The Income-tax Officer, Amritsar V. Smt. Kulwant Kaur, Amritsar

ITA 397/ASR/2010

• Counselvise Citation: 39720914 RSA 2010
• Duration Of Justice: 3 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-04-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 16-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL
• Keywords: Search and seizure; Opportunity of being heard; Period of limitation; Additional evidence; Onus to prove; Condonation of delay; Reassessment proceedings; Ignorance of law
• Section: 54B; 54F; 142(1); 133(6); 147; 246; 54; 144; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.396(ASR)/2010 ASSESSMENT YEAR:1999-2000 PAN :ANJPS2425H INCOME TAX OFFICER VS. SH. JATINDER SINGH, WARD 3(2), AMRITSAR. AMRITSAR (APPELLANT) (RESPONDENT) I.T.A. NO.397(ASR)/2010 ASSESSMENT YEAR:1999-2000 PAN :AUIPK2749N INCOME TAX OFFICER VS. SMT. KULWANT KAUR, WARD 3(2), AMRITSAR. AMRITSAR (APPELLANT) (RESPONDENT) I.T.A. NO.398(ASR)/2010 ASSESSMENT YEAR:1999-2000 PAN :AUIPK2750N INCOME TAX OFFICER VS. SMT. JASWINDER KAUR, WARD 3(2), AMRITSAR. AMRITSAR APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH.PADAM BAHL, CA DATE OF HEARING:22/04/2014 DATE OF PRONOUNCEMENT:23/05/2014 ORDER PER BENCH ; THESE THREE APPEALS OF THE REVENUE ARISE FROM THRE E DIFFERENT ORDERS OF CIT(A), AMRITSAR AS PER DETAILS GIVEN BELOW: SL.NO. ITA NO. ASSTT.YR. CIT(A) ORDER DATED 1. 396(ASR)/2010 1999-2000 AMRITSAR 29.06.2010 2. 397(ASR)/2010 1999-2000 AMRITSAR 30.06.2010 3 398(ASR)/2010 1999-2000 AMRITSAR 30.06.2010 2. AS THE FACTS IN ALL THESE APPEALS ARE IDENTICAL, THEREFORE, WE TAKE UP ALL THESE APPEALS TOGETHER BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE.. THE REVENUE IN ITA NO.396(ASR)/2010 I N THE CASE OF SHRI JATINDER SINGH HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW IN ASSUMING JURISDICTION U/S 246A AND 246 OF THE INCOME TAX ACT, 1961 OVER A CASE AFTER THE DECISION OF COM MISSIONER OF INCOME TAX U/S 264 OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ADMITTING ADDITIONAL EVIDENCE UNDER RULE 46A OF INCOME TAX ACT, RULES 1962 WHICH THE ASSESSEE FAILE D TO FURNISH BEFORE THE AO DURING ASSESSMENT PROCEEDING S READ WITH SECTION 147 OF THE ACT AS THE ASSESSMENT WAS NOT A SIMPLE EXPARTE ASSESSMENT U/S 144 OF THE INCOME TAX ACT MA DE AFTER FILING A RETURN OF INCOME BUT AN EXPARTE ASSESSMEN T U/S 144 READ WITH SECTION 147 OF THE INCOME TAX ACT WHERE I N NO RETURN WAS FILED BY THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE ORIGINAL EVIDENCES AS ADDI TIONAL EVIDENCES UNDER RULE 46A WHICH WERE REQUIRED TO BE FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS AS THE CASE FILED TO FILE A SINGLE EVIDENCE BEFORE THE A.O. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE COST OF LAND AS ON 01.04.19 81 AT RS.3000/- PER MARLA AGAINST THE VALUE OF RS.1000/- PER MARLA TAKEN BY THE A.O. ON THE BASIS OF DOCUMENTARY EVIDE NCE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ALLOWING EXEMPTION U/S 54B AT RS.17,57,50 0/- AGAINST LONG TERM CAPITAL GAIN BY ACCEPTING WITHDRAWAL OF A MOUNT OF RS.38,78,000/- FROM BANK AS INVESTMENT IN PURCHASE OF AGRICULTURE LAND AT RS.17,57,500/- WITHOUT ANY NEXU S. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ALLOWING EXEMPTION U/S 54F OF THE I.T.ACT , 1961 WITHOUT VERIFYING THAT THE INVESTMENT OF LONG TERM CAPITAL GAIN WAS MADE IN NEW HOUSE IN ABSENCE OF ANY SITE PLAN H AVING NEW ELECTRICITY CONNECTION. 7. THE APPELLANT CRAVES LEAVES TO AMEND OR ADD ANY OR MORE GROUND(S) OF APPEAL. 3. IN ITA NO. 397(AS)/2010 ( IN THE CASE OF KULWANT KAUR), ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW IN ASSUMING JURISDICTION U/S 246A AND 246 OF THE INCOME TAX ACT, 1961 OVER A CASE AFTER THE DECISION OF COMMISSIONER OF INCOME TAX U/S 264 OF THE INCOME TA X ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ADMITTING ADDITIONAL EVIDENCE UNDER RULE 46A OF INCOME TAX ACT, RULES 1962 WHICH THE ASSESSEE FAILE D TO FURNISH BEFORE THE AO DURING ASSESSMENT PROCEEDING S READ WITH SECTION 147 OF THE ACT AS THE ASSESSMENT WAS NOT A SIMPLE EXPARTE ASSESSMENT U/S 144 OF THE INCOME TAX ACT MA DE AFTER FILING A RETURN OF INCOME BUT AN EXPARTE ASSESSMEN T U/S 144 READ WITH SECTION 147 OF THE INCOME TAX ACT WHERE I N NO RETURN WAS FILED BY THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE ORIGINAL EVIDENCES AS ADDI TIONAL EVIDENCES UNDER RULE 46A WHICH WERE REQUIRED TO BE FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS AS THE CASE FILED TO FILE A SINGLE EVIDENCE BEFORE THE A.O. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE COST OF LAND AS ON 01.04.19 81 AT RS.3000/- PER MARLA AGAINST THE VALUE OF RS.1000/- PER MARLA TAKEN BY THE A.O. ON THE BASIS OF DOCUMENTARY EVIDE NCE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ALLOWING EXEMPTION U/S 54B AT RS.2,12,000 /- AGAINST LONG TERM CAPITAL GAIN BY ACCEPTING WITHDRAWAL OF A MOUNT OF RS.3,00,000/- FROM BANK AS INVESTMENT IN PURCHASE OF AGRICULTURE LAND AT RS.2,12,200/- WITHOUT ANY NEXUS . 6. THE APPELLANT CRAVES LEAVES TO AMEND OR ADD ANY OR MORE GROUND(S) OF APPEAL. 4. IN ITA NO. 398(AS)/2010 ( IN THE CASE OF JASWIND ER KAUR), ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN LAW IN ASSUMING JURISDICTION U/S 246A AND 246 OF THE INCOME TAX ACT, 1961 OVER A CASE AFTER THE DECISION OF COMMISSIONER OF INCOME TAX U/S 264 OF THE INCOME TA X ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ADMITTING ADDITIONAL EVIDENCE UNDER RULE 46A OF INCOME TAX ACT, RULES 1962 WHICH THE ASSESSEE FAILE D TO FURNISH BEFORE THE AO DURING ASSESSMENT PROCEEDING S READ WITH SECTION 147 OF THE ACT AS THE ASSESSMENT WAS NOT A SIMPLE EXPARTE ASSESSMENT U/S 144 OF THE INCOME TAX ACT MA DE AFTER FILING A RETURN OF INCOME BUT AN EXPARTE ASSESSMEN T U/S 144 READ WITH SECTION 147 OF THE INCOME TAX ACT WHERE I N NO RETURN WAS FILED BY THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE ORIGINAL EVIDENCES AS ADDI TIONAL EVIDENCES UNDER RULE 46A WHICH WERE REQUIRED TO BE FILED BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS AS THE CASE FILED TO FILE A SINGLE EVIDENCE BEFORE THE A.O. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ACCEPTING THE COST OF LAND AS ON 01.04.19 81 AT RS.3000/- PER MARLA AGAINST THE VALUE OF RS.1000/- PER MARLA TAKEN BY THE A.O. ON THE BASIS OF DOCUMENTARY EVIDE NCE. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) ERRED IN LAW IN ALLOWING EXEMPTION U/S 54B AT RS.2,12,000 /- AGAINST LONG TERM CAPITAL GAIN BY ACCEPTING WITHDRAWAL OF A MOUNT OF RS.7,30,000/- FROM BANK AS INVESTMENT IN PURCHASE OF AGRICULTURE LAND AT RS.2,12,200/- WITHOUT ANY NEXUS . 6. THE APPELLANT CRAVES LEAVES TO AMEND OR ADD ANY OR MORE GROUND(S) OF APPEAL. 5. SINCE THE FACTS IN THE PRESENT APPEALS ARE IDENT ICAL AS MENTIONED HEREINABOVE, THEREFORE, WE ARE PROCEEDING TO DECIDE THE APPEAL OF THE REVENUE IN THE CASE OF SH. JATINDER SINGH, IN ITA N O.396(ASR)/2010 FOR THE ASSESSMENT YEAR 1999-2000 HEREINBELOW AND OUR DECIS ION IN THE SAID APPEAL SHALL BE IDENTICALLY APPLICABLE IN OTHER APPEALS AS MENTIONED HEREINABOVE. 6. THE FACTS IN ITA NO.396(ASR)/2010 ARE THAT THE N OTICES/LETTERS WERE ISSUED TO THE ASSESSEE ON 10.03.2006 TO FILE THE IN FORMATION REQUIRED BY THE ASSESSEE UNDER SECTION 133(6) AND THE REPORT OF T HE INSPECTOR REVEALS THAT THE SAID NOTICE/LETTER WAS REFUSED TO BE ACCEPTED AND THE SERVICE OF NOTICE WAS COMPLETED THROUGH AFFIXTURE ORDER ON 16.03.2006 AT THE LAST KNOWN ADDRESS OF THE ASSESSEE I.E. SH.JATINDER SINGH S/O SH. AVTAR SINGH KOTHI NO. 22-23, GALI NO.1, PARTAP AVENUE, G.T.ROAD, AMRITSAR . THE INSPECTOR HAVING BEEN DEPUTED TO COLLECT INFORMATION FROM THE OFFICE OF THE IMPROVEMENT TRUST, AMRITSAR QUA THE AMOUNT RECEIVED FOR COMPENS ATION AMOUNTING TO RS.2,04,32,677/- COLLECTED THE INFORMATION HEREINBE LOW: AREA OF LAND ACQUIRED AMOUNT PAID CHEQUE NO & DAT E NAME OF THE BANK BY THE IMPROVEMENT TRUST (I) RS.54,32,677/- 5408 86 DT.22.05.1998 PUNJAB & SIND 68 KANAL I.E. 1360 MARLA BANK, D HAB WASTI RAM, AMRITSAR. (II) RS.1,50,00,000/- 233521 DT. 21.07.19 98 -DO- 7. THE AO INITIATED REASSESSMENT PROCEEDINGS BY ISS UING NOTICE DATED 29.03.2006 AFTER OBTAINING NECESSARY APPROVAL FROM THE ADDL. CIT, RANGE- III, AMRITSAR VIDE APPROVAL NO.4914 DATED 29.03.200 6 AND THE REPORT REVEALS FROM SERVICE OF NOTICE DATED 29.03.2006 AND AS PER INSPECTOR REPORT THAT THE ASSESSEE IS OUT OF STATION AND SERVICE WAS COMPLET ED THROUGH AFFIXTURE AT THE LAST KNOWN ADDRESS (SUPRA). IT IS RELEVANT TO MENTI ON THAT REASSESSMENT NOTICE WAS SENT THROUGH POSTAL AUTHORITIES VIDE NO.4957 DA TED 10.03.2006 WHICH WAS RECEIVED BACK WITH THE REMARKS BEARING REFUSED AND LIKEWISE NOTICES ISSUED DATED 10.05.2006. 21.09.2006 AND 30.11.2006 MET THE SIMILAR FATE BUT THE AO CONTINUED TO ISSUE NOTICES AND ENFORCED ATTE NDANCE OF THE ASSESSEE IN PROCEEDINGS FOR A DECISION IN ACCORDANCE WITH LAW, THUS, ISSUED A FINAL NOTICE DATED 05.12.2006 UNDER SECTION 142(1) WHICH WAS SENT THROUGH POSTAL AUTHORITIES VIDE POST NO.6818 DATED 05.12.2006 WHIC H TOO WAS BEARING REMARKS REFUSED AND THE SAID NOTICE DATED 05.12.2 006 WAS PASTED THROUGH AFFIXTURE AT LAST KNOWN ADDRESS (SUPRA) FOR ATTEND ING THE PROCEEDINGS ON 06.12.2006 UPTO 11.12.2006. HOWEVER, NOT HAVING R ECEIVED ANY ATTENDANCE OR REPLY OF WHATSOEVER KIND, THE REASSESSMENT WAS C ONCLUDED EX-PARTE UNDER SECTION 144 OF THE ACT READ WITH SECTION 147 OF THE ACT ON 28.12.2006 AT THE ASSESSED INCOME OF RS.1.71,86,800/-. 8. THE GRIEVANCE CONTINUED AFTER HAVING RECEIVED TH E ORDER DATED 28.12.2006 PASSED BY THE AO AND SENT AT THE ABOVE LAST KNOWN ADDRESS IN THE RECORDS OF THE REVENUE. AGAINST THE SAID ORDER, THE ASSESSEE FILED THE REVISION PETITION DATED 22.06.2007 UNDER SECTION 2 64 OF THE ACT AND WHEREIN IN PARAGRAPH 4 THE PLEADINGS PRESSED FOR IS EXTRACTED HEREINBELOW:: 4. THE MAIN PLEA OF THE ASSESSEE HAS BEEN THAT HE HAD NOT BEEN SERVED STATUTORY NOTICES PROPERLY AS DURING THE PER IOD, HE HAD BEEN RESIDING WITH HIS FAMILY IN THE PARENTS RESIDENCE S ITUATED IN THE VILLAGE SULTANWIND, DISTRICT AMRITSAR. 9. THE REVISION ORDER REVEALS THAT LIKEWISE ATTEMPT S ATTRIBUTABLE FOR MAKING DECISION IN ACCORDANCE WITH LAW WHEREBY LD. CIT(A) CALLED FOR REPORT FROM THE INSPECTOR VIDE LETTER NO.3011 DATED 29.01.2008 DURING PROCEEDINGS HAD AFFIRMED THE FACTS CONTAINED IN THE EX-PARTE ORDER (SUPRA) AND NOT HAVING RECEIVED REQUIRED ASSISTANCE AT THE HANDS OF THE ASSESSEE, THE PRAYER WAS DISMISSED ATTRIBUTABLE TO NON-COOPERATIO N THROUGH ORDER DATED 13.10.2008, WHICH WAS SERVED ON THE LAST KNOWN ADDR ESS (SUPRA). HOWEVER, ADDRESS IS BEING REPRODUCED AS UNDER: SH.JATINDER SINGH S/O SH. AVTAR SINGH, KOTHI NO. 22-23, GALI NO.1, PARTAP AVENUE, G.T.ROAD, AMRITSAR. 10. THE ASSESSEE HAS BEEN THOROUGHLY FIGHTING THE C ASE AND THE GRIEVANCE SURVIVING WITH THE CIT ORDER DATED 13.10.2008 WHICH HAS ATTAINED FANALITY STILL THE REMEDY OF APPEAL BEFORE LD. CIT(A) WAS AVAILED SUBSEQUENTLY ON 18.11.2008 BEING WITHIN EXACTLY 36 DAYS AS REVEALED FROM FROM NO.35 AT THE LAST KNOWN ADDRESS (SUPRA) WHICH ADDITIONALLY CATE GORICALLY IN COLUMN FOR COMMUNICATION RAISES THE AFORESAID ADDRESS AS THE LAST KNOWN ADDRESS. 11. THE SAID APPEAL WAS ACCOMPANIED BY APPLICATION FOR CONDONATION OF DELAY DATED 25.11.2008 BEING EXACTLY 7 DAYS FOR FI LNG THE APPEAL AND THE SUBSTANCE OF PRAYER BEING SINCE ASSESSEE WAS IN UK, OBTAINED COPIES OF ORDER FROM ADVOCATE, HAVING SUFFICIENT CAUSE FOR CONDONI NG THE DELAY. 12. THE AO VIDE LETTER DATED 07.06.2010 RAISED THE OBJECTIONS FOR THE ASSUMPTION OF JURISDICTION BY THE LD. CIT(A) WHEREI N COMMENTS OF THE AO WERE CALLED FOR THROUGH LETTER NO. CIT(A)/ASR/201 D ATED 25.05.2010 AND FORCEFULLY REBUTTING THE OBJECTION OF THE REVENUE, THE ASSESSEE PRIMARILY CONTENDED THAT THERE IS NO MERGER ORDER DATED 28.12 .2006 WITH THE REVISIONARY ORDER DT. 22.06.2007 CONTENDING THEREIN ANOTHER CONSEQUENTIAL ASPECT OF THE NO REASONING UNDER THE DOCTRINE OF MERGER SECONDLY COUNTING THE PERIOD OF LIMITATION QUA THE APPEAL REMEDY BEFORE LD. CIT(A) FROM THE NON-MERGED ORDER DATED 13.10.2008 DISPAT CHED TO ASSESSEE ON 18.10.2008. 13. IT WOULD BE BENEFICIAL TO EXAMINE THE CONTENTS OF THE PLEADINGS RAISED ON THE AFORESAID TWIN ASPECT EXTRACTED HEREINBELOW: IT IS SUBMITTED THAT SINCE WORTHY CIT-I, AMRITSAR HAS MERELY REJECTED THE APPLICATION U/S 264, THERE IS NO MERGER OF ASSE SSMENT ORDER WITH HIS ORDER OF REVISION. THE ORIGINAL ORDER OF THE A. O. REMAINS OPERATIVE ON WORTHY CIT-1S REFUSAL TO INTERFERE WITH THE ASS ESSING OFFICER. AS SUCH AN APPEAL BEFORE YOUR HONOUR IS MAINTAINABLE. 14. THE RELIANCE HAS BEEN PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS . MST KATIJI AND OTHERS 167 ITR 471 QUA THE PRINCIPLES OF LAW DEFINING SUF FICIENT CAUSE AND THE MERITS OF CASE WERE PLEADED AS EVIDENT FROM SUBMIS SIONS DATED 04.03.2010 ALONGWITH CONTENDING THE SERVICE BEING ERRONEOUS AND CONSEQUENTIALLY THE PRAYER FOR SETTING ASIDE THE ORDER UNDER CHALLENGE. 15. IT REVEALS DURING APPELLATE PROCEEDINGS THAT THE REMAND REPORT HAS BEEN CALLED FOR THROUGH LETTER DATED 07.06.2010 ON WHICH REBUTTAL OF THE ASSESSEE IS DATED 18.06.2010, ADDRESSING THE PLEADI NGS TO ACCEPT THE ADDITIONAL EVIDENCES AND THE AOS OBJECTION CONFIN ING ITSELF TO THE MAINTAINABILITY OF THE APPEAL. 16. THE LD. CITA) RECORDED THE FINDINGS ON THE PRAY ER OF CONDONATION OF DELAY OF 22 MONTHS BEING THAT THE REVISION REMEDY U/S 264 IS AN ALTERNATIVE REMEDY TO APPEAL REMEDY UNDER SECTION 246A AND FOLL OWING THE PRINCIPLES OF LAW IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST KATIJI AND OTHERS (SUPRA) FOR REASONS THAT APPELLATE AUTHORITIES TO BE LIBERAL, PRAYER WAS ACCEPTED AND DELAY CONDONED.. 17. ON THE ASPECT OF MERGER THE FINDINGS WERE REC ORDED THAT THE LD. CIT- 1 ORDER DATED 13.10.2008 HAS NOT MERGED WITH THE AS SESSMENT ORDER DATED 28.12.2006 AS NOT DECIDED ON MERITS. 18. ON THE ISSUE REGARDING ADMITTANCE OF ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME TAX RULES, 1962, THE PLEADINGS RA ISED WERE THAT THIS IS A CASE OF ILLITERATE FARMER WHO WAS DEPRIVED OF HIS ENTIRE AGRICULTURAL LAND BY COMPULSORY ACQUISITION LONG BACK AND WAS AFRAID OF INCOME TAX LAW. BEING UNAWARE OF THE LAW, NO RETURN OF INCOME WAS FILED A S OTHERWISE NO TAX WOULD HAVE BEEN PAYABLE BY HIM CONSIDERING THE CLAI MS OF EXEMPTION UNDER SECTION 54 AND 54F OF THE ACT. HIS IGNORANCE OF LA W HAS LED HIM TO THIS TRAGEDY WHEN THE DEMAND OF INCOME TAX ROUGHLY CORRE SPONDS TO THE ENTIRE AMOUNT OF COMPENSATION RECEIVED BY HIM. RESULTANTLY , THE ADDITIONAL EVIDENCES WERE ACCEPTED FOLLOWING THE CBDT CIRCULAR NO.14(XI-35) OF 1955 DATED 01.04.1955 WHICH ARE ADDRESSING TO POIN T THAT THE IGNORANCE OF LAW IS A GOOD EXCUSE AND THE BENEFIT/CLAIM LEGITIMA TELY RAISED/MADE SHALL BE ALLOWED TO THE LITIGANT BY THE REVENUE. 19. REGARDING SERVICE OF NOTICE, GROUND RAISED WAS DISMISSED. REGARDING MERITS THE RELIEF WAS GRANTED AS REVEALED THROUGH P ARAS 9.1 TO 9.4 OF THE IMPUGNED ORDER I.E. LD. CIT(A)S ORDER.. 20. DURING THE COURSE OF PROCEEDINGS WRITTEN SUBMIS SIONS DATED 14.01.2013 WERE PLACED ON RECORD BY THE ASSESSEE, FORCEFULLY CONTENDING THE JUSTIFICATION FOR UPHOLDING THE ORDER OF THE L D. CIT(A) AND ADDITIONALLY RELYING UPON THE PRINCIPLES OF LAW IN CASES MENTION ED HEREINBELOW: I) CIT VS. EURASIA PUBLISHING HOUSE (P) LTD. (1998) 232 ITR 381 (DEL). II) SEASONS RUBBER LTD. VS. CIT (2003) 263 ITR 385 (KER) III) DHANKANA AND OTHERS VS. STATE OF RAJASTHAN & OTHERS (1979) 120 ITR 159 (RAJ.) IV) A.V.SREENIVASALU NAIDU VS. CIT (1948) 16 ITR 341 (M ADRAS) V) HINDUSAN AERONAUTICS LTD. VS. CIT (2000) 243 ITR 80 8 (SC) VI) CWT VS. MRS. KASTURBAI WALCHAND AND OTHERS (1989) 1 77 ITR 188 (SC) VII) CIT VS. D. LAKSHMINARAYANAPATHI (2001) 250 ITR 187 (MAD.) VIII) JOHARMAL MURLIDHAR & CO. VS. IAC 32 ITD 204 (GAU) IX) KUNHAYAMMED & OTHERS 245 ITR 360 (SC) X) RAMNIK LAL TRIBOOWAN DAS 42 ITR 92 (BOM.) XI) SEETHA RAMAN VS. ACIT 298 ITR 210 (MAD) XII) APARAMNA ASHRAM VS. D.I.TAX (EXEMP) 258 ITR 401 (DE L) XIII) COLLECTOR, LAND ACQUISITION VS. MST KATIJI & OTHERS 67 ITR 471 (SC) XIV) VEDABAI ALIA VAIJAYANATABAI BABUREO PATIL 253 ITR 7 98 WHILE RAISING VARIOUS QUESTIONS REQUIRING ADJUDICAT ION AT THE HANDS OF THE TRIBUNAL WHILE THE REVENUE TOO HAS PLACED ON RECOR D THE WRITTEN SUBMISSIONS DATED 05.11.2012 SUPPORTING THE PLEADIN GS QUA THE LEGAL ISSUES RAISED THROUGH THE GROUNDS OF APPEAL DATED 14.09.20 10 (SUPRA). 20. WE HAVE HEARD THE RIVAL CONTENTIONS AND CONSIDE RED THE FACTS OF THE CASE. THE CHRONOLOGY OF PROCEEDINGS COMMENCED WITH THE REFUSAL TO ACCEPT THE NOTICE DURING THE PROCEEDINGS BEFORE ASSESSING OFFICER AND SUBSEQUENTLY THIS REFUSAL IS REITERATED RESULTINGLY BY AFFIXTURE ORDERS, TOO REMAINED UNATTENDED NEVERTHELESS THE LAST OPPORTUNI TY AS LAST UPTO 05.12.2006 REMAINS UNATTENDED RESULTING INTO EX-PA RTE ORDER DATED 28.12.2006 SPECIFICALLY WHEN THE WHOLE CASE PROCEED INGS COMMENCE FROM TAX REVISION PETITION RECEIVED FROM THE OFFICE OF CIT-1, AMRITSAR THROUGH ADDL. CIT RANGE-3, AMRITSAR VIDE NO.4276 DATED 01.0 3.2006 . 20.1. THE STAND TAKEN IN THE REVISION PETITION DATE D 22.06.2007 FILED WITHIN SIX MONTHS AFTER THE RECEIPT OF REASSESSMET ORDER AT THE ADDRESS AVAILABLE IN THE RECORDS AND PROCEEDINGS. THE ONUS TILL DATE IN THE PRESENT PROCEEDINGS TOO REMAINS UNDISCHARGED BY THE ASSESSEE AS TO WHER EIN THE REASSESSMENT ORDER DATED 28.12.2006, REVISION PETITION DATED 22.06.2007, FORM NO.35 DATED 18.11.2008, LD. CIT(A)S ORDER DATED 29.06.2 010 CONTAIN THE ONLY ADDRESS OF SH. JATINDER SINGH, KOTHI NO. 22-23, GAL I NO.1, PARTAP AVENUE, G.T.ROAD, AMRITSAR. THEN HOW AND WHEN THE ADDRESS O F PARENTS RESIDENCE I.E. VILLAGE SULTANWIND, AMRITSAR WAS BROUGHT ON RE CORD, MORESO, SUBSEQUENTLY TOO THE NOTICES TO THE PRESENT APPEAL TOO WERE RECEIVED AT THE LAST KNOWN ADDRESS (SUPRA), THUS SETTING UP SUCH A DEFENCE IS NOT ONLY AN EFFORT TO EVADE AND AVOID THE PROCEEDINGS AND BEREF T OF SUBSTANCE BY SHIFTING BURDEN OF PROOF ON THE REVENUE. NEITHER ANY MATER IAL OF WHATSOEVER KIND HAS BEEN PLACED BEFORE BENCH AS TO WHY AND HOW TH E CORRESPONDENCE ADDRESS OF PARENTS WAS NOTIFIED IN THE RECORDS OF R EVENUE. HOWEVER, FOR AVAILING THE REMEDY THE ORDERS ARE WITHIN THE KNOW LEDGE OF THE ASSESSEE AND FOR NOTICES THE KNOWLEDGE HAS BEEN DENIED THUS ANO MALOUS STANDS WITHIN ITSELF IS UNSUSTAINABLE AND UNWARRANTED. 20.2. THE LD. COUNSEL FOR THE ASSESSEE HAS MADE A V ALIANT ATTEMPT TO CANVASS THAT THERE IS NO MERGER OF LD. CITS ORDER DATED 13 .10.2008 WITH THE REASSESSMENT ORDER DATED 28.12.2006 SINCE THE ORDER IS NOT REASONED AND NON-SPEAKING. HAVING NOTICED THE PROVISION OF STATU TE, THE PRINCIPLES OF LAW WHEREBY THE WORD PROCEEDINGS HAS BEEN EXPLAINED B Y THE HONBLE 3 JUDGES BENCH IN S. SANKAPPA VS. ITO AIR 1968 SUPREM E COURT 816 AT RELEVANT PAGES 818 AND 819 WHEREIN THE RELEVANT POR TION IS EXTRACTED HEREINBELOW: THIS SUBMISSIONS, IN OUR OPINION HAS BEEN RIGHTLY REJECTED BY THE HIGH COURT, BECAUSE IT HAS ALREADY BEEN EXPLAINED B Y THIS COURT THAT THE WORD ASSESSMENT IS USED IN THE INCOME-TAX AC T IN A NUMBER OF PROVISIONS IN A COMPREHENSIVE SENSE AND INCLUDES ALL PROCEEDINGS, STARTING WITH THE FILING OF THE RETURN OR ISSUE OF NOTICE AND ENDING WITH DETERMINATION OF THE TAX PAYABLE BY THE ASSESSEE. THOUGH IN SOME SECTIONS, THE WORD ASSESSMENT IS USED OLY WITH RE FERENCE TO COMPUTATION OF INCOME IN OTHER SECTIONS IT HAS THE MORE COMPREHENSIVE MEANING MENTIONED BY US ABOVE. REFER ENCE MAY BE MADE TO THE DECISION OF THIS COURT IN ABRAHAM V. IN COME-TAX OFFICER (1961) 41 ITR 425 + (AIR 1961 SC 609). THE SAME PRI NCIPLE HAS BEEN RECENTLY REITERATED IN THE CASE OF KALAWATI DEVI HA RLALKA V. COMMR. OF INCOME-TAX, WEST BENGAL, CIVIL APPEAL NO.1421 OF 1966. D/- 1.5.1967, (REPORTED IN AIR 1968 SC 162) WHERE DEALI NG WITH THE WORD ASSESSMENT USED IN S. 297 OF THE ACT OF 1961, THE COURT HELD- IT IS QUITE CLEAR FROM THE AUTHORITIES CITED ABOV E THAT THE WORD ASSESSMENT CAN BEAR A VERY COMPREHENSIVE MEANING. IT CAN COMPREHEND THE WHOLE PROCEDURE FOR ASCERTAINING AND IMPOSING LIABILITY UPON THE TAX PAYER. IS THERE THEN ANYTHIN G IN THE CONTEXT OF S. 29 WHICH COMPELS US TO GIVE TO THE EXPRESSION PROC EDURE FOR THE ASSESSMENT THE NARROWER MEANING SUGGESTED BY THE L D. COUNSEL FOR THE APPELLANT . IN OUR VIEW, THE ANSWER TO THIS QUE STION MUST BE IN THE NEGATIVE. IT SEEMS TO US THAT S. 297 IS MEANT TO P ROVIDE AS FAR AS POSSIBLE FOR ALL CONTINGENCIES WHICH MAY ARISE OUT OF THE REPEAL OF THE 1922 ACT. IT DEALS WITH PENDING APPEALS, REVISIONS ETC. IT DEALS WITH NON-COMPLETED ASSESSMENTS PENDING AT THE COMMENCEME NT OF THE 1961 ACT AND ASSESSMENTS TO BE MADE AFTER THE COMMENCEME NTS OF THE 1961 ACT AS A RESULT OF RETURNS OF INCOME FILED AFTER T HE COMMENCEMENT OF THE 1961 ACT. 21 REGARDING DOCTRINE OF MERGER, IT WAS EXPLAINED E LABORATELY IN KUNHAYDMMED VS. STATE OF KERALA IN THE CASE OF PERN OD RICARD INDIA (P) LTD. V. COMMISSIONER OF CUSTOMERS, (2010) 8 SCC 313 , WHERE THREE LEARNED JUDGES, R.C. LAHOTI, J. (AS HIS LORDSHIP THEN WAS) OBSERVED: (SCC P.370 PARA 12): 12. THE LOGIC UNDERLYING THE DOCTRINE OF INERGER I S THAT THERE CANNOT BE MORE THAN ONE DECREE OR OPERATIVE ORDER GOVERNIN G THE SAME SUBJECT-MATTER AT A GIVEN POINT OF TIME. WHEN A DEC REE OR ORDER PASSED BY AN INFERIOR COURT, TRIBUNAL OR AUTHORITY WAS SUBJECTED TO A REMEDY AVAILABLE UNDER THE LAW BEFORE A SUPERIOR FO RUM THE, THOUGH THE DECREE OR ORDER UNDER CHALLENGE CONTINUES TO BE EFFECTIVE AND BINDING, NEVERTHELESS ITS FINALITY IS PUT IN JEOPAR DY. ONCE THE SUPERIOR COURT HAS DISPOSED OF THE LIS BEFORE IT EITHER WAY WHETHER THE DECREE OR ORDER UNDER APPEAL IS SET ASIDE OR MODIFIED OR S IMPLY CONFIRMED, IT IS THE DECREE OR ORDER OF THE SUPERIOR COURT, TRIBU NAL OR AUTHORITY WHICH IS THE FINAL, BINDING AND OPERATIVE DECREE OF ORDER WHEREIN MERGES THE DECREE OR ORDER PASSED BY THE COURT, TRI BUNAL OR THE AUTHORITY BELOW. HOWEVER, THE DOCTRINE IS NOT OF U NIVERSAL OR UNLIMITED APPLICATION. THE NATURE OF JURISDICTION E XERCISED BY THE SUPERIOR FORUM AND THE CONTENT OR SUBJECT MATTER OF CHALLENGE LAID OR WHICH COULD HAVE BEEN LAID SHALL HAVE TO BE KEPT IN VIEW. 29. THE COURT FURTHER OBSERVED: (KUNHAYAMMED CASE, SCC P. 383 PARA 41) 41. ONCE A SPECIAL LEAVE PETITION HAS BEEN GRANTE D, THE DOORS FOR THE EXERCISE OF APPELLATE JURISDICTION OF THIS COURT HAVE BEEN LET OPEN. THE ORDER IMPUGNED BEFORE THE SUPREME COURT B ECOMES AN ORDER APPEALED AGAINST. ANY ORDER PASSED THEREAFTER WOULD BE AN APPELLATE ORDER AND WOULD ATTRACT THE APPLICABILIT Y OF DOCTRINE OF MERGER. IT WOULD NOT MAKE A DIFFERENCE WHETHER THE ORDER IS ONE OF REVERSAL OR OF MODIFICATION OR OF DISMISSING AFFIRM ING THE ORDER APPEALED AGAINST. IT WOULD ALSO NOT MAKE ANY DIFFER ENCE IF THE ORDER IS A SPEAKING OR NON-SPEAKING ONE. WHENEVER THIS COURT HAS FELT INCLINED TO APPLY ITS MIND TO THE MERITS OF THE ORDER PUT I N ISSUE BEFORE IT THOUGH IT MAY BE INCLINED TO AFFIRM THE SAME, IT IS CUSTOMARY WITH THIS COURT TO GRANT LEAVE TO APPEAL AND THEREAFTER DISMI SS THE APPEAL ITSELF ( AND NOT MERELY THE PETITION FOR SPECIAL LEAVE) TH OUGH AT TIMES THE ORDERS GRANTING LEAVE TO APPEAL AND DISMISSING THE APPEAL OR CONTAINED IN THE SAME ORDER AND AT TIMES THE ORDERS ARE QUITE BRIEF. NEVERTHELESS, THE ORDER SHOWS THE EXERCISE OF APPEL LATE JURISDICTION AND THEREIN THE MERITS OF THE ORDER IMPUGNED HAVING BEEN SUBJECTED TO JUDICIAL SCRUTINY IN THIS COURT. 30. IN THE PRESENT CASE, THE APPELLANT PREFERRED ST ATUTORY APPEAL U/S 130E OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL D ATED 25.3.2003 AND THEREFORE, THE DISMISSAL OF APPEAL BY THIS COURT T HOUGH BY A NON- SPEAKING ORDER, WAS IN EXERCISE OF THE APPELLATE JU RISDICTION, WHEREIN THE MERITS OF THE ORDER IMPUGNED WERE SUBJECTED TO JUDICIAL SCRUTINY. IN OUR OPINION, IN THE INSTANT CASE, THE DOCTRINE OF MERGER WOULD BE ATTRACTED AND THE APPELLANT IS ESTOPPED FROM RAISE D THE ISSUE OF APPLICABILITY OF RULE 6 IN THEIR CASE. 31. IN THE VIEW WE HAVE TAKEN, WE ARE FORTIFIED BY THE DECISION OF THIS COURT IN V.M. SALGAOCAR & BROS. (P) LTD. V. CI T WHEREIN THE COURT HAS CALLED UPON TO CONSIDER THE EFFECT OF DIS MISSAL OF AN APPEAL U/S 261 OF THE ACT BY A NON-SPEAKING ORDER. SPEAKI NG FOR THE BENCH, D.P. WADHWA, J.WHILE DRAWING DISTINCTION BETWEEN AN ORDER DISMISSING IN LIMINE A SPECIAL LEAVE PETITION UNDE R ARTICLE 136 OF THE CONSTITUTION AND AN APPEAL UNDER ARTICLE 133 AND DR AWING SUPPORT FROM THE DECISION OF THIS COURT IN SUPREME COURT EM PLOYEES WELFARE ASSN. V. UNION OF INDIA, HELD THAT FORMER CASE DOES NOT BUT THE LATTER DOES ATTRACT THE DOCTRINE OF MERGER. THE COURT OBSE RVED THUS; (SALAGAOCAR CASE, SCC P.382, PARA 8) 8. DIFFERENT CONSIDERATIONS APPLY WHEN A SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION IS S IMPLY DISMISSED BY SAYING DISMISSED AND IN APPEAL PROVIDED UNDER AR TICLE 133 IS DISMISSED ALSO WITH THE WORDS THE APPEAL IS DISMI SSED. IN THE FORMER CASE, IT HAS BEEN LAID BY THIS COURT THAT WHEN A SP ECIAL LEAVE PETITION IS DISMISSED THIS COURT DOES NOT COMMENT ON THE COR RECTNESS OR OTHERWISE OF THE ORDER FROM WHICH LEAVE TO APPEAL I S SOUGHT. BUT WHAT THE COURT MEANS IS THAT IT DOES NOT CONSIDER IT TO BE A FIT CASE FOR EXERCISE OF ITS JURISDICTION UNDER ARTICLE 136 OF T HE CONSTITUTION. THAT CERTAINLY COULD NOT BE SO WHEN APPEAL IS DISMISSED THOUGH BY A NON- SPEAKING ORDER. HERE THE DOCTRINE OF MERGER APPLIES . IN THAT CASE, THE SUPREME COURT UPHOLDS THE DECISION OF THE HIGH COUR T OR OF THE TRIBUNAL FROM WHICH THE APPEAL IS PROVIDED UNDER CL AUSE (3) OF ARTICLE 133.THIS DOCTRINE OF MERGER DOES NOT APPLY IN THE CASE OF DISMISSAL OF A SPECIAL LEAVE PETITION UNDER ARTICLE 136. WHEN A N APPEAL IS DISMISSED THE ORDER OF THE HIGH COURT IS MERGED WIT H THAT OF THE SUPREME COURT. 22. AND THE CONCEPT OF APPEAL IS THAT THE RIGHT OF AP PEAL WAS ONE OF ENTERING A SUPERIOR COURT AND INVOKING ITS AID AND INTER POSITION TO REDRESS THE ERROR OF THE COURT BELOW. TWO THINGS WHICH WERE REQ UIRED TO CONSTITUTE APPELLATE JURISDICTION WERE THE EXISTENCE OF THE RE LATION OF SUPERIOR AND INFERIOR COURT AND THE PART OF THE FORMER TO REVIEW DECISION OF THE LATER AND THIS ASPECT HAS BEEN NOTICED IN THE CASE OF TRIPUTI BALAJI DEVELOPERS (P) LTD. VS. STATE OF BIHAR (2004) 5 SCC 1 THAT APPEAL IMPLI ES IN ITS NATURAL AND ORDINARY MEANING THE REMOVAL OF A CAUSE FROM ANY IN FERIOR COURT OR TRIBUNAL TO A SUPERIOR ONE FOR THE PURPOSE OF TESTING THE SO UNDNESS OF DECISION AND PROCEEDINGS OF THE INFERIOR COURT OR TRIBUNAL THE S UPERIOR FORUM SHALL HAVE JURISDICTION TO REVERSE, CONFIRM, ANNUL OR MODIFY T HE DECREE OR ORDER OF THE FORUM APPEALED AGAINST AND IN THE EVENT OF A REMAND THE LOWER FORUM SHALL HAVE TO REHEAR THE MATTER AND COMPLY WITH SUCH DIR ECTIONS AS MAY ACCOMPANY THE ORDER OF REMAND. 23. EVEN NOW BEFORE THE BENCH, THERE IS NO ANSWER T O THE FACT THAT FOR THE PURPOSE OF CHALLENGING THE REASSESSMENT DATED 28.1 2.2006, THE ASSESSEE IS IN CONTINUATION OF PROCEEDINGS AND LIKEWISE FOR THE PURPOSE OF REVISION IT IS THE DISCONTINUATION OF PROCEEDINGS. NEVERTHELESS, THE ASSESSMENT IS VERY COMPREHENSIVE WITHIN THE MEANING AS WE ARE SUPPORT ED BY THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF S. SANKAPPA VS . I.T.O. (SUPRA). 24. THERE IS ANOTHER ASPECT OF THE MATTER THAT THE REMEDY OF THE APPEAL IS A STATUTORY RIGHT AVAILABLE WITH THE ASSESSEE AND THE SUBSTANCE OF ARGUMENT LED BY THE LD. COUNSEL HAVE SUBSTANTIAL FORCE AND H AVING GAINED SUPPORT FROM THE AFORESAID JUDGMENT OF HONBLE SUPREME COURT (SU PRA), THE APPEAL BEFORE US WAS AVAILABLE , HOWEVER, NONE ARGUMENT HAS BEEN MADE AS TO WHAT IS IMPACT OF REVISIONARY ORDER ATTAINING FINALITY AND REMAINED UNCONTESTED AND SPECIFICALLY WHAT CAUSE OF ACTION FELL FOR CONSIDE RATION IN THE REVISION PETITION AND THE DISTINGUISHING FACTOR THEREIN TO T HE APPEAL FILED BEFORE THE CIT(A), THUS, THE ARGUMENT OF THERE BEING NO MERGER HAS NOT BEEN LED CONCLUSIVELY TO PROVE THAT THE CAUSE OF ACTION WAS DIFFERENT ON REVISION PETITION AND THE APPELLATE JURISDICTION. 25 IT WOULD BE OUR DUTY TO ADDRESS THE PLEADINGS RA ISED REGARDING ASSUMPTION OF JURISDICTION BY THE CIT WHEREBY THE L D. DR HAS ADDRESSED TO THE PRAYER FOR CONDONATION OF DELAY IN FILING THE APPEAL MADE FROM THE ORDER ON REVISION DATED 13.10.2008 AND DELAY CANVASSED FR OM REASSESSMENT ORDER DATED 28.12.2006 THEN IT IS PARADOXICAL SITUATION G OING AGAINST THE STAND OF THE ASSESSEE, WHILE CONTESTING THERE IS NO MERGER F OR THE REASSESSMENT ORDER IN CITS ORDER. WE ARE IN AGREEMENT ON THE SAID ISS UE RAISED SINCE THE ASSESSEE HAS NEITHER HIGHLIGHTED THE SAID ISSUE DUR ING THE COURSE OF ARGUMENT AND THUS THE STAND QUA THE NON-MERGER OF CIT ORDER ITSELF FALLS AS PLEADED BY THE ASSESSEE. IT WOULD BE RELEVANT TO STATE THAT T HE PRAYER FOR CONDONATION OF DELAY HAS BEEN ALLOWED NOTICING PRINCIPLE OF LAW F OR THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, L AND ACQUISITION VS. MST KATIJI & OTHERS (SUPRA), WHEREAS LAW ON THE CONCEP T OF EXERCISING POWER WHILE THERE IS A DELAY HOW THE PRESCRIBED PERIOD H AS BEEN NOTICED IN THE CASE OF N. BALAKRISHNAN VS. M. KRISHNAMURTHY AIR 1998 SC C 3222 FIRSTLY, IN EVERY CASE OF DELAY, THERE CAN BE SOME LAPSE ON THE PART OF THE LITIGANT CONCERNED AND THAT ALONE IS NOT ENOUGH TO TURN-DOW N HIS PLEA AND TO SHUT THE DOOR AGAINST HIM WHEN THE EXPLANATION DOES NOT SMAC K OF MALAFIDES OR IT IS NOT PUTFORTH AS PART OF DILATORY STRATEGY THEN THE COURTS MUST SHOW UTMOST CONSIDERATION TO THE SUITOR AND THE COURT SHALL COM PENSATE THE OPPOSITE PARTY FOR THE LOSS FOR THE REASONS, THERE WOULD A LARGE LITIGATION EXPENSES AND FURTHER IN THE CASE OF KATARI SURYANARAYANA VS. KUP PISETTI SUBBARAO (2009) 11 SCC 183 WHILE DISCUSSING THE PROVISION IN THE CASE OF PERUMAN BHAGVATY DEVASWORN VS. BHARGAVI AMMA (2008) 8 SCC 321 IN PARA 29 AND 30 INTERPRETED SUFFICIENT CAUSE TO BE UNDE RSTOOD AND APPLIED IN A REASONABLE PRAGMATIC, PRACTICAL AND LIBERAL MANNER DEPENDING UPON THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE TYPE OF CASE. THUS, IN THE PRESENT CASE, THERE HAS NOT BEEN ADDRESSED ANY ARGUMENT OF WHATSO EVER OF KIND ON THE ASSESSEE AVAILING OF REMEDIES OF REVISION/APPEAL B EING BONAFIDE AND ARE NOT PART OF DILATORY STRATEGY AND NEITHER THE ONUS THERETO DISCHARGED, WHEREAS THE FINDINGS IS CONFINED TO THE WORD SUFF ICIENT, WHICH HAS BEEN SUBSTANTIATED BY THE FACTS AND CIRCUMSTANCES AND TY PE OF CASE AND ALL THE SAID REQUIREMENTS ARE TO BE READ TOGETHER. 26. REGARDING ADMISSION OF ADDITIONAL EVIDENCE BEFO RES THE LD. CIT(A) UNDER RULE 46A OF THE I.T.RULES, 1962, THE LD. DR H AS CANVASSED QUA FOR SETTING ASIDE OF THE IMPUGNED ORDER , SINCE IN THE PRESENT CASE STAND SET UP IS THAT NOTICES NOT RECEIVED AND THE ORDERS ARE RECE IVED AND ALL EVIDENCES OF WHATSOEVER KIND FURNISHED BEFORE THE CIT(A), NEITH ER BEFORE THE AO NOR THE LD. CIT BEING AN ATTEMPT TO EVADE AND AVOID THE P ROCESS OF LAW SUCH AS THEIR EXAMINATION AND APPRECIATION IS NOT CONDUCTED BY THE ADJUDICATING AUTHORITY. WE ARE IN AGREEMENT WITH THE PLEADINGS R AISED SINCE THE CONCEPT OF ADMITTANCE OF ADDITIONAL EVIDENCES HAS BEEN NOT ICED IN THE CASE OF UNION OF INDIA VS. IBRAHIMUDDIN & ANOTHER (2012) 8 SCC 14 8 (PARA 36 TO 40), AS UNDER: 36. THE GENERAL PRINCIPLE IS THAT THE APPELLATE CO URT SHOULD NOT TRAVEL OUTSIDE THE RECORD OF THE LOWER COURT AND C ANNOT TAKE ANY EVIDENCE IN APPEAL. HOWEVER, AS AN EXCEPTION, ORDER 41 RULE 27 CPC ENABLE THE APPELLATE COURT TO TAKE ADDITIONAL EVIDE NCE IN EXCEPTIONAL CIRCUMSTANCES. THE APPELLATE COURT MAY PERMIT ADDIT IONAL EVIDENCE ONLY AND ONLY IF THE CONDITIONS LAID DOWN IN THIS RULE ARE FOUND TO EXIST. THE PARTIES ARE NOT ENTITLED, AS OF RIGHT TO THE ADMISSION OF SUCH EVIDENCE. THUS, THE PROVISION DOES NOT APPLY, WHEN ON THE BASIS OF THE EVIDENCE ON RECORD, THE APPELLANT COURT CAN PRONOU NCE A SATISFACTORY JUDGMENT. THE MATTER IS ENTIRELY WITHIN THE DISCRET ION OF THE COURT AND IS TO BE USED SPARINGLY. SUCH A DISCRETION IS ONLY A JUDICIAL DISCRETION CIRCUMSCRIBED BY THE LIMITATION SPECIFIED IN THE RU LE ITSELF (VIDE K. VENKATARAMIAH V. A. SEETHARAMA REDDY, MUNICIPAL CO RPN. OF GREATER BOMBAY V. LALA PANCHAM, SOONDA RAM V. RAMES HWARLAL AND SYED ALI KHADER V. RAMI REDDY) 37. THE APPELLATE COURT SHOULD NOT ORDINARILY ALLOW NEW EVIDENCE TO BE ADDUCED IN ORDER TO ENABLE A PARTY TO RAISE A NE W POINT IN APPEAL. SIMILARLY, WHERE A PARTY ON WHOM THE ONUS OF PROVIN G A CERTAIN POINT LIES FAILS TO DISCHARGE THE ONUS, HE IS NOT ENTITLE D TO A FRESH OPPORTUNITY TO PRODUCE EVIDENCE, AS THE COURT CAN, IN SUCH A CA SE, PRONOUNCE JUDGMENT AGAINST HIM AND DOES NOT REQUIRE ANY ADDIT IONAL EVIDENCE TO ENABLE IT TO PRONOUNCE JUDGMENT (VIDE HAJI MOHAMMED ISHAQ V. MOHD. IQBAL AND MOHD. ALI AND CO.). 38. UNDER ORDER 41 RULE 27 CPC, THE APPELLATE COURT HAS THE POWER TO ALLOW A DOCUMENT TO BE PRODUCED AND A WITN ESS TO BE EXAMINED. BUT THE REQUIREMENT OF THE SAID COURT MUS T BE LIMITED TO THOSE CASES WHERE IT FOUND IT NECESSARY TO OBTAIN S UCH EVIDENCE FOR ENABLING IT TO PRONOUNCE JUDGMENT . THIS PROVISION DOES NOT ENTITLE THE APPELLATE COURT TO LET IT FRESH EVIDENCE AT THE AP PELLATE STAGE. WHERE EVEN WITHOUT SUCH EVIDENCE IT CAN PRONOUNCE JUDGMEN T IN A CASE. IT DOES NOT ENTITLE THE APPELLATE COURT TO LET IN FRE SH EVIDENCE ONLY FOR THE PURPOSE OF PRONOUNCING JUDGMENT IN A PARTICULAR WAY. IN OTHER WORDS, IT IS ONLY FOR REMOVING A LACUNA IN THE EVID ENCE THAT THE APPELLATE COURT IS EMPOWERED TO ADMIT ADDITIONAL EV IDENCE (VIDE LAL PANCHAM). 39. IT IS NOT THE BUSINESS OF THE APPELLATE COURT T O SUPPLEMENT THE EVIDENCE ADDUCED BY ONE PARTY OR THE OTHER IN THE L OWER COURT. HENCE, IN THE ABSENCE OF SATISFACTORY REASONS FOR THE NON- PRODUCTION OF THE EVIDENCE IN TRIAL COURT, ADDITIONAL EVIDENCE SHOULD NOT BE ADMITTED IN APPEAL AS A PARTY GUILTY OF REMISSNESS IN THE LOWE R COURT IS NOT ENTITLED TO THE INDULGENCE OF BEING ALLOWED TO GIVE FURTHER EVIDENCE UNDER THIS RULE. SO A PARTY WHO HAD AMPLE OPPORTUN ITY TO PRODUCE CERTAIN EVIDENCE IN THE LOWER COURT BUT FAILED TO D O SO OR ELECTED NOT TO DO SO, CANNOT HAVE IT ADMITTED IN APPEAL (VIDE STA TE OF U.P. V. MANBODHAN LAL SRIVASTAVA AND S. RAJAGOPAL V. C.M. A RMUGAM). 40. THE INADVERTENCE OF THE PARTY OR HIS INABILITY TO UNDERSTAND THE LEGAL ISSUES INVOLVED OR THE WRONG ADVICE OF A PLEA DER OR THE NEGLIGENCE OF A PLEADER OR THAT THE PARTY DID NOT R EALIZE THE IMPORTANCE OF A DOCUMENT DOES NOT CONSTITUTE A SUB STANTIAL CAUSE WITHIN THE MEANING OF THIS RULE. THE MERE FACT THAT CERTAIN EVIDENCE IS IMPORTANT IS NOT IN ITSELF A SUFFICIENT GROUND FOR ADMITTING THAT EVIDENCE IN APPEAL. 27. IN VIEW OF OUR FINDINGS HEREINABOVE AND JUDGMEN TS RELIED UPON HEREINABOVE, GROUND NO.1 OF THE REVENUE IS ALLOWED. 28. AS REGARDS GROUNDS NO. 2 TO 6 OF THE REVENUE, T HERE IS MORE TO THE ISSUE RAISED IN THE PRESENT APPEAL WITH REGARD TO NATURE OF DETERMINATION OF CHARGEABLE INCOME. THE MATTER LEADS TO EXAMINATION BY THE A.O. AND THE AO IN HIS REMAND PROCEEDINGS HAS NOT EXAMINED THE SAME IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F CIT VS. SIMON CARVES LTD. REPORTED IN (1976) 105 ITR 212 AND IN THE CASE OF BRIJ BHUSHAN LAL PARDUMAN KUMAR VS. C.I.T. REPORTED IN (1978) 115 I TR 524 AND CBDT CIRCULAR NO.14(XI-35) OF 1955 DATED 01.04.1955, THE MATTER IS SET ASIDE TO THE FILE OF THE AO WHO WILL EXAMINE THE ISSUE ON ME RIT WITH REGARD TO THE ADDITIONAL EVIDENCES WHICH WERE NOT SUBMITTED BEFOR E THE AO DURING THE ASSESSMENT PROCEEDINGS AND EXAMINE THE ISSUE BY AFF ORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASESSEE AND DECID E THE ISSUE ON THE ADDITIONAL EVIDENCE FILED DURING THE COURSE PROCEE DINGS BEFORE THE LD. CIT(A). ACCORDINGLY, GROUNDS NO. 2 TO 6 OF THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THUS, THE APPEAL OF THE REVEN UE IN ITA NO.396(ASR)/2010 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 29. NOW, WE TAKE UP THE APPEALS OF THE ASSESSES IN ITA NOS. 397(ASR)2010 & 398(ASR)/2010 IN THE CASE OF SM. KUL WANT KAUR AND SMT. JASWINDER KAUR. SINCE THE FACTS IN BOTH THESE APPEA LS ARE IDENTICAL TO THE FACTS IN THE APPEAL OF SH.JATINDER SIGH IN ITA NO.3 96(ASR)/2010 AND THEREFORE, OUR DECISION HEREINABOVE IN THE CASE OF JATINDER SINGH IS IDENTICALLY APPLICABLE IN ITA NOS 397(ASR)/2010 & I TA NO.398(ASR)/2010. ACCORDINGLY, ALL THE GROUNDS IN BOTH THE APPEALS AR E ALLOWED FOR STATISTICAL PURPOSES. IN THE RESULT, ALL THE THREE APPEALS OF THE REVE NUE IN ITA NOS. 396, 397 & 398(ASR)/2010 ARE PARTLY ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD MAY, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23RD MAY, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES: SH. JATINDER SINGH (II) SH. KULWANT KAUR (III) SMT. JASWINDER KAUR 2. THE ITO WARD 3(2), ASR 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY