The ACIT,(OSD)-I, Circle-4, Ahmedabad V. Shri Pratapbhai Nagindas Sanghvi, Ahmedabad

ITA 671/AHD/2013

• Counselvise Citation: 67120514 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R
• Assessee Lawyers: U S BHATI
• Keywords: Additional evidence
• Section: 68; 54

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER ./ ././ ./ ITA NO. 458/AHD/2013 / ASSESSMENT YEAR: 2008-09 PRATAPBHAI NAGINDAS SANGHVI M.P. HOUSE, NR. KRUPA PETROL PUMP, ELLISBRIDGE, AHMEDABAD PAN : AIOPS 3839 F V/S. ACIT (OSD)-I, RANGE-4 AHMEDABAD ./ ././ ./ ITA NO. 671/AHD/2013 / ASSESSMENT YEAR: 2008-09 ACIT (OSD)-I, RANGE-4 AHMEDABAD V/S. PRATAPBHAI NAGINDAS SANGHVI AHMEDABAD PAN : AIOPS 3839 F / // / (APPELLANT) !' !' !' !' / // / (RESPONDENT) ASSESSEE(S) BY : SHRI U.S. BHATI, AR REVENUE BY : SHRI DINESH SINGH, SR. DR. #$ % &'(/ // / DATE OF HEARING : 10/06/2015 )* % &'( / // / DATE OF PRONOUNCEMENT: 12/06/2015 +, +, +, +,/ // / O R D E R PER G.D. AGRAWAL, VICE PRESIDENT: THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-XXI, AHMEDABAD DATED 26.12.2012 FOR ASSESSMENT YEAR 2008 -09. 2. IN THE REVENUES APPEAL FOLLOWING GROUNDS ARE RA ISED WHILE IN THE ASSESSEES APPEAL THE GROUNDS RAISED ARE AS UNDER:- ASSESSEES APPEAL (ITA NO. 458/AHD/2013) 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN RESTRICTING EXEMPTION U/S 54 OF THE INCOME TAX ACT,1961 TO ITA NOS. 458 & 671/AHD/2013 PRATAPBHAI NAGINDAS SANGHVI-CROSS FOR AY 2008-09 2 RS.30,000/- AS AGAINST RS.18,71,000/- INCURRED IN C ONNECTION WITH PURCHASE OF A NEW FLAT ON THE BASIS THAT PAYMENTS W ERE NOT MADE WITHIN ONE YEAR BEFORE THE DATE OF TRANSFER OF FLAT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN LAW AND ON FACTS IN DISALLOWING EXEMPTION U/S 54 OF THE INCOME TAX ACT, 1961 IN RESPECT OF SUM OF RS.14,54,290/- INCURRED IN CONNEC TION WITH COST OF IMPROVEMENT OF FLAT. 3. THE APPELLANT MAY BE ALLOWED TO ADD, AMEND, ALTER O R RAISE ADDITIONAL GROUNDS OF APPEAL. REVENUES APPEAL (ITA NO. 671/AHD/2013) 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION MADE BY THE A.O. U/S 54 OF RS.31,61,050/- ON THE BA SIS OF ADDITIONAL EVIDENCES WITHOUT APPRECIATING THE FACT THAT THE AD DITIONAL EVIDENCES ADMITTED BY HIM DID NOT SATISFY THE CONDITIONS LAID DOWN UNDER RULE 46A OF THE I.T. RULES, 1962. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION MADE BY THE A.O. U/S 68 OF RS.56,23,312/- ON THE BA SIS OF ADDITIONAL EVIDENCES WITHOUT APPRECIATING THE FACT THAT THE AD DITIONAL EVIDENCES ADMITTED BY HIM DID NOT SATISFY THE CONDITIONS LAID DOWN UNDER RULE 46A OF THE I.T. RULES, 1962. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED T O THE ABOVE EXTENT. 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE LD. CIT(A) WRO NGLY ADMITTED THE ADDITIONAL EVIDENCES, BECAUSE THE CONDITIONS PRESCR IBED UNDER RULE 46A WERE NOT SATISFIED. HE SUBMITTED THAT THE ASSESSING OFFICER COMPLETED THE ASSESSMENT AFTER ALLOWING ADEQUATE OPPORTUNITY OF B EING HEARD TO THE ITA NOS. 458 & 671/AHD/2013 PRATAPBHAI NAGINDAS SANGHVI-CROSS FOR AY 2008-09 3 ASSESSEE. THE ASSESSEE DID NOT TURN UP DESPITE OF N UMBER OF OPPORTUNITIES. THAT IN THE REMAND PROCEEDINGS, THE ASSESSING OFFIC ER OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCES BUT THE CIT(A ), WITHOUT CONSIDERING THE OBJECTION OF THE ASSESSING OFFICER AND EVEN WIT HOUT RECORDING ANY FINDING THAT WHY HE IS ADMITTING THE ADDITIONAL EVI DENCES, CONSIDERED THE ADDITIONAL EVIDENCES AND ALLOWED THE RELIEF TO THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE CIT(A) SHOULD BE RE VERSED AND THAT OF ASSESSING OFFICER MAY BE RESTORED. 4. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STATED THAT BEFORE THE CIT(A) THE ASSESSEES CHARTERED ACCOUNTANT, SHR I SUNIL CHALISHAZAR FURNISHED AN AFFIDAVIT IN WHICH HE EXPLAINED THAT H E APPEARED IN RESPONSE TO ALMOST EVERY NOTICE ISSUED BY THE ASSESSING OFFICER AND WHENEVER HE ATTENDED THE PROCEEDINGS, THE ASSESSING OFFICER WAS BUSY AND SHE TOLD THAT SHE WOULD CALL THE ASSESSEES COUNSEL LATER ON. HE , THEREFORE, SUBMITTED THAT THERE WERE ADEQUATE REASONS FOR ADMISSION OF ADDITI ONAL EVIDENCES UNDER RULE 46A. THAT THE CIT(A) DULY FORWARDED THE ADDIT IONAL EVIDENCES TO THE ASSESSING OFFICER AND CALLED FOR THE REMAND REPORT. THE CIT(A) PASSED THE ORDER, AFTER CONSIDERING ASSESSEES SUBMISSIONS AS WELL AS REMAND REPORT OF THE ASSESSING OFFICER. WHILE PASSING THE ORDER, TH E CIT(A) DID CONSIDER THE ADDITIONAL EVIDENCES. THEREFORE, IT IS IMPLIED THA T HE ADMITTED THE ADDITIONAL EVIDENCES, EVEN THOUGH NO FORMAL ORDER O F ADMISSION OF ADDITIONAL EVIDENCES IS PASSED BY THE CIT(A). HE F URTHER SUBMITTED THAT THE CIT(A) RIGHTLY CONSIDERED THE ADDITIONAL EVIDENCES AND STATED THAT THE ADDITION SUSTAINED BY THE CIT(A) SHOULD HAVE BEEN A LSO DELETED. HE, THEREFORE, REQUESTED THAT THE REVENUES APPEAL SHOU LD BE DISMISSED AND THE ASSESSEES APPEAL SHOULD BE ALLOWED. ITA NOS. 458 & 671/AHD/2013 PRATAPBHAI NAGINDAS SANGHVI-CROSS FOR AY 2008-09 4 5. IN THE ALTERNATE, THE LD. COUNSEL FOR THE ASSESS EE SUGGESTED THAT THE MATTER MAY BE SENT BACK TO THE FILE OF THE CIT(A) F OR PASSING A SPECIFIC ORDER ON THE ADMISSION OF ADDITIONAL EVIDENCES. IN THE R EJOINDER, IT IS SUBMITTED BY THE LD. DEPARTMENTAL REPRESENTATIVE THAT IF AT A LL THE MATTER IS TO BE SET ASIDE, THEN IT WOULD BE IN THE INTEREST OF JUSTICE TO SET ASIDE THE SAME TO THE FILE OF THE ASSESSING OFFICER SO THAT HE MAY GET AN OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCES PROPERLY. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. RULE 46A RE ADS AS UNDER:- 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, T HE COMMISSIONER (APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER TH AN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE [AS SESSING OFFICER], EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : (A) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE W HICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON TO PRODUCE BY THE [ASSESSING OFFICER] ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE [ASSESSING OFFICER] ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL ; OR (D) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDER APPEALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELL ANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, T HE COMMISSIONER (APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS TH E CASE MAY BE, THE COMMISSIONER (APPEALS)] SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE [ASSESSING OFFICER] HAS BEE N ALLOWED A REASONABLE OPPORTUNITY ITA NOS. 458 & 671/AHD/2013 PRATAPBHAI NAGINDAS SANGHVI-CROSS FOR AY 2008-09 5 (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS- EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, T HE COMMISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMI NATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTH ER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER O N HIS OWN MOTION OR ON THE REQUEST OF THE [ASSESSING OFFICER]) UNDER CLAUSE ( A) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. ] 7. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE IS NOT ENTITLED TO PRODUCE ANY ADDITIONAL EVIDENCE BEFORE THE FIRST AP PELLATE AUTHORITY EXCEPT UNDER CERTAIN CIRCUMSTANCES AS ENVISAGED IN CLAUSES (A) TO (D) OF RULE 46A(1). SUB-RULE (2) SPECIFICALLY PROVIDES THAT NO EVIDENCE SHALL BE ADMITTED BY THE CIT(A) UNLESS HE RECORDS THE REASON IN WRITI NG FOR ADMISSION OF ADDITIONAL EVIDENCE. ADMITTEDLY, IN THIS CASE THER E IS NO RECORDING OF REASONS FOR ADMISSION OF ADDITIONAL EVIDENCES BY TH E CIT(A). THE CIT(A) HAS PASSED THE ORDER CONSIDERING THE ADDITIONAL EVI DENCES WITHOUT PASSING ANY ORDER ON THE ADMISSION OF ADDITIONAL EVIDENCES. IN THE ABOVE CIRCUMSTANCES, THE ORDER OF THE CIT(A) IS LIABLE TO BE SET ASIDE. HOWEVER, INSTEAD OF SETTING ASIDE THE MATTER BACK TO THE FIL E OF THE CIT(A), WE DEEM IT PROPER TO SET ASIDE THE SAME TO THE FILE OF THE ASS ESSING OFFICER, AS SUGGESTED BY THE LD. DEPARTMENTAL REPRESENTATIVE, SO THAT THE ASSESSING OFFICER GETS AN OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCES AT HIS END. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDERS OF THE AUTHORITIES B ELOW ON ALL THE POINTS RAISED EITHER IN THE REVENUES APPEAL OR IN THE ASS ESSEES APPEAL AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER. WE DIRECT HIM TO ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE FOR PRODUCING ALL THE EVIDENCES. WE ALSO DIRECT THE ASSESSEE TO PRODUCE ALL THE EVIDENC ES BEFORE THE ASSESSING ITA NOS. 458 & 671/AHD/2013 PRATAPBHAI NAGINDAS SANGHVI-CROSS FOR AY 2008-09 6 OFFICER. THEREAFTER, THE ASSESSING OFFICER IS DIREC TED TO ADJUDICATE ALL THE ISSUES RAISED IN THE REVENUES APPEAL AS WELL AS IN THE ASSESSEES APPEAL AFRESH IN ACCORDANCE WITH LAW. 8. IN THE RESULT, BOTH THE APPEALS ARE DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 12 TH JUNE, 2015 AT AHMEDABAD. SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (G.D. AGRAWAL) VICE-PRESIDENT AHMEDABAD; DATED 12/06/2015 BIJU T., PS +, % !&- .+-& +, % !&- .+-& +, % !&- .+-& +, % !&- .+-&/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. & #/ / CONCERNED CIT 4. #/ ( ) / THE CIT(A) 5. -23 !& , , / DR, ITAT, AHMEDABAD 6. 34 5$ / GUARD FILE . +,# +,# +,# +,# / BY ORDER, TRUE COPY 6 66 6/ // / 7 7 7 7 ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD