The Income Tax Officer, Katra. V. Sh. Mohd. Rayaz S/O Sh. Abdul Rashid Magray, Jammu

ITA 517/ASR/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7798 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-07-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Assessee Lawyers: JOGINDER SINGH LD
• Keywords: Unexplained cash credit; Business expenditure; Additional evidence
• Section: 44AD; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.517(ASR)/2016 ASSESSMENT YEAR:2013-14 INCOME TAX OFFICER, WARD-2(5), KATRA VS. SH. MOHD. RAYAZ, S/O SH. ABDUL RASHID MAGRAY, WARD NO.7, OLD BAZAR, REASI AT PRESENT NEAR ARMY GATE, SUNJWAN PEER BAGH COLONY, JAMMU. PAN:AAFPR-4722J (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (LD. DR) RESPONDENT BY: SH. JOGINDER SINGH (LD. CA) DATE OF HEARING: 13.09.2017 DATE OF PRONO UNCEMENT: 25.09.2017 ORDER PER N. K. CHOUDHRY : THE INSTANT APPEAL HAS BEEN PREFERRED BY THE REVENUE DEPARTMENT, ON FEELING AGGRIEVED AGAINST THE ORDER D ATED 24.05.2016 PASSED IN APPEAL NO.505/2015-16 BY CIT(A), JAMMU FOR ASST. YEAR 2013-14. 2. THE REVENUE DEPARTMENT HAS RAISED THE SOLE GROUND OF APPEAL. 1. LD. CIT(A) ERRED AND WAS NOT RIGHT IN ADMITTI NG ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE APPELLATE PROCE EDINGS WITHOUT AFFORDING OPPORTUNITY TO THE AO TO EXAMINE THE SAME. THE ADDITIONAL EVIDENCES WERE TO BE CONSIDERED AS PER RULE 46A ONLY . THE ASSESSEE NEVER EVER PRODUCED THE ADDITIONAL INFORMATION DURING ASS ESSMENT PROCEEDINGS BEFORE THE AO. 2. LD. CIT(A) WAS NOT RIGHT IN LAW IN DELETING THE ADDITION OF RS.30,00,000/- ON ACCOUNT OF NON-REFLECTION OF LOANS /ADVANCES AND RS.6,87,405/- DUE TO UNEXPLAINED CREDITS DESPITE THE FACT THAT THE I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 2 ASSESSEE WAS UNABLE TO EXPLAIN THE AMOUNTS IN SPITE OF BEING AFFORDED AMPLE OPPORTUNITIES DURING ASSESSMENT PROCEEDINGS. 3. THE RECEIPT OF LOANS OF RS.30,00,000/- BY AB HA JAJ MAGREY FROM ASSESSEE WAS VERIFIED BY THE AO FROM THE BOOKS OF A CCOUNTS AND RETURN FILED BY THE RECIPIENT OF LOAN. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THAT THE APPELLANT IS A CIVIL CONTRACTOR WHO HAS FILED H IS RETURN OF INCOME DECLARING A PROFIT OF RS.6,47,500/- AND SHOWN CONTRACT RECEIPTS OF RS.81,36,219/-, SCRAP SALES OF RS.2,18,0 00 AND BANK INTEREST OF RS.69,161/- SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY AND STATUTORY NOTICES WER E ISSUED. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTED TH AT THE ASSESSEE HAS SHOWN A CONTRACT RECEIPT OF RS.81,36,219/- A ND SCRAP SALE AT RS.2,18,000 AND THUS THE TOTAL CONTRACT RE CEIPTS COME TO RS.83,54,219/- ON WHICH NET PROFIT OF RS.6,47,5 02/- HAS BEEN SHOWN WHICH INCLUDES SAVING BANK INTEREST INCOME OF RS,69,161/- SHOWN IN THE P & L A/C. THE AO THEN WORKED OUT THE NET PROFIT AT RS.5,78,341/- WHICH CAME TO 6.92% AND CAL CULATED THAT THOUGH THE ASSESSEE HAS A TURNOVER OF LESS THAN ONE CRORE OF RUPEES, THE NET PROFIT IS LESS THAN 8% OF THE CONTRACT RECEIPTS AND AS PER THE PROVISIONS OF SECTION 44AD OF THE INCOME TAX ACT THE ASSESSEE WAS REQUIRED TO GET HIS ACCOUNTS AUDITED UNDER SECTION 44AB OF THE ACT WHICH THE ASSESSEE HAS FAILED TO DO AND THUS, PENALTY PROCEEDINGS U/S 271B OF THE ACT WAS ALSO IN ITIATED BY THE AO . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT CERTAIN DEPOSITS AMOUNTING TO RS.6,87,045/- HAVE BEEN MADE IN THE BANK ACCOUNT OF THE ASSESSEE AND THUS, HE WAS ASKED TO EXPLAIN, THE SOURCE OF DEPOSIT INTO BANK ACCOUNT . THE AO WAS NOT CONVINCED BY THE SUBMISSION MADE BY THE APPEL LANT I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 3 WITH REGARD TO SOURCE OF DEPOSITS AND ACCORDINGLY THE AMO UNT WAS ADDED TO THE INCOME OF THE APPELLANT. THE AO FURTHER ADDED A SUM OF RS.30,00,000/- PAID TO ONE MD. ABDUL HAJAJ MAGRAY WHICH WAS CLAIMED BY THE ASSESSEE AS EXPENSES MADE AGAINST CONSTRUCTION. BESIDES ABOVE, THE AO ALSO MADE ADDITIONS ON ACCOUNT OF BANK INTEREST OF RS.69,161/- AND RS.2,992/-. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE/APPELLANT PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A), WH O DELETED THE ADDITION MADE BY A.O. 5. ON FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE LD. CIT(A), THE REVENUE DEPARTMENT PREFERRED THE INSTANT APPEAL BY RAISING THE GROUND AS MENTIONED IN PARA-2 OF THIS ORDER. IN SUPPOR T OF ITS CASE, THE LD. DR SUBMITTED THAT LD. CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDENCES PRODUCED BY THE ASSESSEE DURING THE APPELLATE P ROCEEDINGS WITHOUT AFFORDING OPPORTUNITY TO THE AO TO EXAMINE THE SAME. THE ADDITIONAL EVIDENCES WERE TO BE CONSIDERED AS PER RULE 4 6A ONLY AS THE ASSESSEE NEVER PRODUCED THE ADDITIONAL INFORMATION DURIN G THE ASSESSMENT PROCEEDINGS BEFORE THE AO, THEREFORE, THE OR DER PASSED BY THE LD. CIT(A) IS LIABLE TO BE SET ASIDE. IN SUPPORT OF THIS CONTENTION, THE LD. DR RELIED UPON THE JUDGMENT PASSED BY THE HON BLE GUWAHATI HIGH COURT IN THE CASE OF CIT VS. RANJIT KUMAR CHOUDHRY IN ITA NO.54 OF 2004 [2007] TIOL-35-HC-GUW-IT. I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 4 FURTHER THE LD. DR SUBMITTED THAT LD. CIT(A) WAS NOT RIGHT IN LAW IN DELETING THE ADDITION OF RS.30,00,000/- ON ACCOUNT OF NON-REFLECTION OF LOANS/ADVANCES AND RS.6,87,405/- DUE TO UNEXPLAINE D CREDITS DESPITE THE FACT THAT THE ASSESSEE WAS UNABLE TO EXPLAIN T HE AMOUNTS, IN SPITE OF BEING AFFORDED AMPLE OPPORTUNITIES DURIN G ASSESSMENT PROCEEDINGS. FURTHER, IT WAS ARGUED BY THE LD. DR THAT THE RECEIP T OF LOANS OF RS.30,00,000/- BY AB HAJAJ MAGREY FROM ASSESSEE WAS VERIFI ED BY THE AO FROM THE BOOKS OF ACCOUNTS AND RETURN FILED BY THE R ECIPIENT OF LOAN. 6. ON THE CONTRARY, IT WAS SUBMITTED BY THE LD. AR THAT L D. AO HAS MADE ADDITIONS ON ACCOUNT OF CERTAIN DEPOSITS IN THE BANK ACCOUNT MAINTAINED WITH J&K BANK JOYTIPURAM. IN THIS REGARD , IT IS TO SUBMIT THAT THE SAID BANK ACCOUNT IS DULY REFLECTED IN THE BOOK S OF THE ASSESSEE AND ALL THE RECEIPTS REFLECTED IN THE BANK STATEM ENT ARE SHOWN IN THE FINANCIAL STATEMENT SUBMITTED BY THE ASSESSEE AND THE RECEIPTS ALSO IN THE BANK STATEMENT WHICH ARE SHOWN IN TH E FINANCIAL YEAR SUBMITTED BY THE ASSESSEE AND ALL THE BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE A.O, HOWEVER, THE A.O INSTEAD OF VERIFYING THE ENTRIES IN THE BOOKS OF ACCOUNT PROCEEDED TO MAKE THE AD DITIONS WITHOUT ANY VALID BASIS. ALL THE RECEIPTS MENTIONED BY THE AO IN TH E ASSESSMENT ORDER WERE BANK TRANSFERS EXCEPT AN AMOUNT OF I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 5 RS.15000/- WHICH WAS DEPOSITED IN CASH. IF THE AO HAD A NY DOUBT ABOUT THE NATURE OF TRANSACTION, REFLECTED BY THE ASSESSEE , HE COULD HAVE ENQUIRED THE DETAILS OF TRANSACTIONS FROM BANK AU THORITIES, FOR HIS SATISFACTION. HE CANNOT BRUSHED ASIDE THE BOOKS OF ACCOUNT M ERE ON THE BASIS OF HIS DOUBTS. IT IS IMPORTANT TO MENTION HEREIN THAT THE ASSESSEE IS A CIVIL CONTRACTOR AND HE HAS DECLARED NET PROFIT OF 7.96% ON GROSS RECEIPTS OF CONTRACT WORK SHOWN IN THE RETURN OF INCOME. THE HON' BLE JURISDICTIONAL BENCH HAS HELD A NET PROFIT OF 5% TO 6.5 % AS REASONABLE PROFIT IN CASE OF CIVIL CONTRACTORS IN MANY CASES. IF THE I MPUGNED INCOME ASSESSED BY THE AO IS CONSIDERED, THE NET PROFIT OF THE ASSESSEE WOULD BE AROUND 55% WHICH IS UNREASONABLE. THE LD. AO HAS MADE AN ADDITION OF RS.30,00,000/- ON THE GROUND THAT THE ASSESSEE HAS NOT PROVIDED THE DOCUMENTARY EVIDENCE FOR SUCH EXPENSES AND HELD THE SAME TO BE AN UNEXPLAINED ADVANCE. IN THIS REGARD, IT IS TO SUBMIT THAT THE AO HAS ACTED WITHO UT APPLICATION OF MIND WHILE MAKING SUCH ADDITION. THE ASSESSEE HAD OBTAINE D AN UNSECURED LOAN OF RS.50,00,000/- FROM ABDUL HAJAJ MAGRA Y THROUGH BANK TRANSFERS IN THE ASST. YEAR: 2012-13 WHICH IS DULY R EFLECTED IN THE FINANCIAL STATEMENT OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2012- 13. IN THE YEAR UNDER CONSIDERATION, THE SAID AMOUNT WAS RE PAID TO THE ABDUL HAJAJ MAGRAY IN THE FOLLOWING MANNER- I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 6 RS.30,00,000/- WAS TRANSFERRED TO ABDUL HAJAJ MAGRAY THROUGH CHEQUE NO.373438 ON 01.05.2012. RS.20,00,000/ WAS TRANSFERRED TO SHOUNAK ALI THROUGH CHEQUE NO. 373439 ON 04.05.2012 ON REQUEST OF ABDUL HAJAJ MA GRAY. THE LOAN OF ABDUL HAJAJ MAGRAY WAS THEREFORE SQUARED UP IN THE YEAR UNDER CONSIDERATION AND AS SUCH NO BALANCE WAS REFLECT ED IN BALANCE. NONE OF THESE PAYMENTS WERE CLAIMED AS EXPENSES IN THE BOOKS OF ACCOUNTS AND AS SUCH THERE IS NO QUESTION OF DISALLO WANCE OF EXPENSES. IT IS PERTINENT TO MENTION HERE THAT SH. AB. HAJAJ MA GRAY HAS REFLECTED THE ENTRY OF RS.20 LAKHS PAID TO SH. SHOUNA K ALI AS REPAYMENT BY THE ASSESSEE AND SHOWN A BALANCE OF RS 30 LAK HS AS RECEIVABLE FROM THE ASSESSEE. IT IS TO SUBMIT THAT WE HAVE PRODUCED OUR BANK STATEMENT AND IT WAS POINTED BY THE AO HIMSEL F THAT RS.30 LAKHS HAS BEEN PAID TO SH. AB. HAJAJ MAGRAY BY THE ASSESS EE FOR WHICH HE HAS MADE THE ADDITION. IT IS VERY IRONICAL THAT ON ONE HAND, THE AO HAS WRITTEN THAT THE RS 30 LAKHS HAS BEEN SHOWN BY THE S H.AB. HAJAJ MAGRAY AS RECEIVABLE FROM THE ASSESSEE AND HE IS ALSO MENTI ONED THAT THE ASSESSEE HAS PAID RS.30 LAKHS BY CHEQUE TO HAJAJ MAGRAY. THEN IT WAS THE DUTY OF THE AO TO VERIFY THE BOOKS OF SH. AB. HAJAJ MAGRAY TO EXAMINE THE REFLECTION OF THE CHEQUE OF RS.30 LAKHS PA ID BY THE ASSESSEE BEFORE REACHING ANY CONCLUSION. COPY OF BALANCE SH EET OF ASSESSEE FOR THE ASSESSMENT YEAR 2012-13 IS ENCLOSED FOR YOUR KIND PERUSAL. I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 7 7. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WHILE GIVING RELIEF TO THE ASSESSEE BY DELETING THE ADDITIONS INCLUDING UNDER DISPUTE IN THE INSTANT APPEAL CONCLUDED AS UNDER: GROUND OF APPEAL NO 3, 4 & 6 RELATES TO THE ADDITION OF RS.30,00,000/- ON ACCOUNT OF LOAN/ADVANCES NOT REFLECTED IN THE BALAN CE SHEET. THE AO DURING THE ASSESSMENT PROCEEDINGS SOUGHT INFORMATION FROM J & K BANK, JYOTIPURAM, REASI, JAMMU U/S 133 (6) OF THE INCOME TAX ACT AND FOUND T HAT THE ASSESSEE HAS MADE CERTAIN WITHDRAWALS FROM HIS BANK ACCOUNT ON DIFFER ENT DATES. WHEN THE ASSESSEE WAS ASKED BY THE AO TO SPECIFY THE NATURE OF WITHDR AWAL, THE ASSESSEE SUBMITTED THAT 'THESE WITHDRAWALS ARE MADE FOR MEET ING LABOUR EXPENSES, PURCHASES AND OTHER 'BUSINESS EXPENSES. THE WITHDRA WALS HAVE ALSO BEEN MADE FOR HOUSEHOLD NEEDS OF THE ASSESSEE AND THE SAME AR E DULY REFLECTED IN THE BOOKS OF THE ASSESSEE.' THE AO, HOWEVER, DID NOT ACCEPT T HE SUBMISSION OF THE ASSESSEE AND ASKED HIM TO FURNISH THE NATURE OF WITHDRAWALS IN THE SAID BANK ACCOUNT ALONG WITH DOCUMENTARY EVIDENCES. IN RESPONSE TO TH AT THE ASSESSEE REITERATED THE SAME AND DIDN'T PRODUCE ANY DOCUMENTARY EVIDENC E. THE AO THEN NOTED THAT AS AGAINST ONE OF THE WITHDRAWALS OF RS.30,00,000/- THE NARRATION WAS WRITTEN AS 'SOD 15 SH. AB. HAJAJ MAGRAY' WHICH MEANS THAT P AYMENT WAS MADE TO THIS PERSON. THE AO THEN CALLED FOR THE LEDGER COPY OF T HE ASSESSE IN THE BOOKS OF MR ABDUL MAGRAY U/S 133 (6) OF THE ACT. THE SAME WAS P RODUCED BY MR- MAGRAY AND IT WAS FOUND BY THE AO THAT A CREDIT BALANCE OF RS. 30,00,000/- WAS SHOWN AGAINST THE ASSESSEE. THE AO THEN CONCLUDED THAT RS .30,00,000/- IS NOT THE BUSINESS EXPENSES AS CLAIMED BY THE ASSESSEE AND AD DED THIS SUM TO THE TOTAL INCOME OF THE ASSESSEE. THE APPELLANT, ON THE OTHER HAND, HAS ARGUED DURING THE APPELLATE PROCEEDINGS THAT THE SAID AMOUNT WAS NEVER CLAIMED AS EXPENSES IN THE PROFIT AND LOSS ACCOUNT. THE APPELLANT HAD TAKEN A LOAN OF RS.50,00,000/- FROM ABDUL HAJAJ MAGRAY IN THE PRECEDING YEAR- THROUGH BANKING CHANNEL WHICH WAS DULY REFLECTED IN THE BALANCE SHEET OF THE PRECEDING YEA R. THIS LOAN WAS REPAID IN THE YEAR UNDER CONSIDERATION BY WAY OF TWO ENTRIES OF R S.30,00,000/- AND RS.20,00,000/- AGAIN THROUGH BANKING CHANNEL. THE A PPELLANT HAS ALSO SUBMITTED THE COPY OF FINANCIAL STATEMENT OF THE PR ECEDING YEAR ALONG WITH BANK STATEMENT AS EVIDENCE THEREOF. I HAVE CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER AND THE SUBMISSIONS MADE BY THE APPELLANT. IT IS FOUND THAT THE APPELLANT HAS ACCEPTED A LOAN OF RS.50,00,000/- IN THE FINANCIAL, YEAR 2011-12 AND THE SAME WAS DULY SHOWN IN THE BALANCE SHEET OF THE APP ELLANT OF THE RELEVANT ASSESSMENT YEAR. IN THE FINANCIAL YEAR 2012-13 I.E THE YEAR UNDER CONSIDERATION, THE SAID LOAN WAS REPAID IN TOTO AND AS SUCH THERE IS NO REFLECTION OF THE SAID AMOUNT IN THE BALANCE SHEET. THUS, THE ARGUMENT OF THE AO THAT THE AMOUNT GIVEN TO ABDUL HAJAJ MAGRAY HAS NOT BEEN I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 8 REFLECTED IN THE BALANCE SHEET IS NOT CORRECT. IT I S SEEN THAT THE AO HAS NOT BOTHERED TO MAKE ENQUIRIES AND INSTEAD REACHED A WR ONG CONCLUSION. THE ADDITION OF RS.30 LAKHS MADE BY THE AO,- THEREFORE, IS UNJUSTIFIED AND NEEDS TO BE DELETED. THE GROUNDS OF APPEAL ARE THUS ALLOWED AND THE APPELLANT GETS A RELIEF OF RS.30 LAKHS. 8. ON CONSIDERATION OF THE ORDER PASSED BY THE LD. CI T(A), IT EMERGED THAT ADDITION OF RS.30,00,000/- ON ACCOUNT OF LOAN ADVANCES WAS NOT REFLECTED IN THE BALANCE SHEET, THEREFORE, THE A.O SOUGHT INFORMATION FROM J&K BANK, U/S 133(6) OF THE I.T. ACT IN WHICH HE FOUND SOME CERTAIN WITHDRAWAL AND ON BEING ASKED THE ASSESSEE REPLIED THAT THESE WITHDRAWALS ARE MADE FOR MEETING L ABOUR EXPENSES, PURCHASES AND OTHER BUSINESS EXPENSES AS WELL AS HOUSEHOLD NEE DS OF THE ASSESSEE AND THE SAME ARE DULY REFLECTED IN THE BOOK S OF THE ASSESSEE. FURTHER THE A.O ASKED THE ASSESSEE TO FURNISH THE NATURE OF WITHDRAWALS AS DOCUMENTARY EVIDENCES, HOWEVER, ON FAIL URE TO REPLY, THE LD. A.O CALLED UPON ONE MR. ABDUL HAJAJ MAGRAY U/ S 133(6) OF THE ACT, WHO FILED LEDGER COPY OF THE ASSESSEE IN HIS BOOKS OF ACCOUNT, WHERE THE CREDIT BALANCE OF RS.30,00,000/- WAS SHOWN AGA INST THE ASSESSEE, HOWEVER, THE A.O CALCULATED THAT THE SAID AMOUNT IS NOT A BUSINESS EXPENSE AS CLAIMED BY THE ASSESSEE AND THEREFORE, MA DE THE ADDITION IN THE INCOME OF THE ASSESSEE. DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A), T HE ASSESSEE ARGUED THAT THE SAID AMOUNT WAS NEVER CLAIMED AS E XPENSES I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 9 IN THE P&L ACCOUNT AS THE ASSESSEE HAD TAKEN A LOAN OF RS.5 0,00,000/- FROM THE SAID PERSON IN THE PRECEDING YEAR THROUGH BAN KING CHANNEL WHICH WAS DULY REFLECTED IN THE BALANCE SHEET IN THE PR ECEDING YEAR AND THE SAID LOAN WAS REPAID IN THE YEAR UNDER CONSIDER ATION BY WAY OF TWO ENTRIES OF RS.30,00,000/- & RS.20,00,000/- THROU GH BANKING CHANNEL ONLY, WHICH HAS BEEN CORROBORATED THROUGH FINAN CIAL STATEMENT OF THE PRECEDING YEAR AS WELL AS BANK STATEMENT, THEREF ORE, THE LD. CIT(A) REASONED TO DELETE THE SAID AMOUNT ON THE GROU ND THAT IN THE FINANCIAL YEAR:2012-13 I.E., THE YEAR UNDER CONSIDERAT ION THE SAID LOAN AMOUNT WAS REPAID IN TOTO, THEREFORE, THERE IS NO REF LECTION IN THE SAID AMOUNT IN THE BALANCE SHEET. THUS, THE ARGUMENT OF TH E A.O THAT AMOUNT GIVEN TO THE SAID PERSON HAS NOT BEEN REFLECTED IN THE BALANCE SHEET IS NOT CORRECT AND EVEN HE DID NOT BOTHER TO MAKE ENQUIRIES AND INSTEAD REACHED AT A WRONG CONCLUSION, THEREFORE, THE AD DITION OF RS.30,00,000/- IS UNJUSTIFIED AND NEEDS TO BE DELETED. THE CONTENTION OF THE LD. DR TO THE EXTENT THAT LD. CIT(A) ERRED AND WAS NOT RIGHT IN ADMITTING ADDITIONAL EVIDENCES PR ODUCED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS WITHOUT AFFORDI NG OPPORTUNITIES TO THE A.O TO EXAMINE THE SAME AS THE AD DITIONAL EVIDENCES WERE TO BE CONSIDERED AS PER RULE 46A BECAUSE TH E ASSESSEE NEVER PRODUCED THE ADDITIONAL INFORMATION DURING THE ASSESSMENT PROCEEDINGS BEFORE THE A.O. I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 10 AS THE LD. DR ARGUED THAT THE CIT(A) CANNOT ADMIT ADD ITIONAL EVIDENCE PRODUCED BY THE ASSESSEE DURING THE APPELLANT PR OCEEDINGS WITHOUT AFFORDING OPPORTUNITIES TO THE A.O TO EXAMIN E THE SAME AS THE ADDITIONAL EVIDENCES ARE SUPPOSED TO BE CONSIDERED AS PER RULE 46A ONLY. THE JUDGMENT RELIED UPON THE LD. DR IS FACTUALLY DISSI MILAR TO THE INSTANT CASE, THEREFORE, IN VIEW OF THE SUB-SECTION -4 OF RULE-46A OF THE I.T. RULES, DOES NOT HELP THE REVENUE DEPARTMENT. LET US TO REPRODUCE THE SUB-RULE- 4 OF RULE 46A OF T HE I.T. ACT. 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEF ORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, TH E COMMISSIONER (APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTA RY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCE EDINGS BEFORE THE [ASSESSING OFFICER] EXCEPT IN THE FOLLOWING CIRCUMS TANCES, NAMELY:- (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; OR (B) WHERE THE APPELLATE WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE [ASSESSING OFFICER]; (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY EVIDEN CE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR (D) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDER AP PEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELL ANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1) UNLESS THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, TH E COMMISSIONER (APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS A DMISSION. (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE [ASSESSING O FFICER] HAS BEEN ALLOWED A REASONABLE OPPORTUNITY- (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS -EXAMINE THE WITNESS PRODUCE BY THE APPELLANT, OR I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 11 (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE [DEPUTY COMMISSION (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) ] TO DIRECT THE PRODUCTION OF ANY DOCUMEN T, OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOS E OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHAN CEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE [ASSESSING OFFICER]) UNDER CLAUSE (A) OF SUB-SE CTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.] IN OUR CONSIDERED OPINION SUB-RULE-4 OF RULE-46A CLEAR LY EMPOWERED THE CIT(A) TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF THE ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SPECIAL CAUSE INCLUDING THE ENH ANCMENT OF THE ASSESSMENT OR PENALTY. ******** IN THE INSTANT CASE, THE LD. CIT(A) PERUSED THE DOCUME NTS, BOOKS OF ACCOUNTS, FINANCIAL AND BANK STATEMENT, BALANCE SHEET OF THE ASSESSEE FOR THE PRECEDING YEAR FOR JUST DECISION OF THE CASE , WHICH ACCORDING TO OUR MIND BY NOT AFFORDING OPPORTUNITIES T O EXAMINE THE SAME, DOES NOT VITIATE THE ORDER AS ILLEGAL, PERVERSE A ND IMPROPER. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE DEPA RTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25.0 9.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHR Y) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:25.09.2017. /PK/ PS. I TA NO. 517(ASR)/2016 ASST. YEAR: 2013-14 12 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER