Sh. Naresh Chauhan, Shimla V. DCIT, Chandigarh

ITA 347/CHANDI/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3758 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-03-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 09-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained expenditure; Additional evidence
• Section: 69C; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MAHARISHTI PRASHAT KUMAR, ACCOUNTANT MEMBER ITA NOS. 347 & 348/CHD/2016 ASSESSMENT YEARS: 2010-11 & 2011-12 SH. NARESH CHAUHAN, VS. THE DCIT, CENTRAL CIRCLE II, SHIMLA CHANDIGARH PAN NO. ABPPC2719N (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VISHAL MOHAN RESPONDENT BY : SH. SUSHIL KUMAR DATE OF HEARING : 01.08.2016 DATE OF PRONOUNCEMENT : 03. 08.2016 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED APPEALS BY THE ASSESSEE HAVE BEEN PREFERRED AGAINST TWO SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX ( APPEALS) (HEREINAFTER REFERRED TO AS CIT(A), GURGAON OF EVEN DATE 8.1.201 5 FOR ASSESSMENT YEARS 2010-11 AND 2011-12 RESPECTIVELY. 2. THE ASSESSEE IN THESE APPEALS HAS AGITATED THE A DDITIONS MADE BY THE ASSESSING OFFICER AND FURTHER CONFIRMED BY CIT(A) O N ACCOUNT OF UNEXPLAINED EXPENDITURE U/S 69C OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AND ON ACCOUNT OF CERTAIN UNEXPLAINED CREDITS U/S 68 OF TH E ACT. 2 3. AT THE OUTSET, THE LD. AR HAS INVITED OUR ATTENT ION TO THE COMMON GROUND OF APPEAL TAKEN IN BOTH THE APPEALS AND STATED THA T THE ASSESSEE HAD SOUGHT TO PRODUCE CERTAIN ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A) SUCH AS COPY OF ASSESSEES ACCOUNTS IN THE BOOKS OF OTHER PARTIES, COPIES OF BANK ACCOUNTS AND OTHER EVIDENCE REGARDING THE SOURCE / RECEIPT OF MO NEY ETC. THE LD. AR HAS FURTHER INVITED OUR ATTENTION TO PARA 5 OF THE IMPU GNED ORDER OF THE CIT(A) STATING THAT IT WAS SUBMITTED BEFORE THE CIT(A) THA T SAID DOCUMENTS WERE VERY MUCH NECESSARY FOR JUST & PROPER ADJUDICATION OF THE CASE AND FURTHER THAT THE SAME WERE NOT AVAILABLE WITH THE ASSESSEE AT THE TI ME OF COMPLETION OF ASSESSMENT AND THEREFORE, THERE WAS A SUFFICIENT C AUSE AVAILABLE TO THE ASSESSEE FOR THE NON-PRODUCTION OF THE SAID DOCUMENTS BEFORE THE ASSESSING OFFICER. HE, THEREFORE, HAS SUBMITTED THAT THE MATTER SHOULD BE RESTORED TO THE ASSESSING OFFICER TO PASS A FRESH ASSESSMENT TAKING INTO CONS IDERATION THE SAID MATERIAL DOCUMENTS. 4. WE FIND THAT THE LD. CIT(A), THOUGH HAS GIVEN A CATEGORICAL FINDING THAT THE DOCUMENTS SOUGHT TO BE PRODUCED BY THE ASSESSE E WERE SPECIFIC DOCUMENTS, WHICH WERE ABSOLUTELY MATERIAL TO THE CASE OF THE A SSESSEE YET, HE REJECTED THE APPLICATION OF THE ASSESSEE FOR ADDITIONAL EVIDENCE OBSERVING THAT THE ASSESSEE FROM TIME TO TIME HAD ATTENDED THE HEARING BEFORE T HE ASSESSING OFFICER AND HE WAS SUPPOSED TO KNOW THE NATURE OF PROCEEDINGS AND WAS REQUIRED TO ARRANGE FOR AND PRODUCE THOSE DOCUMENTS DURING ASSESSMENT PROCE EDINGS. 5. WE FIND THAT THE ABOVE APPROACH OF THE CIT(A) C ANNOT BE HELD TO BE JUSTIFIED. WHEN THE ASSESSEE HAS SPECIFICALLY PLEA DED THAT THESE DOCUMENTS WERE NOT AVAILABLE WITH HIM AT THE TIME OF ASSESSMENT PR OCEEDINGS AND THAT ASSESSEE HAS COME INTO POSSESSION OF THE ABOVE DOCUMENTS SUB SEQUENT TO THE ASSESSMENT 3 PROCEEDINGS AND FURTHER THAT THE SAID DOCUMENTS ARE MATERIAL DOCUMENTS WHICH WERE NECESSARY TO BE TAKEN INTO CONSIDERATION FOR T HE PROPER ADJUDICATION OF THE CASE, THEN, UNDER SUCH CIRCUMSTANCES, THE LD. CIT(A ) WAS SUPPOSED TO ALLOW THE ASSESSEE TO TENDER THOSE DOCUMENTS AND EXAMINE THE VERACITY OF THE SAME AND DECIDE THE CASE BY TAKING INTO CONSIDERATION THOSE MATERIAL EVIDENCE. 6. IN OUR VIEW, THE CIT(A) HAS FAILED TO JUDICIALL Y EXERCISE HIS JURISDICTION / POWERS GIVEN TO HIM UNDER RULE 46A(2) OF THE IT. RU LES, 1962. SINCE THE DOCUMENTS SOUGHT TO BE PRODUCED AND RELIED UPON BY THE ASSESSEE GO TO THE ROOT OF THE CASE, THEREFORE, IN OUR VIEW, THE SAME ARE R EQUIRED TO BE TAKEN INTO CONSIDERATION BY THE ASSESSING OFFICER WHILE ASSESS ING THE INCOME OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORD ERS IN BOTH THE APPEALS AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFF ICER FOR ASSESSMENT AFRESH. NEEDLESS TO SAY THAT ASSESSING OFFICER WILL GIVE PR OPER OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE ADDITIONAL EVIDENCE AND THE N WILL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW CONSIDERING THE EVIDENCE SO FURNISHED BY THE ASSESSEE. 7. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.08.2016. SD/- SD/- (MAHARISHI PRASHANT KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : IST AUGUST, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR