I.T.O. 16(2)(2), MUMBAI V. NEHAL GANDHI, MUMBAI

ITA 5444/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71520 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHWA NI SINHA
• Assessee Lawyers: NISHI T DAVE
• Keywords: Additional evidence
• Section: 142(1); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE SHRI SANJAY ARORA , ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 5444 /MUM/2012 ASSESSMENT YEAR: 2005 - 06 ITO 16(2) (2) 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD MUMBAI - 400 007 VS. M RS. NEHAL GANDHI 3 - C, RIDGE APARTMENT, RIDGE RD. MALABAR HILL, MUMBAI - 400 008 PAN: AEJPG 2346 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NISHI T DAVE REVENUE BY : SHRI ASHWA NI SINHA DATE OF HEARING : 23 .10.2013 DATE OF PRONOUNCEMENT : 30 . 10 .2013 O R D E R PER DR . S.T.M. PAVALAN , J M: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD.CIT(A) - 27 , MUMBAI DATED 27.06.2012 FOR THE ASSESSMENT YEAR 200 5 - 06 . 2 . IN THIS APPEAL, THE REVENUE HAS AGITATED THE ACTION OF THE LD.CIT(A) IN ALLOWING ADDITIONAL EVIDENCE DURING THE FIRST APPELLATE PROCEEDINGS ON THE GROUND THAT THE SAME IS IN CONTRAVENTION OF RULE 46A OF THE INCOM E TAX RULES. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL IN RESPECT OF WHOM THE ASSESSMENT WAS FRAMED U/S 143 R.W.S. 263 OF THE INCOME TAX ACT, THE AO NOTED THAT AN AMOUNT OF RS.93,19,483/ - BEING THE LOAN RECEIVED IN EARLIER YEARS FROM W.T. NAMGY AL HAGLOK, SIKKIM REMAINS UNCHANGED IN THE ASSESSEES BOOKS TILL 31.03.2007 AND THE DETAILS WERE NOT AVAILABLE THEREAFTER IN THE RETURNS FILED. AS THE ASSESSEE HAD NOT FURNISHED THE DETAILS OF THESE TRANSACTIONS ALONG WITH NECESSARY EVIDENCE TO JUSTIFY SUC H AN OUTSTANDING AMOUNT FOR A SUBSTANTIAL PERIOD OF TIME, THE AO ADDED THE SAID AMOUNT TO THE TOTAL I NCOME OF THE ASSESSEE AND BROUGHT TO TAX ACCORDINGLY. ON APPEAL, THE LD.CIT(A) ADMITTED NEW/ADDITIONAL EVIDENCES IN THE FORM CONFIRMATION LETTERS AND DETAI LS OF ACTUAL REPAYMENT ITA NO. 5444/MUM/2012 MRS. NEHAL GANDHI ASSESSMENT YEAR: 2005 - 06 2 MADE AND THEREBY RELYING ON THE SAME DELETED THE IMPUGNED ADDITION. AGGRIEVED BY THE IMPUGNED DECISION, THE REVENUE IS IN APPEAL BEFORE US. 4. HAVING REGARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD, IT IS PERTINENT TO NOTE THAT THE LD.CIT(A) IN PARA 7 .5.1 OF THE ORDER HAS OBSERVED THAT THE AO ISSUED THE NOTICE U/S 142(1) FOR THE FIRST TIME ON 24. 09.2010, WHEREIN NO DETAILS HAVE BEEN CALLED FOR AS TO THE IMPUGNED LOAN TRANSACTIONS. THEREAFTER , IN THE ASSESSMENT PROCEEDINGS RE SUMED ON 10.12.2010, 13.12.2010 AND 28.12.2010, THE AR H AS BEEN ASKED TO EXPLAIN THE ISSUES RAISED IN THE CITS ORDER U/S 263 OF THE ACT. ONCE AGAIN, NO SPECIFIC INFORMATION H AS BEEN CALLED FOR DURING THESE DATES AND THE REBY THE AO PROCEEDED TO COMPLETE TH E ASSESSMENT ON 31.12.2010 I.E., WITHIN A SPAN OF 20 DAYS. THIS, IN OUR VIEW, RESULTANTLY IMPLIES THAT THE ASSESSEE HAS NO T BEEN PROVIDED WITH PROPER OPPORTUNITY IN THE LIGHT OF RULE 46A (1) (D) WHICH PROVIDES ONE OF THE EXCEPTIONAL CIRCUMSTANCES UNDER WHI CH THE LD.CIT(A) CAN ADMIT THE ADDITIONAL EVIDENCE IN THE FIRST APPELLATE PROCEEDINGS. IT IS ALSO RELEVANT TO NOTE THAT BEFORE ADMITTING THE ADDITIONAL EVIDENCE, THE LD.CIT(A) HAS CALLED FOR A REMAND REPORT FROM THE AO ON THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE AND ACCORDINGLY CONSIDERED THE SUBMISSION OF THE AO DATED 27.01.2012 BY GIVING PROPER OPPORTUNITY TO THE AO TO EXAMINE THE SAID ADDITIONAL EVIDENCE . CONSIDERING THE FACTS AND POSITION OF LAW IN TOTO, WE ARE OF THE VIEW THAT THE LD.CIT(A) HA S N O T CONTRAVENED RULE 46A OF THE I.T. RULES WHILE ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE FIRST APPELLATE PROCEEDINGS. THEREFORE, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) ON THIS COUNT AND THE SAME IS UPHELD. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN CO URT ON THIS 30 TH DAY OF OCTOBER , 2013. SD/ - SD/ - ( SANJAY ARORA ) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30 .10 . 2013. * S RIVASTAVA ITA NO. 5444/MUM/2012 MRS. NEHAL GANDHI ASSESSMENT YEAR: 2005 - 06 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONC ERNED, MUMBAI THE DR B BENCH // TRUE COPY // BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.