Income Tax Office-1, Bahraich V. Shri Jai Prakash Mishra, Bahraich

ITA 343/LKW/2012

• Counselvise Citation: 34323714 RSA 2012
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 22-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AJAI KUMAR
• Assessee Lawyers: P K KAPOOR
• Keywords: Opportunity of being heard; Additional evidence
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 343/LKW/2012 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER - 1 BAHRAICH V. SHRI. JAI PRAK ASH MISHRA BAHRAICH PAN: ALEPM7983M (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. AJAI KUMAR, D.R. RESPONDENT BY: SHRI. P. K. KAPOOR, C.A. DATE OF HEARING: 26 05 2014 DATE OF PRONOUNCEMENT: 29 05 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APP EAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON THE FOLLOWING GROUNDS: - 1 . BECAUSE THE LD. CIT(A) - II, LUCKNOW HAS CONSIDERED THE ADDITIONAL EVIDENCES WITHOUT REMANDING THE MATTER TO THE ASSESSING OFFICER WHICH CONTRARY TO RULE 46A. 2 . BECA USE THE LD. CIT(A) - II, LUCKNOW HAS WRONGLY INTERPRETED THE FACTS OF THE CASE. 3 . KEEPING IN VIEW OF THE CASE REASON RECORDED BY ASSESSING OFFICER IN THE ASSESSMENT ORDER, RELIEF ALLOWED BY THE LD. CIT(A) - II, LUCKNOW MAY BE REJECTED AND ORDER UNDER SECTION 143 (3) MAY KINDLY BE RESTORED. PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : 2 . DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. D.R. HAS INVITED OUR ATTENTION THAT THE LD. CIT(A) HAS ADMITTED ADDITIONAL EVIDENCE AND THE SAME WAS TAKEN INTO ACCOUNT WHILE DECIDING THE APPEAL IN FAVOUR OF THE ASSESSEE WITH OUT CONFRONTING THE ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER. THE LD. D.R. HAS FURTHER CONTENDED THAT AS PER PROVISIONS OF RULE 46A OF THE INCOME - TAX RULES, 1962, THE LD. CIT(A) IS REQUIRED TO CONFRONT THE ADDITIONAL EVIDENCE FILED BEFORE HIM TO THE A SSESSING OFFICER AND AFTER CALLING REMAND REPORT/COMMENTS ON THE ADDITIONAL EVIDENCE FROM THE ASSESSING OFFICER , THE LD. CIT(A) CAN PROCEED FURTHER TO ADJUDICATE THE ISSUES . B UT IN THE INSTANT CASE THE ASSESSEE HAS FILED CONFIRMATORY LETTER IN THE FORM OF ADDITIONAL EVIDENCE AND OTHER EVIDENCE BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS ADMITTED THE SAME AND ADJUDICATED THE ISSUE IN THE LIGHT OF THE ADDITIONAL EVIDENCE , WITHOUT CONFRONTING THE SAME TO THE ASSESSING OFFICER. THEREFORE, THERE IS A VIOLATIO N OF PROVISIONS OF RULE 46A OF THE I.T. RULES . 3 . THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE LD. CIT(A) HIMSELF HAS MADE NECESSARY ENQUIRY FROM THE ASSESSEE AND IN RESPONSE THERETO IT HAS FILED EVIDENCE WHICH WAS TAKEN INTO AC COUNT BY THE LD. CIT(A) WHILE ADJUDICATING THE ISSUE. THE LD. COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT THE LD. CIT(A) IS ARMED WITH CO - TERMINUS POWER OF THAT OF THE ASSESSING OFFICER AND CAN MAKE ENQUIRY DURING THE COURSE OF APPELLATE PROCEEDIN GS. THEREFORE, THERE IS NO ERROR IN THE ORDER OF THE LD. CIT(A) IN ADMITTING THE ADDITIONAL EVIDENCE WHILE ADJUDICATING THE IMPUGNED ISSUE. 4 . HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW AND THE DOCUME NTS PLACED ON RECORD, WE FIND THAT BEFORE THE ASSESSING OFFICER ASSESSEE HA S NOT FILED CONFIRMATORY LETTER AND OTHER EVIDENCE TO PROVE THE GENUINENESS OF THE DEPOSITS. BUT BEFORE THE LD. CIT(A) , ASSESSEE HAS FILED EVIDENCE IN THE FORM PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : OF CONFIRMATORY LETT ER AND OTHER DOCUMENTS AND THIS FACT IS QUITE EVIDENT FROM THE PAPER BOOK FILED BY THE ASSESSEE, IN WHICH HE HAS GIVEN A CERTIFICATE THAT THE DOCUMENTS MENTIONED AT SL. NO.1 TO 14 WERE PLACED BEFORE THE LD. CIT(A). THEREFORE, ADDITIONAL EVIDENCE WAS FILED BEFORE THE LD. CIT(A) IN ORDER TO PROVE THE GENUINENESS OF THE DEPOSITS. FROM A CAREFUL PERUSAL OF THE ORDER OF THE LD. CIT(A), WE DO FIND ANY IOTA OF EVIDENCE THAT THE ADDITIONAL EVIDENCE WAS EVER CONFRONTED TO THE ASSESSING OFFICER BEFORE TAKING COGNIZ ANCE OF THE SAME FOR ADJUDICATING THE APPEAL FILED BEFORE HIM. 5 . AS PER RULE 46A, ADDITIONAL EVIDENCE FILED BY THE ASSESSEE CAN ONLY BE ADMITTED AFTER ITS PROPER CONFRONTATION TO THE ASSESSING OFFICER. WITHOUT CONFRONTING THE ADDITIONAL EVIDENCE TO THE ASS ESSING OFFICER, ITS ADMISSION BY THE LD. CIT(A) FOR ADJUDICATING THE ISSUES IN APPEAL IS NOT PROPER. FOR THE SAKE OF REFERENCE, WE EXTRACT THE PROVISIONS OF RULE 46A AS UNDER: - 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COM MISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, 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 OFFICE R; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFIC IENT OPPORTUNITY TO THE APPELLANT 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 PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 4 - : COMMISSIONER (APPEALS) RECORDS IN WRITING THE R EASONS 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 ASSESSING OFFICER HAS BEEN ALLOWED A REASONABLE OPPORTUNITY -- (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS - EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RU LE SHALL AFFECT THE POWER 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 HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTAN TIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE ASSESSING OFFICER) UNDER CLAUSE (A) OF SUB - SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. 6 . NO DOUBT , THE LD. CIT(A) IS ARMED WITH CO - TERMINUS POWER OF THAT OF THE ASSESSING OFFICER, BUT THE LD. CIT(A) , BEING THE FIRST APPELLATE AUTHORITY , IS ALSO AN ADJUDICATOR OF THE ISSUES RAISED BEFORE HIM AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES/L ITIGANTS BEFORE HIM. IT HAS BEEN MADE CLEAR BY RULE 46A THAT BEFORE ADMITTING ADDITIONAL EVIDENCE, THE LD. CIT(A) IS REQUIRED TO CONFRONT THE ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER. IF IT IS NOT CONFRONTED, CONSIDERATION OF THE SAME IS NOT PROPER F OR ADJUDICATING THE IMPUGNED ISSUE. 7 . ADMITTEDLY, IN THE INSTANT CASE ADDITIONAL EVIDENCE CONTAINING 73 PAGES WERE FILED FOR THE FIRST TIME BEFORE THE LD. CIT(A) AND IT WAS NEVER CONFRONTED TO THE ASSESSING OFFICER FOR HIS COMMENTS OR FOR REMAND REPORT AND T HE EVIDENCE WAS TAKEN INTO ACCOUNT BY THE LD. CIT(A) WHILE DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. THEREFORE, THERE IS A CLEAR VIOLATION OF THE PROVISIONS OF RULE 46A OF THE I.T. RULES AND W E ARE OF THE VIEW THAT THE ORDER OF THE LD. CIT(A) S UFFERS FROM INFIRMITY AND IT IS NOT VALID PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 5 - : IN THE EYES OF LAW . W E, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH AFTER OBTAINING COMMENTS/REMAND REPORT ON THE ADDITION AL EVIDENCE FROM THE ASSESSING OFFICER. ACCORDINGLY, THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A). NEEDLESS TO MENTION HERE THAT THE LD. CIT(A) WILL AFFORD OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES IN ACCORDANCE WITH LAW. 8 . IN THE RESULT, APPE AL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.5.2014. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH MAY , 2014 JJ: 2605 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )