MOHD. IMRAN, GHAZIABAD V. ITO, WARD- 2(3), GHAZIABAD

ITA 6741/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7728 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO. 6741/DEL/2018 ASSESSMENT YEAR: 2010-11 MOHD. IMRAN SAURAV GUPTA & ASSOCIATES, C-12/114, 1 ST FLOOR, D.B. PLAZA, RAJ NAGAR, GHAZIABAD, UTTAR PRADESH. PAN NO. AASPI9611B VS ITO WARD 2(3) GHAZIABAD. APPELLANT RESPONDENT ASSESSEE BY SH. SAUBHAGYA AGGARWAL, ADV. SH. SAURAV GUPTA, ADV. REVENUE BY SHRI S.L. ANURAGI, SR. DR ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(APPEALS) GHAZIABAD DATED 25.07.2018 FOR AY 2010-11. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AO OBSE RVED THAT THE MANDI SAMITI VIDE ITS LETTER DATED 21.12.2017 HAS R EPORTED THAT TURNOVER OF THE ASSESSEE IN THE F.Y. 2009-10 WAS RS . 1,83,81,668/-. AS PER PROVISIONS OF SECTION 44AB O F INCOME TAX ACT, 1961 ASSESSEE WAS LIABLE TO GET ITS ACCOUNTS A UDITED AND REQUIRED TO MAINTAIN BOOKS OF ACCOUNTS BUT NEITHER THE ASSESSEE DATE OF HEARING 10.04.2019 DATE OF PRONOUNCEMENT 25.04.2019 2 ITA NO. 6741/DEL /2018 GOT THE ACCOUNTS AUDITED NOR MAINTAINED BOOKS OF AC COUNTS. IN VIEW OF THESE FACTS, THE SHOW CAUSE WAS ISSUED ON 2 2.12.2017 TO THE ASSESSEE VIDE ADDITION OF RS. 14,70,533/- SHOUL D NOT BE MADE TO THE INCOME BY TAKING NET PROFIT RATE OF 8% ON TU RNOVER OF RS. 1,83,81,668/-. SINCE THE ASSESSEE FAILED TO GIVE A NY REPLY, THEREFORE, ADDITION OF RS. 14,70,533/- WAS MADE TO THE INCOME OF THE ASSESSEE. 3. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF TH E AO. 4. BEFORE US, IT WAS SUBMITTED THAT IN THE AY 2009- 10 ON SIMILAR FACTS THE TRIBUNAL HAD RESTORED THE MATTER BACK TO THE FILE OF CIT(A) VIDE ITS ORDER DATED 07.11.2006 FOR FRESH ADJUDICATION OF THE APPEAL OF THE ASSESSEE. IT WAS THE PRAYER OF T HE LD. AR THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF T HE CIT(A) TO ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH. 5. THE DR, ON THE OTHER HAND, VEHEMENTLY OBJECTED T O THE ABOVE SUBMISSION OF THE AR OF THE ASSESSEE. 6. I FROM PERUSAL OF THE ORDER OF THE CIT(A) FIND T HAT THE ASSESSEE FILED BEFORE THE CIT(A) APPLICATION UNDER RULE 46A DATED 26.08.2018 REQUIRING THE CIT(A) TO ADMIT THE FOLLOW ING AS ADDITIONAL EVIDENCES: 1. EXAMINATION OF FACTS REVEALED THAT APPELLANT COULD NOT SUBSTANTIATE WHY THESE EVIDENCES WERE NOT PLACED BE FORE THE AO AND WHAT IS THEIR RELEVANCE TO THE GROUNDS O F APPEAL BY BRINGING OUT CLEAR FACTS. IT IS SEEN THA T DOCUMENTS SUCH AS AFFIDAVIT, COPY OF ACCOUNT ETC. W AS AVAILABLE WITH APPELLANT DURING THE ASSESSMENT 3 ITA NO. 6741/DEL /2018 PROCEEDINGS. THUS, THERE IS NO REASON AS TO WHY TH E DETAILS WERE NOT FURNISHED BEFORE AO. 2. IN RESPECT OF ADMISSION OF FRESH EVIDENCES, IT IS T RUE THAT AN APPELLATE AUTHORITY CAN RECEIVE ADDITIONAL EVIDE NCE FROM EITHER SIDE FOR A FAIR DECISION ON ALL RELEVAN T MATERIALS, BUT THE NORMAL EXPECTATION IS THAT ALL T HE EVIDENCE SHOULD BE AVAILABLE EVEN AT THE FIRST STAG E. IT IS FOR THIS REASON THAT CONDITIONS ARE PRESCRIBED FOR ADMISSION OF EVIDENCE IN APPEAL STAGE. RULE 46A LI STS THE CIRCUMSTANCES, WHERE EVIDENCE COULD BE FILED BEFORE THE ASSESSING OFFICER DUE TO NON-AVAILABILITY OF SUFFIC IENT OPPORTUNITY OR OTHERWISE PREVENTED BY SUFFICIENT CA USE, SO THAT SUCH CAUSE MUST BE INDICATED, WHILE FILING FRE SH EVIDENCE. THE RULE FURTHER PROVIDES THAT THE FIRST APPELLATE AUTHORITY SHOULD RECORD REASONS FOR ADMITTING SUCH EVIDENCE AT APPEAL STAGE AND GIVES AN OPPORTUNITY F OR THE ASSESSING OFFICER TO MEET SUCH ADDITIONAL EVIDENCE. THE NEED FOR FOLLOWING THIS PROCEDURE WAS POINTED OUT I N HAJI LAL MOHD. BIRI WORKS VS. CIT [2005] 275 ITR 496 (AL L.). THIS PROCEDURE IS REQUIRED TO BE RIGIDLY FOLLOWED B Y THE FIRST APPELLATE AUTHORITY. 3. WHERE ADDITIONAL EVIDENCE IS SOUGHT TO BE RELIED UP ON, THE ASSESSEE IS EXPECTED UNDER RULE 46A TO GIVE EXPLANA TION AS TO WHY IT COULD NOT BE FILED BEFORE THE ASSESSIN G OFFICER. THE USUAL REASON IS NORMALLY THAT THE ASSESSING OFF ICER HAD NOT GIVEN THE ASSESSEE AN OPPORTUNITY BEFORE DR AWING HIS FINAL CONCLUSION. BUT WHERE NO REASON AT ALL I S GIVEN OR EXPLANATION IS NOT BACKED BY FACTS ON RECORD, THE R ULE MAY WELL BE INVOKED AND SUCH ADDITIONAL EVIDENCE SHOULD NOT BE ACCEPTED AS WAS POINTED OUT IN CIT VS. RANJIT KU MAR CHOUDHARY [2007] 288 ITR 179 (GAUHATI). 4. IN THE FOLLOWING CASES IT HAS BEEN HELD THAT THE ME RE FACT THAT THE EVIDENCE SOUGHT TO BE PRODUCED IS VITAL AN D IMPORTANT DOES NOT PROVIDE A SUBSTANTIAL CAUSE TO A LLOW ITS ADMISSION AT THE APPELLATE STAGE, ESPECIALLY WHEN T HE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND HAD NOT BEEN PRODUCED BY HIM WITHOUT ANY SUFFICIENT CAUSE. RELIANCE IS PLACED ON THE JUDGMENTS CIT VS. JAIPUR UDYOG LTD. (RAJ) 227 ITR 345, VELJI DEORAJ & CO. VS . CIT 4 ITA NO. 6741/DEL /2018 (BOM.) 68 ITR 708, JYOTSNA SURI VS. DCIT (ITAT, DEL ) 61 ITD 139, A.K. BABU KHAN VS. CIT (AP) 102 ITR 757, D CIT VS. VIRA CONSTRUCTION CO. (ITAT, MUM TM) 61 ITD 33, RAM PRASAD SHARMA VS. CIT (ALL) 119 ITR 867. 7. THE CIT(A) DID NOT ACCEPT THE EVIDENCE FILED BEF ORE HIM ON THE GROUND THAT THE ASSESSEE FAILED TO EXPLAIN WHY THES E DOCUMENTS AND EVIDENCES WERE NOT FILED BEFORE THE AO. 8. IN THE ABOVE BACKGROUND OF THE CASE, I AM OF THE CONSIDERED OPINION THAT IN ORDER TO RENDER SUBSTANTIAL JUSTICE TO THE ASSESSEE THE ADDITIONAL EVIDENCE FILED BEFORE CIT(A) SHOULD BE LOOKED INTO BY THE CIT(A) AND THE APPEAL OF THE ASSESSEE BE RE-ADJ UDICATED AFRESH. I, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF CIT(A) TO ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH AS PER LAW AFTER ALLOWING REASONABLE AND PRO PER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE APPEAL OF AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/04/2019 SD/- (N.S. SAINI) ACCOUNTANT MEMBER DATED: 25.04.2019 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 5 ITA NO. 6741/DEL /2018 TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 24/04/2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24/04/19 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P S/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 25.4.19 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 25.4.19 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 25.4.19 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.4 .19 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER