ACIT, New Delhi V. Mr. Aishvarya Singh, New Delhi

ITA 4216/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65904 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-11-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 20-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ANURADHA MISHRA
• Keywords: Income from undisclosed sources; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI A BENC H BEFORE SHRI U.B.S. BEDI, JM & SHRI B.C. MEENA, AM ITA NO.4216/DEL/2011 ASSESSMENT YEAR : 2007-08 ASSTT. C.I.T., CIRCLE-31(1), C.R. BUILDING, I.P. ESTATE, NEW DELHI V/S V/S V/S V/S. MR. AISHVARYA SINGH 10-G, DCM BUILDING, 16, BARAKHAMBA ROAD, NEW DELHI [PAN :ADOPS 9842 B ] (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SMT. ANURADHA MISHRA, CIT - DR DATE OF HEARING 15-11-2012 DATE OF PRONOUNCEMENT 15-11-2012 O R D E R O R D E R O R D E R O R D E R PER U.B.S. BEDI: JM: PER U.B.S. BEDI: JM: PER U.B.S. BEDI: JM: PER U.B.S. BEDI: JM: THIS APPEAL OF THE REVENUE EMANATES FROM THE ORDER PASSED BY LEARNED CIT(A)-XXVI, NEW DELHI DATED 27.06. 2011 U/S 143(3) OF THE ACT FOR ASSESSMENT YEAR 2007-08 WHEREBY BESIDES CH ALLENGING THE ORDER OF LEARNED CIT(A) ON THE GROUND OF CONTRA VENTION OF RULE 46A OF INCOME TAX RULES, THE DEPARTMENT HAS ALSO CHALLENGE D DELETION OF VARIOUS ADDITIONS INCLUDING ` 2,50,000/- PERTAINED TO THE AGRICULTURAL INCOME AS INCOME FROM UNDISCLOSED SOURCES. 2. DESPITE SENDING NOTICE OF HEARING BY REGISTERED PO ST SUFFICIENTLY IN ADVANCE, ASSESSEE DID NOT APPEAR NOR ANY APPLICATION FOR ADJOURNMENT HAS BEEN RECEIVED, THEREFORE, WE PROCEED TO DECIDE THIS ITA NO.4216/D/2011 ASSESSMENT YEAR 2007-08 2 APPEAL EXPARTE, QUA THE ASSESSEE, AFTER HEARING THE LEA RNED DR AND CONSIDERING THE MATERIAL ON RECORD. 3. SO FAR AS THE FIRST ISSUE IN RELATION TO VIOLATION OF RULE 46A OF I.T. RULES IS CONCERNED, LEARNED DR STRONGLY PLEADE D THAT SUFFICIENT OPPORTUNITY WAS GRANTED TO THE ASSESSEE AT ASSESSMENT STAGE B UT HE WAS UNABLE TO SUBSTANTIATE ITS RETURN OF INCOME AND EXP ENDITURE BY ADDUCING NECESSARY EVIDENCE AND SUPPORTING MATERIAL. SO VARIOUS ADDITIONS WERE MADE AND IN APPEAL, CERTAIN FRESH MATE RIAL AND EVIDENCE WAS ADDUCED BY THE ASSESSEE, WHICH WAS NOT ONLY TAKEN ON RECORD BUT DULY ADMITTED AND RELIEF WAS ACCORDINGLY GRANTED ON THE BASIS OF SUCH MATERIAL/EVIDENCE WITHOUT ASSOCIATING THE ASSESSING OFFICER WITH THE APPEAL PROCEEDINGS OR GIVING OPPOR TUNITY TO THE ASSESSING OFFICER TO VERIFY SUCH MATERIAL. THEREFORE, T HE SAME IS IN VIOLATION OF RULE 46A OF THE ACT, BY FILING COPY OF ORDER SHEET ENTRIES DURING ASSESSMENT PROCEEDINGS AND REMAND REPORT AND OTH ER MATERIAL, IT WAS SUBMITTED BY LEARNED DR THAT THE EVIDENCE FURN ISHED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY WAS NOT ON LY IN VIOLATION OF RULE 46A OF I.T. RULES BUT IT ALSO DO NOT SUBSTANTIA TE THE INCOME/EXPENDITURE DECLARED BY HIM BESIDES THERE BEIN G LACK OF CONFIRMATION AND IN THE ABSENCE OF BOOKS OF ACCOUNT, SO THE ASSESSING OFFICER HAS RIGHTLY ASSESSED THE INCOME, THEREFORE, ORDE R OF LEARNED CIT(A) SHOULD BE SET ASIDE AND THAT OF THE ASSESSING OFFIC ER SHOULD BE RESTORED. RELIANCE WAS PLACED ON DELHI HIGH COURTS DE CISION IN THE CASE OF CIT VS. MANISH BUILDWELL PVT. LTD. (2012) 204 TAXMAN 106 ON THE ISSUE OF VIOLATION OF RULE 46A. 4. WE HAVE HEARD LEARNED DR, CONSIDERED THE MATERIA L ON RECORD AND FIND THAT ASSESSEE DID NOT SUBSTANTIATE ITS CLA IM MADE IN THE RETURN ABOUT INCOME AND EXPENDITURE DECLARED AN D IN APPEAL, THE ASSESSEE HAS FURNISHED CERTAIN FRESH EVIDENCE/MATERIAL ON WHICH ITA NO.4216/D/2011 ASSESSMENT YEAR 2007-08 3 REMAND REPORT WAS CALLED BY THE FIRST APPELLATE AUTH ORITY FROM THE ASSESSING OFFICER WHO STRONGLY OBJECTED TO ADMISSION OF SU CH EVIDENCE AND ALSO SUBMITTED THAT IT IS OTHERWISE NOT SUFFICIENT TO PROVE THE INCOME/EXPENDITURE DECLARED BY THE ASSESSEE. THEREFO RE, CONSIDERING THE ENTIRETY OF FACTS, CIRCUMSTANCES AND MATERIAL ON R ECORD, WE HOLD THAT ACTION OF LEARNED CIT(A) IN ADMITTING FRESH EVI DENCE AND ALLOWING RELIEF ON THE BASIS OF SUCH EVIDENCE IS IN CLEAR VIOLAT ION OF RULE 46A OF THE ACT AND FOR THIS MATTER, WE TAKE SUPPORT OF THE JURISDICTIONAL HIGH COURT, IN THE CASE OF CIT VS. MANISH BUILDWELL PVT. LT D. REPORTED IN (2012) 204 TAXMAN 106, HAS HELD AS UNDER:- U/S 250(4), THE CIT(A) HAS THE POWER TO DIRECT ENQUI RY AND CALL FOR EVIDENCE FROM THE ASSESSEE. UNDER RULE 46A, T HE ASSESSEE HAS THE RIGHT TO ASK FOR THE ADMISSION OF ADDITIONAL EVIDENCE. IF THE CIT(A) EXERCISES HIS POWE RS U/S 250(4) TO CALL FOR ADDITIONAL EVIDENCE, THE ASSESSING O FFICER NEED NOT BE GIVEN AN OPPORTUNITY TO SHOW CAUSE. HOWE VER, IF THE CIT(A) ACTS ON AN APPLICATION UNDER RULE 46A, THEN THE REQUIREMENT OF GIVING THE ASSESSING OFFICER AN OPPORTUNITY AS PER RULE 46A(3) IS MANDATORY. THE ARGUMENT THAT IN ALL CASES WHERE ADDITIONAL EVIDENCE IS ADMITTED, THE CIT(A) SHOULD BE CONSIDERED TO HAVE EXERCISED HIS POWERS U/S 250(4) IS NOT ACCEPTABLE AS IT W ILL RENDER RULE 46A REDUNDANT. ON FACTS, AS THE ASSESSEE HAD PRODUCED THE EVIDENCE, THE CIT(A) OUGHT TO HAVE FOL LOWED RULE 46A(3) AND REMANDED THE EVIDENCE TO THE ASSESSING OFFICER FOR COMMENTS AND VERIFICATION. 4.1 SINCE ORDER PASSED BY THE CIT(A) IS IN VIOLATION OF RULE 46A OF THE I.T. RULES, THEREFORE, FOLLOWING THE RATIO OF THE DECISION IN THE CASE OF MANISH BUILDWELL PVT. LTD. (SUPRA), WE SET ASIDE THE ORDERS OF ITA NO.4216/D/2011 ASSESSMENT YEAR 2007-08 4 CIT(A) AND RESTORE THE MATTERS BACK ON HIS FILE WITH T HE DIRECTION TO RE- DECIDE THE APPEAL AFRESH AFTER COMPLYING WITH THE PR OVISIONS OF RULE 46A OF THE I.T. RULES AND FOLLOWING HONBLE DELHI HI GH COURT DECISION CITED SUPRA. NEEDLESS TO MENTION THAT CIT(A) WHILE RE -DECIDING THE APPEAL WILL GIVE ADEQUATE OPPORTUNITY TO THE ASSESSEE A S WELL AS TO THE ASSESSING OFFICER. 4.2 AS THIS MATTER IS BEING RESTORED FOR REDIRECTING T HE APPEALS SO OTHER ISSUES RAISED ARE NOT BEING ADJUDICATED. 5. IN RESULT, THE APPEAL IS ALLOWED. SD/- SD/- ( B.C. MEENA ) ( U.B.S. BEDI ) ( ACCOUNTANT MEMBER (JUDICIAL MEMBER) DATED: 15-11-2012 NS COPY OF THE ORDER FORWARDED TO :- 1 APPELLANT 2. DEPARTMENT 3. CIT(A)-XXVI, C.R. BUILDING, NEW DELHI 4. DR, ITAT,A BENCH, NEW DELHI 5. GUARD FILE. BY ORDER, DEPUTY/ // /ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT