RAJARAM B.BORANA, MUMBAI V. ITO WD 25(3(3), MUMBAI

ITA 6564/MUM/2010

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0847 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S M BANDIAR
• Keywords: Unexplained cash credit; Income from undisclosed sources; Additional evidence
• Section: 143(3); 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6564/MUM/2010 ASSESSMENT YEAR: 2007-08 MR. RAJARAM B BORANA VS. ITO WD 25(3)(3) BHABREKAR NAGAR, PREM CHAWL, B.K. COMPLEX, CHARKOP, KANDIVALI (WEST) BANDRA MUMBAI 400 067 MUMBAI AIAPB5217A (APPELLANT) (RESPONDENT) ASSESSEE BY : MR. S.M. BANDI,AR REVENUE BY: MR. PURUSHOTTAM KUMAR,DR DATE OF HEARING : 30/0 1/2017 DATE OF PRONOUNCEMENT: 19/04/2017 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVA NT ASSESSMENT YEAR IS 2007-08. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER (APPEALS) 35, MUMBAI AND ARISES OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT). 2. THE GROUND OF APPEAL FILED BY THE ASSESSEE READS AS UNDER:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) 3 5 ERRED IN LAW AND IN FACTS IN PASSING THE ORDER U/S 250 OF TH E ACT, WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) FUR THER ERRED IN CONFIRMING THE ADDITIONS OF RS. 15,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH CR EDIT U/S 68 OF THE INCOME TAX ACT, 1961. ITA NO. 6564/MUM/2010 2 3. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.Y . 2007-08 DECLARING TOTAL INCOME OF RS. 97,430/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) FOUND FROM THE AIR INFORMATION THAT THE ASSESSEE HAS MADE CASH DEP OSITS ON VARIOUS DATES TO THE TUNE OF RS. 15,40,500/- IN HIS SAVINGS BANK ACCOUNT WITH THE BHARAT CO-OPERATIVE BANK (MUMBAI) LTD., MUMBAI. AS PER PAGE 3- 4 OF THE ASSESSMENT ORDER, THE AO HAD GIVEN THE ASS ESSEE THE FOLLOWING OPPORTUNITIES TO EXPLAIN HIS CASE: (I) ORDER SHEET NOTING OF THIS OFFICE D ATED 24.08.2009. (II) ORDER SHEET NOTING OF THIS OFFICE DATED 31.08.2009. (III) ASSESSEES CASE RE-FIXED FOR HEARING TO 23.09.2009 CONSIDERING THE REQUEST FOR ADJOURNMENT MADE BY HIS AR VIDE THEIR L ETTER DATED 15.09.2009. (IV) THIS OFFICE LETTER / NOTICE U/S 142(1) OF THE I.T. ACT 1961, DATED 03.11.2009. (V) VIDE THIS OFFICE ORDER SHEET NOTING DATED 12.11.200 9 (VI) THIS OFFICE SHOW CAUSE LETTER / NOTICE U/S 142(1) O F THE I.T. ACT 1961 DATED 17.11.2009. AS THE ASSESSEE FAILED TO FURNISH ANY KIND OF EXPLA NATION WITH REGARD TO THE ABOVE CASH DEPOSITS, EVEN THOUGH HE W AS GIVEN SIX OPPORTUNITIES TO EXPLAIN, THE AO CONCLUDED THAT THE CASH DEPOSITS MADE BY THE ASSESSEE IN HIS BANK ACCOUNT WITH BHARA T CO-OPERATIVE BANK LTD. TO THE TUNE OF RS. 15,40,500/- ARE NOTHIN G BUT HIS INCOME FROM UNDISCLOSED SOURCES. THEREFORE, THE AO MADE AN ADDITION OF RS. 15,40,500/- AS UNEXPLAINED CASH CREDIT U/S 68 OF TH E ACT. 4. