ITO, New Delhi V. Sh. Surinder Sehgal, New Delhi

ITA 3241/DEL/2011

• Counselvise Citation: 324120114 RSA 2011
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 12-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAMTA KOCHAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: G NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO: 3241/DEL/2011 A.Y. : 2007-08 ITO, WARD 39(4) VS. SHRI SURINDER SEHGAL NEW DELHI PROP. CENTRAL ART SERVICES 5306, SADAR THANA ROAD DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : MS. MAMTA KOCHAR, D.R . RESPONDENT BY : NONE O R D E R PER DIVA SINGH, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DT. 25.3.2011 OF THE CIT(A)-XXVIII, NEW DELHI PERTAININ G TO A.Y. 2007-08 ON THE GROUNDS THAT FRESH EVIDENCES HAVE BEEN ENTERTAI NED BY THE CIT(A); THE SAME ARE STATED TO BE BEYOND THE SCOPE OF RULE 46A OF ITAT RULES; IGNORING THE REQUEST OF THE A.O. THAT TIME IS REQUI RED FOR DEEPER INVESTIGATION TO VERIFY THE EVIDENCES. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. H OWEVER ON A PERUSAL OF THE MATERIAL AVAILABLE ON RECORD IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX PARTE QUA THE ASSESSEE RESPONDENT ON MERITS AFTER HEARING THE LD.D.R. 2 3. THE RELEVANT FACTS OF THE CASE ARE THAT IN THE C ASE OF THE ASSESSEE WHO IS DOING BUSINESS FROM PRINTING AND ADVERTISING THE A.O. MADE THE FOLLOWING SPECIFIC ADDITIONS U/S 68, THE FIRST ADD ITION OF RS.1,50,000/- WAS MADE AS THE ASSESSEE WAS HELD TO HAVE NOT EXPLA INED FROM HIS CAPITAL ACCOUNT THE SOURCE OF THE SAID AMOUNT. THE SECOND ADDITION OF RS.10 LAKHS WAS MADE ON ACCOUNT OF THE FACT THAT TH E ASSESSEE COULD NOT FILE VOUCHERS FROM SUNDRY CREDITORS THE THIRD ADDIT ION OF RS.35,94,217 WAS MADE AS ON A PERUSAL OF THE UNSECURED LOANS THE A.O. OBSERVED THAT CONFIRMATIONS WERE NOT FILED AS THE ONUS IS UPON TH E ASSESSEE TO PROVE THE GENUINENESS OF THE CREDITORS, SOURCE OF CREDIT AND CREDIT WORTHINESS WAS HELD TO HAVE NOT BEEN DISCHARGED. ANOTHER ADDI TION OF RS.1 LAKH WAS MADE ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWALS. 4. IN APPEAL BEFORE THE CIT(A) THE ASSESSEE FILED P ETITION PRAYING FOR ADMISSION OF ADDITIONAL EVIDENCES. AS PER PARA 2.1 OF THE IMPUGNED ORDER IT WAS SENT TO A.O. ON 28.7.2010 FOR HIS COM MENTS AND OPPORTUNITY UNDER RULE 46A(3) WAS PROVIDED IN ORDER TO EXAMINE THE EVIDENCE, DOCUMENTS AND TO PRODUCE ANY EVIDENCE THR OUGH DOCUMENT OR ANY WITNESS IN REBUTTAL OF ADDITIONAL EVIDENCE MOVE D. THE A.O. RESPONDED VIDE LETTER DT. 23.9.2010 REQUESTING FOR AT LEAST 2 MONTHS TIME IN ORDER TO VERIFY THE GENUINENESS AND MAKE EN QUIRIES ON THE EVIDENCES FILED. SUBSEQUENTLY REMAND REPORT DATED 9.2.2011 WAS FILED BEFORE THE CIT(A). CONSIDERING THE REMAND REPORT WHICH IS REPRODUCED 3 IN PARA 2.2 IN THE IMPUGNED ORDER AT PAGES 3 TO 5, THE CIT(A) IN PARA 2.3 REGARDING THE ADMISSIBILITY OF THE FRESH EVIDENCE H ELD AS UNDER. 2.3. THE APPELLANT HAS STATED THAT SUFFICIENT OPP ORTUNITY WAS NOT GIVEN DURING ASSESSMENT PROCEEDINGS AND THE REFORE, THE ADDITIONAL EVIDENCE FILED DESERVES TO BE ADMITT ED UNDER RULE 46A. HE STATED THAT HE MADE ALL EFFORTS TO FI LE CONFIRMATIONS ETC. REQUIRED DURING ASSESSMENT PROCE EDINGS BUT THESE HAD TO BE PROCURED FROM OTHERS AND THEY C OULD NOT BE OBTAINED WITHIN THE SHORT TIME ALLOWED BY THE A. O. THE APPELLANT ARGUED THAT IT WAS DIFFICULT FOR HIM TO O BTAIN CONFIRMATIONS FROM THE LARGE NUMBER OF CREDITORS, P ARTICULARLY AS SUFFICIENT TIME WAS NOT GIVEN. THE SUBMISSIONS OF THE APPELLANT AND THE FACTS HAVE BEEN CAREFULLY CONSIDE RED. CONSIDERING THE FACTS AND INTEREST OF JUSTICE, THE ADDITIONAL EVIDENCE FILED BY THE APPELLANT IS ADMITTED IN TERM S OF RULE 46A AS THE CONDITIONS LAID DOWN IN RULE 46A ARE SAT ISFIED. AS DISCUSSED ABOVE, THE A.O. HAS BEEN GIVEN AN OPPORTU NITY IN TERMS OF RULE 46A(3) AND HIS REMAND REPORT HAS BEEN DULY CONSIDERED. 5. THEREAFTER ON MERITS THE FIRST ADDITION STOOD DE LETED VIDE PARA 2.1 TO 2.3 WHEREIN THE CLAIM IN REGARD TO REMUNERATION FROM HOTEL AND SHARE IN SALE OF PROPERTY IN ORDER TO EXPLAIN THE AVAILAB ILITY IN THE CAPITAL ACCOUNT OF RS.1,50,000/- STOOD DELETED AS NO EVIDE NCE IN REBUTTAL WAS MADE BY THE A.O. 5.1. SIMILARLY VIDE PARA 4.1 TO 4.4 AT PAGES 7 TO 1 0 CONSIDERING THE DOCUMENTARY PROOF IN REGARD TO THE CONFIRMATIONS AN D OTHER RELEVANT DETAILS STOOD DELETED AS NO EVIDENCE IN REBUTTAL WA S PLACED ON RECORD BY THE A.O. DESPITE THE OPPORTUNITY PROVIDED. 4 5.2. IN REGARD TO THIRD ADDITION VIDE PARA 5.1 TO P ARA 5.3 AT PAGES 10 TO 12 CONSIDERING THE CONFIRMATIONS ETC. AND THE REPLY OF THE A.O. THE ADDITIONS STOOD DELETED. 5.3. IN REGARD TO FOURTH ADDITION ON ACCOUNT OF LO W HOUSE HOLD WITHDRAWALS THE FACTS TAKEN INTO CONSIDERATION WE RE THAT THE ASSESSEE HAD TWO MARRIED DAUGHTERS WHO WERE NOT LIVING WITH HIM AND A MAJOR SON WHO WAS UNMARRIED AND EARNING AS SUCH CONTRIBUT ING TO HOUSE HOLD EXPENSES. THE ASSESSEE ON FACTS WAS LIVING IN HIS OWN RESIDENTIAL HOUSE AND NOT MAINTAINING CAR OR ANY OTHER VEHICLE THE AD HOC ADDITION OF RS.1 LAKH WAS RESTRICTED TO RS.50,000/- VIDE PARAS 6.1 T O PARA 6.3 BY THE CIT(A). 5.4. THE LD.D.R. WAS UNABLE TO ADDRESS AS TO IN WHICH SPECIFIC GROUND THE DEPARTMENT IS AGGRIEVED. NO SPECIFIC ARGUMENT WAS ADVANCED AS SUCH WE CONFIRM THE IMPUGNED ORDER WHEREIN THE CIT (A) AT PARA 2.3 HELD THAT THE ASSESSEE DID NOT HAVE SUFFICIENT TIME TO P ROCURE THE NECESSARY DETAILS BEFORE THE A.O. AS SUCH THE CONFIRMATIONS OBTAINED FROM THE LARGE NUMBER OF CREDITORS NEEDED TO BE FILED BEFORE THE CIT(A). SIMILARLY WHICH FACT OR EVIDENCE REQUIRED MORE TIME FOR A DEE PER INVESTIGATION IN THE ARGUMENTS ADVANCED NO REBUTTAL OF THE EVIDENCES AND FACTS TAKEN INTO CONSIDERATION HAS BEEN FILED. AS SUCH IT IS S EEN THAT NO EVIDENCE IN REBUTTAL WAS FORWARDED EITHER IN THE REMAND REPORT BEFORE THE CIT(A) NOR BEFORE US. THE REQUEST FOR TWO MONTHS TIME TO CARRY OUT 5 INVESTIGATIONS VOICED VIDE LETTER DATED 23.9.2010 W AS ACCEDED TO BY THE CIT(A) AND THE REMAND REPORT WAS FORWARDED ALMOST A FTER ABOUT 4 MONTHS. ACCORDINGLY FOR THE REASONS GIVEN HEREINAB OVE WE FIND NO MERIT IN ALLOWING THE DEPARTMENTAL APPEAL. 6. IN THE AFORE MENTIONED PECULIAR FACTS AND CIRCU MSTANCES, FOR THE REASONS GIVEN HEREINABOVE, THE GROUNDS RAISED BY TH E DEPARTMENT ARE DISMISSED. 7. IN THE RESULT THE APPEAL OF THE DEPARTMENT IS DI SMISSED AS PER PRONOUNCEMENT MADE IN THE OPEN COURT ON THE DATE OF HEARING I.E. 12 TH MARCH, 2012. PRONOUNCED IN THE OPEN COURT ON 12 TH MARCH, 2012. SD/- SD/- (A.N. PAHUJA) (DIVA SINGH) ACCOUNTNAT MEMBER JUDICIAL MEMBE R DT. 12 TH MARCH, 2012 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT( A); 5.DR 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y //