Smt Raj Sodhi W/o Sh. Jatinder Singh, MANSA V. The Income-tax Officer, MANSA

ITA 617/ASR/2014

• Counselvise Citation: 61720914 RSA 2014
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-09-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 10-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RATINDER KAUR
• Assessee Lawyers: K R JAIN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH ; AMRITSAR (SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMEBR I.T.A. NO. 617(ASR)/2014 ASSESSMENT YEAR:2010-11 PAN :AZXPS4758D SMT. RAJ SODHI VS. INCOME TAX OFFICER, W/O SH. JATINDER SINGH, WARD 1(4), WARD-1, NR. VISHKARMA GURDWARA, MANSA. SARDULGARH, DISTT. MANSA. (APPELLANT) (RESPONDENT) ASSESSEE BY:SH. K.R.JAIN, ADVOCATE DEPARTMENT BY: SMT. RATINDER KAUR, DR DATE OF HEARING: 21/09/2015 DATE OF PRONOUNCEMENT: 23/09/2015 ORDER THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2010-11 AGAINST THE ORDER DATED 02.07.2014 PASSED BY THE LEARNED CIT(A) , BATHINDA. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER OF THE LD. CIT(A) CONFIRMING THE ORDER OF ITO, WARD-1(4), MANSA, IS WRONG, ILLEGAL AND AGAINST FAC TS. 2. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACT S OF THE CASE, EXPLANATION OFFERED AND PROCEEDED TO MAKE THE ADDIT ION ARBITRARILY. ITA NO.617(ASR)/2014 2 3. THAT THE AO HAS NOT CONSIDERED IN A PROPER AND J UDICIAL MANNER THAT APPELLANT HAD SUFFICIENT CASH FROM AGRICULTURE SALE PROCEEDS, MISC. INCOME AND OPENING BALANCE AVAILABL E. 4. THAT THE AO HAS NOT CONSIDERED IN A PROPER AND J UDICIAL MANNER THAT APPELLANT HAS COLLECTED CHEQUES FOR MALWA MEDI CAL EDUCATIONAL & RESEARCH SOCIETY (REGD.) WHICH WERE D EPOSITED IN HER ACCOUNT. 4. THAT THE LD. CIT(A) HAS FURTHER ERRED IN LAW AND ON FACTS WHILE OBSERVING THAT NO REQUEST HAS BEEN MADE FOR ADDITIO NAL EVIDENCE. APPELLANT HAS SPECIFICALLY MADE REQUEST I N PARA 6 OF HIS SUBMISSIONS FOR ADDITIONAL EVIDENCE. 2. IN THIS REGARD, THE LD. CIT(A) HAS OBSERVED AS F OLLOWS: KEEPING IN VIEW THE FACT THAT THERE IS NO REQUEST F OR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 46A BY THE APPELL ANT OR HIS A/R ON BEHALF OF THE APPELLANT SUPPORTED WITH THE EVIDENCE THAT THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE THE EV IDENCE BEFORE THE AO, THE POWERS UNDER RULE 46A(2) VESTED WITH THE CI T(A) CANNOT BE EXERCISED AS THE APPELLANT AND HIS COUNSEL WERE GI VEN SUFFICIENT OPPORTUNITY TO PRODUCE THE EVIDENCE TO PROVE THE SO URCE OF DEPOSIT OF CASH IN BANK DURING THE COURSE OF ASSESSMENT PROCEE DINGS. HENCE, THE GROUNDS OF APPEAL NO.2 IS DISMISSED. 3. IN SUPPORT OF GROUND NO.5, THE ASSESSEES COUNSE L HAS DRAWN OUR ATTENTION TO PAGES 10 TO 19 OF THE ASSESSEES PAPER BOOK. THEREIN, AT PARA-5, (PAGES 13 & 14) AND PARA 6, ( PAGE 14), THE ASSESS EE SUBMITTED BEFORE THE LD. CIT(A) AS FOLLOWS: 5. THAT THE LD. AO HAS ALSO ERRED ON FACTS AND LAW WHILE CALCULATING THE MAXIMUM CREDIT BALANCE AT RS.215000 /- IN ASSESSEES BANK ACCOUNT NUMBER 2472101007579 MAINTAINED WITH T HE CANARA BANK, SARDULGARH BY APPLYING THE PEAK INVESTMENT FO RMULA. IN THIS REGARD IT IS SUBMITTED THAT THE ASSESSEE RECEIVED M ULTIPLE CHEQUES AMOUNTING TO RS.185000/- (TOTAL ELEVEN CHEQUES) ON ACCOUNT OF INSTITUTION FEES ON BEHALF OF MALWA MEDICAL EDUCATI ONAL & RESEARCH ITA NO.617(ASR)/2014 3 SOCIETY (REGD.), SARDULGARH IN WHICH THE ASSESSEE I S EMPLOYED AS AN ADMINISTRATOR AND DEPOSITED THE SAME IN THE CANARA BANK, SARDULGARH ON 01.10.2009. THE SAID CHEQUES WERE ISS UED IN THE PERSONAL NAME OF THE ASSESSEE SINCE THE PROS (PUBL IC RELATION OFFICER OF THE SOCIETY) COLLECTED THE FEES IN HER PERSONAL NAME. HOWEVER, THE AMOUNT OF RS.185000/- WAS IMMEDIATELY TRANSFERRED TO SOCIETYS BANK ACCOUNTS AFTER TWO DAYS ON 03.10.200 9. THESE FACTS COULD NOT BE EXPLAINED DURING THE ASSESSMENT PROCEE DINGS BECAUSE THE BANK CONSOLIDATED ALL THE CHEQUES AND MADE A SI NGLE ENTRY IN THE BANK ACCOUNT. THE ASSESSEE WAS NOT MAINTAINING REGU LAR BOOKS OF ACCOUNTS AND AFTER A GAP OF THREE YEARS THE ASSESS EE COULD NOT MEMORIZE THE EXACT TRANSACTIONS. A CERTIFICATE ISSU E FROM THE BANK GIVING THE DETAILS OF CHEQUES IS ENCLOSED HEREWITH AS ANNEXURE F. ALSO ENCLOSED HEREWITH THE CLARIFICATION LETTER AS ANNEXURE G ISSUED BY THE EMPLOYER OF THE ASSESSEE CONFIRMING THE AB OVE FACTS. 6. THAT THE ABOVE FACTS CLEARLY INDICATE THAT THE A SSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE LD. AO THE ABOVE GIVEN EVIDENCE. MOREOVER, NO SUFFICIENT OPPOR TUNITY IN A REAL SENSE TO THE ASSESSEE TO ADDUCE EVIDENCE WAS PROVID ED BY THE LD. AO SINCE THE CASE WAS BECOMING TIME BARRED ON 31.12.20 13 WHEREAS THE ASSESSMENT WAS FRAMED ON 03.10.2012. YOUR GOODSELF THEREFORE REQUESTED TO ADMIT THE ABOVE GIVEN EVIDENCE KEEPING IN VIEW THE FACTS AND SEC. 250 AND RULE 46A OF THE INCOME TAX ACT AND RULES. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT IN VIEW OF THE ABOVE SPECIFIC DETAILED REQUEST MADE BY THE ASSESSE E BEFORE THE LD. CIT(A) BY WAY OF WRITTEN SUBMISSIONS FILED, THE LD. CIT(A ) HAS CLEARLY GONE WRONG IN REJECTING THE ASSESSEES REQUEST FOR ADMISSION O F ADDITIONAL EVIDENCE. 5. THE LD. DR, ON THE OTHER HAND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER, CONTENDING THAT THE LD. CIT(A) HAS CORRECTLY REFUSED TO EXERCISE POWERS UNDER RULE 46A(2) OF THE INCOME TA X RULES, 1963, SINCE ITA NO.617(ASR)/2014 4 THE ASSESSEE DID NOT FILE ANY APPLICATION FOR ADMI SSION OF ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). 6. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING CO NSIDERED THE MATERIAL PLACED ON RECORD, I FIND THAT THE FIRST OBJECTION O F THE LD. CIT(A) IS THAT NO APPLICATION FOR ADDITIONAL EVIDENCE WAS FILED BY TH E ASSESSEE. HOWEVER, THE AFORESAID WRITTEN SUBMISSIONS OF THE ASSESSEE, FILE D BEFORE THE LD. CIT(A), WERE ILLEGALLY NOT TAKEN INTO CONSIDERATION BY THE LD. CIT(A), EVEN THOUGH THE COMPLETE WRITTEN SUBMISSIONS OF THE ASSESSEE HA VE BEEN REPRODUCED IN THE ORDER, UNDER APPEAL BY THE LD. CIT(A) AT PAGES 4 TO 8 OF THE IMPUGNED ORDER UNDER PARAS 2 TO 2.3. A PERUSAL OF PARA 6 OF THESE WRITTEN SUBMISSIONS OF THE ASSESSEE SHOWS A SPECIFIC REQUEST HAVING BE EN MADE BY THE ASSESSEE TO THE LD. CIT(A) TO ADMIT THE ADDITIONAL EVIDENCE. IT IS SEEN THAT RULE 46A OF THE I.T.RULES, 1963 DOES NOT PRESCRIBE ANY SPEC IFIC APPLICATION TO BE FILED FOR ADMISSION OF ADDITIONAL EVIDENCE. THUS, THE A SSESSEE WAS JUSTIFIED IN MAKING THIS REQUEST IN HER WRITTEN SUBMISSIONS FIL ED BEFORE THE LD. CIT(A), AS ABOVE, WHICH REQUEST WAS ILLEGALLY NOT TAKEN INT O CONSIDERATION BY THE LD. CIT(A). 7. SO FAR AS REGARDS THE LD. CIT(A)S OBJECTION RE GARDING THE ASSESSEE NOT HAVING SHOWN SUFFICIENT CAUSE, PREVENTING HER F ROM PRODUCING THE EVIDENCE BEFORE THE AO, PARA 5 OF THE ASSESSEES WRITTEN SUBMISSIONS ITA NO.617(ASR)/2014 5 BEFORE THE LD. CIT(A), AS REPRODUCED ABOVE IN PARA 3 OF THE THIS ORDER, IS THE ASSESSEES CONTENTION EXPLAINING THE SUFFICIENT CA USE PREVENTING THE ASSESSEE FROM PRODUCING THE EVIDENCE BEFORE THE AO. 8. CONSIDERING THESE FACTS, IT IS EVIDENT THAT THE ASSESSEE WAS INDEED PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EV IDENCE IN QUESTION BEFORE THE AO. THIS, HOWEVER, WAS NOT CONSIDERED BY THE LD. CIT(A). IN FACT, THE LD. CIT(A) REFUSED TO EXERCISE THE POWERS UNDE R RULE 46A(2) OF THE I.T. RULES, WITHOUT TAKING INTO CONSIDERATION THIS ASSER TION OF THE ASSESSEE MADE IN THE WRITTEN SUBMISSIONS, THOUGH THE WRITTEN SUB MISSIONS WERE, AS NOTED HEREINABOVE, REPRODUCED BY THE LD. CIT(A) IN THE IM PUGNED ORDER. 9. THE LD. CIT(A)S OBSERVATION REGARDING SUFFICIEN T OPPORTUNITY HAVING BEEN PROVIDED BY THE AO TO THE ASSESSEE FOR PRODUCI NG THE EVIDENCE TO PROVE THE SOURCE OF DEPOSIT OF CASH IN BANK ALSO DOES NOT ACT CONTRARY TO THE CAUSE OF THE ASSESSEE IN VIEW OF THESE ASSERTIONS MADE BY THE ASSESSEE IN PARA 5 OF THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A) . 10. IN VIEW OF THE ABOVE FACTS, I HOLD THAT THE LD. CIT(A) WENT WRONG IN REFUSING TO EXERCISE POWERS UNDER RULE 46A(2) OF TH E I.T. RULES, TO ADMIT THE ADDITIONAL EVIDENCE FILED, EVEN THOUGH THIS EVIDENC E GOES TO THE ROOT OF THE MATTER AND REQUIRE TO BE ADMITTED AND TAKEN INTO CO NSIDERATION, IN THE INTEREST OF SUBSTANTIAL JUSTICE. ACCORDINGLY, THE LD. CIT(A) IS DIRECTED TO ADMIT THIS ITA NO.617(ASR)/2014 6 ADDITIONAL EVIDENCE AND TO DECIDE THE MERITS OF THE ASSESSEES CASE IN THE LIGHT THEREOF. FOR THIS PURPOSE, THE MATTER IS REMI TTED TO THE FILE OF THE LD. CIT(A). THE LD. CIT(A) SHALL PROVIDE ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE SHALL COOPERATE IN TH E REMAND PROCEEDINGS. 10. IN THE RESULT, FOR STATISTICAL PURPOSES, THE A PPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD SEPT., 2015 SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 23/09/2015 COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE: SMT. RAJ SODHI, MANSA. 2. ITO WARD 1(4), MANSA 3. THE CIT(A), BHATINDA. 4. THE CIT, BATHINDA. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) ITAT, AMRITSAR.