Appeal details
Counselvise Citation
6220314 RSA 2011
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 5 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-08-2012
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
21-08-2012
Assessment Year
2005-2006
Appeal Filed On
28-02-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 62/AGRA/2011 ASSTT. YEAR : 2005-06 UPENDRA SINGH RAGHAV, VS. INCOME-TAX OFFICER, PRINCE COLONIZERS & BUILDERS, WARD-2, ALIGARH. GANDHI ASHRAM, BANNA DEVI, ALIGARH. (PAN :AGZPR 5471 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT GOYAL, ADVOCATE RESPONDENT BY : MS. ANURADHA, JR. D.R. DATE OF HEARING : 21.08.2012 DATE OF PRONOUNCEMENT OF ORDER : 23.08.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GHAZIABAD DATED 10.12.2010 FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSEE IN ALL THE GROUNDS OF APPEAL CHALLENGED THE ADDITION OF RS .15,00,000/-, RS.6,16,382/- AND ADDITION OF RS.10,00,000/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF POULTRY FARMING AND COLONIZING/PROP ERTY DEALINGS. RETURN OF INCOME WAS FILED ON 29.03.2006 DECLARING TOTAL INCOME OF R S.1,03,963/- ALONGWITH AGRICULTURAL INCOME OF RS.50,000/-. THE CASE WAS SE LECTED UNDER SCRUTINY. THE AO ITA NO. 62/AGRA/2011 2 COMPLETED THE ASSESSMENT U/S 143(3) ON TOTAL INCOME OF RS.32,20,350/- BY MAKING FOLLOWING ADDITIONS / DISALLOWANCES : (I) THE ASSESSEE SHOWED A LOAN OF RS.55,00,000/- FROM M/S. ROHINI CONSTRUCTION (P) LTD., DELHI. COPY OF LOAN ACCOUNT WAS SUBMITTED WHICH SHOWED A DISCREPANCY IN THE ACCOUNT, AS THE COMPANY HAD ALLE GEDLY MADE LOAN OF RS.40,00,000/- ONLY. THE ASSESSEE KEPT ON DILLY-DAL LYING AND DID NOT FILE ANY RECONCILIATION AND HENCE THE BALANCE AMOUNT OF RS.1 5,00,000/(RS.55,00,000 RS.40,00,000/-) WAS ADDED U/S 68 OF THE ACT AS UNEX PLAINED CREDIT. (II). THE ASSESSEE HAD SHOWN CREDIT OF RS.6,16,381/ - ON A/C OF LAND SALE. HOWEVER, WHEN REQUIRED TO FILE COMPLETE DETAILS OF LAND SALE, AND TO FURNISH DOCUMENTARY EVIDENCE IN THIS REGARD, THE ASSESSEE F AILED TO DO SO IN SPITE OF SEVERAL OPPORTUNITIES PROVIDED, AS MENTIONED IN THE ASSESSM ENT ORDER. THE AO ACCORDINGLY ADDED THE SUM OF RS.6,16,382/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. (III). THE ASSESSEE HAD SHOWN A CREDIT OF RS.10,00, 000/- ON ACCOUNT OF ADVANCES RECEIVED AS ON 31.03.2005. AGAIN IN SPITE OF SEVERAL SPECIFIC OPPORTUNITIES, THE ASSESSEE FAILED TO FURNISH COMPL ETE DETAILS OF SUCH ADVANCES AND / OR ANY DOCUMENTARY EVIDENCES IN THIS REGARD. THE AO THUS ADDED THIS SUM OF RS.10,00,000/- AS UNEXPLAINED CASH CREDIT U/S 68 OF I.T. ACT. ITA NO. 62/AGRA/2011 3 2.1 THE ASSESSEE CHALLENGED ALL THE THREE ADDITIONS BEFORE THE LD. CIT(A) AND FILED WRITTEN SUBMISSIONS, WHICH IS INCORPORATED IN THE APPELLATE ORDER. THE GIST OF THE SUBMISSIONS OF THE ASSESSEE HAD BEEN THAT HE HA S TAKEN ADVANCE OF RS.40,00,000/- AGAINST SALE OF LAND IN PRECEDING AS SESSMENT YEAR 2004-05 FROM M/S. ROHINI CONSTRUCTION PVT. LTD. AND THE REST OF THE AMOUNT OF RS.15,00,000/- WAS RECEIVED FROM VARIOUS PERSONS IN THE YEAR UNDER APPEAL, BUT THE ACCOUNTANT OF THE ASSESSEE INADVERTENTLY MADE THE SAID ENTRIES IN THE ACCOUNT OF M/S. ROHINI CONSTRUCTION PVT. LTD., WHICH RESULTED IN ADDITION OF RS.15,00,000/-. THE ACCOUNTANT LEFT THE SERVICE OF ASSESSEE. THEREFORE, THE SAME COULD NOT BE EXPLAINED BEFORE THE AO AT THE ASSESSMENT STAGE. BALANCE SHEE T IS ALREADY ON RECORD, WHICH COULD EXPLAIN THE POSITION. AS REGARDS ADDITION OF RS.6,16,382/-, IT WAS EXPLAINED THAT THE ADDITION ON ACCOUNT OF SALE OF LAND IS NOT BASED ON CORRECT FACTS. IN FACT, THE ASSESSEE HAD ADVANCED RS.40,00,000/- FOR PURCHASE O F PLOT OF LAND IN PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2004-05 AND ANOTHER PLOT OF LAND FOR RS.10,00,000/- IN THE YEAR UNDER CONSIDERATION AND SALE DEED OF BO TH THE PROPERTIES WERE EXECUTED DURING THE ASSESSMENT YEAR UNDER APPEAL. ENTIRE STA MP EXPENSES WERE BORN BY THE SELLER AS PER TERMS OF THE SALE DEED. THE ASSESSEE HAD PURCHASED SHARE OF AGRICULTURAL LAND FROM MR. RAMESH CHANDRA GARG DURI NG THE ASSESSMENT YEAR 2004-05 FOR WHICH THE ASSESSEE HAD ADVANCED A SUM O F RS.40,00,000/- TO THE SELLER. THE SAID AMOUNT WAS REFLECTED IN THE BALANCE SHEET OF THE EARLIER YEAR. SAID LAND ITA NO. 62/AGRA/2011 4 WAS TRANSFERRED IN THE NAME OF ASSESSEE IN THE NEXT YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION VIDE SALE DEED DATED 04.12 .2004. THE SALE DEED EXPENSES WERE BORN BY THE SELLER, BUT THE ACCOUNTANT INADVER TENTLY ASSUMED THAT THE SAID AMOUNT WAS RECEIVED IN ADVANCE BY THE ASSESSEE AGAI NST SALE OF LAND AND ENTERED THE SAID AMOUNT IN THE BOOKS OF ACCOUNT OF THE ASSE SSEE. SIMILARLY, THE ASSESSEE HAD PURCHASED ANOTHER SHARE OF THE LAND FROM ABOVE SE LLER FOR RS.10,00,000/- DURING THE YEAR UNDER APPEAL AND ALL SALE DEED EXPENSES WE RE BORN BY THE SELLER. FURTHER THE ASSESSEE HAD GIVEN ADVANCE OF RS.24,350/- TO SO ME OF HIS FRIENDS DURING THE ASSESSMENT YEAR UNDER APPEAL AND THE ACCOUNTANT ADJ USTED THE SAID AMOUNT OF SALE OF LAND AND AFTER ADJUSTMENT, THE BALANCE WAS SHOWN IN A SUM OF RS.6,16,382/-. IT WAS, THEREFORE, EXPLAINED THAT THE ADDITION IS UNJU STIFIED. AS REGARDS THE ADDITION OF RS.10,00,000/-, IT WAS SUBMITTED THAT IN FACT THE A SSESSEE ENTERED INTO AGREEMENT WITH SHRI RAMESH CHANDRA GARG FOR PURCHASING SHAR E OF HIS LAND AND CHEQUES WERE ADVANCED TO HIM IN THIS REGARD, BUT THE CHEQUE S AS ADVANCED COULD NOT BE ENCASHED DURING THE YEAR UNDER APPEAL AND HENCE, TH E SAME WERE SHOWN AS PAYABLE TO THE SELLER. THE AMOUNT WAS RECONCILED. THEREFORE , THE ADDITION WAS UNJUSTIFIED. 2.2 THE WRITTEN SUBMISSION OF THE ASSESSEE WAS FORW ARDED TO THE AO FOR HIS COMMENTS AND THE AO TOOK SPECIFIC OBJECTION THAT TH E ASSESSEE HAD NOT MET THE CONDITIONS OF RULE 46A OF THE IT RULES AND AS SUCH, THE ADDITIONAL EVIDENCES MAY NOT BE ADMITTED AND THE SAME MAY BE REJECTED. IN RE JOINDER, THE ASSESSEE REITERATED ITA NO. 62/AGRA/2011 5 THE SAME SUBMISSIONS AND ALSO STATED THAT THE AO HA S NOT ASSIGNED ANY REASONS WHY THE ADDITIONAL EVIDENCES COULD NOT BE ADMITTED AT THE APPELLATE STAGE. 2.3 THE LD. CIT(A), CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES, CONFIRMED ALL THE ADDITIONS AND DISMISSED THE APPEAL OF THE A SSESSEE AND ALSO DID NOT ADMIT THE ADDITIONAL EVIDENCE. HIS FINDINGS IN PARA 7 TO 8 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 7. THE SUBMISSIONS OF THE LEARNED AR HAVE BEEN CO NSIDERED. I HAVE ALSO CONSIDERED THE FACTS BROUGHT OUT BY THE A O IN THE ASSESSMENT ORDER AS WELL AS IN THE REMAND REPORT. A FTER HAVING CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS, MY CONCLUSIONS/OBSERVATIONS ON THE GROUNDS TAKEN IN AP PEAL ARE AS UNDER: 7.1. THE GROUNDS OF APPEAL REGARDING PROPER OPPORTU NITY WAS NOT GIVEN TO THE ASSESSEE ARE OUT RIGHTLY REJECTABLE. T HE ENTIRE SEQUENCE OF ASSESSMENT PROCEEDINGS, AND NOTICES ISSUED, COUNSEL ATTENDING ON VARIOUS DATES, AND FILING REPLIES; BUT ON THE SPECI FIC ITEMS OF ADDITIONS, NOT FURNISHING ANY DETAILS OR EVIDENCE IN SPITE OF VARIOUS SPECIFIC OPPORTUNITIES GIVEN BY THE AO; IT IS VERY CLEAR THA T UMPTEEN OPPORTUNITIES WERE ACCORDED BY THE AO. THE ASSESSEE , FOR THE REASONS BEST KNOWN TO ITSELF FAILED IN ADDUCING THE REQUIRE D DETAILS AND EVIDENCES OR MAKING ANY PROPER EXPLANATION ON THESE ASPECTS. IN THE ASSESSMENT PROCEEDINGS, IT IS THE DUTY OF THE ASSES SEE TO SUBSTANTIATE ITS RETURN OF INCOME AND RELATED DETAILS AND ARGUME NTS. THE AO CANNOT FORCE THE ASSESSEE TO GIVE SUBMISSIONS OR TO FILE DETAILS; THE AO CAN ONLY AFFORD A REASONABLE OPPORTUNITY FOR DOING SO. IN THIS CASE, I FIND THAT SUFFICIENT OPPORTUNITY HAS BEEN GIVEN BY THE AO AND THE QUERIES TO BE ANSWERED WERE SPECIFIC AND, THEREFORE , IT WAS THE RESPONSIBILITY OF THE ASSESSEE TO RESPOND. 7.1(A). THUS, I REJECT THE ARGUMENTS THAT THE ASSE SSMENT WAS COMPLETED WITHOUT GIVING PROPER OPPORTUNITY. ITA NO. 62/AGRA/2011 6 7.2. ANY ADDITIONAL SUBMISSIONS OR DETAILS AND EVID ENCES ARE ADMISSIBLE DURING APPELLATE PROCEEDINGS ONLY WHEN T HE APPELLANT SATISFIES THE CIT(A) THAT THERE WERE CERTAIN REASON ABLE CIRCUMSTANCES / REASONS FOR NOT BEING ABLE TO FURNISH SUCH DETAIL S OR SUBMISSIONS BEFORE THE AO. I FIND THAT ALTHOUGH NEW COUNSEL HAS BEEN ENGAGED IN APPEAL ALLEGING THAT THE APPELLANT'S COUNSEL, DURIN G ASSESSMENT PROCEEDINGS, HAD NOT MADE PROPER SUBMISSIONS; NO SU CH PROPER EXPLANATION REGARDING THE FACTS AND CIRCUMSTANCES B EHIND SUCH NON COMPLIANCE DURING ASSESSMENT PROCEEDINGS HAS BEEN E LUCIDATED. MERELY BLAMING THE COUNSEL WHO WAS APPEARING BEFORE THE AO, IS NOT SUFFICIENT. NEITHER ANY AFFIDAVIT IS ON RECORD TO T HIS EFFECT NOR APPELLANT HAS BEEN ABLE TO EXPLAIN AS TO WHY HE WAS NOT MONITORING THE COUNSEL FOR THE PURPOSE OF LAWFUL COMPLIANCE TO BE MADE BEFORE THE AO. 7.2(A) IN VIEW OF ABOVE, THE DETAILS AND SUBMISSION S BEING MADE BEFORE ME ARE NOT ADMISSIBLE. 7.3. HOWEVER, ALTHOUGH NOT ADMISSIBLE; EVEN IF THES E DETAILS AND SUBMISSIONS ARE CONSIDERED; I FIND THAT THESE ARE A T THE BEST AFTERTHOUGHT MEASURES AND DO NOT PROPERLY EXPLAIN T HE DISCREPANCIES WHICH HAS BEEN NOTICED BY THE AO. 7.3(A) IT IS NOT COMPREHENSIBLE AS TO HOW AN ACCOUN TANT WILL MAKE WRONG ENTRIES OF THE AMOUNT RECEIVED FROM AS MANY A S 12 PERSONS OF VARYING AMOUNTS AGGREGATING TO RS.15,00,000/-, AS A LL RECEIVED FROM AN ENTIRELY UNRELATED CONCERN VIZ., M/S ROHINI CONS TRUCTION PVT. LIMITED. SUCH CONFUSION/ ERRORS CAN HAPPEN ONLY IN RESPECT OF SOME RELATED INDIVIDUALS LIKE FATHER AND SON OR MAY BE I N RESPECT OF TWO SISTER CONCERNS. BUT AMOUNTS OF LOAN RECEIVED FROM UN-RELATED PERSONS, ALL INDIVIDUALS, CANNOT BE MISTAKEN FOR A COMPANY. EVEN THE DATES ARE ENTIRELY DIFFERENT. 7.3(B) IT IS CLEAR THAT THESE AMOUNTS ESPECIALLY TH E AMOUNTS RECEIVED IN CASH HAVE ALL BEEN CONCOCTED SO AS TO MAKE UP FOR T HE DISCREPANCY. THE CLINCHING ARGUMENT IS THAT IF THESE WERE GENUIN ELY THE LOAN RECEIPTS; THE SAME SHOULD HAVE BEEN IDENTIFIED AND SHOWN IN THE BALANCE SHEET FURTHER, EVEN IF THE SAME WERE LEFT O UT FROM THE BALANCE SHEET; THESE SHOULD HAVE BEEN PRESENTED AS AMOUNTS AND ENTRIES OF ITA NO. 62/AGRA/2011 7 RECONCILIATION, BEFORE THE AO. THERE IS NO PROPER R EASON FOR THE APPELLANT FOR NOT BEING ABLE TO DO SO. APPARENTLY, THE EXERCISE BEING MADE DURING APPELLATE PROCEEDINGS IS MERELY TO COVE R UP THE DISCREPANCY NOTICED AND ESTABLISHED BY THE AO. 7.3(C) SIMILARLY, THE EXPLANATION IN RESPECT OF RS. 6,16,382/- IS NOT CONVINCING. THE COUNSEL FURNISHED PROPERTY DOCUMENT S WHERE COST OF STAMP DUTY BORNE BY THE SELLER COMES OUT TO BE RS.6 ,40,912/-. WHEN THIS AMOUNT ALSO DOES NOT TALLY WITH THE AMOUNT OF DISCREPANCY (RS.6,16,382/-), THE COUNSEL MAKES A VAGUE EXPLANAT ION THAT THE BALANCE I.E. RS.24,530/- WERE PERTAINING TO SUM 'AD VANCES ADJUSTED' I REJECT SUCH NON-CONVINCING EXPLANATION, APART FROM THESE VARIOUS EXPLANATIONS BEING OTHERWISE INADMISSIBLE ALSO. 7.3( D) SIMILARLY, IT IS STRANGE THAT ASSESSEE MAKE S AN ENTRY OF RS.L 0,00,000/ON THE LIABILITY SIDE OF THE BALANCE SHEET . NO EXPLANATION IS FURNISHED BEFORE THE AO IN SPITE OF REPEATED OPPORT UNITIES, AND NOW THE EXPLANATION IS THAT ACTUALLY THIS AMOUNT WAS AN 'ADVANCE GIVEN' FOR PURCHASE OF LAND AND BECAUSE THE CHEQUE COULD N OT BE ENCASHED SO THE AMOUNT WAS SHOWN AS PAYABLE TO THE SELLER. ALL THESE MEANS THAT IT SHOULD NOT HAVE FIGURED IN THE BALANCE SHEET (BECAU SE IT WAS DULY PAID) AND, IN ANY CASE, SHOULD HAVE FIGURED IN THE BALANCE SHEET ON THE ASSET SIDE BECAUSE IT WAS SUPPOSED TO BE AN ADVANCE GIVEN; HOW CAN IT BE SHOWN AS A LIABILITY? SUCH MISTAKE IS INCOMPREHE NSIBLE. IT IS CLEAR THAT THERE WAS NO MISTAKE BUT RATHER THERE WERE SOM E CASH CREDITS AMOUNTING TO RS.10,00,000/- BUT THE SAME COULD NOT BE EXPLAINED BECAUSE THESE WERE NOT GENUINE CREDITS FROM ACCOUNT ED SOURCES. THUS, THIS KIND EXPLANATION IS ALSO REJECTABLE, AP ART FROM THE FACT THAT THE EXPLANATION IS, IN ANY CASE, INADMISSIBLE. 7.3( E) THUS, OVER ALL, I FIND THAT ALL THE DETAILS AND EVIDENCES FURNISHED DURING APPELLATE PROCEEDINGS ARE INADMISS IBLE AND, IN ANY CASE, ARE NOT ACCEPTABLE EVEN ON MERITS. THEREFORE, ALL THE ADDITIONS MADE BY THE AO IN THE ASSESSMENT ORDER ARE UPHELD A ND ALL THE GROUNDS OF APPEALS ARE DISMISSED. 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BEFORE THE LD. CIT(A) AND REFERRED TO PB-7, WHICH I S A LIST OF PERSONS WHO HAVE ITA NO. 62/AGRA/2011 8 ADVANCED LOAN OF RS.15,00,000/- TO THE ASSESSEE AND ALSO REFERRED TO PB-11, THE DETAILS OF THE BANK ACCOUNT AND PB-5 TO SHOW THAT M /S. ROHINI CONSTRUCTION PVT. LTD. ADVANCED ONLY RS.40,00,000/-. HE HAS ALSO REFE RRED TO PB-3 TO SHOW THE AMOUNT OF LAND SALE OF RS.6,16,382/- AND ADVANCE RE CEIVED OF RS.10,00,000/- ON THE LIABILITY SIDE OF THE BALANCE SHEET. HE HAS REF ERRED TO PB-70 TO 84 TO SHOW THAT STAMP DUTY ETC. FOR REGISTRATION OF SALE DEED HAVE BEEN BORNE BY THE SELLER. HE HAS ALSO REFERRED TO PB-13 AND 14 TO SHOW AS TO HOW THE CLOSING BALANCE OF RS.6,16,382/- HAS BEEN CREATED. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED AFFIDAVIT OF THE ASSESSEE TO SHOW THAT THERE WAS BONA FIDE CA USE WHICH PREVENTED HIM TO FURNISH REQUIRED DETAILS BEFORE THE AO. HE HAS, THE REFORE, SUBMITTED THAT THE ADDITIONS MAY BE DELETED. DURING THE COURSE OF ARGU MENTS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ABOVE ENTRIES ARE STILL APP EARING IN THE BOOKS OF ACCOUNT AND HAVE NOT BEEN CORRECTED EVEN IN THE SUBSEQUENT YEAR. HE HAS SUBMITTED THAT NOW THE ASSESSEE WILL MAKE CORRECTION IN THE BOOKS OF ACCOUNT AS WELL AS IN THE ACCOUNTS OF SUBSEQUENT YEARS. 4. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT DESPITE SPECIFIC OPPORTUNITIES G RANTED TO THE ASSESSEE, THE ABOVE ISSUES HAVE NOT BEEN EXPLAINED BEFORE THE AO AND NO EVIDENCES HAVE BEEN SUBMITTED TO SUBSTANTIATE ANY EXPLANATION. NO REASO NS HAVE BEEN GIVEN FOR ADMISSION OF ADDITIONAL EVIDENCE AT THE APPELLATE S TAGE UNDER RULE 46A OF THE IT ITA NO. 62/AGRA/2011 9 RULES. THEREFORE, THE LD. CIT(A) RIGHTLY DID NOT AC CEPT THE ADDITIONAL EVIDENCES AT THE APPELLATE STAGE AND THE LD. CIT(A) SHOULD NOT H AVE CONSIDERED ANY DOCUMENTS AT THE APPELLATE STAGE. THE LD. DR SUBMITTED THAT S INCE THE ENTRIES IN THE BOOKS OF ACCOUNT HAVE NOT BEEN EXPLAINED, THEREFORE, ALL THE ADDITIONS ARE JUSTIFIED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AVAIL ABLE ON RECORD. THE AO SPECIFICALLY NOTED IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN LOAN OF RS.55,00,000/- FROM M/S. ROHINI CONSTRUCTION PVT. L TD. IN THE ASSESSMENT YEAR UNDER APPEAL. IN RESPECT OF THIS, COPY OF THE LOAN ACCOUNT OF THE ASSESSEE IN THE BOOKS OF THE COMPANY HAVE BEEN FURNISHED WHICH SHOW ED THAT THIS COMPANY HAD ADVANCED LOAN OF RS.40,00,000/- TO THE ASSESSEE. DE SPITE GIVING OPPORTUNITY TO RECONCILE THE DIFFERENCE IN THE LOAN AMOUNT, THE AS SESSEE DID NOT EXPLAIN ANYTHING BEFORE THE AO. FURTHER, THE ASSESSEE HAD SHOWN CRE DIT OF RS.6,16,382/- ON ACCOUNT OF SALE OF LAND IN THE ASSESSMENT YEAR UNDER APPEAL , BUT THE ASSESSEE COULD NOT FURNISH ANY DETAILS OF LAND SALE AND NO DOCUMENTARY EVIDENCE WAS FURNISHED IN THIS REGARD. EVEN THE NAMES OF THE PERSONS TO WHOM THE L AND HAS BEEN SOLD HAVE NOT BEEN FURNISHED. THE ASSESSEE, THEREFORE, FAILED TO EXPLAIN THE CREDIT ENTRIES MADE IN THE BOOKS OF ACCOUNT. FURTHER, THE ASSESSEE HAS SHO WN ADVANCE RECEIVED OF RS.10,00,000/- IN THE BOOKS OF ACCOUNT, BUT NO DOCU MENTARY EVIDENCE WAS FURNISHED BEFORE THE AO TO EXPLAIN THE ISSUE. THUS, THE ASSESSEE FAILED TO EXPLAIN ITA NO. 62/AGRA/2011 10 THE SOURCE OF ALL THE THREE ENTRIES IN THE BOOKS OF ACCOUNT. THE AO, THEREFORE, CORRECTLY TREATED THE ABOVE AMOUNTS AS UNEXPLAINED CASH CREDIT WITHIN THE MEANING OF SECTION 68 OF THE ACT. THE ASSESSEE FURNISHED SO ME DETAILS AND EVIDENCE BEFORE THE LD. CIT(A), BUT ADMITTEDLY, NO REQUEST IS MADE BY THE ASSESSEE BEFORE THE LD. CIT(A) FOR ADMISSION OF THE ADDITION EVIDENCE AT TH E APPELLATE STAGE. THE LD. COUNSEL WAS DIRECTED DURING THE COURSE OF HEARING T O PLACE ON RECORD APPLICATION U/S. 46A FOR ADMISSION OF ADDITIONAL EVIDENCE, IF A NY, FILED BEFORE THE LD. CIT(A) AND THE LD. COUNSEL FOR THE ASSESSEE ADMITTED THAT HE IS NOT IN A POSITION TO PLACE ON RECORD ANY REQUEST FILED BEFORE THE LD. CIT(A) FOR ADMISSION OF ADDITIONAL EVIDENCES AT THE FIRST APPELLATE STAGE. RULE 46A OF THE IT RULES PROVIDES AS UNDER : PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS). 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER TH AN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADM IT EVIDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIEN T CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE ASSESSING OFFICER ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIEN T CAUSE FROM PRODUCING BEFORE THE ASSESSING OFFICER] ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR ITA NO. 62/AGRA/2011 11 (D) WHERE THE ASSESSING OFFICER] HAS MADE THE ORDE R APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELL ANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CA SE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER] HA S BEEN ALLOWED A REASONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROS S-EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WIT NESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE DEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EX AMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENA LTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE ASSESSING OFFICER) UNDER CLAUSE (A) OF SUB- SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PEN ALTY UNDER SECTION 271. 5.1 THE ABOVE RULE WOULD SPECIFICALLY PROVIDE THAT THE ASSESSEE IS NOT ENTITLED TO PRODUCE ANY EVIDENCE BEFORE THE LD. CIT(A) UNLESS T HE CONDITIONS NOTED ABOVE HAVE BEEN SATISFIED BY THE ASSESSEE AND ONE OF THE CONDI TIONS, WHICH IS RELEVANT IN THE INSTANT CASE, HAS BEEN THAT THE ASSESSEE SHALL HAVE TO PROVE THAT HE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCES WH ICH WERE CALLED UPON TO PRODUCE BY THE AO. HOWEVER, THE ASSESSEE HAS FAILED TO MAKE OUT ANY SUCH CASE BEFORE THE LD. CIT(A). NO SUFFICIENT CAUSE WAS EXPL AINED AS TO WHY SUCH EVIDENCES ITA NO. 62/AGRA/2011 12 WERE NOT FURNISHED BEFORE THE AO. IN THE ABSENCE OF ANY REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE, THE ASS ESSEE WAS NOT ENTITLED TO PRODUCE ANY ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). FURT HER, IT IS ADMITTED FACT THAT ALL THE THREE ADDITIONS WERE MADE BY THE AO BECAUSE ALL THE ENTRIES WERE APPEARING IN THE BOOKS OF ACCOUNT OF ASSESSEE WHICH HE HAS FAILE D TO EXPLAIN THE SAME. SINCE THE ENTRIES IN THE BOOKS OF ACCOUNT HAVE NOT BEEN EXPLA INED, THEREFORE, THE ADDITIONS HAVE BEEN RIGHTLY MADE AGAINST THE ASSESSEE. IN THE GROUNDS OF APPEAL BEFORE US THE ASSESSEE DID NOT TAKE ANY GROUND OF APPEAL SPECIFIC ALLY CHALLENGING THE ORDER OF THE LD. CIT(A) FOR NOT ADMITTING THE ADDITIONAL EVIDENC E. THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF ARGUMENTS ADMITTED TH AT SAID ENTRIES ARE STILL APPEARING IN THE BOOKS OF ACCOUNT IN THE ASSESSMENT YEAR UNDER APPEAL AS WELL AS IN THE SUBSEQUENT ASSESSMENT YEARS AND SUBMITTED THAT NOW THE ASSESSEE WOULD MAKE CORRECTION IN THE BOOKS OF ACCOUNT. THE CONDUCT OF THE ASSESSEE FOR MAKING ABOVE ENTRIES IN THE BOOKS OF ACCOUNT NOT ONLY FOR THE AS SESSMENT YEAR UNDER APPEAL BUT ALSO IN THE ACCOUNTS OF SUBSEQUENT YEARS, WOULD SHO W THAT THE AUTHORITIES BELOW HAVE CORRECTLY APPRECIATED THOSE ENTRIES FOR THE PU RPOSE OF MAKING ADDITION BECAUSE THE ASSESSEE FAILED TO EXPLAIN THE SAME ENTRIES REC ORDED IN THE BOOKS OF ACCOUNT. THE ASSESSEE IN THE AFFIDAVIT MERELY STATED THAT DU E TO BONA FIDE CAUSE, HE WAS PREVENTED TO FURNISH REQUIRED DETAILS BEFORE THE AO BUT THE FACT REMAINS THAT ALL THE ENTRIES WERE RECORDED IN THE BOOKS WHICH HAVE NOT B EEN EXPLAINED AT ALL. SINCE THE AO TOOK SPECIFIC OBJECTIONS AT THE APPELLATE STAGE FOR NOT ADMITTING THE ADDITIONAL ITA NO. 62/AGRA/2011 13 EVIDENCE IN THIS CASE AS PER RULE 46A OF THE IT RUL ES, THEREFORE, THE LD. CIT(A) RIGHTLY DID NOT TAKE INTO CONSIDERATION SUCH ADDITI ONAL EVIDENCES FOR ADMISSION, BUT HE SHOULD NOT HAVE CONSIDERED THE FACTS IN THE REMA INING OPERATIVE PART OF THE ORDER. CONSIDERING THE FACTS AND CIRCUMSTANCES OF T HE CASE, NOTED ABOVE, IN THE LIGHT OF RULE 46A OF THE IT RULES AND IN THE ABSENC E OF ANY SPECIFIC GROUNDS OF APPEAL BEFORE US, WE DO NOT FIND ANY MERIT IN THE A PPEAL OF THE ASSESSEE. WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE ORDER O F THE LD. CIT(A) IN CONFIRMING THE ADDITIONS. ACCORDINGLY, THE APPEAL OF THE ASSESSEE FAILS AND IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY