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A). WE FIND THAT THE LEARNED CIT(A) IN HIS APPELLATE ORDER DATED 20 TH JULY, 2010 HELD AS UNDER: ITA NO. 6564/MUM/2010 3 3. CASH DEPOSITS RS. 15,40,500/- 3.1 THE A.O. NOTICED THAT THE APPELLANT MADE CASH D EPOSITS ON VARIOUS DATES TO THE EXTENT OF RS. 15,40,500/- IN HIS SAVIN GS BANK ACCOUNT WITH BHARAT CO-OPERATIVE BANK LTD. THE APPELLANT COULD N OT EXPLAIN SOURCE OF CASH DEPOSITS EVEN THOUGH HE WAS GRANTED ADEQUATE O PPORTUNITIES. THE A.O. TREATED THE SAME AS UNEXPLAINED CREDIT U/S 68 OF THE I.T. ACT, 1961. 3.2 AT THE TIME OF HEARING THE REPRESENTATIVE DID N OT PRESS THIS ISSUE AND SIGNED IN THE ORDER SHEET TO THIS EFFECT. ACCORDING LY, THIS GROUND IS TREATED AS WITHDRAWN AND DISMISSED. 5. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE FILE D A PAPER BOOK CONTAINING (I) FACTS OF CASE AND WRITTEN SUBMISSIO N (II) COMPUTATION OF TOTAL INCOME ALONG WITH FINAL ACCOUNTS STATEMENT (III) COPY OF BANK STATEMENT REFLECTING THE AMOUNT PAID & RECEIVED FRO M BROKER (IV) LETTER DATED 22 ND JANUARY, 2015 FILED WITH THE HON'BLE ITAT REQUESTING FOR ADMITTING THE ADDITIONAL EVIDENCE UN DER RULE 29 OF THE I.T. RULES SUBMITTING AFFIDAVITS FROM THE FARMERS F ROM WHOM THE LOANS IN CASH HAVE BEEN TAKEN INCLUDING THE ENGLISH TRANS LATION OF THE SAME. IT IS STATED THAT THE TRUE COPIES OF THE ORIGINALS WERE FILED BEFORE THE AO AS WELL AS CIT(A), EXCEPT FOR PAPERS STATED AT SL. NO. 4. 5.1 THE LEARNED COUNSEL OF THE ASSESSEE HAS FILED AN AP PLICATION UNDER RULE 29 OF THE ITAT RULES 1963 STATING THAT N EW EVIDENCES COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORITIES FOR THE REASON THAT THE SAME WERE NOT IN EXISTENCE AT THE TIME WHE N THE IMPUGNED ASSESSMENT AS WELL AS THE CIT(A)S ORDER WAS PASSED . IT IS STATED THAT THESE EVIDENCES ARE INTRICATELY CONNECTED AND RELEV ANT TO THE APPEAL TO BE HEARD BY THE TRIBUNAL AND THEREFORE REQUESTED THAT THE SAME BE PERMITTED TO BE ADDUCED DURING THE COURSE OF HEARIN G PROCEEDINGS UNDER RULE 29 OF THE ITAT RULES 1963. ALONG WITH IT THE ASSESSEE HAS ITA NO. 6564/MUM/2010 4 FILED AFFIDAVITS FROM 20 PERSONS. ALL THE AFFIDAVIT S ARE WORDED IN THE SAME LANGUAGE. ONE IS PRODUCED BELOW FOR REFERENCE: AFFIDAVIT I AM MOGARAM SON OF BHABUTARAMJI DEVASI, RESIDENT OF RAMANIYA, TAHSHIL- SIWANA, BARMER DISTRICT, (RAJASTHAN) BY TAKING AN OATH I STATE THAT: I. THIS IS THAT I AM A FARMER MY REVENUE IS 53,000/- P ER YEAR. THIS IS MY FARMS REVENUE AND I HAVE NO BANK ACCOUNTS. I HAVE NOT DISCLOSED MY REVENUE ANY WHERE NOR I HAVE HIDDEN IT. II. THAT IS THAT I HAVE GIVEN RS. 92,000/- TO SHRI RAJA RAM BORANA. AS RAJARAM BORANA BELONGS TO MY VILLAGE, I HAVE GIVEN THE MONEY OF RS. 92,000/- TO HIM. III. THIS IS THAT I HAD GIVEN THE ADVANCE MONEY OF RS. 9 2,000/- DATED 01.03.2007 TO SHRI RAJARAM BORANA, FOR INVESTING IN THE SHARE MARKET. RAJARAM BORANA TOLD ME THAT HE WILL DOUBLE THE MONE Y THAT IS HE WILL GIVE ME APPROXIMATELY RS. 1,84,000/-. BUT RAJARAM B ORANA SUFFERED A HEAVY LOSS IN THE SHARE MARKET. HE DID NOT RETURN T HE MONEY TO ME. HE HAS MADE ME SUFFER A LOSS OF RS. 92,000/-. IV. THIS IS THAT I REQUEST SHRI RAJARAM BORANA TO RETUR N MY FULL AMOUNT OF RS. 92,000/- AT THE EARLIEST. DATE:- NOTE: I MOGARAM SON OF BHABUTARAMJI DEVASI DO HEREB Y DECLARE THAT ABOVE AFFIDAVIT IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. GOD HELP ME. CLOSING DATE: 5.2 THE LEARNED COUNSEL OF THE ASSESSEE RELIED ON THE D ECISION IN NIRMALA L. MEHTA VS. A BALASUBRAMANIAM (2004) 269 ITR 1 (BOM); STEELFAB ENGINEERING CORPN. (INDIA) VS. ACIT (ITA NO. 494/MUM/2006) ( ITAT E BENCH, MUMBAI); ANS LAW ASSOCIATES VS. ACIT (ITA NO. 5181/M/2012)(ITAT A BENCH, MUMBAI); DCIT VS. RELIANCE BROADCAST NETWORK LTD . (ITA NO. 3531/M/2013) (ITAT D ITA NO. 6564/MUM/2010 5 BENCH, MUMBAI); KRONER INVESTMENTS LTD. VS. DCIT (ITA NO. 5125/M/2013) (ITAT A BENCH, MUMBAI) AND ARATI RAMAN VS. DCIT (ITA NO. 245/BANG/2012) (ITAT C BENCH, BANGALORE) . 6. ON THE OTHER HAND, THE LEARNED DR RELIED ON THE ORD ER OF THE LEARNED CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE BEGIN WITH THE DECISIONS REL IED ON BY THE LEARNED COUNSEL OF THE ASSESSEE. IN THE CASE OF NIRMALA L. MEHTA (SUPRA) , IT HAS BEEN HELD THAT (I) MERELY BECAUSE THE ASSESSEE OFFERED THE PRIZE MONEY WON IN THE LOTTERY OF THE SIKKIM GOVERNMENT TO TAX UNDER THE I NCOME-TAX ACT 1961, THAT WOULD NOT TAKE AWAY HER RIGHT TO CONTEND THAT THE PRIZE MONEY WAS NOT CHARGEABLE AND ASSESSABLE TO TAX UNDE R THE INCOME- TAX ACT IN THE REVISIONAL JURISDICTION AND (II) THA T THE PRIZE MONEY WON BY THE ASSESSEE FROM THE LOTTERY OF THE GOVERNMENT OF SIKKIM COULD HAVE BEEN CHARGED TO TAX ONLY IN ACCORDANCE WITH TH E THEN EXISTING INCOME-TAX LAWS IN THE STATE OF SIKKIM AND COULD NO T BE CHARGED TO TAX UNDER THE INCOME-TAX ACT, 1961. IN STEELFAB ENGINEERING CORPN. (INDIA) (SUPRA) , THE FOLLOWING HAS BEEN HELD: 27. IT IS QUITE A SETTLED PROPOSITION THAT ANY CLAIM FOR DEDUCTION UNDER INCOME TAX ACT ARE DEPENDENT UPON THE CONDITIONS LAID DOWN UNDER THE PROVISIONS OF THE ACT AND THERE ARE REQUISITE FORMALITIES WHICH ARE REQUIRED TO B E DONE AS PER THE LAW. ONCE THESE CONDITIONS ARE FULFILLED, THE ASSES SEE IS ENTITLED FOR STATUTORY DEDUCTION OR CLAIM TO WHICH HE IS E NTITLED TO. MERE CONSENT OR ACQUIESCENCE BY THE ASSESSEE CANNOT TAKE AWAY THE ITA NO. 6564/MUM/2010 6 OTHERWISE A LEGITIMATE CLAIM TO WHICH HE IS ENTI TLED TO. IT IS AN ADMITTED POSITION OF LAW THAT AN ADMISSION OR ACQUIESCENCE CANNOT BE A FOUNDATION FOR ASSESSMENT WHERE THE INCOM E IS RETURNED UNDER ERRONEOUS IMPRESSION OR MISCONCEPTION OF LAW. IT IS OTHERWISE OPEN TO THE ASSESSEE TO DEMONSTRATE AND SATISFY TH E AUTHORITIES CONCERNED THAT HIS PARTICULAR INCOME WAS NOT TAXABLE OR CLAIM FOR DEDUCTION IS OTHERWISE LAWFULLY ALLOWABLE TO HIM. THE DECIS ION OF MUMBAI BENCH IN THE CASE OF SHANKAR R. MHATRE, REPORTED IN 117 ITD 241 (MUM.), WHEREIN THE RATIO AND PRINCIPLE LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF NIRMALA L. MEHTA VS. CIT, REPORTED IN 269 ITR (I) (BOM.), WAS REFERRED AND RELIED UPON CLEARLY CLINCHES THE ISSUE THAT ACQUIESCENCE CANNOT TAKE AWAY FROM AN ASSESSEE, THE RELIEF WHICH HE IS ENTITLED TO WHEN THE TAX IS LEVIED OR CALCULATED WITHOUT AUTHORITY OF LAW. IF IN LAW, AN ITE M IS NOT TAXABLE, NO AMOUNT OF ADMISSION CAN BE MADE TAXABLE. IN VIEW OF THE SAID PRINCIPLE, WE HOLD THAT EVEN THOUGH THE ASSES SEE HAS SURRENDERED ITS CLAIM BEFORE THE ASSESSING OFFICER, THE S AME CAN BE CHALLENGED ON MERITS IF IT HAS A STRONG CASE FOR SUCH A CLAIM BASED ON FACTS AND MATERIAL ON RECORD AND CONDITIONS RELEVANT FOR CLAIMING SUCH DEDUCTION STANDS FULFILLED. IN ANS LAW ASSOCIATES (SUPRA) , REPRESENTATIVES OF BOTH THE PARTIES AGREED BEFORE THE TRIBUNAL THAT THE ISSUE O F ADDITION OF RS. 4,49,440/- ON ACCOUNT OF AIR INFORMATION BE RESTORE D TO THE FILE OF THE AO FOR CONSIDERATION AFRESH. ACCORDINGLY, THE TRIBU NAL RESTORED THAT ISSUE TO THE FILE OF AO TO CONSIDER THE REPLY OF TH E ASSESSEE AS WELL AS CONFIRMATION FROM ALLIED DIGITAL SERVICES LTD. VIS-A-VIS THE AIR INFORMATION AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IN RELIANCE BROADCAST NETWORK LTD. (SUPRA) , THE REVENUE WAS IN APPEAL BEFORE THE TRIBUNAL STATING THAT THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF RS. 16.61 CRORES U/S 40(A)(IA) OF THE ACT WITHOUT A PPRECIATING THE FACT THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE MANDAT ORY AND REVERSALS OF THE PROVISIONS MADE IN SUBSEQUENT YEAR IS IMMATE RIAL FOR INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. ITA NO. 6564/MUM/2010 7 IN KRONER INVESTMENTS LTD. (SUPRA) , THE ADDITION HAS BEEN MADE SOLELY ON THE BASIS OF AIR INFORMATION. AS THE LEAR NED REPRESENTATIVES OF BOTH THE PARTIES AGREED BEFORE THE TRIBUNAL THAT THE ISSUE BE RESTORED TO THE FILE OF THE AO FOR CONSIDERATION AF RESH, THE TRIBUNAL RESTORED THAT ISSUE TO THE FILE OF AO TO CONSIDER T HE REPLY OF THE ASSESSEE AS WELL AS CONFIRMATION FROM ALLIED DIGITA L SERVICES LTD. VIS- A-VIS THE AIR INFORMATION AND DECIDE THE ISSUE IN A CCORDANCE WITH LAW. IN ARATI RAMAN (SUPRA) , THE ISSUE RELATED TO THE ADDITION OF RS. 21,00,000/- MADE BY THE AO TO THE INCOME OF THE ASS ESSEE AS PER THE INFORMATION CONTAINED IN AIR. THE TRIBUNAL HELD : ON 13.09.2012, THE SEBI HAS ISSUED A CIRCULAR IN W HICH IT HAS CARVED OUT AN EXCEPTION TO THE ABOVE RULE BY PERMITTING CASH T RANSACTIONS IN MUTUAL FUND PER FINANCIAL YEAR AT RS. 20,000/-. THE ABOVE BEING THE APPLICABLE REGULATION, THERE IS EVERY REASON TO DOUBT THE VERA CITY OF THE AIR, BASED ON WHICH THE REVENUE AUTHORITIES HAVE MADE THE IMPUGNE D ADDITION. IN LIGHT OF THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THA T THE IMPUGNED ADDITION MADE BY THE AO AND SUSTAINED BY THE CIT(A) DESERVES TO BE DELETED. THERE IS NO MATERIAL TO SHOW THAT THE ASSESSEE MADE INVES TMENTS, IN SUCH CIRCUMSTANCES THE QUESTION OF OFFERING A SATISFACTO RY EXPLANATION BY THE ASSESSEE DOES NOT ARISE FOR CONSIDERATION. THE REVE NUE AUTHORITIES HAVE PROCEEDED ON A WRONG PREMISE IN MAKING THE IMPUGNED ADDITION. WE THEREFORE, DIRECT THE ADDITION SUSTAINED BY THE LD. CIT(A) BE DELETED. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 7.1 IN PADMASUNDRA RAO VS. STATE OF TN 255 ITR 147 (SC), IT HAS BEEN HELD THAT RELIANCE SHOULD NOT BE PLACED ON A DECISI ON WITHOUT DISCUSSING HOW THE FACTUAL SITUATION FITS IN WITH T HE FACTUAL SITUATION ITA NO. 6564/MUM/2010 8 OF THE DECISION ON WHICH RELIANCE IS PLACED. ALSO I T WAS HELD IN THE ABOVE DECISION THAT CIRCUMSTANTIAL FLEXIBILITY, E.G . ONE ADDITIONAL OR DIFFERENT FACT, MAY MAKE A WORLD OF DIFFERENCE BETW EEN CONCLUSIONS IN TWO CASES. 7.2 AS STATED HERE-IN-ABOVE, THE ASSESSEE FAILED TO FIL E ANY EXPLANATION BEFORE THE AO EVEN THOUGH SIX OPPORTUNI TIES WERE GIVEN TO HIM. THE AFFIDAVITS WHICH HAVE BEEN FILED BEFORE THE TRIBUNAL WITH A REQUEST TO ADMIT THEM AS ADDITIONAL EVIDENCE COUL D HAVE BEEN FILED BY THE ASSESSEE BEFORE THE AO OR THE LEARNED CIT(A) . SEQUENCE OF EVENTS MAY BE NARRATED BELOW: (I) THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE A.Y . 2007- 08 ON 28.03.2008 DECLARING TOTAL INCOME AT RS. 97,4 30/-. THE AO ISSUED NOTICE U/S 143(2) OF THE ACT DATED 23.09.2008 AND SERVED IT ON THE ASSESSEE. THE AO GA VE SIX OPPORTUNITIES TO THE ASSESSEE TO FILE EXPLANATION, IF ANY. THE FIRST OPPORTUNITY WAS ON 24.08.2009. THE LAST OPPORTUNITY WAS ON 17.11.2009. THE AO COMPLETED THE ASSESSMENT U/S 143(3) ON 18.12.2009. (II) THE LEARNED CIT(A) PASSED THE APPELLATE ORDER ON 20.07.2010 AND DISMISSED THE APPEAL FILED BY THE ASSESSEE AS THE AR OF THE ASSESSEE DID NOT PRESS TH E GROUND IN RESPECT OF CASH DEPOSITS OF RS. 15,40,500 /- AND SIGNED IN THE ORDER SHEET TO THAT EFFECT. (III) THE ASSESSEE HAS FILED AFFIDAVITS BEFORE THE TRIBUN AL ON 22.01.2015. WE FIND THAT FOUR AFFIDAVITS ARE DATED 30.10.2007. THIS WAS BROUGHT TO THE ATTENTION OF TH E LEARNED COUNSEL DURING THE COURSE OF HEARING BEFORE US. ITA NO. 6564/MUM/2010 9 7.3 A PERUSAL OF THE ASSESSMENT ORDER PASSED BY THE AO AND THE APPELLATE ORDER BY THE LEARNED CIT(A) INDICATES THA T NOTHING PREVENTED THE ASSESSEE TO FILE THE SAID AFFIDAVITS BEFORE THEM. ON PURE FACTS, THE CASE OF THE ASSESSEE IS DISTINGUISHABLE FROM THE CASE LAWS RELIED ON BY THE LEARNED COUNSEL. 7.4 TO RECAPITULATE THE FACTS, THE LEARNED COUNSEL OF T HE ASSESSEE HAS STATED THAT THE AFFIDAVITS FROM THE FARMERS FRO M WHOM LOANS IN CASH HAVE BEEN TAKEN BE ADMITTED AS ADDITIONAL EVID ENCE. NOW THE QUESTION ARISES WHAT PREVENTED THE ASSESSEE TO FILE THE SAID AFFIDAVITS BEFORE THE AO WHO GAVE HIM SIX OPPORTUNITIES AS DEL INEATED HERE-IN- ABOVE AT PARA 3 TO EXPLAIN HIS CASE. WE FIND THAT F OUR AFFIDAVITS ARE DATED 30.10.2007. THE ASSESSEE COULD HAVE FILED THO SE AFFIDAVITS BEFORE THE AO DURING THE COURSE OF ANY ONE OF THE O PPORTUNITIES AFFORDED BY HIM. HE FAILED TO FILE THE SAME BEFORE THE AO. ALSO THE ASSESSEE DID NOT PRESS THE ISSUE OF CASH DEPOSITS O F RS. 15,40,500/- BEFORE THE LEARNED CIT(A) AND SIGNED IN THE ORDER S HEET TO THIS EFFECT. ACCORDINGLY, THE LEARNED CIT(A) TREATED THE APPEAL AS WITHDRAWN AND DISMISSED THE SAME. 8 THE MERE FACT THAT THE EVIDENCE SOUGHT TO BE PRODU CED IS VITAL AND IMPORTANT DOES NOT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE ESPECIALLY WHEN TH E EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND WAS NOT PRODUCED BY HIM IT HAS BEEN HELD SO IN VELJI DEORAJ & CO. VS. CIT (1968) 68 ITR 708, 713-14 (BOM); KESHAV MILLS LTD. VS. CIT (1965) 56 ITR 365,381 (SC); SWASTIK OIL MILLS LTD. VS. H.B. MUNSHI (1968) 21 STC 383 (SC) AND STATE OF ANDHRA PRADESH VS. HYDERABAD ASBESTOS CEMENT PRO DUCTION LTD . (1994) 94 STC 410, 417-18 (SC) . THE ASSESSEES WHO ARE GUILTY OF ITA NO. 6564/MUM/2010 10 REMISSNESS AND GROSS NEGLIGENCE ARE NOT ENTITLED TO INDULGENCE BEING SHOWN TO ADDUCE ADDITIONAL EVIDENCE IN SECOND APPEA L. 9 IN VIEW OF THE ABOVE REASONS, THE APPEAL IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/04/2017 SD/- SD/- (SAKTIJIT DEY) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBE R MUMBAI: DATED: 19/04/2017 BISWAJIT, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI