ITO, New Delhi V. Shri. Randhir Singh, New Delhi

ITA 5430/DEL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96968 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 04-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `F NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.5430/DEL/2010 ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, VS SHRI RANDHIR SINGH, WARD 19(4), A-38, STREET NO. 21, NEW DELHI. MAHENDRA PARK, NEAR JAHANGIRPURI, DELHI-110033 (APPELLANT) (RESPONDENT) APPELLANT B Y: SHRI VIKRAM SAHAY, SR. DR RESPONDENT BY : SHRI RAJE SH MOHNA, ADV. O R D E R PER CHANDRAMOHAN GARG, J.M. THIS APPEAL BY THE REVENUE HAS BEEN DIRECTED AGAINS T THE ORDER OF CIT(A)- XXII, NEW DELHI DATED 30.09.2010 IN APPEAL NO. 266 /09-10 FOR AY 2007-08. ADDITIONAL GROUND OF THE REVENUE 2. LD. DR PRAYED FOR ADMISSION OF ADDITIONAL GROUND WHICH READS AS UNDER:- 1. THE LD.CIT(A) ERRED IN LAW AND ON THE FACTS IN DELETING THE ADDITION BY ACCEPTING ADDITIONAL EVIDENCES, IN CONT RAVENTION OF RULE 46A OF THE IT RULES, 1962 WITHOUT GIVING AN OP PORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE SAME AND FURTH ER NOT GIVING ANY FINDING WITH REGARD TO THE ADMISSIBILITY OF SUC H SUBMISSION AND ADDITIONAL EVIDENCE THEREOF. ITA NO. 5430/DEL/2010 ASSTT.YEAR: 2007-08 2 3. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES ON THE ADMISSIBILITY OF ADDITIONAL GROUND RAISED BY THE REVENUE. LD. DR SU BMITTED THAT ADDITIONAL GROUND BEING LEGAL MAY KINDLY BE ADMITTED FOR ADJUD ICATION IN VIEW OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS COMMISSIONER OF INCOME TAX ON 4 DECEMBER, 1996 229 ITR 383 SC, (1997). LD. COUNSEL OF THE ASSESSEE OBJECTED TO TH E ADMISSION OF ADDITIONAL GROUND BY SUBMITTING THAT AT THIS LATE STAGE, ADDIT IONAL GROUND CANNOT BE ADMITTED. 4. ON CAREFUL CONSIDERATION OF SUBMISSIONS OF BOTH THE SIDES AND VIGILANT PERUSAL OF THE PROPOSED ADDITIONAL GROUND, WE OBSER VE THAT THE REVENUE WANTS TO RAISE LEGAL OBJECTION AGAINST THE ADMISSIBILITY AND CONSIDERATION OF ADDITIONAL EVIDENCE AT THE FIRST APPELLATE STAGE IN CONTRAVENT ION OF RULE 46A OF THE INCOME TAX RULES 1962 WITHOUT GIVING AN OPPORTUNITY TO THE AO TO EXAMINE THE SAME AND FURTHER NOT GIVING ANY FINDING WITH REGARD TO T HE ADMISSIBILITY OF SUCH SUBMISSION AND ADDITIONAL EVIDENCE THEREOF. ON CA REFUL CONSIDERATION OF THE PROPOSED ADDITIONAL GROUND BEING LEGAL, WE ARE OF T HE CONSIDERED VIEW THAT THE SAME DESERVES TO BE ADMITTED BEING LEGAL OBJECTION OF THE REVENUE AND WE ADMIT THE SAME FOR ADJUDICATION. ITA NO. 5430/DEL/2010 ASSTT.YEAR: 2007-08 3 5. LD. DR, AT THE VERY OUTSET, PLACED HIS SUBMISSIO NS PERTAINING TO SOLE ADDITIONAL GROUND AS REPRODUCED HEREINABOVE. WE HA VE HEARD ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT M ATERIAL PLACED ON RECORD BEFORE US. LD. DR SUBMITTED THAT THE FIRST APPELLA TE AUTHORITY I.E. CIT(A) ADMITTED AND CONSIDERED ADDITIONAL EVIDENCE AND WRI TTEN SUBMISSIONS OF THE ASSESSEE WHICH ARE PLACED AT PAGES 81 TO 93 OF THE ASSESSEES PAPER BOOK IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX RULES W ITHOUT PROVIDING AN OPPORTUNITY TO EXAMINE AND COMMENT UPON THE SAME AN D FURTHER NOT GIVING ANY FINDING WITH REGARD TO THE ADMISSIBILITY OF SUCH WR ITTEN SUBMISSIONS AND ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE FIRST TIME DURING FIRST APPELLATE PROCEEDINGS. 6. LD. COUNSEL OF THE ASSESSEE REPLIED THAT THE ASS ESSEE DID NOT FILE ANY FRESH EVIDENCE OR SUBMISSIONS BEFORE THE CIT(A) AND THE S AME WERE ALSO PLACED BEFORE THE AO. LD. COUNSEL VEHEMENTLY CONTENDED T HAT AS PER RATIO OF THE ORDER OF ITAT DELHI D BENCH IN THE CASE OF ACIT VS MRS KANTA DUA ITA NO. 1762/DEL/2009 FOR AY 2005-06 DATED 18.12.2009, THER E IS A DIFFERENCE BETWEEN THE SITUATION WHEN THE ASSESSEE FILED ADDITIONAL EV IDENCE DURING FIRST APPELLATE PROCEEDINGS AND SECOND WHEN THE CIT(A) CALLED FOR I NFORMATION, THEN IN FORMER CONDITION, RULE 46A IS APPLICABLE BUT IN THE LATTER SITUATION WHEN THE FIRST ITA NO. 5430/DEL/2010 ASSTT.YEAR: 2007-08 4 APPELLATE AUTHORITY CALLED FOR INFORMATION AND EVID ENCE, RULE 46A IS NOT APPLICABLE. 7. LD. DR ALSO PLACED REJOINDER TO THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE BY CONTENDING THAT IF WE PERUSE THE IMPUGN ED ORDER OF THE CIT(A), IT IS CLEAR THAT THE CIT(A) DID NOT CALL FOR ANY EVIDENCE OR INFORMATION FROM THE ASSESSEE SUO MOTO BUT THE SAME WAS SUBMITTED BY THE ASSESSEE ON ITS OWN, THEREFORE, RULE 46A OF THE RULES IS APPLICABLE. 8. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS OF BOTH THE SIDES AND PERUSAL OF THE IMPUGNED ORDER OF THE CIT(A), WE OBS ERVE THAT THERE IS NO MENTIONING OF ANY INFORMATION OR EVIDENCE WHICH WAS CALLED BY THE CIT(A) DURING FIRST APPELLATE PROCEEDINGS SUO MOTO. PER C ONTRA, AS PER CONTENTS OF THE IMPUGNED ORDER, WE CLEARLY NOTE THAT THE ASSESSEE F ILED WRITTEN SUBMISSIONS ON 21.4.2010, 11.6.2010 AND 23.9.2010 AND ALSO SUBMITT ED DOCUMENTARY EVIDENCE IN THE FORM OF BANK STATEMENTS, COPY OF THE RECEIPT S OF PAYMENT OF OMAX FLAT AND COPY OF SALE DEED OF LAND DATED 1.6.2005 AND OT HER DOCUMENTS. THE CERTIFICATION PLACED BY THE ASSESSEE IN ITS PAPER B OOK IS ALSO NOT CLEAR THAT WHETHER THE DOCUMENTS PLACED AT PAGES 8-93 OF ASSES SEES PAPER BOOK WERE PLACED BEFORE THE AO. IN THIS SITUATION, AS PER CO NTENTS AND STIPULATIONS MADE BY ITA NO. 5430/DEL/2010 ASSTT.YEAR: 2007-08 5 THE FIRST APPELLATE AUTHORITY IN THE IMPUGNED ORDER , WE CLEARLY OBSERVE THAT THE ASSESSEE FILED WRITTEN SUBMISSIONS AND ADDITIONAL D OCUMENTARY EVIDENCE AND OUT OF ADDITIONAL DOCUMENTARY EVIDENCE, BANK STATEMENTS , RECEIPTS AND COPY OF THE SALE DEED ETC. WERE NOT PLACED BEFORE THE AO DURING FIRST APPELLATE AUTHORITY AND IN THIS SITUATION, WRITTEN SUBMISSIONS AND ADDITION AL EVIDENCE OF THE ASSESSEE FALLS WITHIN THE AMBIT OF RULE 46A OF THE INCOME TA X RULES 1962. AS PER SAID RULE, FIRST APPELLATE AUTHORITY IS REQUIRED TO ALLO W THE AO TO PLACE HIS COMMENTS ON THE ADMISSIBILITY AND MERITS OF THE MATERIAL WHI CH WAS FIRST TIME PLACED BEFORE THE CIT(A). IN THE PRESENT CASE, THE CIT(A) HAS ADMITTED AND CONSIDERED ADDITIONAL EVIDENCE AND WRITTEN SUBMISSION OF THE A SSESSEE IN CONTRAVENTION OF RULE 46A OF THE RULES. OUR VIEW ALSO FINDS SUPPORT FROM THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE OF MANISH BUI LDWELL PVT. LTD. REPORTED IN (2012) 204 TAXMAN 106. 9. ON THE BASIS OF FOREGOING DISCUSSION, WE REACH T O A CONCLUSION THAT THE CIT(A) ADMITTED AND CONSIDERED ADDITIONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE INCOME TAX RULES 1962 AND, THEREFORE, TH E APPEAL DESERVES TO BE RESTORED TO THE FILE OF CIT(A) FOR A FRESH ADJUDICA TION. AT THE SAME TIME, WE ALSO OBSERVE THAT THE CIT(A) WILL HAVE TO FOLLOW PR OCEDURE AS PER RULE 46A OF THE RULES WHICH WILL CREATE MULTIPLICITY OF PROCEED INGS IN CALLING REMAND REPORT AND COMMENTS OF THE AO ON ADMISSION AND MERITS OF T HE ADDITIONAL EVIDENCE. WE, THEREFORE, ARE OF THE OPINION THAT IT WOULD BE APPROPRIATE TO RESTORE THE ITA NO. 5430/DEL/2010 ASSTT.YEAR: 2007-08 6 ENTIRE PROCEEDINGS TO THE FILE OF THE AO FOR DE NOV O FRESH FRAMING OF ASSESSMENT FOR AY 2007-08 AFTER AFFORDING DUE OPPORTUNITY OF H EARING FOR THE ASSESSEE WITHOUT BEING INFLUENCED AND PREJUDICED BY THE EARL IER ASSESSMENT ORDER AND THE IMPUGNED ORDER OF THE CIT(A). WE ORDER ACCORDINGLY AND HENCE, SOLE ADDITIONAL GROUND OF THE REVENUE IS ALLOWED. 10. SINCE WE HAVE RESTORED THE ENTIRE CASE AT ASSE SSMENT STAGE TO THE FILE OF THE AO, THEREFORE, OTHER GROUNDS RAISED BY THE REVE NUE ON MERITS BECOME INFRUCTUOUS AND WE DISMISS THE SAME WITHOUT ANY FUR THER DELIBERATIONS ON MERITS. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED IN THE MANNER AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 07/08/2015. SD/- SD/- (R.S. SYAL) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 07 TH AUGUST 2015 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR