ITO WARD- 62(1), New Delhi V. Harvinder Singh Saini, New Delhi

ITA 5537/DEL/2019

AI Insights

The case involves an appeal by the Income Tax Officer (ITO), Ward-62(1), New Delhi against the order of the CIT(A)-38, New Delhi, which had deleted several additions made by the Assessing Officer regarding various expenses claimed by the assessee, Harvinder Singh Sahni, for the Assessment Year 2015-16. The additions pertained to consumable site material, building/construction material, contractual labor expenses, and machinery breakdown & maintenance expenses. The primary contention of the ITO was that the CIT(A) had erred in law by admitting additional evidence under rule 46A(1) and thus violating rule 46A(3) of the I.T. Rules, 1962. The CIT(A) had deleted the additions without a remand report from the Assessing Officer and without allowing the Assessing Officer to comment on the new evidence. The Tribunal found that the Assessing Officer had not provided a due opportunity of hearing to the assessee before making the additions and thus restored the matter to the Assessing Officer for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122054 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-07-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 24-06-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: JUGAL GULATI
• Keywords: Additional evidence; Set aside
• Section: 142(1); 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H: NEW DELHI BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.5537/Del/2019 Assessment Year: 2015-16 ITO, Ward-62(1), New Delhi vs. Harvinder Singh Sahni, A-86, Lajpat Nagar, New Delhi 110024 PAN AROPS 6444 F (Appellant) (Respondent) For Revenue: Shri Amit Katoch, Sr. DR For Assessee : Shri Jugal Gulati, CA Date of Hearing : 19.07.2023 Date of Pronouncement : 04.08.2023 ORDER PER CHANDRA MOHAN GARG, J.M. This appeal has been filed against the order of Ld. CIT(A)-38, New Delhi dated 26.12.2017 for AY 2015-16. 2. The ground has been raised of revenue is as follows:- 1. On the facts and in the circumstances of the case, Ld CIT (A) has erred in law in deleting the addition of Rs 1,35,53,111/-towards consumable site material, Rs. 10,00,000/- towards building / construction material, Rs 8,09,250/- towards contractual labour expenses & Rs 6,71,210/- towards machinery breakdown & maintenance expenses, by admitting additional evidence under rule 46A(1) thus violating rule 46A(3) of the I. T. Rules, 1962. 3. The ld Senior DR contended that On the facts and in the circumstances of the case, Ld CIT (A) has erred in law in deleting the addition of Rs 1,35,53,111/-towards consumable site material, Rs. 10,00,000/- towards building / construction material, Rs 8,09,250/- towards contractual labour expenses & Rs 6,71,210/- towards machinery breakdown & maintenance expenses, by admitting additional evidence under rule 46A(1) thus violating rule 46A(3) of the I. T. Rules, 1962. He further submitted that the Assessing Officer has made four disallowances on account of consumable site material, ITA No.5537/Del/2019 2 building construction material, contractual labour expenses and machinery breakdown maintenance expenses by observing correct factual position against the assessee but the ld. CIT(A) granted relief to the assessee without any justified reason and basis therefore the impugned first appellate order may kindly be set aside by restoring that of the Assessing Officer. The ld Senior DR submitted that the ld. CIT(A) has admitted additional evidence in violation of rule 46A of the Rules and granted relief to the assessee after considering the same therefore impugned first appellate order may kindly be set aside by restoring that of the Assessing Officer. 4. Replying to the above the ld. counsel of the assessee submitted that the Assessing Officer made additions without allowing due opportunity of hearing to the assessee in a history manner which were rightly deleted by the ld. CIT(A) therefore first appellate order may kindly be uphold by restoring that of the Assessing Officer. 5. On careful consideration of above submissions first of all, from the assessment order we note that the Assessing Officer issued notice u/s. 143(2) of I.T Act 1961 (for short the ‘Act’) on 21.09.2016 and subsequently only one notice u/s. 142(1) along with questionnaire was issued and Shri Harish Gupta, CA attended the proceedings. Thereafter the Assessing Officer proceeded to made four disallowances in the hands of assessee on the issues noted above without any further enquiry or show cause notice to the assessee the Assessing Officer passed scrutiny assessment order on 26.12.2017. This shows that the Assessing Officer had not provided due opportunity of hearing to the assessee before making additions. The ld. CIT(A) in para 3 noted that the assessee appeared with his AR and produced books of accounts along with bills, vouchers for the expenses claim under different heads and he noted that most of the payments have been made through cheque as was shown from the ledger account and bank statement. The ld. CIT(A) noted that despite the assessee produced said books of accounts and other documentary evidence before the Assessing Officer but the same were note taken into consideration by the Assessing Officer while passing assessment order. 6. The ld. CIT(A) has not called any remand report from the Assessing Officer during first appellate proceedings and deleted all four additions without allowing the Assessing Officer to rebut or comment on the evidence filed by the assessee or without making any enquiry as to whether these books and documentary evidence were in fact produced before the Assessing Officer by the assessee during assessment proceedings. In view of above and as agreed by ld. Representatives of both the sides, we are of the view that the matter needs to be restored to the file of Assessing Officer for afresh framing of assessment after allowing due opportunity of hearing to the assessee and without being influenced from the earlier orders. ITA No.5537/Del/2019 3 7. In the result, the appeal of the Department is allowed for statistical purposes. Order pronounced in the open court on 04.08.2023. Sd/- Sd/- (DR. B.R.R. KUMAR) (CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:04 th August, 2023. NV/- Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR // By Order // Asstt. Registrar, ITAT, New Delhi