OR NOT HAVING REGARD TO RULE 46A, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ONLY OPTION AVAILAB LE WITH THE TRIBUNAL WAS TO REMIT THE MATTER TO THE ASSESSING OFFICE R. IT IS FURTHER DIRECTED BY THE HONBLE HIGH COURT THAT THE TRIBUNA L SHALL ON ITS OWN SCRUTINIZE THE FACTUAL MATRIX ON THE TOUCHSTONE OF LA W AS ENGRAFTED UNDER RULE 46A OF IT RULES, 1962 AND DECIDE THE CONT ROVERSY ASCRIBING COGENT AND GERMANE REASONS AND, IN THIS MANNER, THE AP PEALS FILED BY THE ASSESSEE BEFORE HONBLE HIGH COURT WERE ALLOWED TO THE EXTENT INDICATED ABOVE. IT IS VERY MUCH CLEAR FROM THE ABO VE MENTIONED OBSERVATIONS OF HONBLE HIGH COURT THAT THE JURISDICTI ON OF THE TRIBUNAL ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 4 WITH REGARD TO THESE APPEALS IS LIMITED ONLY TO THE EX TENT TO EXAMINE THE ISSUE ON THE BASIS OF FACTS AVAILABLE ON RECORD THAT WHETHER IT IS ONLY OPTION AVAILABLE WITH THE TRIBUNAL TO REMIT TH E MATTER TO THE ASSESSING OFFICER. 5. AS THE FACTS RELATING TO ALL THE YEARS ARE ALMOST SIM ILAR, WE WILL DISCUSS THE FACTS RELATING TO ASSESSMENT YEAR 2001-02. THE RETURN WAS FILED BY THE ASSESSEE AT AN INCOME OF ` 1,270/- ON 28 TH MARCH, 2002 WHICH WAS PROCESSED U/S 143 (1). AN INFORMATION WAS REC EIVED FROM DIT (INV.) IN WHICH IT WAS MENTIONED THAT THE ASSESSEE I S ONE OF THE BENEFICIARIES IN THE OPERATION OF ACCOMMODATION ENTR IES IN DELHI AS IT HAD RECEIVED SHARE APPLICATION MONEY THROUGH VARIOUS APPLICANTS AND THE RE-ASSESSMENT PROCEEDINGS WERE INITIATED BY NOTICE I SSUED ON 28 TH MARCH, 2007 AND ACCORDINGLY, FINDING THAT THE EXPLA NATION FURNISHED BY THE ASSESSEE WITH REGARD TO THE SHARE APPLICATION MONEY WAS NOT SATISFACTORY, ADDITION OF ` 27 LAC WAS MADE. AN APPEAL WAS FILED BEFORE THE CIT (A) WHICH WAS DECIDED BY WAY OF A CONSOLIDATE D ORDER PASSED FOR ALL THE FOUR YEARS WHICH IS DATED 30 TH APRIL, 2009. WITH REGARD TO THE MERITS OF THE ADDITION RELATING TO SHARE APPLICATION MONEY, IT WAS THE CASE OF THE ASSESSEE THAT THE ASSESSEE BEFORE ASSESSING OFFICER HAD FILED DETAILED STATEMENT COMPRISING THE NAME OF THE A PPLICANT, AMOUNT RECEIVED, CHEQUE NO., DATE OF CHEQUE, THE NAME OF T HE BANKER, ETC. AND FURTHER DETAILS COULD NOT HAVE BEEN SUBMITTED DUE TO THE REASON OF CHANGE IN THE MANAGEMENT OF THE COMPANY IN THE MONT H OF SEPTEMBER, 2006 AND THE PRESENT MANAGEMENT WERE NOT IN POSSESSION OF THOSE DOCUMENTS. THE ASSESSMENT WAS GETTING TIME BARRE D BY DECEMBER, 2007. SINCE THE ALLOTMENT OF SHARES WERE MA DE BY THE THEN MANAGEMENT IN FINANCIAL YEAR 2002-03 AND THE ASSESSEE W AS NOT AWARE THAT THERE WILL BE ANY SUCH REQUIREMENT OF HAV ING SUCH DOCUMENTS TO BE PRODUCED BEFORE THE INCOME-TAX A UTHORITIES IN THE NEAR FUTURE, THE SAME COULD NOT HAVE BEEN FETCHE D BY THE PRESENT ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 5 MANAGEMENT AT THE TIME OF TAKING OVER OF THE MANAGE MENT AND A REQUEST WAS MADE TO ADMIT THE ADDITIONAL EVIDENCES TO SUPPORT THE GENUINENESS OF THE SHARE APPLICATION MONEY. IT IS IN T HIS MANNER, LD. CIT (A) FURTHER OBTAINING THE REMAND REPORT FROM T HE AO HAS ADMITTED THE EVIDENCES SUBMITTED BY THE ASSESSEE BY APPLYING THE P ROVISIONS OF RULE 46A OF IT RULES, 1962. FOR THE SAKE OF COMPLETE NESS THE OBSERVATIONS OF CIT (A) AS CONTAINED IN PARA 14 OF THE IMPUGNED ORDER WHILE ADMITTING THE ADDITIONAL EVIDENCE ARE AS FOLLO WS:- 14. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE AR AND THE VIEWS OF THE A.O. ON THE ISSUE OF ADMISSION OF ADD ITIONAL EVIDENCE. THE PURPORT OF ALL THE DECISIONS CITED SUPRA SEEMS TO BE THAT THE WORDS SUFFICIENT CAUSE SHOULD RECEIVE LI BERAL INTERPRETATION SO AS TO ADVANCE SUBSTANTIAL JUSTICE. THE DELHI BENCH OF ITAT ALSO HELD THAT WHEN NO NEGLIGENCE, INAC TION OR WANT OF BONA-FIDE CAN BE IMPUTED, A LIBERAL CONSTRUCTIO N OF THE PROVISIONS HAS TO BE MADE IN ORDER TO ADVANCE SUBSTANTI AL JUSTICE. FROM THE ASSESSMENT RECORD, IT IS SEEN THAT THE AR OF THE ASSESSEE HAD APPEARED BEFORE THE A.O. DURING THE C OURSE OF REASSESSMENT PROCEEDINGS ON VARIOUS DATES AND PRODUCE D VARIOUS INFORMATIONS INCLUDING THE NAMES AND ADDRESSE S OF THE PARTIES FROM WHOM VARIOUS AMOUNTS WERE RECEIVED IN THE APPELLANTS BANK ACCOUNT AND THE NATURE OF THOSE RECEIPTS . THE A.O. HIMSELF HAD ADMITTED IN THE ASSESSMENT ORDER, THE ASSESSEES EXPLANATION REGARDING A PART OF THE RECEIPTS TOWARDS SALE PROCEEDS, PAYMENT FROM SUNDRY DEBTORS, ETC. ONLY IN RESPECT OF FURTHER EVIDENCE REGARDING PROVING OF GEN UINENESS OF THE SHARE APPLICATION MONEY RECEIVED; LIKE CONFIRMATIO NS AND PAN NOS., ETC. OF THE SHARE APPLICANTS COMPANIES, THE A PPELLANT WAS UNABLE TO FURNISH THE COMPLETE EVIDENCE DURING THE REASSESSMENT PROCEEDINGS. THUS, IT IS CLEAR THAT THE AP PELLANT WAS NEITHER NEGLIGENT NOR INACTIVE AND ITS BONA-FIDE WA S NOT QUESTIONABLE WHEN IT WAS UNABLE TO PRODUCE, BEFORE THE A.O. DURING THE REASSESSMENT PROCEEDINGS, ALL THE FURTHER EV IDENCE WHICH WAS BEING SOUGHT TO BE ADMITTED AS ADDITIONAL EVID ENCE NOW. THEREFORE, IN VIEW OF THE FACTS STATED WHICH WERE NOT REBUTTED BY THE A.O. IN HER REPORT AND IN VIEW OF THE J UDICIAL DECISIONS QUOTED IN SUPPORT OF THE REQUEST MADE BY THE APPELLANT, I AM SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE THE FURTHER EVIDENCE AT THE TI ME OF REASSESSMENT PROCEEDINGS AND HENCE, THE ADDITIONAL EVI DENCE FURNISHED BY THE APPELLANT IS ACCORDINGLY ADMITTED. 6. SO AS IT RELATES TO THE MERITS OF THE ADDITION, LD. CIT (A) IN PARA 15 HAS NOTED THAT THE AO HAS NOT GIVEN ANY ADVERSE FINDIN GS/COMMENTS IN ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 6 HER REPORT EXCEPT STATING THAT DURING THE RE-ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT MENTION THE SHARE APPLICATION MON EY RECEIVED IN THE RESPECTIVE YEARS AND AFTER NOTING SUCH FACT AND AFTER REPRODUCING THE REJOINDER OF THE ASSESSEE WITH REGARD T O THE REMAND REPORT LD. CIT (A) HAS DELETED THE ADDITION WITH THE FOLLOWING OBSERVATIONS:- 17. I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE A R AND THE ADDITIONAL EVIDENCE FURNISHED BY THE APPELLANT AND ALS O THE REMAND REPORT OF THE A.O. ALONG WITH THE ASSESSMENT RECO RD. THE DETAILS OF VARIOUS AMOUNTS RECEIVED BY THE APPELLA NT IN ITS BANK ACCOUNT WERE FILED BY THE ASSESSEE DURING THE COU RSE OF REASSESSMENT PROCEEDINGS WITH NAMES AND COMPLETE ADDRE SSES. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELL ANT HAS ADDUCED FURTHER RELEVANT EVIDENCE WHICH IS NECESSARY TO PROVE THE IDENTITY AND CREDIT WORTHINESS OF THE SHARE APPLICANT COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS. THU S, THE APPELLANT WAS ABLE TO DISCHARGE THE ONUS CAST ON IT TO PR OVE THE AMOUNT OF SHARE CAPITAL RECEIVED BY IT DURING THE YEAR AS PER THE PROVISIONS OF SEC. 68 OF THE AT. THE A.O. COULD NOT R EBUT ANY OF THESE EVIDENCES NOR COULD SHE BRING ON RECORD ANY MA TERIAL TO PROVE THE CONTRARY. THEREFORE, FOLLOWING THE JUDGEMEN T OF THE HONBLE SUPREME COURT IN THE CASE OF M/S LOVELY EXPOR TS (P) QUOTED (SUPRA), I DIRECT THE A.O. TO DELETE THE ADDITION OF RS.1,50,50,000/- MADE TO THE TOTAL INCOME OF THE ASSESSE E U/S 68 OF THE ACT. 7. THE AFOREMENTIONED OBSERVATIONS OF THE LD. CIT (A) ARE WITH RESPECT TO ASSESSMENT YEAR 2003-04 AND FOR ASSESSMENT YEAR 2 001-02 HE HAS SIMPLY FOLLOWED HIS OBSERVATIONS MADE IN RESPECT O F ASSESSMENT YEAR 2003-04. 8. FOR BETTER UNDERSTANDING THE FACTUAL MATRIX, IT W ILL ALSO BE APPROPRIATE TO REPRODUCE THE RELEVANT PORTION OF TH E REMAND REPORT DATED 20 TH MARCH, 2009 SUBMITTED BY THE AO TO THE CIT (A), COP Y OF WHICH HAS BEEN PLACED AT PAGES 393-399. IN OTHER PAR T OF THE REMAND REPORT, THE ASSESSING OFFICER IS ONLY SUPPORTING HIS ACTIO N WITH REGARD TO THE VALIDITY OF THE RE-ASSESSMENT PROCEEDINGS WHICH W AS ALSO CHALLENGED IN THE APPEAL FILED BEFORE THE CIT (A). AS VALIDITY OF ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 7 REASSESSMENT PROCEEDINGS IS NOT AN ISSUE BEFORE US, WE NEED NOT GO IN THE OTHER PART OF THE REMAND REPORT:- APPLICABILITY OF RULE 46A OF THE INCOME TAX ACT APPLICABILITY OF RULE 46A OF THE INCOME TAX ACT APPLICABILITY OF RULE 46A OF THE INCOME TAX ACT APPLICABILITY OF RULE 46A OF THE INCOME TAX ACT APPLICATION U/R 46A FOR ADMISSION OF ADDITIONAL EVID ENCE CLEARLY STIPULATES THAT (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE B EFORE THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAYBE, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORA L OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS, BEFORE THE ASSESSING OFFICER EXCEPT IN THE FOLLOWING CIRCUMSTANCE S NAMELY: WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVID ENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL. ON GOING THROUGH THE SUBMISSION OF THE ASSESSEE COMPANY AS FURNISHED BEFORE YOUR GOODSELF, IT IS CLE ARLY ESTABLISHED THAT THERE WAS NO CONCRETE REASON FOR WHICH IT COULD NOT FURNISH THE REQUISITE DETAILS AND INFORMATION WHICH WAS ASKED FOR DURING THE ASSESSMENT PROCEEDINGS. HENCE, UNDER THESE CIRCUMSTANCES ADDITIONAL EVIDENCES AS FURNISHED BY THE ASSESSEE COMPANY AT APPELLATE STAGE SHOULD NOT BE ADMITTE D. FURTHER, AS DESIRED, RELEVANT ASSESSMENT FOLDERS (4 VOLUMES) ARE ENCLOSED HEREWITH FOR KIND PERUSAL. YOURS FAITHFULLY, SD/- (SAROJINI XESS) INCOME TAX OFFICER WARD 2 (2), NEW DELHI. 9. THEREFORE, APART FROM SUPPORTING THE VALIDITY OF THE RE- ASSESSMENT PROCEEDINGS, THE SUBJECT MATTER OF THE REMAND REPORT IS ONLY APPLICABILITY OF RULE 46A OF THE INCOME-TAX A CT. IT CAN ALSO BE OBSERVED FROM THE AFOREMENTIONED REMAND REPORT THAT THE AO HAS NOT VERIFIED ANY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE T O SUPPORT THE GENUINENESS OF THE SHARE APPLICATION MONEY. IT IS, THEREFORE, EVIDENT THAT EVEN AT THE STAGE OF REMAND PROCEEDINGS THE AO HAS NOT VERIFIED THE EVIDENCE SUBMITTED BY THE ASSESSEE WITH REG ARD TO THE ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 8 GENUINENESS OF SHARE APPLICATION MONEY. THE RELEVANT PORTION OF ORDER OF CIT (A) HAS ALSO BEEN REPRODUCED IN THE ABOVE PART OF THIS ORDER AND IT IS FOUND THAT LD. CIT (A) ON HIS OWN HAS ALSO NOT GI VEN ANY FINDING WITH REGARD TO THE CORRECTNESS OF THE EVIDENCE SUPPORT ING THE GENUINENESS OF THE SHARE APPLICATION MONEY. THUS, IT I S EVIDENT THAT THE EVIDENCE SUBMITTED BY THE ASSESSEE HAS NOT BEEN VERIF IED BY THE AO AND IT HAS ALSO NOT BEEN VERIFIED BY THE LD. CIT ( A). ON THESE FACTS, IT HAS TO BE EXAMINED THAT WHETHER THE ONLY OPTION A VAILABLE WITH THE TRIBUNAL IS TO REMIT THE MATTER TO THE A.O. OR THE M ERITS OF ADDITION COULD HAVE BEEN DECIDED AT THE LEVEL OF TRIBUNAL. 10. BEFORE COMING TO THE MAIN ISSUE, WE MAY MENTION H ERE THAT AFTER THE DATE OF THE DECISION OF HONBLE DELHI HIGH COURT , THE ASSESSEE HAS FILED CROSS OBJECTIONS WHICH ARE FILED ON 18 TH MARCH, 2011 IN WHICH IT HAS RAISED THE FOLLOWING GROUNDS:- 1) THE ORDER PASSED U/S 143 (3)/147 OF THE INCOME-TA X AT, 1961 IS WITHOUT JURISDICTION. 2) IT IS CONTENDED THAT THERE ARE NO MATERIALS AVAILABLE WITH THE A.O. TO FORM REASON TO BELIEVE THAT THE INCOME HAS ESC APED ASSESSMENT AS PER THE PROVISIONS OF SECTION 147 OF THE IT ACT. 3) THE ORDER U/S 143(3)/147 OF THE IT ACT HAVING BEEN PASSED ON THE DICTATES OF THE INVESTIGATION DEPARTMENT, BASED ON THE INVESTIGATION REPORT, THERE IS NO INDEPENDENT APPLICATION OF MIND BY THE A.O. TO FORM REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. 11. THE AFOREMENTIONED GROUNDS OF CROSS OBJECTIONS AR E IDENTICAL IN RESPECT OF ALL THE YEARS INVOLVED. AT THIS STAGE, IT M AY BE MENTIONED THAT VALIDITY OR OTHERWISE OF RE-ASSESSMENT PROCEEDINGS H AS NEVER BEEN A QUESTION BEFORE THE TRIBUNAL. FROM THE DECISI ON OF HONBLE HIGH COURT ALSO IT DOES NOT APPEAR THAT VALIDITY OF RE-ASSESSM ENT PROCEEDINGS WAS EVER AN ISSUE RAISED BY THE ASSESSEE. IN AN Y CASE, THE APPEALS FILED BY THE REVENUE ARE FIXED FOR HEARI NG BY THE TRIBUNAL TO GIVE EFFECT TO THE DIRECTIONS OF HONBLE HIGH COU RT (REFERENCE TO ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 9 SECTION 260(1) OF IT ACT, 1961). THEREFORE, IN OUR HUMBLE OPINION OUR JURISDICTION IS LIMITED ONLY TO THE DIRECTIONS GIVEN B Y HONBLE HIGH COURT AND NO NEW ISSUE CAN BE CONSIDERED AT THIS STAGE. IN TH IS VIEW OF THE MATTER, WE FIND NO JUSTIFICATION IN THE ARGUMENT OF LEARNED AR WHO SUPPORTED THE CROSS OBJECTIONS ON THE GROUND THAT THE ASSESSEE DID NOT GET ANY OPPORTUNITY TO RAISE SUCH ISSUE. WE ALSO DO NOT FIND ANY FORCE IN THE ARGUMENT OF LD. AR WHO MADE REFERENCE TO RULE 27 OF ITAT RULES, AS IT HAS ALREADY BEEN MENTIONED THAT THE SCOP E OF THE DECISION OF THE TRIBUNAL IN DEPARTMENTAL APPEAL IS LI MITED TO CARRY OUT OF THE DIRECTIONS OF HONBLE HIGH COURT WHICH ARE ON LY WITH REGARD TO DECIDING AN ISSUE THAT IN THE FACTUAL MATRIX WHETHER IT IS ONLY THE OPTION AVAILABLE WITH THE TRIBUNAL TO REMIT THE MATTER TO THE AO. 12. APART FROM ABOVE, BY FILING THE CROSS OBJECTIONS A FTER THE DECISION OF HONBLE HIGH COURT, THE ASSESSEE INTENDS TO A CT AGAINST THE WELL SETTLED PROPOSITION OF LAW ACCORDING TO WHICH WH AT CANNOT BE DONE PER DIRECTUM IS NOT PERMISSIBLE TO BE DONE PER OBLIQUUM MEANING THEREBY WHATEVER IS PROHIBITED BY LAW TO BE DONE, CA NNOT LEGALLY BE EFFECTED BY AN INDIRECT OR CIRCUITOUS CONTRIVANCE O N THE PRINCIPLE OF QUANDO ALIQUID PROHIBETUR, PROHIBETUR AT OMNE PER QUOD DEVENITUR AD ILLUD. APPLYING THE ABOVE PRINCIPLE, WE HOLD THAT RELIEF SOUGHT BY THE ASSESSEE THROUGH CO CANNOT BE GIVEN IN LAW. SUCH PROPO SITION OF LAW IS SUPPORTED BY FOLLOWING JUDICIAL PRONOUNCEMENT:- IN JAGIR SINGH V. RANBIR SINGH AIR 1979 SC 381, THE APEX COURT HAS OBSERVED THAT AN AUTHORITY CANNOT BE PERMITTED TO EVADE A LAW BY 'SHIFT OR CONTRIVANCE'. WHILE DECIDING THE SAID CASE, THE SUPREME COURT PLACED RELIANCE ON THE JUDGMENT IN FOX V. BISHOP OF CHESTER [1824] 2 B & C 635, WHEREIN IT HAS BEEN OBSERVED AS UNDER (PAGE 384): TO CARRY OUT EFFECTUALLY THE OBJECT OF A STATUTE, IT MUST B E CONSTRUED AS TO DEFEAT ALL ATTEMPTS TO DO, OR AVOID DOING, IN AN INDIRECT OR CIRCUITOUS MANNER THAT WHICH IT HAS PROHIBITE D OR ENJOINED. ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 10 LAW PROHIBITS TO DO SOMETHING INDIRECTLY WHICH IS PROHI BITED TO BE DONE DIRECTLY. SIMILAR VIEW HAS BEEN REITERATED BY THE APEX COURT IN M.C. MEHTA V. KAMAL NATH AIR 2000 SC 1997, WHEREIN IT HAS BEEN HELD THAT EVEN THE SUPREME COURT CANNOT ACHIEVE SOMETHING INDIRECTLY WHICH CANNOT BE ACHIEVED DIRECTLY BY RESORTING TO THE PROVISIONS OF ARTICLE 142 OF THE CONSTITU TION, WHICH EMPOWERS THE COURT TO PASS ANY ORDER IN A CASE I N ORDER TO DO COMPLETE JUSTICE.' (PP. 477 AND 478 OF THE REPORT) 13. MOREOVER, IN FORM NO.36A I.E., FORM FOR FILING CROSS OBJECTION IN THE TRIBUNAL, IN COLUMN NO.5 WHERE THE APPELLANT IS REQUIRED TO FURNISH THE DATE OF RECEIPT OF NOTICE OF APPEAL, THE ASSESSEE HAS WRITTEN NO NOTICE RECEIVED. ON PERUSAL OF THE MONTHLY CAUSE LI ST MADE AVAILABLE BY THE ITAT BAR ON 7 TH MARCH, 2011, THE RESPONDENT BECAME AWARE OF THE FIXATION OF THE REVENUES APPEAL. THE CROSS OBJEC TIONS CAN BE FILED EITHER BY THE REVENUE OR BY THE ASSESSEE AS PER PROVISION S OF SECTION 253 (4) WHICH READ AS UNDER:- APPEALS TO THE APPELLATE TRIBUNAL. APPEALS TO THE APPELLATE TRIBUNAL. APPEALS TO THE APPELLATE TRIBUNAL. APPEALS TO THE APPELLATE TRIBUNAL. 253. 253. 253. 253. (1) . (2) (3) (4) THE ASSESSING OFFICER OR THE ASSESSEE, AS THE CAS E MAY BE, ON RECEIPT OF NOTICE THAT AN APPEAL AGAINST THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] HAS BEEN PREFERRED UNDER SU B-SECTION (1) OR SUB-SECTION (2) BY THE OTHER PARTY, MAY, NOTWITHSTA NDING THAT HE MAY NOT HAVE APPEALED AGAINST SUCH ORDER OR ANY PART THEREOF; WITHIN THIRTY DAYS OF THE RECEIPT OF THE NOTICE, F ILE A MEMORANDUM OF CROSS-OBJECTIONS, VERIFIED IN THE PRESC RIBED MANNER, AGAINST ANY PART OF THE ORDER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), AND SUCH MEMORANDUM SHALL B E DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE AN APPEAL PRESENTED WITHIN THE TIME SPECIFIED IN SUB-SECTION (3). 14. AS IT CAN BE SEEN FROM THE AFOREMENTIONED PROVISIO N, THE CROSS OBJECTIONS CAN BE FILED WITHIN 30 DAYS ON RECEIPT OF NOTICE FIXING THE HEARING OF THE APPEAL BY THE OTHER PARTY IRRESPECTIV E OF THE FACT THAT WHETHER OR NOT THE APPEAL HAS ALREADY BEEN FILED AGA INST THE SAID ORDER. FOR THAT PURPOSE THE NOTICE OF HEARING SHOULD BE IN THE APPEAL ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 11 WHICH IS PREFERRED UNDER SUB-SECTION (1) OR SUB-SECTION (2) OF SECTION 253 AND SUB-SECTION (1) OF SECTION 253 GIVES AN AUTHOR ITY TO THE ASSESSEE TO PREFER AN APPEAL AGAINST THE ORDER INTER ALI A PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). SIMILARLY, SUB-SE CTION (2) OF SECTION 253 AUTHORISE AN APPEAL TO BE FILED BY THE C OMMISSIONER IF HE IS AGGRIEVED WITH THE ORDER INTER ALIA PASSED BY THE C IT (A). THE IMPUGNED APPEALS ARE FILED BY THE REVENUE AND NOTICE OF HEARING BY THE TRIBUNAL WAS NOT ON ACCOUNT OF HEARING OF THE AP PEALS FILED U/S 253 (2), BUT, IT WAS ON ACCOUNT OF THE DIRECTIONS GIVEN B Y HONBLE HIGH COURT. THE RELEVANT DATE OF RECEIPT OF NOTICE OF A PPEAL WILL BE IN RESPECT OF ORIGINAL HEARING WHEN THE APPEALS OF THE R EVENUE WERE DECIDED BY THE TRIBUNAL VIDE ORDER DATED 6 TH NOVEMBER, 2009. FIXING OF APPEAL IN PURSUANCE OF DIRECTIONS OF HONBLE HIGH COURT DOES NOT GIVE RIGHT TO THE ASSESSEE TO FILE CROSS OBJECTIONS AS THIS RIGHT IS AVAILABLE ONLY WHEN THE APPEAL IS FIXED FOR HEARING BY THE TRIBUNAL OF THE OTHER PARTY IN RESPECT OF AN APPEAL FILED BEFORE THE TRIBUNAL. THEREFORE ALSO THE CROSS OBJECTIONS FILED BY THE ASSESSEE C ANNOT BE CONSIDERED AT THIS STAGE. THE ASSESSEE WAS AN APPELLANT BE FORE THE HONBLE HIGH COURT, THEREFORE, THE ASSESSEE WAS WELL AWA RE OF THE PROCEEDINGS BEFORE THE HONBLE HIGH COURT VIDE WHICH APPEAL WAS DECIDED ON 13 TH JULY, 2010 AND THE JURISDICTION OF THE TRIBUNAL IS L IMITED ON THAT ISSUE. THEREFORE, WHATEVER HAS BEEN RAISED BY THE ASSESSEE THROUGH CROSS OBJECTIONS IS NOT ADMISSIBLE. 15. FOR AFOREMENTIONED REASONS, WE DISMISS THE CROSS OBJEC TIONS FILED BY THE ASSESSEE AS THEY ARE NOT LEGALLY VALID TO B E CONSIDERED AND DECIDED. 16. IT MAY ALSO BE MENTIONED HERE THAT AFTER FILING THE APPEAL BEFORE THE HONBLE HIGH COURT AGAINST THE ORDER OF THE TRIB UNAL DATED 6 TH NOVEMBER, 2009, THE ASSESSEE HAD ALSO FILED A MISCELLANEO US APPLICATION AGAINST THAT ORDER BEFORE THE TRIBUNAL W HICH WAS DECIDED ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 12 BY THIS TRIBUNAL VIDE ORDER DATED 10 TH SEPTEMBER, 2010 ON THE GROUND THAT HONBLE DELHI HIGH COURT HAS ALREADY PASSED ORDER ON 13 TH JULY, 2010, THEREFORE, THE APPLICATION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. IT HAS ALREADY BEEN POINTED OUT THAT TH E ISSUE THAT ORDER OF TRIBUNAL SHOULD BE CONSIDERED AS EX PARTE ORDER WAS ALSO CANVASSED BY THE ASSESSEE BEFORE HONBLE HIGH COURT AND THEIR LOR DSHIPS DID NOT DELVE INTO THE SAID ISSUE , AS, ACCORDING TO THEIR CON SIDERED OPINION THE MATTER WAS REQUIRED TO BE REMANDED TO THE TRIBUNAL O N OTHER ISSUE. 17. NOW, ADVERTING TO MAIN ISSUE, IT WILL BE APPROPRI ATE TO REPRODUCE RULE 46A TO PROPERLY APPRECIATE AND ADJUDICATE THE CONTROVERSY:- PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY COMMISSIONER (APPEALS)AND COMMISSIONER (APPEALS). COMMISSIONER (APPEALS)AND COMMISSIONER (APPEALS). COMMISSIONER (APPEALS)AND COMMISSIONER (APPEALS). COMMISSIONER (APPEALS)AND COMMISSIONER (APPEALS). 46A. 46A. 46A. 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS)OR, AS THE CASE MAY B E, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL O R DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DU RING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICE R, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : ( A ) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR ( B ) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER; OR ( C ) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVID ENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR ( D ) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPE ALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELL ANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1) UNLESS THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSE SSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY ( A ) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS-EXAMI NE THE WITNESS PRODUCED BY THE APPELLANT, OR ( B ) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS I N REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPE LLANT. ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 13 (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWE R OF THE DEPUTY COMMISSIONER (APPEALS)OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF ANY WITNESS, TO ENABLE H IM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAU SE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE ASSE SSING OFFICER) UNDER CLAUSE ( A ) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. 18. SUB-RULE (1) & (2) OF RULE 46A GOVERN THE ADMISSI ON OF ADDITIONAL EVIDENCE AND SINCE THE ADDITIONAL EVIDENCE HAS BEEN A DMITTED BY LEARNED CIT (A) AND IT IS NOT AN ISSUE WHICH IS NOW TO BE DECIDED, THEREFORE, WE HAVE TO EXAMINE THE ISSUE BEFORE US IN T HE LIGHT OF THE PROVISIONS OF RULE 46A (3) AND (4). FIRST WE WILL REF ER TO THE RULE 46A(3). ACCORDING TO SUB RULE (3) OF RULE 46A, THE COMMISSIONER (APPEALS) IS DEBARRED FROM TAKING INTO ACCOUNT ANY EV IDENCE PRODUCED BY THE ASSESSEE UNDER THE SUB-RULE (1) UNLESS THE AO HAS BE EN ALLOWED A REASONABLE OPPORTUNITY: (A) TO EXAMINE THE EVIDENCE OR DOCUMENTS OR TO CROSS EXAMINE THE WITNESS PRODUCED BY TH E ASSESSEE OR (II) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE. T HEREFORE, IT WILL BE APPROPRIATE TO EXAMINE THE QUESTION THAT WHETHER OR NOT AFTER ADMISSION OF ADDITIONAL EVIDENCE, A REASONABLE OPPORTU NITY HAS BEEN AWARDED BY CIT (A) TO THE ASSESSING OFFICER. 19. THE RELEVANT PORTION OF REMAND REPORT HAS BEEN R EPRODUCED ABOVE AND IT HAS ALSO BEEN MENTIONED THAT ACCORDING T O THE FACTS AVAILABLE ON RECORD, THE AO IS ONLY OBJECTING TO THE ADMISSION OF ADDITIONAL EVIDENCE AND HAS NOT EXAMINED THE EVIDEN CE OR DOCUMENTS AND HAS NOT ALSO CROSS EXAMINED THE WITNESS. THEREFORE, THE QUESTION OF PRODUCING ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE DOES NO T ARISE. HAVING FOUND THAT THE AO HAS NOT COMMENTED UPON THE EXAMINATION OF THE EVIDENCE, IT WAS INCUMBENT UPON THE LD CIT (A) THAT HE SHOULD ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 14 HAVE ASKED THE AO WHETHER HE HAS ANYTHING TO SAY REGAR DING THE GENUINENESS OF THE EVIDENCE FILED BY THE ASSESSEE TO SUPPO RT THE SHARE APPLICATION MONEY. THEREFORE, IT CAN BE HELD THAT CIT (A) HAS NOT GRANTED REASONABLE OPPORTUNITY REASONABLE OPPORTUNITY REASONABLE OPPORTUNITY REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER AS ENVISA GED IN SUB-RULE (3) OF RULE 46A. 20. SUB-RULE (4) OF RULE 46A AUTHORIZE COMMISSIONER ( APPEALS) TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMI NATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSM ENT, PENALTY, ETC. HOWEVER, IT IS NOT EVEN THE CASE OF TH E ASSESSEE THAT THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE WAS ON THE DIRECTIONS OF LEARNED CIT (A), THEREFORE, SUB-RULE (4) OF RULE 46A CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. MOREOVER, LEARNED CIT (A) HIMSELF HAS ALSO NOT GIVEN ANY FINDING WITH REGARD TO THE EXAMIN ATION OR VERIFICATION OF THE EVIDENCE FILED BY THE ASSESSEE. TH E FACT REMAINS THAT THE EVIDENCE SUBMITTED BY THE ASSESSEE TO SUPPORT TH E SHARE APPLICATION MONEY HAS NOT BEEN EXAMINED AND VERIFIED EITHER AT THE END OF THE AO OR AT THE END OF THE CIT (A). THE CL AIM OF THE ASSESSEE REGARDING GENUINENESS OF THE SHARE APPLICATION MONEY H AS BEEN ACCEPTED BY THE CIT (A) ON THE FACE OF IT WITHOUT R ECORDING A FINDING THAT THE EVIDENCE SUBMITTED BY THE ASSESSEE WAS VERIFIED AND FOUND TO BE GENUINE. THE CASE OF THE ASSESSEE HAS STRAIGHTAWAY BEE N ACCEPTED BY LEARNED CIT (A) SIMPLY FOR THE REASON THAT THE ASSESSI NG OFFICER HAS NOT ADVERSELY COMMENTED UPON THE EVIDENCE SUBMITTED B Y THE ASSESSEE WITH REGARD TO THE GENUINENESS OF THE SHARE APPLI CATION MONEY. THE COPY OF THE LETTER OF LEARNED CIT (A) SE EKING THE REMAND REPORT HAS NOT BEEN FURNISHED BEFORE US TO PROPERLY STA TE THAT WHETHER OR NOT LEARNED CIT (A) HAD CALLED THE ASSESSING OFFICER TO VERIFY AND EXAMINE THE EVIDENCE, BUT EVEN IF FROM THE REPORT F ILED BY THE ASSESSING OFFICER IT WAS FOUND BY THE LEARNED CIT (A) TH AT THE ASSESSING ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 15 OFFICER HAS NOT COMMENTED UPON THE EXAMINATION AND V ERIFICATION OF THE EVIDENCE, THEN, HE AT LEAST COULD ASK THE ASSESSING O FFICER THAT WHETHER HE HAS ANYTHING TO SAY ABOUT THE CORRECTNESS OF THE EVIDENCE. THE READING OF THE ENTIRE ORDER OF THE CIT (A) WILL REVEAL THAT THIS EXERCISE HAS NOT BEEN DONE. THE CLAIM OF THE ASSESSEE CAN NOT BE ACCEPTED WITHOUT VERIFICATION OR EXAMINATION OF THE EVIDENCE WHICH HAS BEEN SUBMITTED BY THE ASSESSEE. ACCORDING TO THE WELL SE TTLED LAW, LEARNED CIT (A) HAS CO-TERMINUS POWER WITH THE ASSESSING OFFICER [JUTE CORPORATION OF INDIA VS. CIT 187 ITR 688 (SC)] AND I F THE ASSESSING OFFICER HAS NOT DONE ANYTHING, EITHER HE HIMSELF CAN DO SO OR DIRECT THE ASSESSING OFFICER TO DO SO. BUT THE EVIDENCE CANNOT BE ADMITTED ON THE FACE OF IT WITHOUT EXAMINING OR VERIFYING THE SA ME. IT HAS ALSO BEEN HELD BY HONBLE SUPREME COURT THAT IN THE CASE OF CI T VS. NIRBHAY RAM DELU RAM 224 ITR 610 (SC) THAT THE APPELLATE AUTHO RITY CAN DO WHAT THE ASSESSING OFFICER CAN DO AND ALSO DIRECT HIM TO DO W HAT HE HAS FAILED TO DO. HAVING REGARD TO SUCH PRINCIPLES OF LAW LAID DOWN BY HONBLE SUPREME COURT, IT WAS INCUMBENT UPON THE CIT (A) TO EITHER VERIFY AND EXAMINE THE EVIDENCE FILED BY THE ASSESSEE A T HIS OWN OR ASK THE ASSESSING OFFICER TO DO SO AND WITHOUT HAVING DON E SO, HE COULD NOT HAVE STRAIGHTAWAY ACCEPTED THE CLAIM OF TH E ASSESSEE. 21. KEEPING IN VIEW THE ABOVE DISCUSSION AND FACTUAL M ATRIX, WE ARE OF THE HUMBLE OPINION THAT AS LD. CIT (A) DID NOT FO LLOW RULE 46A IN LETTER AND SPIRIT, THEREFORE, THERE IS NO OTHER OPTIO N AVAILABLE WITH THE TRIBUNAL EXCEPT TO RESTORE THE ISSUE TO THE FILE OF ASSE SSING OFFICER WITH A DIRECTION TO EXAMINE AND VERIFY THE EVIDENCE SUBMI TTED BY THE ASSESSEE IN SUPPORT OF THE GENUINENESS OF SHARE APPLICATION MONEY FOR ALL THE YEARS AND AFTER MAKING SUCH EXAMINATION AND V ERIFICATION, THE ASSESSING OFFICER WILL RE-DECIDE THE ISSUE OF ADDITION OR OTHERWISE OF THE SHARE APPLICATION MONEY AS PER THE PROVISIONS OF LAW. THEREFORE, WE ITA NOS.3234 TO 3237/DEL/2009 CO NOS.83 TO 87/DEL/2011 16 RESTORE ALL THESE YEARS TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME IN ACCORDANCE WITH THE AFOREMENTIONED DIRECTION S. 22. FOR STATISTICAL PURPOSES THE APPEALS FILED BY THE RE VENUE ARE ALLOWED IN THE MANNER AFORESAID. 23. TO SUM UP: (I) THE APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES; AND (II) THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 21.10.20 11. SD/- SD/- [A.N. PAHUJA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 21.10.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES