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ITA 668/BANG/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80688 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 09-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BIJOY KUMAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRI BUNAL BANGALORE BENCH A, BANGALORE BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER ITA NO.837(BANG) 2012 (ASSESSMENT YEAR : 2005-06) SHRI ANUPAM KOTHARI, NO.1-E, 2 ND PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058. APPELLANT PAN NO.AEHPK9834K VS THE ADDL. COMMISSIONER OF INCOME-TAX, RANGE-6, BANGALORE RESPONDENT ASSESSEE BY : SHRI NAGESHWAR RAO, ADVOCATE REVENUE BY : SHRI BIJOY KUMAR PANDA, ADDL.CIT DATE OF HEARING : 01-09-2014 DATE OF PRONOUNCEM ENT : 05-09-2014 ORDER ON ADMISSION OF ADDITIONAL EVIDENCE PER SHRI ABRAHAM P GEORGE, AM: WHEN THE CASE WAS TAKEN UP FOR HEARING TODAY, LEA RNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE WAS PRESSING FOR AD MISSION OF ADDITIONAL EVIDENCE UNDER RULE-29 OF THE IT AT RULES, 1963. 2. IN SUPPORT OF ADMISSION OF THE EVIDENCE LEARNED COUNSEL SUBMITTED THAT AO HAD ESTIMATED NET PROFIT AT 12% WHICH WAS R EDUCED TO 8% BY THE LEARNED CIT(A). AS PER THE LEARNED AR, AO HIMSEL F HAD IN THE ASSESSMENT ORDER CONSIDERED THE GROSS PROFIT AND NET PROFIT RA TES FOR AY: 2002-03 TO ITA NO.837(BANG)2012 2 2004-05 WHILE ESTIMATING THE PROFIT FOR THE IMPUGNE D AY AT 12% OF THE TURNOVER. LEARNED AR SUBMITTED THAT THE BUSINESS O F THE ASSESSEE HAD CHANGED AFTER AY: 2002-03 AND THIS WAS THE REASON F OR DISPARITY IN THE RATES. IT WAS THE SUBMISSION OF THE LEARNED AR THAT THE NATURE OF THE BUSINESS OF THE ASSESSEE WOULD BE CLEAR FROM THE TA X AUDIT REPORT OF AY: 2002-203 WHEN READ ALONG WITH TAX AUDIT REPORTS OF AY: 2003-04 AND 2004- 05. ACCORDING TO THE LEARNED AR SUCH TAX AUDIT RE PORT WHICH AS BEING FILED AS ADDITIONAL EVIDENCE WAS ESSENTIAL FOR THE PROPER ADJUDICATION OF THE CASE. AGAIN AS PER LEARNED AR, AO HAD NEVER GIVEN A CHANC E TO PRESENT THE ABOVE DOCUMENTS FOR PROVING THAT THE BUSINESS ACTIVITIES WERE NOT SIMILAR, AND WOULD NOT ADMIT A READY COMPARISON. ON A QUESTION BY THE BENCH, AS TO WHY SUCH RECORDS COULD NOT BE PRODUCED BEFORE THE L EARNED CIT(A), LEARNED COUNSEL FAIRLY ADMITTED THAT NO PROPER REASON COULD BE SHOWN BY HIM. 3. PER CONTRA, LEARNED AR STRONGLY ASSAILING ADMISS ION OF THE ADDITIONAL EVIDENCE SUBMITTED THAT CONDITIONS SPECI FIED IN RULE -29 WAS NOT SATISFIED. ACCORDING TO HIM, THE ADDITIONAL EVIDE NCE COULD NOT BE ADMITTED. 4. WE HAVE SEEN THE ADDITIONAL EVIDENCE AND ALSO HE ARD THE RIVAL CONTENTIONS IN THIS REGARD. ASSESSEES APPEAL IS A GAINST THE REJECTION OF ITS BOOKS AND CONSIDERING THE PROFIT RATE AT 8% OF ITS TURNOVER. AS PER THE ASSESSEE, THE TAX AUDIT REPORT FOR THE EARLIER YEAR S WOULD SHOW THE CHANGE IN LINE OF ITS BUSINESS. THE CONTENTION IS THAT S UCH CHANGE HAS A MATERIAL EFFECT ON THE POSSIBLE PROFITS. A LOOK AT RULE -2 9 OF (IT)AT RULES, 1963 IS NECESSARY AND THIS IS REPRODUCED HEREUNDER; ITA NO.837(BANG)2012 3 29. THE PARTIES TO THE APPEAL SHALL NOT BE ENTI TLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMEN TARY BEFORE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES A NY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMIN ED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS O RDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR IF, THE INCOME TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE EV IDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL FOR REASONS TO BE RECORDED, MAY ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. IN OUR OPINION, THE ASSESSEE HAS NOT BEEN ABLE TO SHOW WHY IT COULD NOT PRODUCE THE TAX AUDIT REPORT FOR THE EARLIER YE ARS BEFORE THE LEARNED CIT(A) AT LEAST. CIT(A) HAD GIVEN SUFFICIENT OPPOR TUNITY TO THE ASSESSEE FOR SUBSTANTIATING ITS CONTENTIONS. NOWHERE, IT HAD RA ISED A CONTENTION THAT THE LINE OF BUSINESS HAD CHANGED OR EXPANDED. CIT( A) HAD ALSO SOUGHT AND OBTAINED REMAND REPORT FROM THE AO. THERE IS NOTHI NG ON RECORD TO SHOW WHY ASSESSEE COULD NOT BRING OUT ITS STAND BEFORE T HE AO, EVEN DURING THE REMAND PROCEEDINGS. FOR ADMISSION OF ADDITIONAL EVIDENCE, IT IS REQUIRED FOR THE ASSESSEE TO SHOW THAT AUTHORITIES HAD DECID ED ITS GROUNDS WITHOUT GIVING SUFFICIENT OPPORTUNITY TO ADDUCE EVIDENCE. THIS IS NOT A CASE WHERE THE TRIBUNAL HAD REQUIRED PRODUCTION OF ANY DOCUMEN TS. THEREFORE, WE ARE OF THE OPINION, THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW WHY AND HOW ITA NO.837(BANG)2012 4 RULE-29 CAN BE APPLIED. WE ARE NOT THEREFORE, INC LINED TO ADMIT ADDITIONAL EVIDENCE FILED. THE ADDITIONAL EVIDENCE FILED IS T HEREFORE, REJECTED AND THE APPEAL IS POSTED FOR HEARING ON 07-10-2014. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 05-09-2014 . SD/- (RAJPAL YADAV) SD/- (ABRAHAM P GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE: D A T E D : 05-09-2014 AM* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER AR, ITAT, BANGALORE