Smt. Hemlata M Pichad, Nashik V. ITO, Wd. 1(2), Nashik

ITA 539/PUN/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56504 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 15-09-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L KOLI
• Assessee Lawyers: S U PATHAKNIKHIL PATHAK
• Keywords: Unexplained cash credit; Opportunity of being heard; Bonafide belief; Additional evidence; Reasonable cause
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) ITA NO. 539/PN/2011 (ASSTT. YEAR: 2005-06) SMT. HEMLATA MADHUKAR DESHMUKH(PICHAD) ... APPELLANT A/P. AMBAI, TAL: TRIMBAKESHWAR, DIST. NASIK PAN : AGHPP0019P V. I.T.O. WARD 1(2), NASHIK RESPONDENT ITA NO. 540/PN/2011 (ASSTT. YEAR: 2005-06) SHRI. VAIBHAV MA DHUKAR DESHMUKH ( PICHAD ) ... APPELLANT A/P. AMBAI, TAL: TRIMBAKESHWAR, DIST. NASIK PAN : AGHPP0020C V. I.T.O. WARD 1(2), NASHIK RESPONDENT ITA NO. 541/PN/2011 (ASSTT. YEAR: 2005-06) SHRI. JITENDRA MADHUKAR DESHMUKH(PICHAD) ... APPELLANT A/P. AMBAI, TAL: TRIMBAKESHWAR, DIST. NASIK PAN : AGHPP0018N V. I.T.O. WARD 1(2), NASHIK RESPONDENT ITA NO. 542/PN/2011 (ASSTT. YEAR: 2005-06) SHRI. HEMANT MADHUKAR DESHMUKH(PICHAD) ... APPELLANT A/P. AMBAI, TAL: TRIMBAKESHWAR, DIST. NASIK PAN : AEBPD2783E V. ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 2 I.T.O. WARD 1(2), NASHIK RESPONDENT APPELLANT BY : S/SHRI S.U.PATHAK/NIKHIL PATHAK RESPONDENT BY : SHRI. P.L. KOLI (D.R.) DATE OF HEARING :15.9.2011 DATE OF PRONOUNCEMENT: 07.10.2011 ORDER PER I.C. SUDHIR, JM THE ASSESSEES HAVE QUESTIONED THE FIRST APPELLATE ORDER ON THE FOLLOWING GROUNDS : 1] THE LEARNED CIT(A) ERRED IN DISMISSING THE APPE AL FILED BY THE APPELLANT ON THE GROUND THAT THE ADDITIONAL EVIDENC ES SUBMITTED BY THE APPELLANT AT THE TIME OF HEARING COULD NOT BE ADMIT TED UNDER THE RULE 46A. 2] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT A. THE APPELLANTS PROP. BUSINESS PREMISES OF JITEN DRA TEXTILES WAS SEALED BY THE BANK ICHALKARANJI URBAN CO-OP BANK AN D HENCE, THE APPELLANT HAD NO ACCESS TO THE DOCUMENTS KEPT IN TH E OFFICE AT THE FACTORY PREMISES AND THUS, THE SAME COULD NOT BE PR ODUCED BEFORE THE A.O. DURING THE COURSE OF ASST. PROCEEDINGS. B. ICHALKARANJI URBAN CO OP BANK WHICH HAD PROVIDED FINANCE TO THE ASSESSEE WAS ALSO NOT CO OPERATING WITH THE ASS ESSEE AS THE ASSESSEE HAD DEFAULTED IN REPAYMENT OF THE LOANS. C. BECAUSE OF THE ABOVE REASONS, THE ASSESSEE COULD NOT SUBMIT THE DOCUMENTS AT THE ASST. STAGE AND THE SAME SHOUL D HAVE BEEN ADMITTED AT THE APPEAL STAGE. D. CONSIDERING THE ABOVE FACTS, THE ADDITIONAL EVID ENCES ON THE VARIOUS ISSUES INVOLVED IN THE ASST. HAD TO BE ADMI TTED IN THE INTEREST OF JUSTICE. ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 3 E. IN VIEW OF BOMBAY H.C. DECISION IN THE CASE OF S MT. PRABHAVATI S SHAH V/S. CIT [231 ITR 1 (BOM)], THE ADDITIONAL E VIDENCE OUGHT TO HAVE BEEN ADMITTED. 3] THE APPELLANT REQUESTS FOR AN OPPORTUNITY FOR PR ESENTING VARIOUS DOCUMENTS AND THE SUBMISSIONS ON MERITS REGARDING T HE VARIOUS ISSUES INVOLVED IN THE APPEAL. 4] BECAUSE OF THE NON ADMITTANCE OF THE ADDITIONAL EVIDENCES AND NON CONSIDERATION OF THE ISSUES OF MERITS, THE LEARNED CIT(A) ERRED IN CONFIRMING ALL THE ADDITIONS MADE BY THE A.O. IN THE ASST. AND WHICH ARE MENTIONED HEREUNDER A. ADDITION OF RS.12,15,040/- ON ACCOUNT LOAN GIVEN TO BAHETI SHRIKANT DESPITE THE FACT THAT THE LOAN WAS REFLECT ED IN THE BALANCE SHEET. B. ADDITION OF RS.33,14,108/- ON ACCOUNT OF THE UNE XPLAINED CASH CREDITS APPEARING IN THE BALANCE SHEET OF JITENDRA TEXTILE, THE ASSESSEES PROP. CONCERN. C. ADDITION OF RS. 71,68,439/- ON ACCOUNT OF THE BA NK OVERDRAFT U/S 68 AS UNEXPLAINED CASH CREDIT. D. ADDITION OF RS. 1,87,426/- ON ACCOUNT OF THE UNE XPLAINED SUNDRY CREDITORS IN THE BALANCE SHEET OF JITENDRA TEXTILES . E. ADDITIONS OF RS. 30,28,073/- ON ACCOUNT OF THE A GRICULTURAL INCOME SHOWN ON THE GROUND THAT IT IS EXCESSIVE. F. ADDITION OF RS. 10,00,000/- ON ACCOUNT OF THE UN SECURED LOANS IN THE BALANCE SHEET FILED WITH THE ORIGINAL RETURN . G. ADDITION OF RS. 3,72,000/- ON ACCOUNT OF THE SU NDRY CREDITORS SHOWN IN THE BALANCE SHEET FILED WITH THE ORIGINAL RTURN. 5] WITHOUT PREJUDICE, THE LEARNED CIT(A) OUGHT TO H AVE APPRECIATED THE MERITS OF THE CASE ON THE VARIOUS ISSUES MENTIONED IN GROUND NO. 4 AND EVIDENCES ON RECORD AND GIVEN THE RELIEF INSTEAD OF DISMISSING THE ASSESSEES APPEAL ON ALL THE ISSUES. ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 4 6] THE APPELLANT REQUESTS FOR ADMISSION OF THE VARI OUS EVIDENCES RELEVANT TO THE ISSUES INVOLVED AND THE ADDITIONS MADE AND A LSO FOR RELIEF ON THESE ISSUES IN VIEW OF THE ADDITIONAL EVIDENCES AND THE MERITS OF THE CASE. 7] THE APPELLANT PRAYS FOR THE CONSEQUENTIAL RELIEF IN THE INTEREST CHARGED U/S 234A/B/C. 2. AT THE OUTSET OF HEARING, THE LD. A.R. SUBMITTED THAT THE ASSESSEES HAVE GOOD CASE BUT THE LD CIT(A) DID NOT ALLOW THE PRAYER OF THE ASSESSEES FOR ADMISSION OF ADDITIONAL EVIDENCE OF THE ASSESSEE UNDER RULE 46A , WHICH THE ASSESSEE COULD NOT FURNISH BEFORE THE A.O DUE TO SOME CIRCUMSTANCES BE YOND THE POWER AND CONTROL OF THE ASSESSEES. HAD THE PRAYER OF THE ASSESSEE BEEN ACCEPTED, THERE WAS NO REASON FOR MAKING ANY ADDITION AGAINST THE ASSESSEES. THE LD. A.R. SUBMITTED THAT THE LD CIT(A) HAS FAILED TO APPRECIATE THAT THOSE ADDITION AL EVIDENCE GOES TO THE ROOT OF THE MATTER, HENCE ACCEPTANCE OF THE SAME WAS NECESSARY TO MAKE THE JUST ASSESSMENT. THE LD. A.R. SUBMITTED THAT THE ADDITIONS UPHELD BY THE LD CIT(A) WITHOUT CONSIDERING THOSE ADDITIONAL EVIDENCE ARE NOT SUSTA INABLE. HE REITERATED THE SUBMISSIONS MADE BEFORE THE LD CIT(A) MADE IN SUPPO RT OF THE PRAYER FOR THE ADMISSION OF ADDITIONAL EVIDENCE. THE LD A.R. PLACE D RELIANCE ON THE FOLLOWING DECISIONS : 1. SMT. PRABAVATI S.SHAH V/S. CIT, 231 ITR 1(BOM). 2.V.K. BRAHMANKAR 90 TTJ 821 (IND)] 3.A.M. MATHUR [117 ITD 274 (IND)] 4.MAHAVIR PRASAD GUPTA [100 TTJ 1078 (DEL )] 5] UOP LLC V/S. ADDL. DIRECTOR OF INCOME TAX [108 I TD 186 (DEL)] 6] BADARAM B MALI [125 TTJ 6190 (MUM)] 7] VELJI DEORAJ & CO. [68 ITR 708 (BOM)] ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 5 3. THE LD. D.R ON THE CONTRARY SUBMITTED THAT DESPI TE AVAILING SUFFICIENT OPPORTUNITY THE ASSESSEE COULD NOT ESTABLISH ITS CL AIM BEFORE THE AUTHORITIES BELOW, AND THE SO CALLED ADDITIONAL EVIDENCE IS NOTHING BU T AFTER THOUGHT. 4. HAVING GONE THROUGH THE FIRST APPELLATE ORDER, W E FIND THAT THE ASSESSEES ENGAGED IN THE BUSINESS OF TEXTILE MANUFACTURING HA D DECLARED INCOME FROM THE BUSINESS AND AGRICULTURE. THE A.O ON THE BASIS OF THE INFORMATION RECEIVED FROM ITO WARD 1(1), SOLAPUR FOUND THAT THE ASSESSEES HAD NO T REFLECTED THE LOANS GIVEN BY THEM TO M/S. BAHETI TEXTILES AND M/S. VEDANT TEXT ILES DURING THE A.Y. 2005-06. THE A.O ACCORDINGLY ISSUED NOTICE U/S. 148 AFTER R ECORDING REASONS. THE ASSESSEES FILED THEIR RETURNS OF INCOME IN RESPONSE TO NOTICE U/S. 148 DECLARING THE SAME INCOME AS IN THE ORIGINAL RETURN. IN THE ASSESSME NT, THE A.O MADE ADDITIONS ON ACCOUNT OF LOAN ADVANCED TO SHRI BAHETI, UNSECURED LOANS AND ON ACCOUNT OF BANK OVERDRAFT AS UNEXPLAINED SOURCES BEING ENTRIES IN T HE GUISE OF AGRICULTURAL INCOME. THE ASSESSEES TRIED TO EXPLAIN THAT THEY ARE BASICA LLY AGRICULTURISTS AND THEIR MAIN SOURCE OF INCOME IS FROM AGRICULTURAL ACTIVITIES. THUS, THEY WERE UNDER THE BONAFIDE BELIEF THAT THEY ARE NOT LIABLE TO MAINTAIN BOOKS O F ACCOUNT. HOWEVER, DURING THE F.Y. 2004-05 (A.Y. 2005-06 UNDER CONSIDERATION) THE Y HAD VENTURED INTO BUSINESS OF MANUFACTURING OF TEXTILES UNDER THE NAME AND STYLE OF M/S. GIRIJA TEXTILES AND OTHERS. THEY HAD APPOINTED ONE ACCOUNTANT TO LOOK AFTER THE MAINTENANCE OF BOOKS OF ACCOUNTS ETC., THEY WERE UNDER BONAFIDE BELIEF THAT PROPER BOOKS OF ACCOUNT WERE MAINTAINED BY HIM. IN FACT, HE HAD PREPARED A ND FILED THEIR ORIGINAL RETURNS OF INCOME FOR A.Y. 2005-06. WHEN THEY RECEIVED NOTICE U/S. 148, THE EARLIER ACCOUNTANT HAD LEFT THEM. THEN THEY TOOK SERVICES O F ANOTHER PROFESSIONAL. HOWEVER, MUCH OF THE DETAILS COULD NOT BE FILED AS THE DOCUMENTARY EVIDENCE RELATING TO THE ISSUES RAISED BY A.O WAS LYING IN F ACTORY PREMISES WHICH WAS SEALED BY BANK FOR DEFAULT IN LOAN REPAYMENT. IT WAS FOR THIS REASON THAT EVIDENCE IN SUPPORT OF VARIOUS ENTRIES IN BALANCE SHEET COULD N OT BE FURNISHED AT THE TIME OF ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 6 ASSESSMENT. IT WAS SUBMITTED THAT SOFT COPIES OF BOOKS OF ACCOUNT WAS AVAILABLE AND EXTRACT THEREOF WERE FURNISHED AS REQUIRED BY T HE A.O. THEIR AUTHORIZED REPRESENTATIVE ALSO MADE SUBMISSION AND FILED COPIE S OF BANK ACCOUNTS AS WELL AS BANK ACCOUNTS OF THE TEXTILE FIRMS. THESE ACCOUNTS CONTAINED VARIOUS ENTRIES LIKE LOANS FROM BANK ACCOUNT, PROFIT FROM UNSECURED LOAN S ETC. THE BOOKS OF ACCOUNT OF THE TEXTILE FIRMS WERE ALSO PRODUCED. IT WAS CONTE NDED FURTHER THAT ADDITIONS WERE AVOIDABLE HAD THE A.O TAKEN A LITTLE EFFORT IN EXAM INING THEIR BANK ACCOUNTS AND CALLED FOR INFORMATION FROM THIRD PARTY I.E. ENTIRE BANK LOAN AND OVERDRAFT HAS BEEN TREATED AS UNEXPLAINED CASH CREDIT U/S. 68. IT WA S CONTENDED THAT DETAILS REGARDING LOAN AND BANK ACCOUNT EXTRACT WERE FURNISHED BEFOR E A.O, HENCE A.O SHOULD HAVE CALLED FOR BANK ACCOUNTS FROM THE CONCERNED CO-OPER ATIVE BANK TO VERIFY FACTUM OF OUTSTANDING BALANCE IN LOAN ACCOUNT AND ALSO IN CUR RENT ACCOUNTS. IT WAS SUBMITTED THAT THE BANK HAD REFUSED TO SUPPLY COPIES OF ACCOU NT STATEMENTS TO THE ASSESSEE DUE TO DEFAULT OF RE-PAYMENT OF LOAN. THESE COPIES HAVE BEEN NOW OBTAINED AFTER PERSISTENT AND CONSISTENT FOLLOW UP. IT IS THE MAJ OR ITEM IN ALL THE GROUP CASES. EVEN IN RESPECT OF PRIVATE LOANS ADDED U/S. 68, THE MAJOR AMOUNTS ARE INTERSAY LOANS FROM THE SAME FAMILY MEMBERS WHOSE ASSESSMENT HAS B EEN COMPLETED BY THE SAME A.O AT THE SAME TIME AND COULD HAVE EASILY CRO SS VERIFIED. IT WAS FURTHER SUBMITTED THAT ALL THE AMOUNTS OF BANK LOAN/PRIVATE LOAN ARE CREDITED TO REGULAR BANK ACCOUNT OF TEXTILE FIRM AND IN THIS REGARD, CO PIES OF THE BANK STATEMENTS AS WELL AS ACCOUNT EXTRACTS WERE FILED BEFORE THE A.O. THU S, IT COULD HAVE BEEN EASILY VERIFIED THAT ALL THE TRANSACTIONS ARE THROUGH BANK ING CHANNEL AND NOT UNRELIABLE. THUS, IN CRUX, THE CONTENTION OF THE ASSESSEE BEFOR E THE LD CIT(A) AND BEFORE THE TRIBUNAL REMAINED THAT THE RELATED DOCUMENTARY EVID ENCE WAS LYING IN SEALED FACTORY PREMISES, THE SAME COULD NOT BE FILED BEFORE THE A. O AND FURTHER THAT THE HEAD OF THEIR FAMILY SHRI MADHUKAR DESHMUKH (PICHAD) WAS AL SO OUT OF STATION. HE IS THE MAIN PERSON HANDLING ALL THE PAPER WORK OF VARIOUS FAMILY CONCERNS. THEREFORE, THE ASSESSEES WERE PREVENTED BY REASONABLE CAUSE FROM FURNISHING THE DOCUMENTARY ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 7 EVIDENCE BEFORE THE A.O AND THE SAME WAS FURNISHED BEFORE THE LD CIT(A) WITH REQUEST THAT THOSE DOCUMENTS MAY BE ADMITTED AS AD DITIONAL EVIDENCE UNDER RULE 46A(C) TO MEET THE END OF JUSTICE AND TO DECIDE THE ISSUE AFRESH. IT WAS SUBMITTED THAT THE SAID DOCUMENTS ARE CRUCIAL AND GO TO THE R OOT OF THE MATTER. IT WAS CONTENDED THAT THE A.O HAS MADE HUGE ADDITIONS ALSO DUE TO FAILURE ON THE PART OF THE ASSESSEES TO FURNISH EVIDENCE IN SUPPORT OF THE IR CLAIM. LD CIT(A) CALLED THE COMMENTS OF THE A.O ON THE ABOVE REQUEST OF THE ASS ESSEE FIRM FOR ADMISSION OF THE ADDITIONAL EVIDENCE. THE A.O. OBJECTED THE REQUEST ON THE BASIS THAT REASONS SHOWN FOR NON-FURNISHING OF THOSE DOCUMENTS IS NOT BONAFI DE AS THE A.O HAD PROVIDED ADEQUATE TIME FOR FURNISHING SUCH EVIDENCE. IT WAS ALSO COMMENTED THAT THERE WAS SUFFICIENT MATERIAL AVAILABLE WITH HIM TO FRAME THE ASSESSMENT AND THE A.O NEVER REFUSED TO ADMIT THE EVIDENCE AT ANY STAGE DURING T HE ASSESSMENT PROCEEDINGS. 5. THE LD. A.R. POINTED OUT THAT WHILE REPLYING QUE STIONNAIRE DATED 21 ST FEBRUARY 2009 ON 21/12/2009 (COPY PLACED AT PAGE NO S. 14 TO 17), THE ASSESSEES HAD INFORMED THE A.O THAT SOME OF THE STATEMENTS A RE KEPT IN FACTORY PREMISES WHICH ARE SEIZED BY THE BANKS, HENCE FEW STATEMENTS ARE NOT AVAILABLE (PAGE NO. 16, PARA 28). THEY SUBMITTED THAT ASSESSEE HAD BEE N WRITING LETTERS REPEATEDLY TO THE BANK REQUESTING TO RELEASE BOOKS OF ACCOUNTS AN D OTHER RECORDS LYING IN THE FACTORY PREMISES. THE BANK REFUSED TO OPEN THE FAC TORY PREMISES AND TO GIVE THE DOCUMENTS/RECORDS TO THE ASSESSEE. IT DID NOT RESP OND TO THE LETTERS WRITTEN BY THE ASSESSEE ON 8.10.2009, 20.11.2009 AND 10.12.2009. FINALLY, THE ASSESSMENT ORDER WAS PASSED ON 31.12.2009. ON 4.3.2010, LIQUIDATOR WAS APPOINTED ON THE BANK. ONLY ON 20/23 DECEMBER 2010, BANK ALLOWED THE ASSES SEE TO TAKE THE RECORDS FROM THE FACTORY PREMISES. ON 24 JANUARY 2011, THE ASSE SSEE REQUESTED THE LD CIT(A) TO ALLOW THE ADMISSION OF ADDITIONAL EVIDENCE WHICH WERE FILED BEFORE THE LD CIT(A) IN THE FORM OF LIST OF DOCUMENTS WITH SUBMISSIONS. COPIES OF THE SAID LIST OF DOCUMENTS NARRATING THEIR NATURE HAS BEEN MADE AVAI LABLE AT PAGE NOS. 37 & 38 OF ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 8 THE PAPER BOOK. COPY OF SUBMISSIONS TO THE LD CIT( A) HAS BEEN MADE AVAILABLE AT PAGE NOS. 18 TO 38 OF THE PAPER BOOK. 6. IN OUR VIEW, THE OBJECT OF OUR JURISPRUDENCE IS TO MEET THE END OF JUSTICE. TO ACHIEVE THE SAME, LEGISLATORS HAVE PROVIDED SEVERAL PROVISIONS IN THE STATUTE. THE PURPOSE OF FRAMING OF RULE 46A(1) OF THE INCOME TAX RULES 1962 IS TO MEET THE END OF JUSTICE. FOR A READY REFERENCE, THE RELEVANT EX TRACT OF RULE 46(A)(1) ARE BEING REPRODUCED HEREUNDER : 46A. 1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE B EFORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MA Y BE, THE 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 CIRCUM STANCES, NAMELY :- (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE [ASSESSING OFFICER]; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY EVIDENCE WHICH I S 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. FROM THE READING OF ABOVE RULE, IT IS CLEAR THAT UN DER SOME EXCEPTIONAL CIRCUMSTANCES PRESCRIBED THEREIN, THE ASSESSEE SHAL L BE ENTITLED TO PRODUCE BEFORE THE APPELLATE AUTHORITY ANY EVIDENCE OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE A.O. ON E OF SUCH CIRCUMSTANCES MENTIONED IN CLAUSE (C) IS AS WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE A.O ANY EVIDENCE WH ICH IS RELEVANT TO ANY GROUNDS ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 9 OF APPEAL . BEFORE US AND BEFORE THE LD CIT(A) TH E REASON SHOWN BY THE ASSESSEES IN NOT PRODUCING SOME RELEVANT DOCUMENTS BY WAY OF EVIDENCE BEFORE THE A.O REMAINED THAT DUE TO DEFAULT IN RE-PAYMENT OF LOAN , THE FACTORY PREMISES OF THE ASSESSEE (WHERE BOOKS OF ACCOUNT AND OTHER RECORDS WERE LYING) WERE SEALED BY THE BANK AND DESPITE REPEATED REQUESTS OF THE ASSESSEES , THE BANK DID NOT OPEN THE FACTORY PREMISES AND RELEASED THE SAME. THE ASSESS MENT WAS FRAMED ON 31 ST DECEMBER 2009. THE ASSESSEE HAD INFORMED ABOUT SU CH CIRCUMSTANCE TO THE A.O IN THEIR REPLY DATED 21 ST DECEMBER 2009 TO THE QUESTIONNAIRE ISSUED BY THE A.O TO THEM. A COPY THEREOF HAS BEEN MADE AVAILABLE AT PA GE NOS. 14 TO 17 OF THE PAPER BOOK. SUBMISSION OF THE ASSESSEE REMAINED THAT ON 4.3.2010, LIQUIDATOR WAS APPOINTED ON THE BANK AND ON 20/23 DECEMBER 2010 T HE BANK ALLOWED THE ASSESSEES TO TAKE THE RECORDS FROM THEIR FACTORY PR EMISES. ACCORDINGLY, ON 24 TH JANUARY 2011, THE ASSESSEES SUBMITTED THEIR REPLIE S AND THE DOCUMENTS ON 24 JANUARY 2011 BEFORE THE LD CIT(A) WITH REQUEST TO A DMIT THE ADDITIONAL EVIDENCE SHOWN IN THE LIST OF DOCUMENTS. A COPY THEREOF HAS BEEN MADE AVAILABLE AT PAGE NO. 37 OF THE PAPER BOOK. FURTHER REASON FOR NOT F URNISHING SOME DOCUMENTS WAS SHOWN DUE TO ABSENCE OF HEAD OF FAMILY OF THE ASSE SSEES (SHRI MADHUKAR DESHMUKH (PICHAD), WHO WAS THE MAIN PERSON HANDLING ALL THE PAPER WORK OF VARIOUS FAMILY CONCERNS AND WAS OUT OF STATION DURI NG THE ASSESSMENT PROCEEDINGS. THE FURTHER REASON SHOWN WAS LEAVING OF JOB BY THEI R EARLIER ACCOUNTANT. THE DOCUMENTS WHICH THE ASSESSEE INTENDED TO FURNISH B Y WAY OF ADDITIONAL EVIDENCE ARE LOAN CONFIRMATION LETTERS FROM LOAN CREDITORS I N SUPPORT OF UNSECURED LOANS; BANK ACCOUNT STATEMENTS IN RESPECT OF OD A/C 75/95 AND C C A/C. (7); LEDGER EXTRACTS OF CREDITORS FOR F.Y. 2005-06 DRAWN FROM REGULAR BOOKS OF ACCOUNTS FOR F.Y. 2004-05 AND F.Y. 2005-06; 7/12 EXTRACTS KACHULI (DATED 11 .1.2011); AND 7/12 EXTRACT SUGAON DATED 12.1.2011 ETC.. CONSIDERING THE ABOV E SUBMISSIONS, WE ARE OF THE VIEW THAT THERE WAS SUFFICIENT CAUSE WHICH PREVENTE D THE ASSESSEE FROM PRODUCING BEFORE THE A.O THE ABOVE STATED DOCUMENTS BY WAY O F EVIDENCE WHICH WERE ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 10 RELEVANT TO THE ISSUES RAISED IN THE GROUNDS IN TH E APPEAL BEFORE THE LD CIT(A). CONSIDERATION OF THESE EVIDENCE, IN OUR VIEW, IS N ECESSARY TO MEET OUT THE END OF JUSTICE ON THE ISSUE RAISED IN THE GROUND OF APPEAL . WE THUS, IN THE INTEREST OF JUSTICE AND TO MEET OUT THE END OF JUSTICE, ALLOW THE REQUEST OF THE ASSESSEE FOR ADMISSION OF THE ABOVE STATED ADDITIONAL EVIDENCE M ENTIONED IN THE LIST MADE AVAILABLE AT PAGE NO. 37 AND 38 OF THE PAPER BOOK. WE THUS SET ASIDE THE MATTER TO THE FILE OF THE A.O TO EXAMINE THE VERACITY OF THE ABOVE ADDITIONAL EVIDENCE AND ADJUDICATE UPON THE VALIDITY OF THE ADDITIONS QUES TIONED BY THE ASSESSEES AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSE E. THE GROUND NOS. 1 TO 3 ARE THUS ALLOWED. GROUND NO. 4 IS ALLOWED FOR STATISTI CAL PURPOSES. GROUND NO. 5 IS AN ALTERNATIVE GROUND WHICH DOES NOT NEED ADJUDICATION IN VIEW OF ABOVE FINDING. GROUND NO. 6 DOES NOT NEED INDEPENDENT ADJUDICATION IN VIEW OF ABOVE FINDING. GROUND NO. 7 REGARDING CHARGING OF INTEREST U/S. 23 4A, 234B AND 234C IS CONSEQUENTIAL IN NATURE. 7. IN RESULT, APPEALS ARE PARTLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 7TH OCTOBER 2011. SD/- SD/- (D.KARUNAKARA RAO) ACCOUNTANT MEMBER (I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 7TH OCTOBER , 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-I, NASHIK 4. CIT(A)- I, NASHIK ITA. NOS 539, 540,541 & 542/PN/2011 SHRI HEMANT MADHUKAR DESHMUKH(PICHAD), SMT. HEMLATA MADHUKAR DESHMUKH (PICHAD) ETC., A.YS. 2005-06 PAGE OF 11 11 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE