E Krishnappa, Bangalore V. DCIT, Bangalore

ITA 650/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51305 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-10-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 12-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT
• Assessee Lawyers: D VINAY
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Additional evidence; Bonafide mistake
• Section: 142(1); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER ITA NO.650/BANG/2010 ASSESSMENT YEAR : 2004-05 SHRI E. KRISHNAPPA, ADAKMARANAHALLI, MAKALI POST, TUMKUR ROAD, BANGALORE DIST. PAN : AFFPK 2791A VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 8(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI D. VINAY, ADVOCATE RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JT.CIT(DR) DATE OF HEARING : 17.10.2011 DATE OF PRONOUNCEMENT : 17.10.2011 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORD ER DATED 29.1.2010 OF THE CIT(APPEALS)-II, BANGALORE FOR THE ASSESSMEN T YEAR 2004-05. 2. THE ASSESSEE HAS FILED REVISED GROUNDS OF APPEAL CONSISTING OF 6 GROUNDS, OUT OF WHICH GROUNDS NOS.1 & 6 ARE GENERAL IN NATURE AND DOES ITA NO.650/BANG/2010 PAGE 2 OF 11 NOT REQUIRE ADJUDICATION. THE OTHER EFFECTIVE GROU NDS RAISED IN THIS APPEAL ARE AS UNDER: 2. THE LEARNED CIT(APPEALS) OUGHT NOT TO HAVE ADDE D A SUM OF RS.35 LAKHS IN TOTAL COMPRISING OF 25 LAKHS AND RS.10 LAKHS AS UNEXPLAINED CASH CREDIT. 3. THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE LOANS WERE GENUINE AND BOTH THE PARTIES HAD CON FIRMED THE LOANS AND CONSEQUENTLY THE ADDITION AS UNEXPLAINED CASH CREDIT WAS UNCALLED FOR. 4. THE LEARNED CIT(APPEALS) OUGHT TO HAVE GIVEN SUF FICIENT OPPORTUNITY TO THE APPELLANT TO PROVE THE GENUINENE SS OF THE CREDITORS AND OUGHT TO HAVE CALLED FOR ADDITIONAL I NFORMATION FROM THE APPELLANT IN THIS REGARD. 5. THE LEARNED CIT(APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE SUM OF RS.65,665 SHOWN AS AGRICULTURAL INCOME W AS OUT OF THE GENUINE LAND HOLDINGS OF THE APPELLANT AND CONSEQUE NTLY THE SAME OUGHT TO HAVE BEEN CONSIDERED BY HIM. 3. THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FR OM CIVIL CONTRACT BUSINESS, INCOME FROM OTHER SOURCES AND INCOME FROM AGRICULTURE. HE FILED HIS RETURN OF INCOME ON 1.11.2004 DECLARING TOTAL I NCOME OF RS.13,78,392 AND RS.65,665 AS INCOME FROM AGRICULTURE. THE RETU RN WAS PROCESSED U/S. 143(1) ON 9.12.2004. LATER ON THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S. 142(1) AND 143(2) WERE ISSUED CALLING FOR CERTAIN INFORMATION IN REGARD TO DETAILS OF INCOME AND LOAN CONFIRMATION L ETTERS IN RESPECT OF UNSECURED LOAN CREDITORS. SINCE THERE WAS NO RESP ONSE FROM THE ASSESSEE IN SPITE OF AFFORDING SEVERAL OPPORTUNITIES, THE AS SESSING OFFICER WITH NO OTHER ALTERNATIVE ESTIMATED THE TAXABLE INCOME OF T HE ASSESSEE AT 8% OF THE GROSS CONTRACT RECEIPTS AND MADE AN ADDITION OF RS. 22,13,339. SIMILARLY, IN THE ABSENCE OF ANY PROOF IN THE FORM OF CONFIRMATIO N LETTERS FOR HAVING BORROWED LOANS OF RS.10 LAKHS AND RS.25 LAKHS FROM SRI RAMAPPA AND SRI ITA NO.650/BANG/2010 PAGE 3 OF 11 SAI LAKHSMI CONSTRUCTION RESPECTIVELY, THE AO TREAT ED THESE TWO CREDITS AS UNEXPLAINED CREDITS U/S. 68 OF THE ACT AND BROUGHT THE SAME TO TAX. AS REGARDS THE AGRICULTURAL INCOME OF RS.65,665 DECLAR ED BY THE ASSESSEE ALSO, IN THE ABSENCE OF ANY DETAILS OR EVIDENCE IN THE FORM OF AGRICULTURAL LAND HOLDINGS AND PROOF OF SALE OF AGRICULTURAL PRO DUCE, HE TREATED THE AGRICULTURAL INCOME AS INCOME UNDER THE HEAD OTHER SOURCES AND MADE AN ADDITION OF RS.65,665. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL TO THE LD. CIT(APPEALS), WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER A ND SUSTAINED THE ADDITIONS MADE BY HIM. NOW THE ASSESSEE IS APPEAL BEFORE US. 5. DURING THE COURSE OF HEARING, THE ASSESSEE MOVED AN APPLICATION UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963 , STATING THEREIN AS UNDER: IT IS SUBMITTED THAT THE CONFIRMATION LETTERS FROM SAI LAKSHMI CONSTRUCTIONS, SRI RAMAIAH, S/O. SRI VENKATARAMAIAH AND ALSO RTCS COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORI TIES ON ACCOUNT OF CHANGE IN PROFESSIONALS WHO WERE HANDLIN G THE MATTER. THESE DOCUMENTS ARE VERY CRUCIAL IN ORDER TO PROVE THE ISSUE ON HAND. NON-PRODUCTION OF THESE DOCUMENTS WAS ON ACC OUNT OF BONA FIDE REASONS AND NOT DUE TO ANY DELIBERATE OR MALA FIDE INTENTION. ACCORDINGLY, IT IS PRAYED THAT THE ABOV E SAID DOCUMENTS MAY KINDLY BE ADMITTED AND CONSIDERED WHI LE DISPOSING OF THE APPEAL, IN THE INTEREST OF JUSTICE . 6. THE LD. DR OPPOSED ADMISSION OF THE ADDITIONAL E VIDENCE AND SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE FILED THO SE DOCUMENTS EITHER BEFORE THE AO OR BEFORE THE LD. CIT(APPEALS) AND SI NCE THOSE DOCUMENTS WERE NOT FURNISHED EARLIER, THEY SHALL NOT BE ADMIT TED. ITA NO.650/BANG/2010 PAGE 4 OF 11 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. THE DOCUMENTS FURNISHED BY THE ASSESSEE AS ADDITIONAL EVIDENCE AR E AS FOLLOWS: (1) COPY OF CONFIRMATION LETTER FROM SAI LAKSHMI CONSTRUCTIONS. (2) COPY OF CONFIRMATION LETTER FROM MR. A.V. RAMAIAH. (3) COPY OF PAN OF MR. A.V. RAMAIAH. (4) THREE COPIES OF RTC EXTRACTS. IN OUR OPINION, THE DOCUMENTS WHICH ARE FURNISHED A LONG WITH THE APPLICATION UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963, ARE ALTHOUGH FURNISHED FOR THE FIRST TIME BEFORE THE TR IBUNAL, BUT THESE ARE RELEVANT AND GO TO THE ROOT OF THE PRESENT CONTROVE RSY. NON-PRODUCTION OF THOSE DOCUMENTS WAS ON ACCOUNT OF BONAFIDE MISTAKE AND NOT DUE TO DELIBERATE OR MALAFIDE INTENTION OF THE ASSESSEE. AS PER THE PROVISIONS CONTAINED IN RULE 29 OF THE APPELLATE TRIBUNAL RULE S, 1963, THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIO NAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL. THE PROVISIONS CO NTAINED IN THE SAID RULE ARE PARI MATERIA WITH THE ORDER 41 RULE 27 OF THE CODE OF CIVIL PRO CEDURE, 1908, WHICH ALSO DOES NOT ALLOW THE PARTY TO THE AP PEAL TO ADDUCE ANY ADDITIONAL EVIDENCE UNLESS AND UNTIL SUCH EXCEPTION AL CIRCUMSTANCES ARE SET OUT. IN THE INSTANT CASE, THE DOCUMENTS NOW SOUGHT TO BE PRODUCED IN THE FORM OF ADDITIONAL EVIDENCE WERE NOT MADE AVAIL ABLE BEFORE THE LOWER AUTHORITIES ON ACCOUNT OF CHANGE IN PROFESSIONAL WH O WERE HANDLING THE MATTER. IN OUR OPINION, THE ASSESSEE COMMITTED A BONAFIDE MISTAKE, WITHOUT ANY DELIBERATE OR MALAFIDE INTENTION. WE T HEREFORE ARE OF THE ITA NO.650/BANG/2010 PAGE 5 OF 11 OPINION THAT THE EXPLANATION OF THE ASSESSEE THAT N ON-PRODUCTION OF THESE DOCUMENTS WAS ON ACCOUNT OF BONAFIDE REASONS IS A P LAUSIBLE EXPLANATION. ACCORDINGLY, WE ARE OF THE VIEW THAT THESE DOCUMENT S SHALL BE ADMITTED KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, BUT AT THE SAME TIME OPPORTUNITY IS TO BE GIVEN FOR REBUTTAL TO ANOTHER PARTY. 8. AS REGARDS TO THE ADMISSION OF THE ADDITIONAL EV IDENCE, THE HONBLE MADRAS HIGH COURT IN THE CASE OF ANAIKAR TRADE AND ESTATES (P) LTD (NO.2) VS. CIT, 186 ITR 313 HAS HELD AS UNDER: THE TRIBUNAL HAS DISCRETION TO ALLOW THE PRODUCTIO N OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE ITAT RULES, 1963 IF T HE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR AFFIDAVIT T O BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTI AL CAUSE, IT MAY ALLOW THE DOCUMENT TO BE PRODUCED OR THE AFFIDAVITS TO BE FILED. EVEN IF THERE WAS A FAILURE TO PRODUCE THE DOCUMENT S BEFORE THE ITO AND THE A.A.C, THE TRIBUNAL HAS THE JURISDICTIO N IN THE INTERESTS OF JUSTICE TO ALLOW THE PRODUCTION OF SUC H VITAL DOCUMENTS. 9. IN THE PRESENT CASE ALSO THE DOCUMENTS FURNISHED BY THE ASSESSEE ARE VITAL WHICH GO TO THE ROOT OF THE PRESENT CONTR OVERSY, SO THESE ARE TO BE ADMITTED IN THE INTEREST OF NATURAL JUSTICE BUT THE SE DOCUMENTS ARE REQUIRED TO BE EXAMINED AND CONSIDERED AT THE LEVEL OF THE A O. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMAND THE PRESENT ISS UE BACK TO THE FILE OF THE LEARNED AO TO BE DECIDED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 10. FOR THE AFORESAID VIEW, WE ARE ALSO FORTIFIED B Y THE DECISION OF THE ITAT DELHI BENCH F IN THE CASE OF UOP LIC V ADDIT IONAL DIRECTOR OF INCOME-TAX, INTERNATIONAL TAXATION, CIRCLE 2(2) NEW DELHI (2007) 108 LTD ITA NO.650/BANG/2010 PAGE 6 OF 11 186 WHEREIN RELEVANT FINDINGS GIVEN IN PARAS NO, 30 , 31 33, 48, 52 READ AS UNDER: 30. IT IS A SETTLED POSITION THAT PRODUCTION OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE IS NOT A MATTER OF RIGHT TO LITIGATING PUBLIC AND ALLOWING OF PRODUCTION OF ADDITIONAL EVI DENCE IS IN THE DISCRETION OF THE TRIBUNAL. THE SAID DISCRETION, H OWEVER, IS TO BE EXERCISED JUDICIALLY AND NOT ARBITRARILY. AS HELD B Y HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. KUM . SATYA SETIA (1983) 143 ITR 486, IT IS WITHIN THE DISCRETI ON OF THE APPELLATE AUTHORITY TO ALLOW PRODUCTION OF ADDITION AL EVIDENCE IF THE SAID AUTHORITY REQUIRES ANY DOCUMENT TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE. THE TRIB UNAL IS THE FINAL FACT FINDING BODY UNDER THE SCHEME OF THE INCOME TA X ACT , 1961 AND POWERS, THEREFORE, HAVE NECESSARILY TO BE EXERC ISED BY IT FOR DECIDING THE QUESTIONS OF FACT. WHILE EXERCISING IT S POWERS, IF THE TRIBUNAL IS OF THE OPINION THAT ADDITIONAL EVIDENCE IS MATERIAL IN THE INTEREST OF JUSTICE FOR DECIDING A PARTICULAR I SSUE, ITS DISCRETION CANNOT BE INTERFERED WITH UNLESS IT HAS BEEN EXERCI SED ON NON EXISTING OR IMAGINARY GROUNDS. IN THE CASE OR MAHAV IR SINGH (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE IT WAS HELD THAT SECTION 107 OF CPC ENABLES AN APPELLATE COURT TO TA KE ADDITIONAL EVIDENCE OR TO REQUIRE SUCH OTHER EVIDENCE TO BE TA KEN SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBED U NDER ORDER 41 OF RULE 27 OF CPC. IT WAS ALSO HELD THAT THE PARTIE S ARE NOT ENTITLED, AS OF RIGHT, TO THE ADMISSION OF SUCH EVI DENCE AND THE MATTER IS ENTIRELY IN THE DISCRETION OF THE COURT W HICH IS OF COURSE TO BE EXERCISED JUDICIALLY AND SPARINGLY. IT WAS OBSER VED THAT ORDER 41 RULE 27 OF CPC ENVISAGES CERTAIN CIRCUMSTA NCES WHEN ADDITIONAL EVIDENCE CAN BE ADDUCED AND ONE OF SUCH CIRCUMSTANCES IS WHERE THE APPELLATE COURT REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED TO ENA BLE IT TO PRONOUNCE JUDGMENT OR FOR ANY OTHER SUBSTANTIAL CAU SE. IT WAS ALSO CLARIFIED THAT THE EXPRESSION TO ENABLE IT TO PRONOUNCE JUDGMENT CONTEMPLATES A SITUATION WHEN THE APPELLA TE COURT FINDS ITSELF UNABLE TO PRONOUNCE JUDGMENT OWING TO A LACUNA OR DEFECT IN THE EVIDENCE AS IT STANDS. IN THE CONT EXT, IT WAS FURTHER CLARIFIED THAT THE ABILITY TO PRONOUNCE A JUDGMENT IS TO BE UNDERSTOOD AS THE ABILITY TO PRON OUNCE A JUDGMENT SATISFACTORY TO THE IT MIND OF COURT DEL IVERING IT. THIS POSITION WAS REITERATED AGAIN BY THE HONBLE SUPREME COURT IN THE CASE OF SYED ABDUL KHADER VS. RAMI REDDY AIR, 1979 S.C. 553 CITED BY THE LD. COUNSEL FOR THE ASSESSEE. IN THE CASE OF MUNICIPAL CORP. OF GREATER BOMBAY VS. LALA PANCHAN AIR 1965 ITA NO.650/BANG/2010 PAGE 7 OF 11 S.C. 1008 CITED BY THE LD. COUNSEL FOR THE ASSESSEE , IT WAS OBSERVED BY THE HONBLE SUPREME COURT THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE DOES NOT ENTITLE THE APPELLATE COURT TO LET IN FRESH EVIDENCE ONLY FOR T HE PURPOSE OF PRONOUNCING JUDGMENT IN A PARTICULAR WAY AND IT IS ONLY FOR REMOVING A LACUNA IN THE EVIDENC E THAT THE APPELLATE COURT IS EMPOWERED TO ADMIT ADDITIONA L EVIDENCE. IN THE CASE OF ARJAN SINGH V. KARTAR SING H AIR 1951 S.C. 193, IT WAS HELD THAT THE DISCRETION GIVEN TO THE APPELLATE COURT BY ORDER 41, RULE 27 OF CPC TO RECEIVE AND ADMIT ADDITIONAL EVIDENCE IS NOT AN ARB ITRARY ONE BUT IS A JUDICIAL ONE CIRCUMSCRIBED BY THE LIMI TATIONS SPECIFIED IN THAT RULE. IT WAS ALSO HELD THAT THE L EGITIMATE OCCASION FOR THE APPLICATION OF THE SAID RULE IS WH EN ON EXAMINING THE EVIDENCE AS IT STANDS SOME INHERENT LACUNA OR DEFECT BECOMES APPARENT. TO THE SIMILAR EFFECT IS ANOTHER DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATHA SINGH VS. FINANCIAL COMMISSIONER TAXATION ALR 1976 S.C. 1053. 31. AS PER RULE 29 OF THE APPELLATE TRIBUNAL RULES , 1963, THE TRIBUNAL HAS THE POWER TO ALLOW ADDITIONA L EVIDENCE NOT ONLY IF IT REQUIRES SUCH EVIDENCE TO ENABLE IT TO PRONOUNCE JUDGMENT BUT ALSO FOR ANY OTHER SUBSTANTIAL CAUSE. THERE MAY BE CASES WHERE EVEN THOUGH THE TRIBUNAL FINDS THAT IT IS ABLE TO PRONOU NCE JUDGMENT ON THE STAGE OF RECORD AS IT I S AND SO IT CANNOT STRICTLY SAY THAT IT REQUIRES ADDITIONAL EVIDENCE T O ENABLE IT TO PRONOUNCE JUDGMENT IT STILL CONSIDERS THAT IN THE INTEREST OF JUSTICE, SOMETHING WHICH REMAINS OBSCURE, SHOULD BE FILED UP SO THAT IT CAN PRONOUNCE THE JUDGMENT IN A MORE SATISF ACTORY MANNER. SUCH REQUIREMENT OF THE TRIBUNAL IS LIKELY TO ARISE ORDINARILY WHEN SOME INHERENT LACUNA OR DEFECT BECOMES APPARE NT UPON ITS APPRECIATION OF THE EVIDENCE. THE POWER OF THE TRIB UNAL TO ADMIT ADDITION EVIDENCE IN SUPPORT OF THE CLAIM IN APPEAL IS DISCRETIONARY AND NO FETTERS CAN BE IMPOS ED ON THE EXERCISE OF SUCH POWER. HOWEVER, AS HELD BY HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAM PRA SAD SHARMA VS. CIT (1979) 119 ITR 867 AND BY THE HONBLE ANDHR A PRADESH HIGH COURT IN THE CASE OF A. K. BABU KHAN VS. CWT ( 1976) 102 ITR 756 IT IS NOT AN ARBITRARY POWER BUT IT IS A JU DICIAL ONE CIRCUMSCRIBED BY THE LIMITATIONS GIVEN IN RULE 29 O F THE APPELLATE TRIBUNAL RULES, 1963. THE CONDITIONS PREC EDENT FOR THE EXERCISE OF POWER UNDER RULE 29 MUST, THEREFORE, BE FOUND TO HAVE BEEN ESTABLISHED. HOWEVER, WHERE THERE IS NO L ACK ITA NO.650/BANG/2010 PAGE 8 OF 11 OF EVIDENCE BUT YET THE PLEA IN SUPPORT OF ADMITTIN G THE EVIDENCE IS SO DECISIVE AND OF CLINCHING VALUE WITH REFERENCE TO THE POINTS AT ISSUE, IT IS OPEN TO THE TRIBUNAL TO INVOKE ITS POWER OF ALLOWING ADDITIONAL EVIDENCE TO RENDER SUBSTANTI AL JUSTICE AND NOT TO DEPRIVE THE PARTY OF SUCH JUSTICE ON TECHNIC AL GROUNDS. FURTHER AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF VELJI DOORAJ & CO. VS. CIT (1968) 68 ITR 708, WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND HAD NOT BEEN PRODUCED BY HIM, THE MERE FACT THAT EVIDENCE SOUGHT TO BE PRODUCED IS VITAL AND IMPORTANT DOES N OT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE. THE ADMISSIBILITY OF ADDITIONAL EV IDENCE DEPENDS ON WHETHER OR NOT THE SUBSTANTIAL CAUSE AND NOT TO ENABLE THE ASSESSEE OR THE DEPARTMENT TO TENDER FRESH EVIDENCE TO SUPPORT A NEW POINT OR TO MAKE OU T A NEW CASE. IN THE CASE OF N. KAMALAM (SUPRA) IT WAS HELD THAT THE PROVISIONS OF RULE 27 OF ORDER 41 OF CPC, 1908 ARE NOT DESIGNED TO HELP PARTIES TO PATCH UP W EAK POINTS AND MAKE UP FOR OMISSIONS EARLIER MADE. 33. IT IS ALSO WELL SETTLED THAT ONCE ADDITIONAL EV IDENCE IS TAKEN INTO CONSIDERATION, IT HAS TO BE READ AS P ART OR THE RECORD AND BEFORE DRAWING ANY INFERENCE ON THE BASIS OF CONTENTS OF THAT DOCUMENT ADMITTED AS ADDITIONAL EVIDENCE, AN OPPORTUNITY HAS TO BE GIVEN TO THE OTHER SIDE TO EXPLAIN OR REBUT THE SAME. AS HELD BY HONBLE MADRAS HIGH COURT IN THE CASE OF RSS SHANMUGAM PILLAI & SONS (SUPRA), IF THE TRIBUNAL FI NDS THAT THE DOCUMENTS FILED ARE QUITE RELEVANT AND FOR THE PURPOSE OF DECIDING THE ISSUE BEFORE IT, IT WOULD B E WELL WITHIN ITS POWERS TO ADMIT THE EVIDENCE, CONSIDER T HE SAME ON MERITS OR REMIT THE MATTER TO THE LOWER AUTHORITIES FOR EXAMINING THE SAME. IN THE CASE OF SMT. URMILA RATILAL (SUPRA), HONBLE GUJARAT HIGH COURT HAS HELD THAT WHEN THE ADDITIONAL EVIDENCE FIELD BY THE REVENUE WAS ADMITTED BY THE TRIBUNAL OVERRULING THE OBJECTION RAISED BY THE ASSESSEE, INTEREST OF JUSTI CE DEMANDED THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN OR REBUT THE ADDITIONAL EVIDENCE BEFORE RELYING ON THE SAME. IN THE CASE OF CHARBHAI BIRI WORKS VS. ASSTT CIT (2003) 87 ITO 189, CITED BY THE LD. COUNSEL FOR THE ASSESSEE, IT WAS HELD BY THE PUNE BENCH OF ITAT IN IT THIRD MEMBER DECISION THAT WHEN THE DOCUMENTS WHICH WERE NOT AVAILABLE BEFORE THE ASSESSING OFFIC ER WERE PRODUCED BEFORE THE TRIBUNAL FOR THE FIRST TIM E AND THE SAME WERE ADMITTED AS ADDITIONAL EVIDENCE BEING ITA NO.650/BANG/2010 PAGE 9 OF 11 MATERIAL TO BE RESTORED TO THE FILE OF THE ASSESSIN G OFFICER TO VERIFY CORRECTNESS AND AUTHENTICITY OF S UCH DOCUMENTS AND TO ADJUDICATE THE MATTER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF B EING HEARD. 48. AS ALREADY NOTED, THE ADDITIONAL EVIDENCE WOULD BE RELEVANT TO CONSIDER AND DECIDE THE CASE ALREADY MADE OUT BY THE REVENUE AND IT IS, THEREFORE NOT A CASE OF TENDERING OF FRESH EVIDENCE BY THE DEPARTMENT TO SUPPORT A NEW POINT OR TO MAKE OUT A NEW CASE. ACCORDING TO US, THE ADDITIONAL EVIDENCE FILED BY T HE REVENUE IS QUITE RELEVANT FOR THE PURPOSE OF DECIDI NG THE ISSUE BEFORE US AND THE SAME, THEREFORE, CAN BE ADMITTED AS PER RULE 29 OF APPELLATE TRIBUNAL RULES, 1963 AS HELD BY HONBL E MADRAS HIGH COURT IN THE CASE OF RSS SHANMUGAM PI1LAI & SONS (SUPRA). THE SAID ADDITIONAL EVIDENCE ALSO NEEDS TO BE TAKEN INTO CONSIDERATION IN THE INTEREST OF JUSTICE FOR DECIDI NG THE ISSUE RELATING TO THE PE. 52. AS ALREADY NOTED THE ASSESSEE WAS GIVEN AN OPPO RTUNITY DURING THE COURSE OF HEARING TO ADVANCE THE ARGUMEN TS ON THE ADMISSION OF ADDITIONAL EVIDENCE AS WELL AS ON MERI TS OF THE ISSUE TAKING INTO CONSIDERATION THE SAID ADDITIONAL EVIDE NCE AND AVAILING THIS OPPORTUNITY, LD. COUNSEL FOR THE ASSESSEE HAS NOT ONLY RAISED ELABORATE ARGUMENTS ON BOTH THESE ASPEC TS BUT HAS ALSO FILED, A DETAILED WRITTEN SUBMISSION. IN THE S AID WRITTEN SUBMISSION AN ATTEMPT HAS BEEN MADE BY HIM TO EXPLA IN EACH AND EVERY DOCUMENT SOUGHT TO BE FILED BY THE REVENUE AS ADDITIONAL EVIDENCE IN ORDER TO REBUT THE CASE SOUGHT TO BE MADE OUT BY THE REVENUE RELYING ON THE SAME ON MERITS. KEEPING IN V IEW THE FACT THAT THE ADDITIONAL EVIDENCE SO PRODUCED BY THE REV ENUE AS WELL AS ELABORATE EXPLANATION OFFERED BY HIM ASSESSEE TO RE BUT THE SAME IS VOLUMINOUS RUNNING INTO SEVERAL PAGES, WHICH REQUIR ES IN-DEPTH EXAMINATION, WE FIND THAT IT WOULD BE FAIR AND PROP ER AND IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE RELATING T O PE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER EXAMINING THE ADDITIONAL EVIDENCE AS WELL AS EXPLAN ATION OFFERED BY THE ASSESSEE WHILE REBUTTING THE SAME. THE ASSES SEE SHALL ALSO BE AT LIBERTY TO ADDUCE FURTHER EVIDENCE TO SUPPORT ITS CASE BEFORE THE ASSESSING OFFICER WHO SHALL TAKE INTO CONSIDERA TION THE SAME IN ACCORDANCE WITH LAW. SINCE THE OTHER ISSUES RAISED IN THIS APPEAL RELATED TO THE MAIN ISSUE OF PE, WE DEEM IT APPROPRIATE TO RESTORE THESE ISSUES ALSO TO THE FILE OF THE ASSESS ING OFFICER FOR FRESH DECISION ALONG WITH THE MAIN ISSUE. IN SO FA R AS THE ISSUE RELATING TO THE LEVY OF INTEREST U/S 234B IS CONCER NED, THE LD. ITA NO.650/BANG/2010 PAGE 10 OF 11 COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF DELHI SPECIAL BENCH OF ITAT IN THE CASE OF MOTOROLA INC. VS. DY. CIT (2005) 95 ITD 269. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO DECIDE T HE ISSUE RELATING TO LEVY OF INTEREST U/S 234B IN THE LIGHT OF THE DECISION OF SPECIAL BENCH IN THE CASE OF MOTOROLA INC (SUPRA). THE IMPUGNED ORDER OF THE LD. CIT(A) O N ALL THE ISSUES INVOLVED IN THE PRESENT APPEAL IS ACCORD INGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AS PER THE DIRECTIONS GIVEN HEREINABOVE. 11. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS SET ASIDE AND THE ISSUES ARE REMANDED BACK TO THE F ILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, AFTER PROVIDIN G DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF OCTOBER, 2011. SD/- SD/- ( GEROGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 17 TH OCTOBER, 2011. DS/- ITA NO.650/BANG/2010 PAGE 11 OF 11 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.