Ambit India Ltd., New Delhi V. ITO, New Delhi

ITA 518/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3519 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: B D SHARMA
• Keywords: Principle of natural justice; Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO.518/DEL/2011 ASSESSMENT YEAR : 2007-08 AMBIT INDIA LTD., ITO, 104-MALHOTRA COMPLEX, WARD-1 (4), A-212, GALI NO.4, NEW DELHI. SHAKARPUR, NEW DELHI. V, (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAMFA AAMFA AAMFA AAMFA- -- -7406 7406 7406 7406- -- -N NN N APPELLANT BY : SHRI B.D. SHARMA, ADVOCATE. RESPONDENT BY : DR. BRR KUMAR, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDE R OF LD CIT(A) IV, NEW DELHI DATED 30.11.2010 FOR ASSESSMENT Y EAR 2007- 08.THE APPELLANT HAS TAKEN THE FOLLOWING GROUNDS OF A PPEALS:- 1. THAT THE LD CIT(A) DID NOT CONSIDER THE CIRCUMSTANCES IN WHICH THE APPELLANT HAD FILED ADDITIONAL EVIDENCE. THE LD CIT(A) UPHELD THE ARBITRARY EX PARTE ASSESSMENT ORDER AND REFUSED TO A DMIT THE ADDITIONAL EVIDENCE FILED DURING THE APPELLATE PROC EEDINGS HOLDING IT TO BE IN VIOLATION OF RULE 46A. THE INTE NTION BEHIND RULE 46A IS THAT THE TAX PAYER DOES NOT GET AN OPPORT UNITY TO FABRICATE THE EVIDENCE. PAGE 2 OF 4 ITA NO518/DEL/11 2. THE INTERPRETATION OF RULE 46A IS THAT IT ONLY FETTE RS THE RIGHT OF THE ASSESSEE TO PRODUCE ADDITIONAL EVIDENCE BUT IT DOES NOT RESTRAIN THE CIT(A)S POWER U/S 250(4) READ WITH SUB RU LE (4) OF RYLE 46A. 3. THAT THE PROCEEDINGS BEFORE CIT(A) ARE QUASI JUDICIAL AND THEREFORE IT IS INCUMBENT UPON HIM TO CONFORM TO THE RULE OF NATURAL JUSTICE. THE CIT(A) IS REQUIRED TO EXERCISE JU DICIAL DISCRETION ON VARIOUS POINTS SUCH AS ADMITTING ADDITIONA L EVIDENCE. THE APPELLANT MAY BE PERMITTED TO PRODUCE ADDITIONAL EVIDENCE IN A FIT CASE WHICH FALLS OUTSIDE THE SPECIF IED CIRCUMSTANCES UNDER RULE 46A. 4. THE APPELLANT CRAVES LEAVES FOR RESERVING THE RIGHT T O AMEND MODIFY ALTER AMEND ANY GROUNDS OF APPEAL AT ANY TIME BEFORE ADDING DURING THE HEARING OF APPEAL. 2. BEFORE US, LD AR FOR THE ASSESSEE HAS CONTENDED THAT T HE LD CIT(A) HAS ARBITRARILY REFUSED TO ADMIT ADDITION EVID ENCE FURNISHED BEFORE HIM. THE ASSESSMENT WAS ALSO MADE EX PARTE AND CO MPLETED AT AN ASSESSED INCOME OF `.64,12,784/- AS AGAINST RETURNED INCOME OF NIL. IN THE ABOVE CIRCUMSTANCES, IT WAS SUBMITTED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY BY REMITTING THE MATT ER BACK TO THE FILE OF THE ASSESSING OFFICER. THE LD AR FOR THE ASSESSEE HAS AL SO PROMISED THAT PROPER COMPLIANCE WOULD BE MADE BEFORE THE ASSESSI NG OFFICER. 4. THE LD DR HAS NO SERIOUS OBJECTION TO THE ABOVE PRA YER OF THE LD AR FOR THE ASSESSEE. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE FIND THAT THERE WAS NO COMPLIANCE BY THE ASSESSEE BEFORE THE ASSESSIN G OFFICER AND THEREFORE THE ASSESSING OFFICER HAD TO PASS AN ORDER U/S 144 ON 29.12.2009 I.E. ALMOST AT THE END OF THE TIME BARRIN G PERIOD. BE THAT PAGE 3 OF 4 ITA NO518/DEL/11 AS IT MAY, WE ALSO FIND THAT HUGE ADDITIONS HAVE BEEN MADE BY THE ASSESSING OFFICER. IN THE ABOVE FACTS, WE ARE OF THE CO NSIDERED OPINION THAT NO HARM DONE IF THE LD CIT(A) HAD ADMITTED THE ADDITIONAL EVIDENCE. HOWEVER, TAKING THE TOTALITY OF THE FACT S AND CIRCUMSTANCES OBTAINED IN THE PRESENT CASE, WE ARE OF THE CONSIDERED OPINION THAT NO HARM WOULD BE DONE TO EITHER OF THE PARTIES IF THE C ASE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION T HAT A FRESH ORDER BE PASSED AS PER LAW AFTER GIVING THE ASSESSEE ADEQUATE OPPO RTUNITY OF BEING HEARD. WE MAKE IT CLEAR THAT IF THE ASSESSEE FAIL S TO COOPERATE WITH THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDING S, THE ASSESSING OFFICER WOULD BE JUSTIFIED IN TAKING AN ADVERSE VIEW AND MAKE NECESSARY ADDITIONS. WITH THE ABOVE REMARKS, WE SE T ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND REMIT TH E MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO PASS A FRESH ORDER A S PER LAW KEEPING IN VIEW THE DISCUSSION MADE HEREIN ABOVE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 14 TH JULY, 2011. SD/- SD/- (R.P. TOLANI) (B.K. HALD AR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 14.7.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. (ITAT, NEW DELHI). PAGE 4 OF 4 ITA NO518/DEL/11 DATE OF HEARING 14.7.2011 DATE OF DICTATION 18.7.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. .7.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH .7.2011