Tanita Industrial Credits Ltd., New Delhi V. ITO, New Delhi

ITA 654/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65560 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 28-03-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Additional evidence; Reasonable cause; Reason to believe
• Section: 142(1); 234B; 147; 68; 148; 144

Judgement Text

ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H: NEW DELHI BEFORE SHRI A.N. PAHUJA, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO.654 /DEL/2011 ASSESSMENT YEAR: 2003-04 TANITA INDUSTRIAL CREDITS LTD., C/O RAJ KUMAR & ASSOCIATES, CA,4435/7, ANSARI ROAD, DARYA GANJ, NEW DELHI. PAN NO. AAACT3447M VS. ITO, WARD 16(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJ KUMAR GUPTA, CA RESPONDENT BY : DR. B.R.R. KUMAR, SR. DR O R D E R PER CHANDRAMOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME TAX(A)-XIX, NEW DELHI DATED 23.11.2010 BY WHICH THE COMMISSIONER OF INCOME TAX(A) DISMISSED THE APP EAL OF THE ASSESSEE FOR A.Y. 2003-04. 2. THE GROUNDS OF APPEAL READ AS UNDER:- ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 2 1. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A) ERRED IN LAW AS WELL AS ON MERITS IN NOT ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46A O F I.T. RULES. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES, THE PROCEEDINGS U/S 147/148 HAVE BEEN WRONGLY INITIATED, THEREFORE, UNSUSTAINABLE IN LAW AS WELL AS ON MERITS AND ALSO WITHOUT JURISDICTION. 3. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO REASONABLE AND PROPER OPPORTUNITY OF HEARING HAS BEEN ALLOWED. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES, BOTH THE LOWER AUTHORITIES ERRED IN LAW AS WELL AS ON MERITS IN MAKING ADDITION OF 17 LACS U/S 68 OF THE I.T. AC T RECEIVED AS SHARE CAPITAL FROM THE FOLLOWING COMPANIES. S.NO. NAME OF THE PERSON, WHO ISSUED CHEQUE/ DD DATE AMOUNT (RS.) NATURE OF RECEIPT 1. ARIES PISCES FINSEC SERVICE P. LTD. 24.07.2002 500000.00 SALE OF INVESTMENTS 2. S.J. CAPITAL LTD. 13.06.2002 600000.00 --DO-- 3. S.J. CAPITAL LTD. 13.06.2002 600000.00 DUPLICATE OF S.NO. 2 TOTAL 1700000.00 5. THAT WITHOUT CONFRONTING WITH THE ALLEGED ADVERSE M ATERIAL USED ON THE BACK OF THE ASSESSEE AND USED AGAINST T HE ASSESSEE, THE SAME CANNOT BE USED AND HAS TO BE IGN ORED IN TOTALITY. THE ASSTT. FRAMED BY USING SUCH MATERIAL S IS UNSUSTAINABLE IN LAW. ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 3 6. THAT UNDER THE FACTS AND CIRCUMSTANCES, NO INTEREST U/S 234B AND 234D SHOULD HAVE BEEN CHARGED. WITHOUT PREJUDICE , IN ANY CASE, THE CALCULATIONS ARE EXCESSIVE AND ERRONEOUS. 3 . BRIEF FACTS OF THE CASE GIVING RISE TO THIS APPEAL ARE THAT THE ASSESSEE PUBLIC COMPANY CAME INTO EXISTENCE IN THE YEAR 1994 WITH THE MAIN OBJECT OF CARRYING ON THE BUSINESS OF DEALING IN SECURITIES A ND FINANCE. ON INFORMATION FROM THE INVESTIGATION WING OF THE DEPARTMENT, THE ASSESSING OFFICER INITIATED PROCEEDINGS U/S 148 OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT) AND COMPLETED THE REASSESSMENT DETERMIN ING THE TOTAL INCOME AT RS.17,77,120, MAKING AN ADDITION OF RS.17,00,0000/- U/S 68 OF THE ACT REJECTING THE CONTENTION OF THE ASSESSEE THAT THE S AME WAS RECEIVED AS SHARE APPLICATION MONEY/SHARE CAPITAL. 4. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE T HE COMMISSIONER OF INCOME TAX(A)-XIX WHICH WAS DISALLOWED BY THE IMPUG NED ORDER. FROM THE IMPUGNED ORDER, WE OBSERVE THAT THE ASSESSEE FI LED AN APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962 (HEREINAFTER REFERRED TO AS THE RULES) AND A REMAND REPORT WAS CALLED FROM THE ASSE SSING OFFICER. LD. COMMISSIONER OF INCOME TAX(A) HELD THAT THE ADMISSI BILITY OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE IS NOT A RIGHT OF T HE ASSESSEE AND IN THE CASE IN HAND, THE ASSESSEES REPRESENTATIVE WHO ATTENDED TH E PROCEEDINGS BEFORE THE ASSESSING OFFICER COULD HAVE FURNISHED DETAILS WITH OUT THE KNOWLEDGE OF ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 4 EITHER OLD OR NEW MANAGEMENT AND FINALLY THE COMMIS SIONER OF INCOME TAX(A) DISALLOWED THE APPLICATION OF THE ASSESSEE U NDER RULE 46A OF THE RULES. ON MERIT, THE COMMISSIONER OF INCOME TAX(A) HELD THAT SINCE THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE, THE ADDITI ON MADE BY THE ASSESSING OFFICER CANNOT BE SAID TO BE FAULTED AND COMMISSION ER OF INCOME TAX(A) SUSTAINED THE ADDITIONS DISMISSING THE APPEAL OF TH E ASSESSEE. THE AGGRIEVED ASSESSEE IS BEFORE THIS TRIBUNAL IN THE SECOND APPE AL. GROUND NO. 2 5. APROPOS GROUND NO.2, THE APPELLANT ASSESSEE HA S ALLEGED THAT THE PROCEEDINGS U/S 147/148 HAVE BEEN WRONGLY INITIATED , THEREFORE, THESE ARE UNSUSTAINABLE IN LAW AS WELL AS ON MERITS AND ALSO WITHOUT JURISDICTION. FROM ASSESSEES PAPER BOOK PAGE NO.1, IT IS EVIDENT THAT THE ASSESSING OFFICER INITIATED THE PROCEEDINGS U/S 147 AND 148 OF THE AC T ON RECEIPT OF INFORMATION FROM DIT(INV.), JHANDEWALAN EXTENSION, NEW DELHI AN D IN THE SECOND PART OF THIS NOTICE, HE HAS RECORDED HIS REASON TO BELIEVE THAT THE ASSESSEE HAS ESCAPED ASSESSMENT BY REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR THE ASSESSME NT OF AY 2003-04. ON PAGE NO.2, THERE IS A COPY OF NOTICE DATED 19.03.2007 U/ S 148 OF THE ACT WHICH WAS SERVED ON THE ASSESSEE AND AS PER PARA 2 OF THE ASS ESSMENT ORDER, THE ASSESSEES REPRESENTATIVE ATTENDED OFFICE OF THE AS SESSING OFFICER AND FILED A ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 5 LETTER DATED 27.06.2007 BY STATING THAT THE RETURN ORIGINALLY FILED MAY BE TREATED TO HAVE BEEN FILED IN RESPONSE TO NOTICE U/ S 148 OF THE ACT. THE COMMISSIONER OF INCOME TAX(A) IN PARA 6 AND 7 OF TH E IMPUGNED ORDER HAS DEALT WITH THIS GROUND AND HELD THAT SINCE THERE WA S NO COMPLIANCE TO THE NOTICES ISSUED TO THE ASSESSEE, THE ASSESSING OFFIC ER WAS JUSTIFIED IN COMPLETING ASSESSMENT U/S 144 OF THE ACT. 6. THE HONBLE SUPREME COURT IN THE CASE OF SHRI KRISHNA P VT. LTD. VS ITO (1996) 87 TAXMAN 315(SC) HELD THAT THE POWER CONFERRED ON THE ITO BY SECTIONS 147 AND 148 OF THE ACT IS NOT AN UNBRID LED ONE. IT IS HEDGED WITH SEVERAL SAFEGUARDS CONCEIVED IN THE INTEREST OF ELI MINATING ROOM FOR ABUSE OF THIS POWER BY ASSESSING OFFICER. THE HONBLE SUPREME COURT IN THE CASE OF S. NARAYANAPPA. V. COMMISSIONER OF INCOME-TAX (1967 ) 63 ITR 219(SC) HAS HELD THAT THE EXPRESSION REASON TO BELIEVE DO ES NOT MEAN A PURELY SUBJECTIVE SATISFACTION ON THE PART OF ITO, THE BELIEF MUST BE HELD IN GOOD FAITH AND CANNOT MERELY BE A PRETENSE. IN THE PRESENT CASE IN HAND, THE ASSESSING OFFICER RECEIVED INFORMATION FROM DIT(INV ESTIGATION) AND HE ALSO APPLIED HIS MIND TO THE MATERIAL AND INFORMATION RE CEIVED AND, THEREAFTER, HE RECORDED REASONS OF HIS SATISFACTION, THEN HE ISSUE D NOTICE U/S 148 OF THE ACT ON 19.3.2007 IN THE AY 2003-04. THE NOTICE WAS SER VED ON THE ASSESSEE COMPANY AND HIS REPRESENTATIVE FILED A LETTER ON 27 .06.2007 WITH A REQUEST ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 6 THEREIN THAT THE RETURN ORIGINALLY FILED MUST BE TR EATED TO HAVE BEEN FILED U/S 148 OF THE ACT. 7. IN VIEW OF ABOVE, WE HAVE NO REASON TO HOLD THAT TH E PROCEEDINGS U/S 147 AND 148 OF THE ACT HAVE BEEN WRONGLY INITIATED AND THESE ARE UNSUSTAINABLE IN LAW ON MERITS. ON THE OTHER HAND, WE ARE INCLINED TO HOLD THAT THE NOTICE U/S 148 WAS ISSUED BY THE ASSESSING OFFICER FOLLOWING THE LEGAL PROCEDURE WITHIN ITS JURISDICTION AND LIMITAT IONS WHICH WAS DULY SERVED ON THE ASSESSEE AND HIS REPRESENTATIVE ATTENDED THE PROCEEDINGS. ACCORDINGLY, GROUND NO. 2 OF THE APPEAL IS DISMISSE D. GROUNDS NO. 1 & 3 8. APROPOS GROUND NOS. 1 AND 3, WE HAVE HEARD R IVAL ARGUMENTS OF BOTH THE PARTIES AND CAREFULLY CONSIDERED THE SUBMISSION S AND MATERIAL BEFORE US ON RECORD. THE ASSESSEES REPRESENTATIVE SUBMITTED THAT EARLIER THE ASSESSEE COMPANY WAS BEING MANAGED BY FOUR DIRECTORS, NAMELY , MRS. SHALINEE MEHTA, MR. ATUL MEHTA, MR. SUSHEEL SWAROOP MEHTA AN D MR. VINOD SAHNI. SUBSEQUENTLY, THE COMPANY WAS TAKEN OVER BY SHRI RA JESH AGGARWAL, SHRI KAMAL KISHORE AGGARWAL AND SMT. MADHU AGGARWAL FOLL OWING THE RESIGNATION OF EARLIER DIRECTORS W.E.F. 01.07.03 FI LED BEFORE ROC AS PER FORM NO.32. THE REGISTERED OFFICE OF THE COMPANY WAS AL SO SHIFTED FROM P-70, BASEMENT, CHITTARANJAN PARK, NEW DELHI TO 443, MATH URA ROAD, JANGPURA ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 7 (BHOGAL), NEW DELHI W.E.F. 1.7.03 AS PER FORM 18 FI LED WITH ROC IN THIS REGARD. THE AR ALSO SUBMITTED THAT THE INCOME TAX RETURN FOR THE SUBSEQUENT YEAR I.E. 2004-05 WAS ALSO FILED GIVING THEREIN THE AFORESAID NEW ADDRESS. 9. THE AR FURTHER SUBMITTED THAT IN RESPONSE TO NOT ICE U/S 148 OF THE ACT, IT WAS SUBMITTED THAT THE RETURN ORIGINALLY FILED M AY BE TREATED TO HAVE BEEN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. HE ALSO SUBMITTED THAT THE NEW MANAGEMENT WAS NOT AWARE OF THE NOTICES ISSUED U/S 148, 143(2) AND 142(1) OF THE ACT BECAUSE THE OLD MANAGEMENT DID NOT INFOR M THE NEW MANAGEMENT ABOUT SUCH NOTICES. HE CONTENDED THAT THE AO INITI ATED PROCEEDINGS U/S 148 OF THE ACT MERELY ON THE BASIS OF THE LETTER RECEIV ED FROM DIT(I) WITHOUT APPLYING HIS MIND AND HE WRONGLY COMPLETED THE ASSE SSMENT U/S 144 OF THE ACT BECAUSE THERE WAS NEITHER ANY DEFAULT NOR ANY N ON-COMPLIANCE ON THE PART OF THE ASSESSEE BECAUSE THE ASSESSEES NEW MAN AGEMENT DID NOT COME TO KNOW ABOUT THE ASSESSMENT PROCEEDINGS. HE VEHEMENT LY CONTENDED THAT THE COMMISSIONER OF INCOME TAX(A) PASSED THE IMPUGNED O RDER WITHOUT CONSIDERING THE ADDITIONAL EVIDENCE SUBMITTED BY TH E ASSESSEE AND HE ALSO ERRED IN NOT ADMITTING ADDITIONAL EVIDENCE UNDER RU LE 46A OF THE ACT. THE AR SUBMITTED THAT THE AUTHORITIES BELOW PASSED THE IMPUGNED ORDERS WITHOUT CONFRONTING THE ALLEGED ADVERSE MATERIAL USED ON TH E BACK OF THE ASSESSEE. ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 8 10. LD. DR SUPPORTED THE IMPUGNED ORDER INTER ALIA THE ASSESSMENT ORDER BY SUBMITTING THAT THE NEW MANAGEMENT DID NOT INFOR M THE AUTHORITIES BELOW ABOUT NEW REGISTERED OFFICE AND NEWLY INDUCTED DIRE CTORS OF THE COMPANY DESPITE NOTICES ISSUED AND SERVED ON THE ASSESSEE C OMPANY. THE ASSESSEE DID NOT BOTHER TO SUBMIT OR TO FURNISH REQUIRED DETAILS AND DOCUMENTS. THEREFORE, THE ACTION OF THE ASSESSING OFFICER OF F INALIZING ASSESSMENT U/S 144 OF THE ACT WAS JUSTIFIED. HE FURTHER SUBMITTED THAT RULE 46A OF THE RULES DOES NOT PROVIDE ANY PERPETUAL RIGHT TO THE A SSESSEE TO SUBMIT ADDITIONAL EVIDENCE BUT IT IS SOLELY DEPENDENT ON T HE FACTS AND CIRCUMSTANCES OF THE CASE. HE ALSO SUBMITTED THAT THE ASSESSEE I S BOUND TO SHOW THE CIRCUMSTANCES IN WHICH HE WAS PREVENTED TO SUBMIT RELEVANT EVIDENCE AT THE TIME OF ASSESSMENT. LD. COMMISSIONER OF INCOME TAX (A) RIGHTLY REJECTED THE APPLICATION FOR SUBMISSION OF ADDITIONAL EVIDEN CE. 11. THE ASSESSEES REPRESENTATIVE SUBMITTED THAT DU E TO CHANGE IN MANAGEMENT AND REGISTERED OFFICE OF THE ASSESSEE CO MPANY FROM 1.7.2003, THE ASSESSEE WAS PREVENTED TO FILE RELEVANT DOCUMENTS B EFORE ASSESSING OFFICER AND THE ASSESSING OFFICER ILLEGALLY FINALIZED THE A SSESSMENT U/S 144 OF THE ACT. HE FURTHER SUBMITTED THAT BEFORE THE COMMISSIONER O F INCOME TAX(A), THE ASSESSEE FILED AN APPLICATION U/S 46A OF THE RULES WHICH WAS REJECTED WITHOUT ANY BASIS AND THE ASSESSEE WAS PREVENTED BY A SUFFI CIENT CAUSE TO FILE THESE ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 9 DOCUMENTS AND EVIDENCE BEFORE THE ASSESSING OFFICER AND UNDER THESE FACTS AND CIRCUMSTANCES, THE ASSESSEE WAS NOT ALLOWED REA SONABLE AND PROPER OPPORTUNITY OF HEARING BY THE AUTHORITIES BELOW. T HE AR SUBMITTED THAT THE CHANGE OF MANAGEMENT AND REGISTERED OFFICE OF THE C OMPANY SHOULD BE CONSIDERED AS SUFFICIENT GROUND WHICH PREVENTED THE ASSESSEE COMPANY TO SUBMIT RELEVANT EVIDENCE OF HIS FAVOUR BEFORE THE A UTHORITIES BELOW. 12. REPLYING TO THE ABOVE SUBMISSIONS, THE DR SUBMI TTED THAT THE NOTICE U/S 148 OF THE ACT DATED 19.3.2007 WAS SERVED ON TH E ADDRESS P-70 BASEMENT, CHITTARANJAN PARK, NEW DELHI AND THE ASSE SSEE ATTENDED THE PROCEEDINGS BUT LATER HE DISAPPEARED FROM THE SCENE AND ALSO SUBSEQUENT NOTICES U/S 143(2) AND 142(1) OF THE ACT WERE ALSO NOT COMPLIED. CONSEQUENTLY, THE ASSESSING OFFICER FINALIZED THE A SSESSMENT U/S 144 OF THE ACT. HE FURTHER SUBMITTED THAT IN THESE CIRCUMSTAN CES, IT CANNOT BE SAID THAT THE ASSESSEE WAS NOT GIVEN A REASONABLE AND PROPER OPPORTUNITY OF HEARING BY THE AUTHORITIES BELOW. HE SUPPORTED THE REJECTI ON OF ADDITIONAL EVIDENCE BY COMMISSIONER OF INCOME TAX(A) AND SUBMITTED THAT THE ASSESSEE WAS DUTY BOUND TO EXPLAIN THE CAUSES WHICH PREVENTED IT TO FILE ADDITIONAL EVIDENCE BEFORE THE AUTHORITIES BELOW BUT THERE WAS NO SUFFICIENT AND REASONABLE CAUSE. HENCE, THE COMMISSIONER OF INCOM E TAX(A) WAS RIGHT IN NOT ADMITTING THE ADDITIONAL EVIDENCE. ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 10 13. FROM PERUSAL OF FORM NO. 32 AVAILABLE ON PAGE 1 7 AND 18 OF THE PAPER BOOK, IT IS REVEALED THAT THE OLD DIRECTORS RESIGNE D W.E.F. 1.7.2003 AND MR. RAJESH AGGARWAL SUBMITTED FORM NO.32 BEFORE ROC IN THIS REGARD. FROM PERUSAL OF FORM NO.18 AVAILABLE ON PAGE NO. 19 OF T HE PAPER BOOK, WE ALSO OBSERVE THAT THE REGISTERED OFFICE OF THE COMPANY W AS TRANSFERRED FROM CHITTARANJAN PARK TO 443, MATHURA ROAD, JANGPURA W. E.F. 1.7.2003. THIS INFORMATION WAS ALSO SUBMITTED BEFORE ROC. 14. LEARNED DR HAS NOT DISPUTED THE FACT THAT THERE WAS A COMPLETE CHANGE IN THE MANAGEMENT OF ASSESSEE COMPANY AND IT S REGISTERED OFFICE WAS ALSO TRANSFERRED FROM CHITARANJAN PARK TO 443, MATH URA ROAD, JANGPURA W.E.F. 01.07.2003. 15. ON PERUSAL OF APPLICATION OF THE ASSESSEE COMPA NY FILED BEFORE COMMISSIONER OF INCOME TAX(A) ON 18.12.2008 UNDER R ULE 46A OF THE RULES (PAPER BOOK PAGE NO.10), IT REVEALS THAT THE ASSESSEE COMPANY SUBMITTED AS UNDER:- IT IS SUBMITTED THAT ALL THE PAPERS/DOCUMENTS PLACED AT PAGES 6 TO 37 VIDE WRITTEN SUBMISSIONS DATED 18/12/08 MAY KINDLY BE ENTERTAINED UNDER RULE 46-A OF THE I.T. RULES BECAUSE THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN FILING THE SAME BEFORE THE ASSESSING OFFICER AS THE APPELLANT WAS NOT AWARE ABOUT THE ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 11 ASSESSMENT PROCEEDINGS U/S 148 OF THE I.T.ACT AS NEITHER NOTICES U/S 148, 143(2), 142(1) OF THE I.T.ACT WERE SERVED ON THE NEW MANAGEMENT OF THE APPELLANT CO. HAD ANY KNOWLEDGE ABOUT SUCH NOTICES. MOREOVER, THE ABOVE ADDITIONAL EVIDENCE CLEARLY GOES TO THE ROOT OF THE MATTER AND THEREFORE IT IS PRAYED THAT THE SAME MAY KINDLY BE ADMITTED WHILE DECIDING THE APPEAL. 16. THE LD. COMMISSIONER OF INCOME TAX(A) CALLED A REMAND REPORT FROM THE ASSESSING OFFICER AND THE ASSESSING OFFICER NOT ED THAT SHRI RAJEEV GAWRI WHO ATTENDED THE PROCEEDINGS COULD FURNISH DE TAILS WITHOUT THE KNOWLEDGE OF EITHER OLD MANAGEMENT OR NEW MANAGEMEN T AND THE APPLICATION OF THE ASSESSEE U/S 46A WAS DISALLOWED. IN THE CASE IN HAND, WE OBSERVE THAT ADMITTEDLY, THERE WAS A SUBSTANTIAL CH ANGE IN ENTIRE MANAGEMENT OF THE COMPANY AND ALSO ITS REGISTERED O FFICE WAS SHIFTED W.E.F. 01.07.2003. IT IS ALSO ADMITTED THAT THE REPRESENT ATIVE OF THE ASSESSEE COMPANY ATTENDED THE PROCEEDINGS BEFORE THE ASSESSI NG OFFICER ONLY ON 27.06.2007 AND LATER NEITHER THE ASSESSEES COMPANY S OFFICE BEARERS NOR ITS REPRESENTATIVE ATTENDED THE PROCEEDINGS AND THE ASS ESSING OFFICER FINALIZED THE ASSESSMENT U/S 144 OF THE ACT. WE ARE UNABLE T O CONFIRM THE FINDINGS OF THE ASSESSING OFFICER THAT SHRI RAJEEV GAWRI, CA CO ULD HAVE FURNISHED DETAILS WITHOUT THE KNOWLEDGE OF EITHER OLD MANAGEM ENT OR NEW MANAGEMENT BECAUSE THE CHARTERED ACCOUNTANT OR LEGA L PRACTITIONER ALWAYS ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 12 ATTENDS THE PROCEEDINGS AND SUBMITS APPLICATION OR DOCUMENTS ON INSTRUCTION OF THE ASSESSEE AND WHEN THERE IS A SITUATION OF SU BSTANTIAL CHANGE IN MANAGEMENT OF THE COMPANY, THEN THE CHARTERED ACCOU NTANT OR LEGAL PRACTITIONER CANNOT BE EXPECTED TO TAKE A STEP ON H IS OWN. IN VIEW OF ABOVE, WE HOLD THAT THE ASSESSEE COMPANY WAS PREVENTED TO SUBMIT RELEVANT EVIDENCE IN HIS FAVOUR DUE TO SEVERAL REASONS. THE REFORE, LD. COMMISSIONER OF INCOME TAX(A) WAS NOT JUSTIFIED IN REJECTING THE ASSESSEES APPLICATION UNDER RULE 46A OF THE RULES. WE ALSO HOLD THAT UND ER THESE FACTS AND CIRCUMSTANCES, THE AUTHORITIES BELOW DID NOT AFFORD A REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGL Y, WE ALLOW GROUND NO. 1 AND 3 IN FAVOUR OF THE ASSESSEE. GROUND NO. 4,5 & 6 17. ON THE BASIS OF DISCUSSION MADE HEREINABOVE, WE ALSO HOLD THAT THE ADDITIONAL EVIDENCE UNDER RULE 46A OF THE RULES OUG HT TO HAVE BEEN CONSIDERED BY THE COMMISSIONER OF INCOME TAX(A) WHI LE DECIDING THE APPEAL OF THE ASSESSEE AND THE COMMISSIONER OF INCO ME TAX(A) ERRED IN LAW AS WELL AS ON MERITS IN NOT ADMITTING THE SAME. TH EREFORE, WE RESTORE GROUND NO. 4, 5 AND 6 TO THE FILE OF THE COMMISSIONER OF I NCOME TAX(A) WITH THE DIRECTION THAT THESE ISSUES BE DECIDED AFTER ADMITT ING ADDITIONAL EVIDENCE ITA NO. 654/DEL/2011 ASSTT.YEAR: 2003-04 13 FILED BY THE ASSESSEE COMPANY. THE ASSESSEE COMPANY IS DIRECTED TO ATTEND AND SUPPORT THE PROCEEDINGS BEFORE THE COMMISSIONER OF INCOME TAX(A). 18. IN THE RESULT, THE APPEAL OF ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28.9.2012. SD/- SD/- ( A.N. PAHUJA) (CHANDRAMOHANGARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 28TH SEPTEMBER 2012 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR