ITO, New Delhi V. Smt. Anvita Abbi, New Delhi

ITA 3707/DEL/2011

• Counselvise Citation: 370720114 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 02-08-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: P J KHANNA
• Keywords: Unexplained investment; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI R.K.GUPTA R.K.GUPTA R.K.GUPTA R.K.GUPTA, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.3707/DEL/2011 3707/DEL/2011 3707/DEL/2011 3707/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(3), 46(3), 46(3), 46(3), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. VS. VS. VS. VS. MRS. MRS. MRS. MRS. ANVITA AB ANVITA AB ANVITA AB ANVITA ABBI, BI,BI, BI, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, JAWAHARLAL NEHRU UNIVERSITY, JAWAHARLAL NEHRU UNIVERSITY, JAWAHARLAL NEHRU UNIVERSITY, JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 067. 110 067. 110 067. 110 067. PAN : PAN : PAN : PAN : AAFPA0510L. AAFPA0510L. AAFPA0510L. AAFPA0510L. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. Y.KAKKAR, SR.DR. RESPONDENT BY : SHRI P.J.KHANNA, CA. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXX, NEW DELHI DATED 25 TH MAY, 2011 FOR THE AY 2008- 09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN : (I) DELETING THE ADDITION OF RS.14,00,000/- RIGHTLY MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN REC BONDS; (II) ALLOWING THE ASSESSEE TO PRODUCE ANY EVIDENCE BEFORE HIM WHICH IS IN VIOLATION OF RULE 46A(1) OF THE I.T.RULES 1962; (III) ADMITTING THE EVIDENCES PRODUCE BY THE ASSESS EE WITHOUT RECORDING THE REASONS IN WRITING FOR DOING SO WHICH IS IN VIOLATION OF RULE 46A(2) OF THE I.T.RULES 196 2; ITA-3707/DEL/2011 2 (IV) NOT ALLOWING THE ASSESSING OFFICER A REASONABL E OPPORTUNITY TO EXAMINE AND REBUT THE SAID EVIDENCES PRODUCED BY THE ASSESSEE, WHICH IS IN VIOLATION OF RULE 46A(3) OF THE I.T.RULES 1962. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED DR THAT THE ASSESSEE DID NOT APPEAR BEFORE THE ASSESSI NG OFFICER AND DID NOT EXPLAIN THE SOURCE OF INVESTMENT OF ` 14,00,000/- IN RURAL ELECTRIFICATION CORPORATION LTD. (REC) BONDS. THER EFORE, THE ASSESSING OFFICER RIGHTLY MADE THE ADDITION THEREOF. THAT TH E ASSESSEE FURNISHED FRESH EVIDENCE BEFORE THE LEARNED CIT(A). THAT THE CIT(A) ADMITTED THE SAME AND, RELYING UPON THE FRESH EVIDENCE, ALLOWED RELIEF TO THE ASSESSEE. THAT THE ACTION OF THE CIT(A) IS IN CLEA R VIOLATION OF RULE 46A OF THE INCOME-TAX RULES, 1962. SHE, THEREFORE, SUB MITTED THAT THE ORDER OF CIT(A) SHOULD BE REVERSED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 4. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTH ER HAND, STATED THAT THE ASSESSEE IS A PROFESSOR IN JAWAHARLAL NEHR U UNIVERSITY. DURING THE RELEVANT TIME WHEN THE ASSESSMENT PROCEEDINGS W ERE IN PROGRESS, SHE WAS OUTSIDE INDIA, THEREFORE, COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. THAT THE INVESTMENT IN REC BOND S WAS NOT MADE BY THE ASSESSEE BUT HER HUSBAND MR. SATISH CHAND ABBI. THAT MR. SATISH CHAND ABBI MADE THE ABOVE INVESTMENT OUT OF THE SAL E OF ANCESTRAL PROPERTY. THE EVIDENCES FURNISHED BEFORE THE LEARN ED CIT(A) WERE ONLY THOSE DETAILS WHICH WERE ALREADY FURNISHED IN THE I NCOME TAX RECORD OF MR. SATISH CHAND ABBI. HE, THEREFORE, SUBMITTED TH AT THE ORDER OF LEARNED CIT(A) IS QUITE FAIR AND REASONABLE. THE S AME SHOULD BE SUSTAINED. ITA-3707/DEL/2011 3 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. RULE 46 A OF THE INCOME- TAX RULES READS AS UNDER:- [PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE [DEPUT Y DEPUTY DEPUTY DEPUTY C CC COMMISSIONER (APPEALS) OMMISSIONER (APPEALS) OMMISSIONER (APPEALS) OMMISSIONER (APPEALS)] [AND COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS)]. .. . 46A. 46A. 46A. 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRO DUCE BEFORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)], ANY EVIDE NCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENC E PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BE FORE THE [ASSESSING OFFICER], EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO A DMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIEN T CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPO N TO PRODUCE BY THE [ASSESSING OFFICER] ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIEN T CAUSE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY E VIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR (D) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORD ER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUN ITY TO THE APPELLANT TO ADDUCE EVIDENCE RELEVANT TO ANY GR OUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CAS E MAY BE, THE COMMISSIONER (APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS TH E CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UN LESS THE [ASSESSING OFFICER] HAS BEEN ALLOWED A REASONAB LE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROS S- EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR ITA-3707/DEL/2011 4 (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WIT NESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CAS E MAY BE, THE COMMISSIONER (APPEALS)] TO DIRECT THE PRODU CTION OF ANY DOCUMENT, OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTH ER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE [ASSESSING OFFICER]) UNDER CLAUS E (A) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.]. 6. ADMITTEDLY, LEARNED CIT(A) ADMITTED THE FRESH EV IDENCES BUT DID NOT ALLOW ANY OPPORTUNITY TO THE ASSESSING OFFICER FOR EXAMINING THOSE EVIDENCES OR FURNISHING ANY EVIDENCE IN REBUTTAL AS REQUIRED BY SUB- RULE (3) OF RULE 46A. THEREFORE, THE ORDER OF LEAR NED CIT(A) IS IN VIOLATION OF RULE 46A. IN VIEW OF THE ABOVE, WE SE T ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER. WE DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENCES BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER IS ALSO D IRECTED TO ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO PRODUCE ALL THESE EVIDENCES BEFORE HIM. THE ASSESSING OFFICER WILL READJUDICAT E THE ISSUE AFRESH AFTER CONSIDERING ALL THE EVIDENCES AS MAY BE FURNI SHED BY THE ASSESSEE BEFORE HIM. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DEEM ED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2013. SD/- SD/- ( (( (R.K.GUPTA R.K.GUPTA R.K.GUPTA R.K.GUPTA) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 20.09.2013 VK. ITA-3707/DEL/2011 5 COPY FORWARDED TO: - 1. APPELLANT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -46(3), NEW DELHI. 46(3), NEW DELHI. 46(3), NEW DELHI. 46(3), NEW DELHI. 2. RESPONDENT : MRS. ANVITA ABBI, MRS. ANVITA ABBI, MRS. ANVITA ABBI, MRS. ANVITA ABBI, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, 70, DAKSHIN PURAM, JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI 110 067. 110 067. 110 067. 110 067. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR