ITO, New Delhi V. Shri Anand Padia, Delhi

ITA 3458/DEL/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69548 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-11-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A: NEW DELHI) BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI C. M. GARG, JUDICIAL MEMBER ITA NO.3458/DEL/ 2013 (ASSESSMENT YEAR:2009-10) ITO VS. ANAND PADIA WARD-20(3), ROOM NO. 909, BLOCK E-2, D-2/8 PRATAYAKSH KAR BHAWAN, DR. S.P. MUKHERJEE CIVIC, MODEL TOWN CENTRE, J. L. NAHERU MARG, NEW DELHI. DELHI. PAN: AAHPP2798M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATISH AGARWAL, CA. REVENUE BY : Y. KAKKAR, DR. ORDER PER C. M. GARG, J M: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-XXII, NEW DELHI VIDE DATED 14.01.2013 IN APPEAL NO- 274/11-12 FOR THE ASSESSM ENT YEAR 2009-10.THE SOLE GROUNDS OF THE REVENUE READS AS UNDER: 1. THAT THE LD. CIT (A) HAS ERRED IN FACTS AND CIR CUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS.53,73,97 8/- BY ADMITTING THE ADDITIONAL EVIDENCE IN THE FORM OF CO PY OF WILL, DEATH CERTIFICATE AND ITA ALONG WITH BALANCE SHEET FOR THE LAST TWO YEARS IN CONTRAVENTION OF PROVISIONS OF RULE 46 A OF THE ITA NO.3458/DEL/2013 2 INCOME TAX RULES, 1962, WITHOUT AFFORDING A REASONA BLE OPPORTUNITY TO EXAMINE THE EVIDENCE OR DOCUMENTS. 2. WE HAVE HEARD THE RIVAL ARGUMENT OF BOTH THE PAR TIES AND CAREFULLY PERUSED THE RECORD PLACED BEFORE US. INTER-ALIA, AS SESSMENT ORDER AND IMPUGNED ORDER OF THE FIRST APPELLATE AUTHORITY. AT THE OUTSET, FROM THE ASSESSMENT ORDER WE OBSERVE THAT THE ASSESSING OFFI CER HAS MENTIONED AND ACKNOWLEDGED THE PRESENCE OF SHRI KAILASH AGGRAWAL APPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSING OFFICER HAS COMPLETE D THE ASSESSMENT PROCEEDINGS U/S 143 (3) AND 144 OF THE INCOME TAX A CT, 1961 (FOR SHORT THE ACT). FROM THE ASSESSMENT ORDER, WE ARE UNABLE TO S EE ANY REASON ON WHICH THE ASSESSING OFFICER INVOKED AND RESORTED TO THE P ROVISIONS OF SECTION 144 OF THE ACT. 3. FROM THE IMPUGNED ORDER, WE ALSO OBSERVE THAT TH E CIT (A) HAS CONSIDERED ADDITIONAL EVIDENCE DURING THE FIRST APP ELLATE PROCEEDINGS AND THE SAME HAS NOT BEEN CONFRONTED TO THE ASSESSING OFFIC ER. THE MAIN CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE IS THAT THE CIT (A) ERRED BY ADMITTING THE ADDITIONAL EVIDENCE IN THE COPY OF WI LL, DEATH CERTIFICATE, ITA ALONG WITH BALANCE SHEET FOR THE LAST TWO YEARS IN CONTRAVENTION OF PROVISIONS OF RULE 46A OF THE INCOME TAX RULES,1962 WITHOUT AF FORDING A REASONABLE OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE EVIDENCE OR DOCUMENTS. ITA NO.3458/DEL/2013 3 THE AR FAIRLY CONCEDED THAT THE ADDITIONAL EVIDENCE WAS NOT CONFRONTED TO THE ASSESSING OFFICER DURING THE FIRST APPELLATE PR OCEEDINGS. 4. ON ABOVE CONTENTIONS AND SUBMISSIONS OF BOTH THE PARTIES AND ON CAREFUL PERUSAL OF THE IMPUGNED ORDER, WE HOLD THAT THE CIT (A) ADMITTED ADDITIONAL EVIDENCE IN CONTRAVENTION TO PROVISIONS OF RULE 46A OF THE RULES. THEREFORE, WE FIND IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE OF IMPUGNED ADDITION TO THE FILE OF ASSES SING OFFICER FOR DENOVO ADJUDICATION ONLY ON THE ISSUE OF ADDITION OF RS.53 ,73,978/-. 5. THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE ISSUE AFRESH BY AFFORDING DUE OPPORTUNITY OF HEARING FOR ASSESSEE A ND WITHOUT BEING PREJUDICED FROM THE OBSERVATIONS AND FINDINGS IN TH E EARLIER ASSESSMENT ORDER AND IMPUGNED ORDER. WE FIND IT APPROPRIATE TO MAKE IT CLEAR THAT WE ARE SETTING ASIDE THE CASE TO THE FILE OF ASSESSING OFF ICER ONLY ON THIS ISSUE. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISPOSED OF IN THE MANNER AS INDICATED ABOVE AND MAY BE TREATED AS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 29 TH /11/ 2013. SD/- SD/- (S. V. MEHROTRA) (C. M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 29 TH DAY OF NOVEMBER, 2013 S.SINHA ITA NO.3458/DEL/2013 4 COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT(ITAT), NEW DELHI. AR,ITAT NEW DELHI.