Mr. Zakir Hasan, Nainital V. ITO, Nainital

ITA 5933/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1714 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 10-09-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 03-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 5933 / DEL/ 201 4 (ASSESSMENT YEAR - 20 10 - 11) ZAKIR HASAN, NEW JANTA MUTTON SHOP, MUNICIPAL MARKET, MALLITAL, NAINITAL PAN - AAEPH5862R ( APPELLANT) VS ITO, NAINITAL. (RESPONDENT ) APPELLANT BY NONE RESPONDENT BY DR.B.R.R.KUMAR, SR.DR ORDER BY THE PRESENT APPEAL THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 25.08.2014 OF CIT(A) - II, DEHRADUN PERTAINING TO 2010 - 11 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING LACK OF ADEQUATE OPPORTUNITY. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEV ER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AFTER HEARING THE LD. SR.DR IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX - PARTE QUA THE ASSESSEE APPELLANT ON MERIT. 2. THE RELEVANT FACTS RELATABLE TO THE ISSUE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING IN MUTTON ETC. AND IN THE YEAR UNDER CONSIDERATION RETURNED AN INCOME OF RS.2,20,146/ - WHICH WAS PROCESSED. HOWEVER THE ASSESSING OFFICER IN THE COURSE OF THE RE - ASSESSMENT PROCEEDINGS REQUIRED THE ASSESSEE TO EXPLAIN U NSECURED LOANS IN THE BALANCE SHEET. FINDING THE EVIDENCE FILED TO BE NOT SUFFICIENT AND COMPLETE, AN ADDITION OF RS.2,50,000/ - WAS MADE FOR THE REASONS SET OUT IN PARA 6 OF THE ASSESSMENT ORDER. APART FROM THAT ON ACCOUNT OF ASSESSEE S INABILITY TO REL ATE TWO ENTRIES TO SALES IN KNS BANK LTD., MALLITAL, NAINITAL, SAVING BANK A/C NO. - 3980 FURTHER ADDITION OF RS.98,569/ - WAS MADE. DATE OF HEARING 10 .0 9 .2015 DATE OF PRONOUNCEMENT 09 . 1 0 .2015 I.T.A .NO. - 5933/ DEL/201 4 PAGE 2 OF 3 3. THE ADDITIONS WERE CHALLENGED IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. IN THE APPELLATE PROCEEDINGS IN ORDER TO SUPPLEMENT THE EVIDENCES FOUND TO BE NOT SUFFICIENT AND COMPLETE BY THE AO, THE ASSESSEE SOUGHT TO FILE FRESH EVIDENCES. HOWEVER, THESE WERE REJECTED BY THE CIT(A) ON THE REASONING THAT THEY WERE NOT SUPPORTED BY AN APPROPRIATE APPLICATION UNDER RULE 46A. 4 . AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5 . THE LD. SR. DR RELIED UPON THE ORDER IN SUPPORT OF REJECTION OF ADDITIONAL EVIDENCE, NO VALID REASON COULD BE AFFORDED AND REMAND OF THE APPEAL WAS NOT OPPOSED. 6. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. CONSIDERING THE SAME, I AM OF THE VIEW THAT IN THE INTERESTS OF SUBSTANTIAL JUST ICE FRESH EVIDENCE RELATABLE A ND RELEVANT TO THE ADDITIONS DESERVES TO BE ADMITTED AS IT GOES TO THE VERY ROOT OF THE MATTER. THE RECORD SHOWS THAT THE ASSESSEE RELIED UPON HIS WRITTEN SUBMISSION DATED 26.03.2013 BEFORE THE AO. T HE EVIDENCE FILED WAS FAULTED WITH BY THE AO ON THE GROUND THAT THE DOCUMENTS, CONFIRMATIONS SUPPORTED BY BANK STATEMENT ONLY HAD BEEN FILED AND CREDITWORTHINESS IN REGARD TO THE LOANS OBTAINED FROM SH. ASIF JAHAN, PAN - ADWPJ2416N AND FROM ASSESSEE S MOTHER AND SHRI SANTOSH KUMAR REMAINED UNESTABLISHED. SIMILARLY THE ADDITION MADE ON ACCOUNT OF THE CREDIT ENTRIES OF RS.55,000/ - + RS.43,569/ - ON 14.07.2009 & 05.02.2010 ALSO BEING RELATABLE TO SALES WAS ALSO NOT ACCEPTED AS RELEVANT EVIDENCE WAS CONSIDERED TO BE INSUFFICIENT. IT IS SEEN THAT ALL THIS WAS COMMUNICATED TO THE ASSESSEE IN ORDER DATED 29.03.2013. WHETHER INSUFFICIENCY OF EVIDENCE WAS CONFRONTED TO THE ASSESSEE OR NOT BEFORE THE PASSING OF THE ORDER IS NOT COMING OUT FROM THE RECORD. THE RECORD SHOWS THAT THE A SSESSEE SOUGHT TO FILE FRESH EVIDENCE TO MEET THE SHORTCOMING POINTED OUT BY THE AO IN HIS ORDER. HOWEVER, THE SAID ATTEMPT WAS NOT MADE BY MOVING A PETITION FOR ADMISSION OF FRESH EVIDENCE MADE UNDER RULE 46A AS PER LAW. THUS IT WAS REJECTED. 7. CONSID ERING THE FACT THAT EVIDENTLY THE ASSESSEE DID NOT HAVE THE BENEFIT OF PROPER LEGAL ADVISE, I AM OF THE VIEW THAT THE LD. CIT(A) IN ALL FAIRNESS SHOULD HAVE POINTED THIS PROCEDURAL SHORTCOMING TO THE ASSESSEE ENABLING HIM TO FULFILL THE PROCEDURAL REQUIRE MENTS. CONSIDERING THE OVERALL FACTUAL, LEGAL & PROCEDURAL MATRIX WHICH EXIST TO RENDER JUSTICE, I AM OF THE VIEW THAT IN T HE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST S OF SUBSTANTIAL JUSTICE THE I.T.A .NO. - 5933/ DEL/201 4 PAGE 3 OF 3 IMPUGNED ORDER SHOULD BE SET ASIDE D IRECTING THE ADMISSION OF FRESH EVIDENCE. T HE ISSUE ACCORDINGLY I S RESTORED TO THE AO AS REQUESTED BY THE LD. SR. DR AND NOT THE CIT(A) AS THE CORRECTNESS OF THE EVIDENCES RELIED UPON HAS TO BE VERIFIED BY THE AO . 8. THE OPPORTUNITY SO PROVIDED IT IS H OPED IS GAINFULLY UTILIZED BY THE ASSESSEE BY PARTICIPATING EFFECTIVELY IN THE PROCEEDINGS BEFORE THE AO. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE O PEN COURT ON 0 9 T H OF OCTOBER , 2015. S D / - (DIVA S INGH) JUDICIAL MEMBER DATED: 0 9 / 1 0 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI