ITO, New Delhi V. Shri Kuldeep, New Delhi

ITA 4943/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65517 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 17-09-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 08-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Keywords: Income from undisclosed sources; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A .N. PAHUJA, ACCOUNTANT MEMBER ITA NO.4943/DEL./2011) (ASSESSMENT YEAR : 2003-04) ITO, WARD 24(3), VS. KULDEEP, NEW DELHI. S/O SHRI BRIJ LAL, 20-A, GREEN MEDOWS FARM, P.O. SATBARI, MEHRAULI, NEW DELHI. (PAN/GIR NO.AARPK1171F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ARUN KISHORE, C.A. REVENUE BY : SHRI Y. KAKKAR, DR ORDER PER U.B.S. BEDI, JM THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)- XXV, NEW DELHI, DATED 30.08.2011, RELEVANT TO ASSES SMENT YEAR 2003-04, WHEREBY DELETION OF ADDITION OF RS.16,09,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES AGAINST AGRICULTURA L INCOME DECLARED HAS BEEN CHALLENGED. 2. FACTS INDICATE THAT DESPITE HAVING BEEN GIVEN NU MBER OF OPPORTUNITIES TO THE ASSESSEE, ASSESSEE DID NOT APPEAR BEFORE THE ASSESS ING OFFICER, WHO PROCEEDED TO DECIDE THE CASE OF THE ASSESSEE EX-PARTE BY TREATING THE D ECLARED AGRICULTURAL INCOME OF RS.16,09,000/- AS UNEXPLAINED INCOME IN THE ABSENCE OF EVIDENCE AND MATERIAL. 3. AGAINST SUCH ASSESSMENT ORDER, ASSESSEE TOOK UP THE MATTER IN APPEAL AND ASSESSEE FILED WRITTEN SUBMISSION AGAINST EX-PARTE ASSESSME NT ORDER WITH ADDITIONAL EVIDENCE U/S I.T.A. NO.4943/DEL./2011 (A.Y. : 2003-04) 2 46A OF THE I.T. RULES WHICH WAS REMITTED BY CIT(A) TO THE ASSESSING OFFICER FOR REMAND REPORT. ASSESSING OFFICER SUBMITTED REMAND REPORT DATED 18.11.2010 WHICH WAS SUPPLIED TO THE ASSESSEE. ASSESSING OFFICER IN THE REMAND R EPORT STATED THAT NUMBER OF OPPORTUNITIES WERE GIVEN TO THE ASSESSEE WHICH WAS NOT AVAILED BY THE ASSESSEE. ASSESSING OFFICER HAS ALSO OBJECTED TO FILING OF AD DITIONAL EVIDENCE REGARDING AGRICULTURAL INCOME OF THE ASSESSEE, BUT CIT(A) WITHOUT PASSING ANY ORDER ON THE APPLICATION OF THE ASSESSEE AS PROVIDED UNDER RULE 46A OF THE I.T. RUL ES HAS PROCEEDED TO DECIDE THE APPEAL ON MERITS AND DELETED THE ADDITION. 4. AGGRIEVED, THE REVENUE HAS COME UP IN APPEAL. I T IS THE MAIN CONTENTION OF THE LD.DR THAT DESPITE ASSESSING OFFICER HAVING OBJECTE D TO ADMISSION OF ADDITIONAL EVIDENCE REGARDING AGRICULTURAL INCOME OF THE ASSES SEE, CIT(A) HAS PROCEEDED TO DELETE THE ADDITION WITHOUT APPROPRIATELY COMPLYING WITH T HE PROVISIONS OF RULE 46A OF THE I.T. RULES. THEREFORE, HIS ACTION IS NEITHER VALID NOR PROPER IN THE EYES OF LAW. SINCE ASSESSING OFFICER HAS NOT BEEN ASSOCIATED WITH THE APPEAL PROCEEDINGS NOR ANY OPPORTUNITY HAS BEEN GIVEN BEFORE CONSIDERING THE A DDITIONAL EVIDENCE FURNISHED BEFORE CIT(A), THEREFORE, IN ALL FAIRNESS MATTER SHOULD BE RESTORED BACK ON THE FILE OF THE ASSESSING OFFICER FOR RE-CONSIDERATION OF THE ISSUE AFRESH AND TO THIS ARGUMENT OF THE LD.DR, NO SERIOUS OBJECTION WAS RAISED BY THE LD.CO UNSEL FOR THE ASSESSEE AND HE FAIRLY CONCEDED THAT IN CASE MATTER IS RESTORED BACK ON TH E FILE OF THE ASSESSING OFFICER HE SHALL PRODUCE ALL THE MATERIAL AND EVIDENCE BEFORE THE AS SESSING OFFICER IN ORDER TO ESTABLISH THAT ASSESSEE HAS ACTUALLY EARNED SUCH AGRICULTURAL INCOME AS IN THE EARLIER YEARS, IN WHICH SUCH INCOME IS BEING DECLARED AND ACCEPTED, SO, TH ERE WAS NO OCCASION FOR THE ASSESSING I.T.A. NO.4943/DEL./2011 (A.Y. : 2003-04) 3 OFFICER TO MAKE THE ADDITION FOR THE YEAR UNDER CON SIDERATION AND MATTER CAN BE RESTORED BACK TO THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MAT ERIAL ON RECORD AND FIND THAT DESPITE HAVING BEEN GIVEN NUMBER OF OPPORTUNITIES T O THE ASSESSEE BY THE ASSESSING OFFICER, ASSESSEE DID NOT APPEAR IN THE ASSESSMENT PROCEEDINGS AND EX-PARTE ORDER HAS BEEN PASSED IN THE ABSENCE OF ANY MATERIAL HAVING B EEN PLACED BEFORE THE ASSESSING OFFICER TO ESTABLISH THAT AGRICULTURAL INCOME TO TH E EXTENT OF RS.16,09,000/- HAS BEEN EARNED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERAT ION, SO AGRICULTURE INCOME WAS TREATED AS UNEXPLAINED INCOME. IN APPEAL, ASSESSEE FURNISH ED VARIOUS DOCUMENTS AND DETAILS WHICH WERE CONSIDERED BY THE ASSESSEE, THOUGH AFTER HAVING OBTAINED REMAND REPORT FORM THE ASSESSING OFFICER, IN WHICH ASSESSING OFFICER S TRONGLY OBJECTED TO ADMISSION OF SUCH ADDITIONAL EVIDENCE AS SUFFICIENT CAUSE WAS NOT SHO WN FOR NOT PRODUCING SUCH MATERIAL OR EVIDENCE BEFORE THE ASSESSING OFFICER. HOWEVER, CI T(A) CONSIDERED SUCH MATERIAL AND EVIDENCE WITHOUT FURTHER CONFRONTING THE ASSESSING OFFICER WITH THE SAME WHICH ACTION IS VIOLATIVE OF RULE 46A OF THE RULES, AS WELL AS BEIN G NOT IN CONFORMITY WITH THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF C IT VS. MANISH BUILDWELL PVT., REPORTED IN (2012) 204 TAXMAN 106, IN WHICH IT HAS BEEN OPIN ED AS UNDER: U/S 250(4), THE CIT (A) HAS THE POWER TO DIRECT EN QUIRY AND CALL FOR EVIDENCE FROM THE ASSESSEE. UNDER RULE 46A, THE ASSESSEE HAS THE RIGHT TO ASK FOR THE ADMISSION OF ADDITIONAL EVIDENCE. IF THE CIT (A) EXERCISES HIS POWERS U/S 250(4) TO CALL FOR ADDITIONAL EVIDENCE, THE AO NEED NOT BE GIVEN AN OPPORTUNITY TO SHOW-CAUSE. HOWEVER, IF THE CIT (A) ACTS ON AN APPL ICATION UNDER RULE 46A, THEN THE REQUIREMENT OF GIVING THE AO AN OPPORTUNIT Y AS PER RULE 46A(3) IS MANDATORY . THE ARGUMENT THAT IN ALL CASES WHERE ADDITIONAL E VIDENCE IS ADMITTED, THE CIT (A) SHOULD BE CONSIDERED TO HAVE EXERCISED HIS POWERS U/S 250(4) IS NOT ACCEPTABLE AS IT WILL RENDER RULE 46A REDUNDANT . ON FACTS, AS THE ASSESSEE HAD PRODUCED THE EVIDENCE, THE CIT (A) OUGHT TO HAVE FO LLOWED RULE 46A(3) AND REMANDED THE EVIDENCE TO THE AO FOR COMMENTS AND VERIFICATION (MATTER REMANDED TO THE CIT(A). I.T.A. NO.4943/DEL./2011 (A.Y. : 2003-04) 4 THEREFORE, APPLYING THE PROVISIONS OF RULE 46A AND THE RATIO OF THE DECISION OF THE ABOVE NOTED CASE CITED SUPRA, WE HOLD THAT ORDER OF THE C IT(A) IS NOT SUSTAINABLE IN THE EYES OF LAW. AS SUCH, WHILE CONSIDERING THE ENTIRELY OF FA CTS, CIRCUMSTANCES AND MATERIAL ON RECORD, WE ARE OF THE VIEW THAT IT WOULD MEET THE E NDS OF JUSTICE IF THE ORDER OF THE CIT(A) IS SET ASIDE AND MATTER IS RESTORED BACK ON THE FIL E OF THE ASSESSING OFFICER FOR RE- CONSIDERATION OF THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 6. AS A RESULT, THE APPLICATION FILED BY THE REVENU E IS ACCEPTED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN ON 21.09.2012. SD/- SD/- (A.N. PAHUJA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED : SEPT. 21, 2012 SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT, 4.CIT(A)-XXV, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT I.T.A. NO.4943/DEL./2011 (A.Y. : 2003-04) 5