The ITO, Ward-9(4), Surat V. Shri Umeshkumar L.Pandya, Surat

ITA 672/AHD/2012

• Counselvise Citation: 67220514 RSA 2012
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-09-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 20-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Gift; Additional evidence; Reason to believe
• Section: 142(1); 133A; 68; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMADABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 672/AHD/2012 ASSESSMENT YEAR :2003-2004 & C.O. NO.95/AHD/2012 ASSESSMENT YEAR :2003-2004 THE INCOME-TAX OFFICER, WARD.9(4), SURAT SHRI UMESHKUMAR L. PANDYA PROP. OF M/S. GAYATRI SALES AGENCY, 7 LAXMI IND. ESTATE, HIRA BAUGH, VARACHHA ROAD, SURAT - 395006 V/S . V/S. SHRI UMESHKUMAR L. PANDYA PROP. OF M/S. GAYATRI SALES AGENCY, 7 LAXMI IND. ESTATE, HIRA BAUGH, VARACHHA ROAD, SURAT - 395006 THE INCOME-TAX OFFICER, WARD.9(4), SURAT PAN NO. A DWPP0285B (APPELLANT) .. (RESPONDENT) BY REVENUE SHRI DINESH SINGH, SR.D.R. /BY ASSESSEE SHRI RAJESH UPADHYAY, A.R. /DATE OF HEARING 05.09.2012 /DATE OF PRONOUNCEMENT 19.10.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE AND C.O. OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF CIT(A )-V, SURAT, ORDER DATED ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 2 & C.O. NO.95/AHD/2012 08.11.2011 FOR ASSESSMENT YEAR 2003-2004. THE REVE NUES APPEAL AND ASSESSEES C.O. WERE HEARD TOGETHER AND ARE BEING D ISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE SOLE GROUND OF REVENUE IS AGAINST DELETING THE ADDITION OF RS.20,65,538/- ON ACCOUNT OF PROTECTIVE BASIS, WHEREAS THE ASSESSEES C.O.IS AGAINST REOPEN ING THE CASE U/S.147 AND ALSO NOTICE U/S.143(2) OF THE IT ACT WAS NOT SERVED ON THE ASSESSEE. THE REVENUE ALSO RAISED ADDITIONAL GROUND DURING THE CO URSE OF HEARING: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE CIT(A) HAS ERRED IN DELETING THE ADDITION O F RS.20,65,538/- MADE BY THE A.O. ON ACCOUNT OF SUBST ANTIVE BASIS IN THE CASE OF THE ASSESSEE. (AS PER INTIMATION RE CEIVED FROM THE ITO WD 9(1), SURAT WHO HAD MADE ADDITION IN THE CAS E OF SHRI BABULAL SHAH (HUF), SHRI BALCHAND S SHAH (HUF) & DA XABEN Y PATEL ON PROTECTIVE BASIS 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE CIT(A), WITHOUT ASKING A REMAND REPORT, FRO M THE A.O. AS THE AFFIDAVIT FILED BY THE AR OF THE ASSESSEE, CONC LUDED THAT THERE HAS NOT BEEN ANY TRANSACTION OF THE ASSESSEE WITH T HOSE THREE PERSONS IN WHOSE CASE THE ADDITION WAS MADE ON PROT ECTIVE BASIS AND THEREBY VIOLATED RULE 46A OF THE I.T. RULE, 196 2. 2. THE FACTUAL MATRIX OF THE CASE IS REPRODUCED AS UNDER: THERE WAS A SURVEY CONDUCTED BY THE DDIT (INV)-II, SURAT, ON 11.03.2005 IN CASE OF SHRI PANKAJ DANAWALA. DUR ING THE COURSE OF SURVEY, IT WAS DETECTED THAT SHRI DANAWAL A WAS CREATING BOGUS CAPITAL IN THE RETURN OF INCOME OF V ARIOUS PERSONS BEING FILED BY HIM. THIS BOGUS CAPITAL WAS THUS BE ING USED TO ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 3 & C.O. NO.95/AHD/2012 PROVIDE CASE CREDIT ENTRIES TO HIS CLIENTS. THUS, IT IS A SYSTEMATIC MANNER HE WAS ASSISTING PEOPLE TO LAUNDER MONEY. I N HIS STATEMENT, SHRI DANAWALA HAS ADMITTED THAT THERE WE RE TWO METHODS OF CREATING BOGUS CAPITAL. ONE-OPENING BAL ANCE IN CAPITAL ACCOUNT WAS INCREASED AND DID NOT MATCH WIT H CLOSING BALANCE OF CAPITAL ACCOUNT FOR EARLIER YEAR. FOR E XAMPLE, IF CLOSING BALANCE IN A.Y. 2001-02 HAS RS.3,00,000/-, THE OPENING FOR A.Y. 2002-03 WAS SHOWN AS RS.18,00,000/- AND BO GUS CAPITAL OF RS.15,00,000/- WAS CREATED. THIS DISCREPANCY RE MAINED UNDETECTED DUE TO NON-CLUBBING OF RETURNS OF INCOME IN SMALL CASES. THE SECOND METHOD FOR CREATING BOGUS CAPITA L WAS TO SHOW BOGUS GIFTS FROM AN EARLIER YEAR. FOR EXAMPLE , IT HAS CAPITAL ACCOUNT FOR A.Y. 2002-03, BOGUS FROM A.Y.1991-92 IN THE NAMES OF VARIOUS DONORS WOULD BE SHOWN; WHEREAS IN FACTS ON SUCH GIFT WAS RECEIVED AND DISCLOSED IN HIS RETURN OF INCOME. 2.1 THE BOGUS CAPITAL THUS CREATED WAS ADJUSTED IN THE BALANCE SHEET BY SHOWING SOME FICTITIOUS ASSETS (MOSTLY AS BOGUS DEBTORS) WHEN THE ENTRIES WERE TO BE GIVEN TO THE C LIENTS, THESE ASSETS WERE LIQUIDATED AND CASE WAS BROUGHT IN. THI S CASE WAS USED TO PROVIDE CASE CREDIT ENTRIES TO THE CLIENTS. IN HIS STATEMENT, SHRI DANAWALA HAS CATEGORICALLY ADMITTED THAT ALL SUCH CASE WAS PROVIDED BY THE BENEFICIARIES OF THE CASE CREDIT. THEREFORE, IN SUCH CASES, IT IS CLEAR THAT SUCH CAS H CREDIT ENTRIES ARE REQUIRED TO BE TAXED IN THE HANDS OF THE BENEFI CIARIES IN THE A.Y. WHEN THE ENTRIES HAS BEEN BROUGHT INTO BOOKS B Y THEM OR WHEN FICTITIOUS ASSETS WERE LIQUIDATED AND CASE WAS PROVIDE FOR SAME BY THE BENEFICIARIES. IN HIS STATEMENT, SHRI D ANAWALA HAS IDENTIFIED BENEFICIARIES OF ALMOST ALL THE RETURNS BEING FILED BY HIM. 3. THE DY.D.I.T(INV)-II SURAT, VIDE HIS ABOVE REFE RRED LETTER, HAS FORWARDED THE LIST OF PERSONS, WHO ARE THE BENE FICIARIES OF BOGUS CAPITAL AND BOGUS GIFTS CREATED BY SHRI DANAW ALA. THE ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 4 & C.O. NO.95/AHD/2012 ASSESSEE SHRI UMESHKUMAR LAXMISHANKAR PANDIYA. IS ALSO ONE OF THE BENEFICIARIES. AS SUCH, THERE HAS BEEN INTR ODUCED OF BLACK MONEY THROUGH THIS RETURN OF INCOME FOR WHICH THE A SSESSEE IS RESPONSIBLE OR ALL THE CONSEQUENTIAL ACTION, EITHER OF HAVING CONNIVANCE WITH SHRI PANKAJ DANAWALA OR HAS BEEN AB ATED BY HIM BY INTRODUCING THE UNEXPLAINED CAPITAL. THEREFO RE, I HAVE REASON TO BELIEVE THAT THERE IS AN ESCAPEMENT OF AS SESSMENT FOR A.Y. 2003-04. 1. IT IS ALSO REPORTED BY THE ITO, WD. 9(1), SURAT, VIDE HIS LETTER DTD. 18.03.2010, WHICH IS REPRODUCED AS UNDER:- 'IN CASE OF AN ASSESSEE VIZ. SHRI BABULAL S. SHAH ( HUF), SCRUTINY ASSESSMENT WAS MADE FOR THE A.Y. 2003-04. IT IS A DANAWALA GROUP CASE. AT THE TIME OF PASSING ORDER IN THIS C ASE IT WAS CONCLUDED THAT THE INCOME ASSESSED OF RS. 92,240/-B ELONGS TO THE BENEFICIARY SHRI UMESH PANDYA. ACCORDINGLY, TH E SAID INCOME WAS ASSESSED PROTECTIVELY IN THIS CASE OF TH E ASSESSEE OF THIS WARD. YOU ARE REQUESTED TO TAKE ACTION AT YOUR END TO ASSESS THE SAID INCOME IN CASE OF YOUR ASSESSEE, IF THE SA ME HAS NOT BEEN DONE TILL DATE. IF THE CASE IS NOT ASSESSED U NDER OUR CHARGE AT PRESENT, THE CONCERNED ASSESSING OFFICER MAY BE INFORMED ACCORDINGLY. SAME FINDINGS, AS ABOVE, WERE ALSO GIVEN IN THE CAS E OF SHRI BALCHAND S. SHAH (HUF) WHERE PROTECTIVELY ASSE SSED WAS OF RS.54,600/- WHICH REQUIRES TO BE ASSESSED IN THE HANDS OF SHRI UMESH PANDYA. 2. IN THIS CASE OF AN ASSESSEE VIZ. DAXABEN Y. PATE L, SCRUTINY ASSESSMENT WAS MADE IN THIS OFFICE FOR THE A.Y. 200 3-04. IT IS A DANAWALA GROUP CASE. AT THE TIME OF PASSING ORDER I N THIS CASE IT WAS CONCLUDED THAT THE INCOME ASSESSED OF RS. 19,18 ,698/- BELONGS TO THE BENEFICIARY SHRI UMESH PANDYA. ACCOR DINGLY, THE SAID INCOMES WAS ASSESSED PROTECTIVELY IN THIS CASE OF THE ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 5 & C.O. NO.95/AHD/2012 ASSESSEE OF THIS WARD. YOU ARE REQUESTED TO TAKE A CTION AT YOUR END TO ASSESS THE SAID INCOME IN CASE OF YOUR ASSES SEE, IF THE SAME HAS NOT BEEN DONE TILL DATE. IF THE CASE IS N OT ASSESSED UNDER OUR CHARGE AT PRESENT, THE CONCERNED ASSESSIN G OFFICER MAY BE INFORMED ACCORDINGLY.' THE A.O. RECORDED REASONS AND NOTICE U/S. 148 WAS I SSUED ON 23.03.2010 FOR RE-OPENING CASE FOR A.Y.03-04. THE APPELLANT DID N OT MAKE ANY COMPLIANCE OF THE SAID NOTICE. THEREAFTER, HE ISSUED NOTICE U/S. 142(1) AND ALSO SUPPLIED THE COPY OF THE REASONS RECORDED BY HIM TO THE APPELLAN T. THE A.O. HAD GIVEN FOUR OPPORTUNITIES TO THE APPELLANT BUT HE DID NOT RESPOND ON THE NOTICES OR QUERY LETTERS ISSUED BY HIM. WHEN THERE IS NO CO-O PERATION FROM THE ASSSESSEE, HE MADE FOLLOWING SUBSTANTIVE ADDITIONS AS UNDER: 1. IN THE CASE OF SHRI BABULAL S. SHAH (HUF) OF R S. 92,240/- 2. IN THE CASE OF SHRI BALCHAND S. SHAH (HUF) OF R S. 54,600/- 3. DAXABEN Y. PATEL OF RS.19,18,698/- TOTAL OF RS.20,65,538/- 4. BEING AGGRIEVE BY THE ORDER OF THE A.O., THE ASS ESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD DELETED THE ADDITION BY O BSERVING AS UNDER: 6. I HAVE CONSIDERED THE ASSESSMENT ORDER AS WELL AS SUBMISSIONS OF THE APPELLANT. I AM INCLINED TO AGR EE WITH THE SUBMISSION OF THE A.R. THAT THERE HAS NOT BEEN ANY TRANSACTION OF THE APPELLANT WITH THE ABOVE MENTIONED THREE PERSON S IN WHOSE CASES THE ADDITION WAS MADE ON PROTECTIVE BASIS AND CONSEQUENTLY, SUBSTANTIVE ADDITION HAS BEEN MADE IN THE APPELLANTS CASE. THE ABOVE FACTS WERE ALSO BROUGH T TO THE NOTICE OF THE A.O. DURING THE ASSESSMENT PROCEEDINGS. FUR THER, THE A.O. HAS ALSO NOT BROUGHT ANYTHING ON RECORD TO PRO VE ANY ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 6 & C.O. NO.95/AHD/2012 TRANSACTION BETWEEN THE APPELLANT AND THOSE THREE P ERSONS. MOREOVER, THE APPELLANT HAS ALSO FILED AFFIDAVIT BE FORE ME IN THIS REGARD (ABOUT HAVING NO TRANSACTION AT ALL). THERE FORE, IN MY OPINION, THE QUESTION OF ADDITION DOES NOT ARISE AN D ACCORDINGLY, THE ADDITION MADE ON THIS ACCOUNT IS HEREBY DELETED AND THIS GROUND OF APPEAL IS ALLOWED. 5. NOW THE MATTER IS BEFORE US. LD. COUNSEL FOR TH E ASSESSEE FILED PAPER BOOK WHICH INCLUDES COMPUTATION OF INCOME FOR A.Y. 03-04, COPY OF VARIOUS LETTERS FURNISHED BY THE ASSESSEE AND ALSO COPY OF THE STATEMENT OF SHRI PANKAJ DANAWALA. THE LD. COUNSEL ALSO RELIED UPON VARIOUS CASE LAWS PARTICULARLY IN CASE OF ITA NO. 2079/AHD/2008 FOR A .Y.01-02 ORDER DATED 29/12/2011 IN CASE OF DAXABEN Y. PATEL AND CLAIMED THAT SIMILAR ADDITIONS WERE MADE ON THE BASIS OF SURVEY CONDUCTED IN CASE OF SHRI PANKAJ DANAWALA, C.A., WHEREIN SIMILAR ADDITIONS WERE DELE TED AND CO-ORDINATE C BENCH HAS HELD AS UNDER: 8. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE A SSESSEE SPECIFICALLY PLEADED THAT ASSESSEE DID NOT MAINTAIN ANY BOOKS OF ACCOUNTS WHICH IN FACTS OF THESE CASES ARE THE PRE- CONDITION FOR MAKING ADDITION U/S 68 AND U/S 69 OF THE IT. ACT. SHRI M.K. PATEL, LEARNED COUNSEL APPEARING FOR SOME OF THE ASSESSEES POINTED OUT FROM THE ORDERS OF AUTHORITIES BELOW AND STATEM ENT OF FACTS THAT THEIR ASSESSEES HAVE NOT FILED ANY RETURN OF I NCOME FOR THE ASSESSMENT YEAR UNDER APPEAL AND AS SUCH THERE WAS NO REASON FOR THEM TO FILE OR TO USE THE BALANCE SHEET ALLEGE DLY PREPARED BY SHRI PANKAJ DANAWALA, CHARTERED ACCOUNTANT. IN THE REMAINING CASES, LEARNED DR STATED THAT IN THE REASSESSMENT O RDERS IT IS NOT CLEAR IF ANY ALLEGED BALANCE SHEETS FOUND IN SURVEY FROM SHRI ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 7 & C.O. NO.95/AHD/2012 PANKAJ DANAWALA WERE USED BY THE ASSESSEES AT ANY P OINT OF TIME. IT WOULD, THEREFORE, MAKE IT CLEAR THAT NO MA TERIAL IS BROUGHT ON RECORD TO PROVE THAT THE BALANCE SHEETS FOUND FROM THE POSSESSION OF SHRI PANKAJ DANAWAL WERE AT ALL FILED ALONG WITH ORIGINAL RETURN OF INCOME. THE ASSESSEES HAVE NOT MAINTAINED ANY BOOKS OF ACCOUNTS. THE BALANCE SHEE TS FOUND FROM SHRI PANKAJ DANAWALA WERE UNSIGNED AND T HE SAME HAVE NOT BEEN USED BY THE ASSESSEES. THE STATEMENT OF SHRI PANKAJ DANAWALA WAS NOT CORROBORATED THROUGH ANY INDEPENDENT EVIDENCE AND NO COMPLICITY OF THE ASSESSEE WAS FOUND FOR INDULGING IN PREPARATION OF ANY BOGUS BAL ANCE SHEET. NO ENTRIES OF INCREASE IN CAPITAL ACCOUNT OR GIFTS WERE FOUND IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THUS, THE AO M ERELY MADE THE ADDITIONS AGAINST THE ASSESSEES ON ASSUMP TION OF CERTAIN FACTS WHICH WERE NOT PART OF RECORD. THE AO HA S NOT BROUGHT ANY SUFFICIENT EVIDENCE ON RECORD TO JUSTIFY HIS CONCLUSION FOR MAKING ADDITIONS AGAINST THE ASSESSEES. 9. ITAT AHMEDABAD 'A' BENCH IN THE CASE OF BABUBHA I KANJIBHAI PATEL, HUF (SUPRA) DISMISSED THE DEPARTME NTAL APPEALS IN WHICH THE LEARNED CIT(A) DELETED THE ADDITIONS O F THE SIMILAR NATURE ON THE GROUNDS THAT THE ASSESSEE HAD NOT FIL ED ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE ENT RIES MADE BY SHRI PANKAJ DANAWALA CHARTERED ACCOUNTANT WAS NOT S UPPORTED BY ANY INDEPENDENT CORROBORATIVE EVIDENCE SO AS TO ESTABLISH THEIR GENUINENESS AND THAT SHRT PANKAJ DANAWALA, CH ARTERED ACCOUNTANT ADMITTED TO HAVE CREATED THE ACCOUNTS HI MSELF AND THE COMPLICITY OF THE ASSESSEES IN SUCH CREATION WA S NOT ESTABLISHED. THE TRIBUNAL CONFIRMED THE REASONING G IVEN BY THE LEARNED CIT(A) IN DELETING THE ADDITIONS. THIS ORDE R CLEARLY SUPPORT THE FINDINGS OF THE LEARNED CIT(A) IN DELET ING THE ADDITIONS. ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 8 & C.O. NO.95/AHD/2012 10. WE FURTHER FIND FROM THE RECORD THAT THE ORDER DATED 30-04- 2010 OF ITAT 'A' BENCH IS ALSO PLACED ON RECORD IN WHICH GROUP APPEALS OF THE DEPARTMENT HAVE BEEN DECIDED IN THE CASES OF ITO VS MISS MONA VIRAT TRIVEDI ETC. IN ITA NO 343/AHD/2 007 ETC. IN WHICH ALSO THE TRIBUNAL ON THE IDENTICAL MATTER DIS MISSED ALL THE DEPARTMENTAL APPEALS. THE SAME WOULD ALSO APPLY TO THE FACTS OF THESE CASES. 11. CONSIDERING THE ABOVE DISCUSSIONS, WE ARE OF T HE VIEW THAT THE LEARNED CIT(A) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD RIGHTLY DELETED THE ADDITIONS. WE, THEREF ORE, DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LEARNED CIT(A) AN D CONFIRM HIS FINDINGS AND DISMISS THE DEPARTMENTAL APPEAL. 12. IN THE RESULT, DEPARTMENTAL APPEAL IN ITA 1137 /AHD/2007 IN THE CASE OF SMT. REKHABEN NITINKUMAR CHABUKSAWAR IS DISMISSED.' FURTHER, HE ALSO ARGUED THAT THE STATEMENT OF APPEL LANT WAS RECORDED BY THE INVESTIGATION WING AS WELL AS BY THE A.O., THE APPE LLANT DENIED HAVING TAKEN ANY ENTRY OF BOGUS CAPITAL FROM SHRI PANKAJ DANAWAL A WHATEVER METHOD OF CAPITAL BUILD UP HAD BEEN ADMITTED BY SHRI DANAWALA . SIMILARLY, NO GIFTS HAVE BEEN TAKEN. HE ALSO FILED AN AFFIDAVIT BEFORE THE CIT(A) AND ALSO HAS DRAWN OUR ATTENTION ON THE STATEMENT RECORDED DURING THE COURSE OF 133A OF SHRI PANKAJ DANAWALA IN QUESTION NO.35. THE ASSESSEES NAME HAS NOT BEEN ADMITTED BY HIM. THE APPELLANT CLAIMED THAT THERE IS NO TRANSACTION WITH THE PERSONS MENTIONED, NAMELY, SHRI BABULAL SHAH (HUF), SHRI BALCHAND S SHAH (HUF) & DAXABEN Y PATEL. THEREFORE, HE REQUESTED T O CONFIRM THE ORDER OF THE CIT(A). FROM THE SIDE OF THE REVENUE, LD. D.R . VEHEMENTLY RELIED ON THE ORDER OF THE A.O. AND REQUESTED TO CONFIRM THE ADDI TION. ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 9 & C.O. NO.95/AHD/2012 6. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND HEARD ARGUMENTS FROM BOTH SIDES AND GONE THROUGH THE CASE LAWS CITED BY THE APPELLANT. THE LD. A.O. HAD NOT ESTABLISHED ANY NE XUS BETWEEN ASSESSEE AND THREE BENEFICIARIES, NAMELY, SHRI BABULAL SHAH (HU F), SHRI BALCHAND S SHAH (HUF) & DAXABEN Y PATEL. SHRI PANKAJ DANAWALA ALSO HAS NOT ADMITTED ANY CAPITAL BUILT UP IN THE NAME OF APPELLANT THROUGH B ENEFICIARIES. THE LD. CIT(A) HAS CONSIDERED THE FACT OF THE AFFIDAVIT FILED BEFO RE HIM. THEREFORE, WE DISMISS THE REVENUES APPEAL. THE BOTH GROUNDS OF C.O. ARE ON TECHNICAL. WHEN REVENUES APPEAL HAS BEEN DISMISSED, WE DO NOT FIND TO GIVE DETAIL FINDING ON TECHNICAL GROUND AS THE PURPOSE OF C.O. HAS ALREADY BEEN MET. THUS, ASSESSEES C.O. IS DISMISSED. 7. THE REMAINING GROUND OF REVENUE IS CONSIDERED AS UNDER: THE REVENUE HAS CHALLENGED THAT LD. CIT(A) HAS ACCE PTED THE AFFIDAVIT FURNISHED BY THE APPELLANT BEFORE THE CIT(A) WITHOU T PROVIDING OPPORTUNITY UNDER RULE46A OF THE IT RULE, 1962. THE FACTS OF T HE AFFIDAVIT ARE MORE-LESS IDENTICAL AS REPLY SUBMITTED BEFORE THE CIT(A) BY T HE APPELLANT. THE CIT(A) HAS CO-TERMINUS POWER OF THE A.O. WHO CAN ADMIT THE EVIDENCE DIRECTLY OR IT CAN BE CONSIDERED BY SEEKING THE REMAND REPORT. AS PER RULE 46A(4), HE HAS POWER TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT. THEREFORE, HE WAS JUSTIFIED IN ACCEPTING ADDITIONAL EVIDENCE U/S. RUL E 46A. WE HAVE CONSIDERED VIEW THAT CIT(A) ORDER WAS WITHIN JURISDICTION. ITA NO. 672/AHD/2012 A.Y. 03-04 PAGE 10 & C.O. NO.95/AHD/2012 8. IN THE COMBINED RESULT, THE REVENUES APPEAL IS DISMISSED & ASSESSESS C.O. IS ALLOWED. THESE ORDERS PRONOUNCED IN OPEN COURT ON 19.10.2012 SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. '#$ / APPELLANT 2. &'#$ / RESPONDENT 3. )*)+ ' ', / CONCERNED CIT 4. ' ',- ' / CIT (A) 5. 01'' +, ' ''' +, 34 * / DR, ITAT, AHMEDABAD 6. 167 89 / GUARD FILE. BY ORDER/ , :/3' )' ' ''' +, 34 * < STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 16.10.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 18.10.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION 19.10.2012 6) DATE OF INITIAL SIGN BY MEMBERS ,, ,, 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 19.10.2012