Income Tax Officer, GONDA V. Sri Anokhe Lal, GONDA

ITA 632/LKW/2013

• Counselvise Citation: 63223714 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 16-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 68; 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.632 & 633/LKW/2013 A.YRS.:2010 - 11 & 2011 - 12 INCOME TAX OFFICER, GONDA. VS. SHRI ANOKHE LAL, PROP. M/S SURAJ TRADERS, RANI BAZAR, GARGAON, GONDA. PAN:ACIPL1719M (APPELLANT) (RESPONDENT) ITA NO.634/LKW/2013 ASSESSMENT YEAR:2011 - 12 INCOME TAX OFFICER, GONDA. VS. ANOKHE LAL HUF, PARTNER M/S SURAJ UDYOG, 455, RANI BAZAR, BARGAON, GONDA. PAN:AAJHA6311H (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. OUT OF THIS BUNCH OF THREE APPEALS, THERE ARE TWO APPEALS OF THE REVENUE IN THE CASE OF ANOKHE LAL INDIVIDUAL FOR ASSESSMENT YEAR 2010 - 11 AND 2011 - 12, WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT(A) - II, LUCKNOW BOTH DATED 14/06/2013 AND THE REMAINING APPEAL IS ALSO AN APPEAL OF THE REVENUE BUT IN THE CASE OF ANOKHE LAL HUF FOR ASSESSMENT YEAR 2011 - APPELLANT BY SHRI O. N. PATHAK, D.R. RESPONDENT BY SHRI A. P. SINHA, ADVOCATE DATE OF HEARING 27/08/2014 DATE OF PRONOUNCEMENT 2 5 /09/2014 2 12 DIRECTED AGAINST A SEPARATE ORDER OF CIT(A) - II, LUCKNOW DATED 14/06/2013. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2010 - 11 IN THE CASE OF ANOKHE LAL, PROP. SURAJ TRADERS I.E. I.T.A. NO.632/LKW/2013. 3. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. T HAT THE LD. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY OBSERVING IN PARA 5(7) OF THE ORDER THAT THE REASONS RECORDED DO NOT SHOW ANY INCOME CHARGEABLE TO TAX THAT HAS ESCAPED ASSESSMENT AND WHILE COMPUTING THE ASSESSM ENT, NO ADDITION FOR INCOME ESCAPING ASSESSMENT HAS BEEN MADE AND THEREFORE THE AO CEASED TO HAVE JURISDICTION TO PROCEED WITH THE REASSESSMENT AND THEREBY ALLOWING RELIEF TO THE ASSESSEE. 2. THAT THE ID. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMST ANCES OF THE CASE AND IN LAW BY NOT APPRECIATING THE FACTS AND MATERIAL ON RECORD AND OBSERVING THAT REASONS (RECORDED FOR REASSESSMENT) GIVE RISE TO CONJECTURES AND SURMISES IN SO FAR AS INCOME ESCAPING ASSESSMENT HAS NOT BEEN IDENTIFIED BY THE AO. 3. T H AT THE AO WAS JUSTIFIED IN ESTIMATING GROSS SALES/TURNOVER OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AS THE SOURCE OF CASH AND FDRS HAD A CERTAIN AND DEFINITE NEXUS WITH HIS BUSINESS AND IT CONSONANCE WITH THE REASONS RECORDED BY THE AO. 4. THE L D . CIT(A) - II, LUCKNOW HAS ALLOWED RELIEF COMPLETELY IGNORING THE FACT THAT THE CBI'S SEARCH IN ASSESSEE'S PREMISES WAS IN CONNECTION WITH INVESTIGATIONS RELATING TO DIVERSION AND ILLEGAL SALE OF FOODGRAINS MEANT FOR DISTRIBUTION UNDER VARIOUS SCHEMES TO POOR /PUBLIC DISTRIBUTION SYSTEM ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT IDENTIFY THE PARTIES FROM WHOM FOODGRAINS WERE PURCHASED. MANDATORY 6R 3 RECEIPTS NECESSARY FOR PURCHASE OF FOODGRAINS FROM FARMERS ETC. ARE ALSO NOT POSSESSE D BY THE ASSESSEE. ALL THESE MATERIAL LEADS TO STRENGTHEN THE SUSPICION THAT THE ASSESSEE ILLEGALLY PURCHASED FOODGRAINS (BELONGING TO VARIOUS SCHEMES FOR POOR/PUBLIC DISTRIBUTION SYSTEM ETC.) FROM UNKNOWN SOURCES (UNDER INVESTIGATION BY CBI). PRIMA FACIE THE CASES RELIED BY THE ID. CIT(A) - II, LUCKNOW ARE NOT COMPARABLE AND THEY PERTAIN TO NORMAL BUSINESS CONDITIONS WHEN THE ASSESSEE HAS EARNED EXTRA PROFIT MARGIN BY ADOPTING AND USING UNFAIR AND ILLEGAL BUSINESS PRACTICES. 5. T HAT THE L D. CIT(A) - II, LUCKN OW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY APPLYING THE RATIO OF CASE LAWS OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS JET AIRWAYS 331 ITR 236 (BOM), HON'BLE DELHI HIGH COURT IN THE CASES OF : ( I ) CIT VS BATRA BHATTA & CO. ( II ) T RANSWORLD I NTERNATIONAL INC. VS JCIT (2004) 192 CTR 97 (DEL), 237 ITR 242 ( III ) RANBAXY LABORATORIES VS CIT 200 TAXMANN 242 AND HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF DASS FRIENDS BUILDERS (P) LTD. VS DCIT (2006) 280 ITR 77 (ALL.) AS THE FACTS OF THE CASE ARE DIFFERENT THAN THAT THE CASES CITED BY THE ID. CIT(A) - II, LUCKNOW. 6. T HAT THE L D . CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW WHILE ACCEPTING FRESH EVIDENCES/CLAIMS IN APPELLATE PROCEEDINGS BY THE RESPONDENT BEFORE CALLING FOR A REMAND REPORT FROM THE A.O., WHICH WAS BINDING UPON HIM UNDER RULE 46 A OF THE INCOME TAX RULES, 1962. 7. T HAT THE ORDER DATED 14.06.2013 PASSED BY THE L D. CIT(A) IN APPEAL NO. 40/134/ITO/GONDA/12 - 13 RELATING TO ASSESSMENT YEAR 2010 - 11 BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE CANCELLED AND THE ORDER OF THE A.O. DESERVES TO BE RESTORED. 8. T HAT THE APPELLANT CRAVES TO MODIFY, AMEND, CHANGE AND REVISE THE ABOVE GROUNDS OF APPEAL AND ADD FURTHER GROUNDS OF APPEAL, IF NECESSARY. 4 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE ISSUE IN DISPUTE WAS DECIDED BY CIT(A) AS PER PARA 5.7 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 5(7) IN THE IMPUGNED CASE, THE REASONS RECORDED DO NOT SHOW ANY INCOME CHARGEABLE TO TAX THAT HAS ESCAPED ASSESSMENT AND WHILE COMPLETING THE ASSESSMENT, NO ADDITION FOR ANY INCOME ESCAPING ASSESSMENT HAS BEEN MADE. THE ADDITION MADE IS IN RESPECT OF ESTIMATION OF INCOME BY REJECTING THE BOOKS OF ACCOUNTS. APPLYING THE DECISIONS OF HON'BLE BOMBAY HIGH COURT AND HON'BLE DELHI HIGH COURT SUPRA I AM OF THE OPINION THAT ONCE THE AO ACCEPTS THE OBJECTION OF THE ASSESSEE AND DOES NOT ASSESS THE INCOME WHICH WAS THE BASIS OF THE NOTICE, IT IS NOT OPEN TO HIM TO ASSESS INCOME UNDER SOME OTHER ISSUE INDEPENDENTLY. IN VIEW OF ABOVE, THE ADDITION OF RS.18,43,787/ - MADE BY THE AO IS DELETED AS THE REASONS FOR WHICH THE NOTICE WAS ISSUED WERE NOT CORRECT, AND THEREFORE THE AO CEASED TO HAVE JURISDICTION TO PROCEED WITH THE REASSESSMENT. THE APPELLANT GETS RELIEF ACCORDINGLY. 5.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A), WE FIND THAT A CLEAR FINDING IS GIVEN BY THE CIT(A) THAT NO ADDITION WAS MADE BY THE ASSESSING OFFICER FOR ANY INCOME ESCAPING ASSESSMENT AS HAS BEEN ALLEGED IN THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING . HE HAS ALSO GIVEN A FINDING THAT THE ADDITION WAS MADE IN RESPECT OF ESTIMATI ON OF INCOME BY REJECTING THE BOO KS OF ACCOUNT. HE HAS FOLLOWED A JUDGMENT OF HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS. JET AIRWAYS 331 ITR 236 (BOM) AND ALSO OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF RANBAXY LABORATORIES VS. CI T 200 TAXMAN 242 AND HELD THAT ONCE THE AO ACCEPTS THE OBJECTION OF THE ASSESSEE AND DOES NOT ASSESS THE INCOME WHICH WAS THE BASIS OF THE NOTICE U/ 148 , IT IS NOT OPEN TO HIM TO ASSESS INCOME UNDER SOME OTHER ISSUE INDEPENDENTLY. IT IS BY NOW A SETTLED POSITION OF LAW THAT IF NO ADDITION 5 IS MADE IN RESPECT OF THOSE ISSUES AS PER WHICH THE REOPENING WAS MADE, NO DIFFERENT ADDITION CAN BE MADE IN SUCH A SITUATION. IN THE PRESENT CASE ALSO, THE ONLY ADDITION MADE BY THE ASSESSING O FFICER IS OF RS.18,43,787/ - BY ESTIMATING THE SALES OF THE ASSESSEE AND BY APPLYING NET PROFIT RATE OF 2.5% WHEREAS IN THE REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT, THE BASIS OF REOPENING WAS THAT IN COURSE OF SEARCH CONDUCTED BY CBI, CASH OF AROUND RS.79.95 LAC AND FDR OF RS.74 LAC WERE FOUND. HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) UNDER THESE FACTS . 6. IN THE RESULT, TH IS APPEAL OF THE REVENUE STANDS DISMISSED. 7. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YEAR 2011 - 12 IN THE CASE OF ANOKHE LAL, PROP. SURAJ TRADERS I.E. I.T.A. NO.633/LKW/2013. 8. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LD. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING THE ADDITION MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED INVESTMENTS OF RS.20,00,000/ - IN FDRS. 2. THAT THE LD. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ALLOWING A RELIEF OF RS.7,04,701/ - AFTER ESTIMATING THE INCOME FROM BUSINESS @ 0.85% AS AGAINST THE ESTIMATION OF THE AO @2.5% EVEN AFTER OBSERVING THAT THE AO IS J USTIFIED IN REJECTING THE BOOKS OF ACCOUNTS. THE LD. CIT(A) - II, LUCKNOW HAS ALLOWED RELIEF COMPLETELY IGNORING THE FACT THAT THE CBI'S SEARCH IN ASSESSEE'S PREMISES WAS IN CONNECTION WITH INVESTIGATIONS RELATING TO DIVERSION AND ILLEGAL SALE OF FOODGRAINS MEANT FOR DISTRIBUTION UNDER VARIOUS SCHEMES TO POOR/PUBLIC DISTRIBUTION SYSTEM ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT IDENTIFY THE PARTIES FROM WHOM FOODGRAINS WERE PURCHASED. MANDATORY 6R RECEIPTS NECESSARY FOR PURCHASE O F FOODGRAINS FROM FARMERS ETC. ARE ALSO NOT POSSESSED BY THE ASSESSEE. ALL THESE 6 MATERIAL LEADS TO STRENGTHEN THE SUSPICION THAT THE ASSESSEE ILLEGALLY PURCHASED FOODGRAINS (BELONGING TO VARIOUS SCHEMES FOR POOR/PUBLIC DISTRIBUTION SYSTEM ETC.) FROM UNKNOW N SOURCES (UNDER INVESTIGATION BY CBI). PRIMA FACIE THE CASES RELIED BY THE LD. CIT(A) - II, LUCKNOW ARE NOT COMPARABLE AND THEY PERTAIN TO NORMAL BUSINESS CONDITIONS WHEN THE ASSESSEE HAS EARNED EXTRA PROFIT MARGIN BY ADOPTING AND USING UNFAIR AND ILLEGAL B USINESS PRACTICES. 3. THAT THE LD. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY APPLYING THE RATIO OF CASE LAW OF THE HON'BLE ITAT, LUCKNOW IN THE CASE OF M/S TEJ PRATAP SINGH VS.ITO IN ITA NO 330/L/2009 DATED: 30.10.2 009 AS THE FACTS OF THIS CASE DIFFERENT THAN THE CASE CITED AND THERE WAS NO PAST HISTORY OF THE ASSESSEE TO BE TAKEN INTO ACCOUNT AND ALL PAST CASES OF THE ASSESSEE WERE COMPLETED U/S 143(1) OF THE INCOME TAX ACT, 1961. BESIDES, THE ID. CIT(A) - II, LUCKNOW HAS ASSIGNED NO REASONS AS TO WHY HE IS NOT ACCEPTING HIS OWN JUDGMENT IN APPEAL NO. 11/112/ITO/GONDA/LKO/11 - 12 DATED 07.09.2012 IN THE CASE OF SRI RAM LALLAN SHUKLA, GONDA FOR A.Y. 2009 - 10 WHEREIN HE HAD FOUND RATE OF 2.5% AS JUST AND APPROPRIATE. 4. TH AT THE LD. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW WHILE ACCEPTING FRESH EVIDENCES/CLAIMS IN APPELLATE PROCEEDINGS BY THE RESPONDENT BEFORE CALLING FOR A REMAND REPORT FROM THE A.O., WHICH WAS BINDING UPON HIM UNDER R ULE 46A OF THE INCOME TAX RULES, 1962. 5. T HAT THE ORDER DATED 14.06.2013 PASSED BY THE LD. CIT(A) IN APPEAL NO. 41/134/ITO/GONDA/12 - 13 RELATING TO ASSESSMENT YEAR 2011 - 12 BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE CANCELLED AND THE ORDER OF THE A .O. DESERVES TO BE RESTORED. 9. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. HE ALSO SUBMITTED THAT CIT(A) HAS ADMITTED FRESH EVIDENCE WITHOUT OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER AND THEREFORE, EVEN IF THE ORDER OF CIT(A) IS NOT REVERSED THEN THE MATTER SHOULD BE RESTORED TO HIS FILE FOR FRESH DECISION AFTER OBTAINING REMAND REPORT. 7 10. LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U/S 143(3)/144 OF THE ACT BECAUSE REQUIRED EVIDENCES WERE NOT PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IN SPITE OF PROVIDING SUFFICIE NT OPPORTUNITIES. THE LEARNED CIT(A) HAS ESTIMATED THE NET PROFIT RATE AT 0.8% ON THE BASIS OF PROFIT RATE OF EARLIER YEARS I.E. ASSESSMENT YEAR 2007 - 08, 2008 - 09 AND 2009 - 10 BUT CIT(A) HAS NOT OBTAINED ANY REMAND REPORT AND HENCE, WE FEEL THAT IN THE INTE REST OF JUSTICE, THE MATTER SHOULD GO TO CIT(A) FOR A FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER. HENCE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER AND AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO BOTH SIDES . 12. IN THE RESULT, THIS APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 13. NOW WE TAKE UP THE APPEAL OF THE REVENUE FOR THE ASSESSMENT YE AR 2011 - 12 IN THE CASE OF ANOKHE LAL HUF, I.E. I.T.A. NO.634/LKW/2013. 14. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. T HAT THE L D. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING THE ADDIT ION OF RS.10,08,329 / - MADE BY THE A.O. ON ACCOUNT OF ESTIMATION OF NET PROFIT FROM THE BUSINESS. 2. T HAT THE L D. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY OBSERVING THAT PROVISIONS OF SECTION 44AF OF THE INCOME TAX ACT, 1961 ARE SQUARELY APPLICABLE IN THE CASE OF RESPONDENT WHEN THE RESPONDENT ITSELF DISCLOSED ITS NET PROFIT FROM THE P&L A/C. THE AO WAS THEREFORE JUSTIFIED IN ESTIMATING THE NET PROFIT. 8 3. T HAT THE L D. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUM STANCES OF THE CASE AND IN LAW BY DELETING THE ADDITION OF RS.1,00,000/ - MADE BY THE A.O. ON ACCOUNT OF FRESH CAPITAL INTRODUCED AND OBSERVING THAT THE CAPITAL INTRODUCED WAS OUT OF THE CASH AVAILABLE AS CASH IN HAND IN THE PERSONAL CONSOLIDATED BALANCE SH EET. 4. T HAT THE ID. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW BY DELETING THE ADDITION OF RS.10,50,000 / - ON ACCOUNT OF CASH DEPOSIT ON 11.03.2011 AND 22.03.2011 AS THE SAME IS OUT OF CASH AVAILABLE AS PER CASH BOOK AND BY ACCEPTING THE FRESH SUBMISSION MADE BY THE RESPONDENT THAT RS.1,91,930 / - OUT OF THE TOTAL CASH DEPOSITS IS FROM MATURITY OF A LIFE INSURANCE POLICY FROM ICICI PRUDENTIAL WITHOUT ASKING FOR A REMAND REPORT IN THIS REGARD. 5. T HAT THE L D. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW ALLOWING A RELIEF OF RS.7,04,701 / - AFTER ESTIMATING THE INCOME FROM BUSINESS @0.85% AS AGAINST THE ESTIMATION OF THE AO @2.5% EVEN AFTER OBSERVING THAT THE AO IS JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNTS. THE L D. CIT(A) - II, LUCKNOW HAS ALLOWED RELIEF COMPLETELY IGNORING THE FACT THAT THE CBI'S SEARCH IN ASSESSEE'S PREMISES WAS IN CONNECTION WITH INVESTIGATIONS RELATING TO DIVERSION AND ILLEGAL SALE OF FOODGRAINS MEANT FOR DISTRIBUTION UN DER VARIOUS SCHEMES TO POOR7PUBLIC DISTRIBUTION SYSTEM ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NOT IDENTIFY THE PARTIES FROM WHOM FOODGRAINS WERE PURCHASED. MANDATORY 6R RECEIPTS NECESSARY FOR PURCHASE OF FOODGRAINS FROM FARMERS ETC. ARE ALSO NOT POSSESSED BY THE ASSESSEE. ALL THESE MATERIAL LEADS TO STRENGTHEN THE SUSPICION THAT THE ASSESSEE ILLEGALLY PURCHASED FOODGRAINS (BELONGING TO VARIOUS SCHEMES FOR POOR PUBLIC DISTRIBUTION SYSTEM ETC.) FROM UNKNOWN SOURCES (UNDER INVESTIG ATION BY CBI). PRIMA FACIE THE CASES RELIED BY THE ID. CIT(A) - II, LUCKNOW ARE NOT COMPARABLE AND THEY PERTAIN TO NORMAL BUSINESS CONDITIONS WHEN THE ASSESSEE HAS EARNED EXTRA PROFIT MARGIN BY ADOPTING AND USING UNFAIR AND ILLEGAL BUSINESS PRACTICES. 6. T H AT THE L D. CIT(A) - II, LUCKNOW HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW WHILE ACCEPTING FRESH 9 EVIDENCES7CLAIMS IN APPELLATE PROCEEDINGS BY THE RESPONDENT BEFORE CALLING FOR A REMAND REPORT FROM THE A.O., WHICH WAS BINDING UPON HIM UNDER R ULE 46A OF THE INCOME TAX RULES, 1962. 7. THAT THE ORDER DATED 14.06.2013 PASSED BY THE L D. CIT(A) IN APPEAL NO.37/134/ITO/GONDA/12 - 13 RELATING TO ASSESSMENT YEAR 2011 - 12 BEING ERRONEOUS IN LAW AND ON FACTS DESERVES TO BE CANCELLED AND THE ORDER OF THE A. O. DESERVES TO BE RESTORED. 15. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. HE ALSO SUBMITTED THAT IN THIS CASE ALSO , FRESH EVIDENCE WAS ADMITTED BY THE CIT(A) AND THE ISSUE WAS DECIDED WITHOUT OBTAINING REMAND REPORT AND THEREFORE, IN THIS CASE ALSO , THE MATTER SHOULD GO BACK TO CIT(A) FOR FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER. 16. LEARNED A.R. OF THE ASSESSEE SUPPORTED THE ORDER OF CIT(A). 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THIS CASE ALSO , THE CIT(A) HAS DECIDED THE ISSUE WITHOUT OBTAINING ANY REMAND REPORT FROM THE ASSESSING OFFICER. WE ALSO FIND THAT AN ADDITION OF RS.12,50,801/ - WAS MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THE CIT(A) HAS HELD THA T THE ASSESSING OFFICER IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT BECAUSE THE AMOUNT WAS FOUND CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE AND NOT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. HE HAS ALSO NOTED THAT THE NATURE AND S OURCE OF DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE IS TO BE EXAMINED WITH REFERENCE TO SECTION 69 OF THE ACT. THEREAFTER, CIT(A) HAS NOTED VARIOUS DATES OF DEPOSIT OF AMOUNT IN THE BANK ACCOUNT. THEREAFTER HE HAS GIVEN A FINDING THAT THE ASSESSEE RECE IVED MATURITY PROCEEDS OF RS.1,91,930/ - FROM ICICI PRUDENTIAL LIFE INSURANCE IN RESPECT OF INVESTMENT OF RS.50,000/ - EACH IN THREE FINANCIAL YEARS I.E. ASSESSMENT YEAR 2004 - 05, 2005 - 06 AND 2006 - 07. ADMITTEDLY, THESE FACTS WERE NEVER BROUGHT BY THE ASSESSE E BEFORE THE ASSESSING OFFICER. THE CIT(A) 10 HAS ALSO NOTED THAT THE ASSESSEE HAS F ILED EXTRACT OF CASH BOOK MAINTAINED FOR ITS BUSINESS ACTIVITIES AND HE HAS GIVEN A FINDING THAT THE DEPOSITS IN THE BANK ACCOUNT ARE OUT OF CAS H AVAILABLE AS PER CASH BOOK. T HIS CASH BOOK WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. HENCE, IN THIS CASE ALSO , WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECISION AFTER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER. HE SHOULD PAS S NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. 18. IN THE RESULT, TH IS APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE COMBINED RESULT, THE APPEAL OF THE REVENUE IN I.T.A. NO .632/LKW/2013 IS DISMISSED AND THE REMAINING TWO APPEAL S I.E. I.T.A. NO.63 3 & 63 4 /LKW/2013 ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 5 /09/2014 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR