Sanjay Tyagi, Delhi V. DCIT, Central circle-1, New Delhi

ITA 6866/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5493 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 15-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence; Reasonable cause; Condonation of delay; Set aside
• Section: 273B; 142(1); 133A; 153A; 271B; 44AB; 73; 13; 131; 27; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER (E-COURT MODULE) ITA NO. 6864/DEL/2017 : ASSTT. YEAR : 2010-11 ITA NO. 6865/DEL/2017 : ASSTT. YEAR : 2011-12 ITA NO. 6866/DEL/2017 : ASSTT. YEAR : 2010-11 ITA NO. 6867/DEL/2017 : ASSTT. YEAR : 2011-12 ITA NO. 6868/DEL/2017 : ASSTT. YEAR : 2010-11 ITA NO. 6869/DEL/2017 : ASSTT. YEAR : 2011-12 ITA NO. 6870/DEL/2017 : ASSTT. YEAR : 2010-11 ITA NO. 6871/DEL/2017 : ASSTT. YEAR : 2011-12 ITA NO. 6872/DEL/2017 : ASSTT. YEAR : 2010-11 ITA NO. 6873/DEL/2017 : ASSTT. YEAR : 2011-12 ITA NO. 6874/DEL/2017 : ASSTT. YEAR : 2012-13 SHRI SANJAY TYAGI, C/O- SHRI SANKALP ANIL SHARMA, ADV. C-4/129, 1 ST FLOOR, SAFDARJUNG DEVELOPMENT AREA, NEW DELHI-110016 VS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A EIPT1282R ASSESSEE BY : SH. RAJIV SAXENA, ADV. REVENUE BY : SH. H.K. CHOUDHARY, CIT DR DATE OF HEARING: 28.09.2020 DATE OF PRONOUNCEMENT: 30.09.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEALS HAVE BEEN FILED BY THE ASSESSE E IN ITA NOS. 6864 TO 6871/DEL/2017 AGAINST THE ORDERS OF TH E LD. CIT(A)-11, NEW DELHI DATED 06.11.2017, IN ITA NOS. 6872 & 6873/DEL/2017 AGAINST THE ORDER OF THE LD. CIT (A)- 11, NEW ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 2 DELHI DATED 05.07.2017 AND IN ITA NO. 6874/DEL/2017 AGAINST THE ORDER OF LD. CIT (A)-31 DATED 20.03.2017. 2. ITA NOS. 6864 & 6865/DEL/2017 PERTAIN TO LEVY OF PENALTY U/S 271(1)(B). 3. THE APPEAL HAS BEEN FILED BEFORE THE LD. CIT (A) WITH A DELAY OF 12 DAYS WHICH HAS BEEN CONDONED AND ADJUDI CATED ON MERITS. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT (A), THE ASSESSEE FILED APPEAL BEFORE US. 5. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/ S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SURYA VINAYAK GROU P ON 03.03.2011. AT THE SAME TIME, THE SEARCH WAS ALSO C ONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AT BLOCK A C-1/152C, SHALIMAR BAGH, DELHI. ALSO, A SURVEY U/S 133A OF TH E ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S HR PERFUM ERY AT 315, INDUSTRIAL AREA, PHASE-II, PANCHKULA, HARYANA, WHICH IS A PROPRIETORSHIP CONCERN OF THE ASSESSEE. SUBSEQUENTL Y, NOTICE U/S 153A OF THE ACT WAS ISSUED ON 08.02.2012 AND NO TICES U/S 142(1) OF THE ACT WERE ISSUED BY THE AO ON VARIOUS DATES. THERE WAS NO RESPONSE FROM THE ASSESSEE. AS A RESULT, THE AO FINALIZED THE ASSESSMENT U/S 153A R.W.S. 144 OF THE ACT TO THE BEST OF HIS JUDGMENT. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICE U/S 142(1) ON VARIOUS DATES I.E. 28.0 9.2012, 21.11.2012, 24.12.2012, 04.01.2013 & 11.02.2013. TH ERE WAS NO RESPONSE FROM THE ASSESSEE AND THEREFORE, THE AO INITIATED ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 3 PENALTY PROCEEDINGS U/S 271(1)(B). THE AO ISSUED A PENALTY NOTICE U/S 271(1)(B) FOR FAILURE TO COMPLY WITH THE NOTICES ISSUES U/S 142(1). IN RESPONSE, THE ASSESSEE REQUES TED THE AO TO STAY THE PENALTY PROCEEDINGS TILL THE FINALIZATI ON OF THE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER BEFORE LD. CIT (A). THE AO DID NOT ACCEPT THE REQUEST OF THE A SSESSEE AS THERE IS NO SUCH PROVISION IN THE ACT TO STAY THE P ENALTY PROCEEDINGS INITIATED U/S 271(1)(B). AFTER CONSIDER ING THE REPLY OF THE ASSESSEE, THE AO LEVIED A PENALTY OF RS.10,0 00/- U/S 271(1)(B) FOR FAILING TO COMPLY WITH THE NOTICES IS SUED U/S 142(1) OF THE ACT. 7. BEFORE US DURING THE HEARING, THE LD. AR ARGUED THAT THE NOTICES HAVE NOT BEEN RECEIVED BY THE ASSESSEE AND NO NOTICE HAS BEEN SENT TO ADDRESS AT M/S HR PERFUMERY, 315, INDUSTRIAL AREA, PHASE-II, PANCHKULA, HARYANA. IT WAS ARGUED T HAT THERE WAS NO INTENTION ON THE PART OF THE ASSESSEE NOT TO COMPLY WITH THE STATUTORY NOTICES ISSUED. 8. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDE RS OF THE AUTHORITIES BELOW. 9. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. 10. WE FIND THAT THE ASSESSEE HAS DEFAULTED FOR COM PLIANCE BEFORE THE AO ON 08.10.2012, 29.11.2012, 31.12.2012 , 11.01.2013, 18.02.2013 INSPITE OF ISSUE OF FIVE NOT ICES. SUMMONS UNDER SECTION 131 WERE ALSO DULY SERVED BUT THE ASSESSED CHOOSE NOT TO RESPOND. HOWEVER, IN COMPLIA NCE TO THE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 4 SHOW CAUSE NOTICE ISSUED FOR LEVY OF PENALTY U/S 27 1(1)(B), THE ASSESSEE SEEKS STAY ON THE PENALTY PROCEEDINGS. 11. EVEN BEFORE THE LD. CIT (A), THE ASSESSEE HAS N OT COMPLIED FOR THE HEARINGS FIXED ON 23.09.2013 AND THE ADJOUR NMENTS WERE SOUGHT ON 23.10.2013 AND AGAIN DEFAULTED FOR H EARING FIXED ON 15.11.2013. AGAIN NOTICE WAS ISSUED ON 22. 01.2014 FIXING THE DATE OF HEARING ON 05.02.2014 FOR WHICH THE AR SOUGHT ADJOURNMENT ON 17.02.2014 AND ON 28.02.2014. THERE WAS NO COMPLIANCE ON THE DATE FIXED FOR HEARING ON 10.04.2014. THE AUTHORITIES ISSUED NOTICE AGAIN ON 29.06.2015 F IXING THE DATE OF HEARING ON 06.07.2015 AND THE CASE WAS ADJO URNED AT THE REQUEST OF THE AR TO 11.08.2015. THE CASE WAS F URTHER ADJOURNED ON 23.05.2017 AND ON 29.06.2017. THERE WA S NO COMPLIANCE ON THE DATE OF HEARING FIXED. 12. THUS, WE FIND THAT THE ASSESSEE IS IN HABITUAL NON- COMPLIANCE TO THE STATUTORY NOTICES ISSUED. SUCH CO NDUCT OF THE ASSESSEE CANNOT BE ENCOURAGED. 13. THE RELEVANT PROVISIONS OF SECTION 271(1)(B) AR E AS UNDER: 271(1): IF THE ASSESSING OFFICER IN COURSE OF ANY PROCEEDINGS UNDER THIS ACT IS SATISFIED THAT ANY PE RSON, (B) FAILED TO COMPLY WITH THE NOTICE UNDER SUB-SECT ION (1) OF SECTION 142 OR SUB-SECTION (2) OF SECTION 143, HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY A SUM OF RS.10,000 FOR EACH SUCH FAILURE. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 5 14. ON GOING THROUGH THE PROVISIONS OF SECTION 271( 1)(B) AND THE CONDUCT OF THE ASSESSEE WITH REGARD TO THE COMP LIANCE TO THE NOTICES, WE FIND THAT THE AO HAS RIGHTLY LEVIED THE PENALTY. 15. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 273B WHICH READS AS UNDER: [ PENALTY NOT TO BE IMPOSED IN CERTAIN CASES. 273B. NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIO NS OF [CLAUSE (B) OF SUB-SECTION (1) OF] [SECTION 27 1, SECTION 271A, [SECTION271AA,] SECTION271B[, SECTION271BA], [SECTIO 271BB,] SECTION 271C, [SECTION 271CA,] SECTION 271D, SECTION 271E, [SECTION 271F, [SECTION 271FA,] [SECTION271FAB,] [SECTION271FB,] [SECTION27 1G,]] [ SECTION 271GA,] [SECTION 271GB,] [SECTION 271H,] [S ECTION 271-I,] [SECTION 271J,] CLAUSE (C) OR CLAUSE (D) OF SUB- SECTION (1) OR SUB-SECTION (2) OF SECTION 272A, SUB -SECTION (1) OF SECTION 272AA] OR [SECTION 272B OR] [SUB-SEC TION (1) [OR SUB-SECTION (1A)] OF SECTION 272BB OR] [SUB -SECTION (1) OF SECTION 272BBB OR] CLAUSE (B) OF SUB-SECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUB-SECTION (2) OF SECT ION 273, NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFER RED TO IN THE SAID PROVISIONS IF HE PROVES THAT THERE WAS REA SONABLE CAUSE FOR THE SAID FAILURE.] 16. WE HAVE GONE THROUGH THE ABOVE PROVISIONS, SO A S TO LOOK INTO WHETHER THERE WAS ANY REASONABLE CAUSE FOR THE FAILURE TO COMPLY TO THE NOTICES. WE FIND THAT THE NOTICES HAV E BEEN DULY SENT TO THE ADDRESS OF THE ASSESSEE MENTIONED IN TH E PANCHANAMA DRAWN ON THE DATE OF SEARCH AND THE LD. ARS CONTENTION THAT NOTICES HAVE NOT BEEN SENT TO PANCH KULA CANNOT BE ACCEPTED AS THE PANCHKULA ADDRESS DO NOT PERTAIN TO THE RESIDENTIAL ADDRESS TO THE ASSESSEE. THE NOTICES HA VE BEEN RIGHTLY SENT TO THE CORRECT ADDRESS AND THE ASSESSE E COULD NOT ESTABLISH FAILURE TO COMPLY TO THE NOTICES WITH ANY REASONABLE CAUSE. HENCE, WE DECLINE TO INTERFERE WITH THE ORDE R OF THE LD. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 6 CIT (A) AND HOLD THAT THE PENALTY HAS BEEN RIGHTLY IMPOSED BY THE ASSESSING OFFICER. 17. ITA NOS. 6866 & 6867/DEL/2017 PERTAIN TO LEVY OF PENALTY U/S 271A. 18. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U /S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SURYA VINAYAK GROU P ON 03.03.2011. AT THE SAME TIME, THE SEARCH WAS ALSO C ONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AT BLOCK A C-1/152C, SHALIMAR BAGH, DELHI. ALSO, A SURVEY U/S 133A OF TH E ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S HR PERFUM ERY AT 315, INDUSTRIAL AREA, PHASE-II, PANCHKULA, HARYANA, WHICH IS A PROPRIETORSHIP CONCERN OF THE ASSESSEE. SUBSEQUENTL Y, NOTICE U/S 153A OF THE ACT WAS ISSUED ON 08.02.2012 AND NO TICES U/S 142(1) OF THE ACT WERE ISSUED BY THE AO ON VARIOUS DATES. THERE WAS NO RESPONSE FROM THE ASSESSEE. AS A RESULT, THE AO FINALIZED THE ASSESSMENT U/S 153A R.W.S. 144 OF THE ACT TO THE BEST OF HIS JUDGMENT. 19. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAS NOT BEEN MAINTAINING BOOKS OF ACCOUNTS STIPULATED U/S 44AA OF THE ACT AND HENCE LEVIED PENALTY OF RS. 25,000/- U/S 271A. 20. THE LD. CIT (A) CONFIRMED THE ADDITION HOLDING THAT SINCE THE ASSESSEE HAS NOT MAINTAINED AND PRODUCED BOOKS OF ACCOUNTS, THE ACTION OF THE ASSESSING OFFICER CANNO T BE FAULTED WITH. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 7 21. DURING THE HEARING BEFORE US, THE LD. AR ARGUED THAT THE ASSESSEE HAS DULY MAINTAINED BOOKS OF ACCOUNTS IN T ALLY SOFTWARE AND THE SAME FACT HAS BEEN CONVEYED TO THE REVENUE AUTHORITIES DURING THE PROCEEDINGS U/S 133A ON 14.1 0.2011. HE ALSO ARGUED THAT SINCE THE HARD DISK OF THE COMPUTE R HAS BEEN CRASHED THEY COULD NOT RECONCILE THE BOOKS OF ACCOU NTS. 22. THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 23. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 24. THE PROVISIONS OF SECTION 271A ARE AS UNDER: [ FAILURE TO KEEP, MAINTAIN OR RETAIN BOOKS OF ACCOUNT, DOCUMENTS, ETC. 271A. WITHOUT PREJUDICE TO THE PROVISIONS OF [SECTION 270A OR] SECTION 271, IF ANY PERSON FAILS TO KEEP AND MAINTAIN ANY SUCH BOOKS OF ACCOUNT AND OTHER DOCUME NTS AS REQUIRED BY SECTION 44AA OR THE RULES MADE THEREUNDER, IN RESPECT OF ANY PREVIOUS YEAR OR TO R ETAIN SUCH BOOKS OF ACCOUNT AND OTHER DOCUMENTS FOR THE P ERIOD SPECIFIED IN THE SAID RULES, THE [ASSESSING] OFFICE R OR THE [COMMISSIONER (APPEALS)] MAY DIRECT THAT SUCH PERSO N SHALL PAY, BY WAY OF PENALTY, [A SUM OF TWENTY-FIVE THOUSAND RUPEES]. 25. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 44AA, SECTION 271A AND SECTION 273B. WE HAVE GONE THROUGH THE ABOVE PROVISIONS, SO AS TO LOOK INTO WHETHER THERE WAS ANY REASONABLE CAUSE FOR THE FAILURE TO COMPLY TO NON-M AINTENANCE OF BOOKS OF ACCOUNTS. THE NOTICES HAVE BEEN RIGHTLY SENT TO THE CORRECT ADDRESS AND THE ASSESSEE COULD NOT ESTABLIS H FAILURE TO COMPLY TO THE PROVISIONS OF THE ACT WITH ANY REASON ABLE CAUSE. HENCE, WE DECLINE TO INTERFERE WITH THE ORDER OF TH E LD. CIT (A) ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 8 AND HOLD THAT THE PENALTY HAS BEEN RIGHTLY IMPOSED BY THE ASSESSING OFFICER FOR NON-MAINTENANCE OF BOOKS OF A CCOUNTS. 26. ITA NOS. 6868 & 6869/DEL/2017 PERTAIN TO LEVY OF PENALTY U/S 271B. 27. WE FIND THAT THE ASSESSING OFFICER HAS LEVIED P ENALTY U/S 271A AS WELL AS SECTION 271B FOR THE SAME YEARS. TH E ISSUE OF LEVY OF PENALTY U/S 271A AS WELL AS 271B HAS BEEN A DJUDICATED BY THE ITAT DELHI BENCH IN ITA NO.3355/DEL/2017 IN THE CASE OF SH. MOHIT GARG VIDE ORDER DATED 23.06.2020. THE REL EVANT PORTION OF THE SAID ORDER IS AS UNDER: HAVING THE FACTS OF THE CASE AND THE PROVISIONS OF THE ACT UNDISPUTED, THE LD. AR ARGUED ON THE STRENGTH OF TH E JUDGMENTS OF VARIOUS COURTS: S.P. TODI VS CIT 226 ITR 691 (GAU.) HELD, THAT MAI NTENANCE OF ACCOUNTS IS ENVISAGED UNDER SECTION 44AA AND ON FAI LURE TO DO SO THE ASSESSEE SHALL BE GUILTY AND LIABLE TO BE PE NALIZED UNDER SECTION 271A. EVEN AFTER MAINTENANCE OF BOOKS OF AC COUNT THE OBLIGATION OF THE ASSESSEE DOES NOT COME TO AN END. HE IS REQUIRED TO DO SOMETHING MORE, I.E., BY GETTING THE BOOKS OF ACCOUNT AUDITED BY AN ACCOUNTANT. BUT WHEN A PERSON COMMITS AN OFFENCE BY NOT MAINTAINING THE BOOKS OF ACCOUNTS AS CONTEMPLATED BY SECTION 44AA THE OFFENCE IS COMPLET E. AFTER THAT THERE CAN BE NO POSSIBILITY OF ANY OFFENCE AS CONTEMPLATED BY SECTION 44AB AND, THEREFORE, IN OUR OPINION, THE IMPOSITION OF PENALTY UNDER SECTION 271B IS ERRONEOUS. THE TRI BUNAL HAS OVERLOOKED THIS ASPECT OF THE MATTER. OF COURSE, IT IS APPARENT FROM THE RECORDS THAT THE ASSESSEE FAILED TO MAINTA IN THE BOOKS OF ACCOUNTS AS REQUIRED UNDER SECTION 44AA AND FOR THAT PENALTY IS PRESCRIBED UNDER SECTION 271A. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 9 CIT VS S.K. GUPTA AND CO. 322 ITR 86 (ALL.) HELD, THE SUBMISSION (OF COUNSEL FOR REVENUE ) IS MISCONCEIVE D FOR THE REASON THAT THE REQUIREMENT OF GETTING THE BOOKS OF ACCOUNTS AUDITED COULD ARISE ONLY WHERE THE BOOKS OF ACCOUNT S ARE MAINTAINED. IF FOR SOME REASON THE ASSESSEE HAS NOT MAINTAINED THE BOOKS OF ACCOUNTS THE APPROPRIATE PR OVISION UNDER WHICH PENALTY PROCEEDINGS CAN BE INITIATED IS UNDER SECTION 271A OF THE ACT WHICH RECOURSE HAS ALSO BEE N TAKEN BY THE ASSESSEE AS WOULD APPEAR FROM THE ORDER OF THE TRIBUNAL. CIT VS BISAULI TRACTORS 299 ITR 219 (ALL.) AFTER HE ARING THE COUNSEL FOR THE REVENUE IN AN EX-PARTE ORDER HELD, THAT SEPARATE PENALTY HAS BEEN PROVIDE FOR NON-MAINTENAN CE OF ACCOUNTS, I.E., UNDER SECTION 271A OF THE ACT AND F OR NO GETTING THE ACCOUNTS AUDITED AND NOT FURNISHING THE AUDIT R EPORT I.E., UNDER SECTION 271B OF THE ACT. IN THE PRESENT CASE, THE ASSESSING OFFICER DID NOT IMPOSE PENALTY UNDER SECT ION 271A OF THE ACT AND INSTEAD PROCEEDED TO IMPOSE PENALTY UND ER SECTION 271B OF THE ACT. IF A PERSON HAS NOT MAINTAINED THE ACCOUNTS BOOK OR ANY ACCOUNTS THE QUESTION OF ITS AUDIT DOES NOT ARISE. IN SUCH AN EVENT THE IMPOSITION OF PENALTY UNDER TH E PROVISION CONTAINED IN SECTION 271A OF THE ACT FOR THE ALLEGE D NON- COMPLIANCE. 9. ON THE OTHER HAND, THE LD. DR VEHEMENTLY ARGUED THAT THE PENALTY U/S 271A AND 271B ARE MUTUALLY EXCLUSIVE AN D OPERATE UNDER DIFFERENT DOMAINS. SHE ARGUED THAT IT IS NOT CORRE CT TO HOLD THAT ONCE PENALTY U/S 271A HAS ALREADY BEEN LEVIED, THE PENALTY UNDER SECTION 271B CANNOT STAND. IT WAS ARGUED THAT IT IS A CASE OF ASSESSEE BEING IN THE BUSINESS OF TRADING OF ALUMI NUM SHEETS & FOILS AND THE BANK STATEMENT OF THE ASSESSEE DEPICTS TURN OVER OF MORE THAN RS.3 CRORES AND THE CONTENTION OF THE ASSESSEE THAT HE IS IN BUSINESS OF EARNING OF COMMISSION ALSO CANNOT BE AC CEPTED. SHE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 10 RELIED ON THE CASE OF ABHAY KUMAR & CO. VS UNION OF INDIA 164 ITR 148 (RAJ.). IT WAS ARGUED THAT WHILE THE PENALTY U/ S 271A IS RS.25,000/- FOR NON-MAINTENANCE OF BOOKS OF ACCOUNT S AND RS.1,50,000/- THE MAXIMUM PENALTY U/S 271B FOR FAIL URE TO GET THE ACCOUNTS AUDITED, IF THE PROPOSITION AS CANVASSED B Y THE LD. AR IS ACCEPTED IT WILL ONLY ENCOURAGE THE ASSESSEES FOR NON-MAINTENANCE OF BOOKS OF ACCOUNTS AND GETTING AWAY WITH A MINOR PENALTY OF RS.25,000/- INSTEAD OF RS.1,50,000/-. 10. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 11. WE FIND THAT THE DECISION OF THE LD. CIT (A) TH AT THE LEGISLATURE IS CLEAR ABOUT MAINTENANCE OF BOOKS OF ACCOUNTS AND AS WELL AS GETTING THE BOOKS AUDITED IS ACCEPTABLE TO THE EXTE NT THAT THERE HAS BEEN A TWIN RESPONSIBILITY CASTED UP ON THE SHOULD ERS OF THE ASSESSEE TO, A) MAINTAIN THE BOOKS OF ACCOUNTS U/S 44AA, B) TO GET THE ACCOUNTS AUDITED U/S 44AB. 12. AT THE SAME TIME, THE LEGISLATURE IS ALSO PROVI DED FOR SEPARATE LEVY OF PENALTY FOR FAILURE TO MEET EACH STATUTORY REQUIREMENT. IN THE INSTANT CASE, THE AUDIT COULD NOT HAVE BEEN CONDUCT ED IN THE ABSENCE OF BOOKS OF ACCOUNTS. IF A PERSON HAS NOT MAINTAINE D THE BOOKS OF ACCOUNTS, THE QUESTION OF AUDIT DOES NOT ARISE. THE INFRACTION OF SECTION 44AB GETS ATTRACTED ONLY WHEN THE ASSESSEE MAINTAINS THE BOOKS OF ACCOUNTS BUT FAIL TO GET THEM AUDITED. HEN CE, THERE IS NO REASON TO INITIATE PENALTY U/S 271B. THE PENALTY FO R NON-MAINTENANCE OF BOOKS OF ACCOUNTS HAS ALREADY BEEN RIGHTLY LEVIE D, HENCE THE OFFENCE HAS ALREADY BEEN TAKEN NOTE OF AND THE ONLY RECOURSE IS TO LEVY PENALTY U/S 271A FOR NON-COMPLIANCE OF SECTION 44AA. THESE TWO PROVISIONS OPERATE UNDER TWO DIFFERENT REALMS. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 11 13. HENCE, KEEPING IN VIEW THE PROVISIONS OF THE AC T AND THE JUDICIAL PRONOUNCEMENTS ON THE SUBJECT MATTER, WE H EREBY DIRECT THAT THE PENALTY LEVIED BY THE AO AS CONFIRMED BY THE LD . CIT (A) BE OBLITERATED. 14. WITH REGARD TO THE ARGUMENTS OF THE LD. DR THAT OWING TO THE DIFFERENCE IN THE PENALTIES, IT PRIMA FACIE ENCOURA GES NON- MAINTENANCE OF BOOKS OF ACCOUNTS, AT THIS JUNCTURE, WE REFRAIN OURSELVES FROM TRESPASSING THE DOMAIN OF LEGISLATUR E AS TO THE DIFFERENCE OF THE QUANTUM OF PENALTY LEVIABLE U/S 2 71A AND 271B. 28. FOLLOWING THE RATIO OF THE ABOVE ORDER AND THE SINCE THE FACTS OF THE CASE ARE SAME, WE HEREBY DELETE THE PE NALTY LEVIED U/S 271B. 29. ITA NOS. 6870 & 6871/DEL/2017 PERTAIN TO LEVY OF PENALTY U/S 271F. 30. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U /S 132 OF THE ACT WAS CONDUCTED IN THE CASE OF SURYA VINAYAK GROU P ON 03.03.2011. AT THE SAME TIME, THE SEARCH WAS ALSO C ONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AT BLOCK A C-1/152C, SHALIMAR BAGH, DELHI. ALSO, A SURVEY U/S 133A OF TH E ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF M/S HR PERFUM ERY AT 315, INDUSTRIAL AREA, PHASE-II, PANCHKULA, HARYANA, WHICH IS A PROPRIETORSHIP CONCERN OF THE ASSESSEE. SUBSEQUENTL Y, NOTICE U/S 153A OF THE ACT WAS ISSUED ON 08.02.2012 AND NO TICES U/S 142(1) OF THE ACT WERE ISSUED BY THE AO ON VARIOUS DATES. THERE WAS NO RESPONSE FROM THE ASSESSEE. AS A RESULT, THE AO FINALIZED THE ASSESSMENT U/S 153A R.W.S. 144 OF THE ACT TO THE BEST OF HIS JUDGMENT. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 12 31. THE ASSESSING OFFICER INITIATED AND LEVIED PENA LTY U/S 271F FOR FAILURE TO FURNISH RETURN OF INCOME WHICH HAS B EEN CONFIRMED BY THE LD. CIT (A). 32. BEFORE US DURING THE HEARING, THE LD. AR ARGUED THAT THE NOTICES HAVE NOT BEEN RECEIVED BY THE ASSESSEE AND NO NOTICE HAS BEEN SENT TO ADDRESS AT M/S HR PERFUMERY, 315, INDUSTRIAL AREA, PHASE-II, PANCHKULA, HARYANA. IT WAS ARGUED T HAT THERE WAS NO INTENTION ON THE PART OF THE ASSESSEE NOT TO COMPLY WITH THE STATUTORY NOTICES ISSUED. 33. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 34. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 35. PROVISIONS OF SECTION 271F FOR FAILURE TO FURNI SH RETURN OF INCOME READS AS UNDER: [ PENALTY FOR FAILURE TO FURNISH RETURN OF INCOME. 271F. IF A PERSON WHO IS REQUIRED TO FURNISH A RETURN OF HIS INCOME, AS REQUIRED UNDER SUB-SECTION (1) OF SE CTION 139 OR BY THE PROVISOS TO THAT SUB-SECTION, FAILS T O FURNISH SUCH RETURN BEFORE THE END OF THE RELEVANT ASSESSME NT YEAR, THE ASSESSING OFFICER MAY DIRECT THAT SUCH PE RSON SHALL PAY, BY WAY OF PENALTY, A SUM OF FIVE THOUSAN D RUPEES:] [ PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO AND IN RELATION TO THE RETURN OF INCOME RE QUIRED TO BE FURNISHED FOR ANY ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 2018.] 36. WE HAVE GONE THROUGH THE PROVISIONS OF SECTION 273B WHICH READS AS UNDER: ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 13 [ PENALTY NOT TO BE IMPOSED IN CERTAIN CASES. 273B. NOTWITHSTANDING ANYTHING CONTAINED IN THE PROVISIONS OF [CLAUSE (B) OF SUB-SECTION (1) OF] [SECTION 271, SECTION 271A, [SECTION271AA,] SECTION271B[, SECTION271BA], [SECTION 271BB,] SECTION 271C, [SECTION 271CA,] SECTION 271D, SECTION 271E, [SECTION 271F, [SECTION 271FA,] [SECTION 271FAB,] [SECTION 271FB,] [SECTION 271G,]] [SECTION 271GA,] [SECTION 271GB,] [SECTION 271H,] [SECTION 271-I,] [SECTION 271J,] CLAUSE (C) OR CLAU SE (D) OF SUB-SECTION (1) OR SUB-SECTION (2) OF SECTIO N 272A, SUB-SECTION (1) OF SECTION 272AA] OR [SECTION 272B OR] [SUB-SECTION (1) [OR SUB-SECTION (1A)] OF SECTION 272BB OR] [SUB-SECTION (1) OF SECTION 272BB B OR] CLAUSE (B) OF SUB-SECTION (1) OR CLAUSE (B) OR CLAUSE (C) OF SUB-SECTION (2) OF SECTION 273, NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CASE MAY BE, FOR ANY FAILURE REFERRED TO IN THE SAID PROVISIONS IF HE PROVES THA T THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE.] 37. WE HAVE GONE THROUGH THE ABOVE PROVISIONS, SO A S TO LOOK INTO WHETHER THERE WAS ANY REASONABLE CAUSE FOR THE FAILURE TO COMPLY TO THE NOTICES. WE FIND THAT THE NOTICES HAV E BEEN DULY SENT TO THE ADDRESS OF THE ASSESSEE MENTIONED IN TH E PANCHANAMA DRAWN ON THE DATE OF SEARCH AND THE LD. ARS CONTENTION THAT NOTICES HAVE NOT BEEN SENT TO PANCH KULA CANNOT BE ACCEPTED AS THE PANCHKULA ADDRESS DO NOT PERTAIN TO THE RESIDENTIAL ADDRESS TO THE ASSESSEE. THE NOTICES HA VE BEEN RIGHTLY SENT TO THE CORRECT ADDRESS AND THE ASSESSE E COULD NOT ESTABLISH FAILURE TO COMPLY TO THE NOTICES WITH ANY REASONABLE CAUSE. HENCE, WE DECLINE TO INTERFERE WITH THE ORDE R OF THE LD. CIT (A) AND HOLD THAT THE PENALTY HAS BEEN RIGHTLY IMPOSED BY THE ASSESSING OFFICER. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 14 ITA NOS. 6872 TO 6874/DEL/2017 38. THESE THREE APPEALS INVOLVE, A. CONDONATION OF DELAY B. ADMISSION OF ADDITIONAL EVIDENCES C. ADJUDICATION ON MERITS A. CONDONATION OF DELAY: 39. THE APPEAL FOR THE ASSESSMENT YEARS 2010-11 AND 2011-12 HAS BEEN DELAYED BY 70 DAYS WHEREAS THE APPEAL FOR THE ASSESSMENT YEAR 2012-13 HAS BEEN DELAYED BY 139 DAY S. 40. THE LD. AR SUBMITTED THAT DELAY WAS NOT INTENTI ONAL BUT DUE TO SITUATIONS BEYOND THE CONTROL OF THE ASSESSE E. HE SUBMITTED THAT THE ASSESSEE IS FACING SEVERE FINANC IAL CRUNCH AND AFTER LEAVING THE EMPLOYMENT HE COULD NOT AVAIL PROPER LEGAL ASSISTANCE. 41. THE LD. DR OBJECTED IN PRINCIPLE AND ARGUED THA T THE ASSESSEE HAS BEEN HABITUALLY NON-COMPLYING TO THE N OTICES ISSUED BY THE DEPARTMENT AND HENCE, THE DELAY IS NO T FIT TO BE CONDONED. 42. HAVING GONE THROUGH THE FACTS BEFORE US AND KEE PING IN VIEW THE FACTS AS CANVASSED BY THE LD. AR, WE HEREB Y CONDONE THE DELAY. B. ADMISSION OF ADDITIONAL EVIDENCES: 43. THE ASSESSEE HAS SOUGHT TO FILE THE FOLLOWING A S ADDITIONAL EVIDENCES UNDER RULE 29 OF THE ITAT RULES: ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 15 1. PANCHANAMA 2. BANK STATEMENT 3. INCREMENT CERTIFICATE ISSUED TO ASSESSEE BY THE DIR ECTOR, SURYA VINAYAK GROUP OF COMPANIES 44. IT WAS ARGUED THAT THESE EVIDENCES ARE VERY MUC H RELEVANT FOR COMPLETING ASSESSMENT IN ORDER TO UNDERSTAND TH AT ASSESSEE HAS EARNED NO INCOME BUT ACTED MERELY ON THE DIRECT IONS OF THE DIRECTORS OR SURYAVINAYAK GROUP OF INDUSTRIES AGAIN ST WHOM HUGE INCOME HAS BEEN ESTIMATED /COMPUTED BY THE ASS ESSING OFFICER. INFACT, ALL THE RECEIPTS IN THE BANK HAVE BEEN IMMEDIATELY TRANSFERRED TO ANOTHER PERSON /COMPANY AS MAY BE SEEN FROM THE BANK STATEMENT THUS THERE WAS NOT FUN D AVAILABLE WITH THE ASSESSEE IN THE BANK ACCOUNT WHOSE CHEQUE- BOOK HAS BEEN KEPT BY THE DIRECTORS OF SURYAVINAYAK GROUP OF COMPANIES. IT WAS SUBMITTED THAT AFORESAID ADDITIONAL EVIDENCE IS HIGHLY RELEVANT TO DECIDE THE INSTANT APPEAL AND IN THE AB SENCE OF SUCH ORDER, TRIBUNAL MAY NOT BE ABLE TO DECIDE THE INSTA NT APPEAL. IT WAS SUBMITTED THAT IN THE INTEREST OF JUSTICE AND I N ORDER TO DO SUBSTANTIAL JUSTICE AND TO DECIDE THE ISSUE BEFORE IT, TRIBUNAL HAS VIDE DISCRETION TO ADMIT THE ADDITIONAL EVIDENC E. 45. THE LD. AR PLACED RELIANCE ON THE JUDGMENT OF T HE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME-TAX V. TEXT HUNDRED INDIA (P.) LTD. REPORTED IN [2013] 351 ITR 57 (DELHI), WHEREIN HONBLE HIGH COURT HAS HELD AS UNDER: 13. THE AFORESAID CASE LAW CLEARLY LAYS DOWN A NEAT PRINCIPLE OF LAW THAT DISCRETION LIES WITH THE TRIB UNAL TO ADMIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE ONCE THE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 16 TRIBUNAL AFFIRMS THE OPINION THAT DOING SO WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER. THIS CAN BE DONE EVEN WHEN APPLICATION IS FILED BY ONE OF THE PARTIES TO THE APPEAL AND IT NEED NOT TO BE A.WO MAIN ACTION OF THE TRIBU NAL. THE AFORESAID RULE IS MADE ENABLING THE TRIBUNAL TO ADM IT THE ADDITIONAL EVIDENCE IN ITS DISCRETION IF THE TRIBUN AL HOLDS THE VIEW THAT SUCH ADDITIONAL EVIDENCE WOULD BE NECESSA RY TO DO SUBSTANTIAL JUSTICE IN THE MATTER. IT IS WELL-SETTL ED THAT THE PROCEDURE IS HANDMADE OF JUSTICE AND JUSTICE SHOULD NOT BE ALLOWED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTE NT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LE AD EVIDENCE AT THE APPROPRIATE STAGE. ONCE IT IS FOUND THAT THE PARTY INTENDING TO LEAD EVIDENCE BEFORE THE TRIBUNAL FOR THE FIRST TIME WAS PREVENTED BY SUFFICIENT CAUSE TO LEAD SUCH AN EVIDENCE AND THAT THIS EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDS TO BE DECIDED BY THE TRIBU NAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SUCH AN EVIDENC E, THE TRIBUNAL CAN PASS AN ORDER TO THAT EFFECT. 14. THE NEXT QUESTION WHICH ARISES FOR CONSIDERATIO N IS AS TO WHETHER THE EXERCISE OF DISCRETION IN THE INSTANT C ASE PERMITTING THE ADDITIONAL EVIDENCE BY THE TRIBUNAL, IS APPOSITE? IT IS UNDISPUTED THAT RULE 29 OF THE RULE S IS AKIN TO ORDER 41 RULE 27(1) OF THE CODE OF CIVIL PROCEDURE. THE TRUE TEST IN THIS BEHALF, AS LAID DOWN BY THE COURTS, IS WHETHER THE APPELLATE COURT IS ABLE TO PRONOUNCE JUDGMENT ON TH E MATERIALS BEFORE IT WITHOUT TAKING INTO CONSIDERATI ON THE ADDITIONAL EVIDENCE SOUGHT TO BE ADDUCED. THE LEGIT IMATE OCCASION, THEREFORE, FOR EXERCISE OF DISCRETION UND ER THIS RULE IS NOT BEFORE THE APPELLATE COURT HEARS AND EXAMINE S THE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 17 CASE BEFORE IT, BUT ARISES WHEN ON EXAMINING THE EV IDENCE AS IT STANDS, SOME INHERENT LACUNA OR DEFECT BECOMES A PPARENT TO THE APPELLATE COURT COMING IN ITS WAY TO PRONOUN CE JUDGMENT, THE EXPRESSION TO ENABLE IT TO PRONOUNCE JUDGMENT5 CAN BE INVOKED. REFERENCE IS NOT TO PRONO UNCE ANY JUDGMENT OR JUDGMENT IN A PARTICULAR WAY, BUT IS TO PRONOUNCE ITS JUDGMENT SATISFACTORY TO THE MIND OF COURT DELIVERING IT. THE PROVISION DOES NOT APPLY WHERE W ITH EXISTING EVIDENCE ON RECORD THE APPELLATE COURT CAN PRONOUNCE A SATISFACTORY JUDGMENT. IT IS ALSO APPAR ENT THAT THE REQUIREMENT OF THE COURT TO ENABLE IT TO PRONOU NCE JUDGMENT CANNOT REFER TO PRONOUNCEMENT OF JUDGMENT IN ONE WAY OR THE OTHER BUT IS ONLY TO THE EXTENT WHETHER SATISFACTORY PRONOUNCEMENT OF JUDGMENT ON THE BASIS OF MATERIAL ON RECORD IS POSSIBLE. 46. THE LD. AR HAS ALSO PLACED RELIANCE ON BRAGANZA CONSTRUCTION (P.) LTD. VS. ACIT [2020] 271 TAXMAN 1 73 (BOMBAY), WHEREIN IT HAS BEEN HELD THAT UNDER RULE 29, THE TRIBUNAL CAN CONSIDER THE ADDITIONAL EVIDENCES FURN ISHED BEFORE THE TRIBUNAL 47. IT WAS ARGUED THAT ASSESSMENTS WERE MADE EX-PAR TE WITHOUT PROVIDING OPPORTUNITY TO THE ASSESSEE DESPI TE PROVIDING ALL THE ADDRESSES AND ONCE ASSESSEE WAS NOT AVAILAB LE AT ONE PLACE, THE AO SHOULD HAVE SERVED THE NOTICE AT PANC HKULA WHERE SURVEY WAS CONDUCTED BY HIM ALSO. IN ABSENCE OF ANY NOTICE RECEIVED, ASSESSEE WAS UNABLE TO APPEAR BEFORE THE ASSESSING OFFICER. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 18 48. THE LD. AR CONCLUDED HIS ARGUMENTS REQUESTING T HAT THE ASSESSMENTS FOR AY 2010-11 TO 2012-13 MAY KINDLY BE SET ASIDE TO THE ASSESSING OFFICER WITH THE DIRECTION FOR PRO VIDING ASSESSEE REASONABLE AND SUFFICIENT OPPORTUNITY AND ALSO FOR MAKING ENQUIRY WITH THE RELATED COMPANIES OF SURYA VINAYAK GROUP, IN ORDER TO UNDERSTAND WHETHER ANY INCOME EA RNED BY THE ASSESSEE WHICH IS REQUIRED TO BE TAXED AS PER I NCOME-TAX ACT WHEN NO INCOME WAS EVER EARNED BY THE ASSESSEE. 49. ON THE OTHER HAND, THE LD. DR ARGUED THAT THE N OTICES HAVE BEEN DULY AND RIGHTLY ISSUED TO THE ADDRESSES MENTI ONED IN THE PANCHANAMA ON VARIOUS DATES VIZ. 28.09.2012, 21.11. 2012, 24.12.2012, 04.01.2013 AND 11.02.2013. FURTHER, SUM MONS WERE ALSO ISSUED U/S 131 AND SERVED BY THE INSPECTO R ON 04.02.2013 AND 27.02.2013. HENCE, IT CANNOT BE SAID THAT THE EX-PARTE ASSESSMENT HAVE BEEN COMPLETED WITHOUT AFFORDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. IT WAS ARGUED THAT THE ASSESSEE INSPITE OF RECEIPT OF ALL THE NOTICES AND THE SUMMONS U/S 131 HAS NEVER COMPLIED TO THE NOTICES AND SUMMO NS. IT WAS ARGUED BY THE LD. DR THAT THE PREMISES OF THE SURVE Y AT PANCHKULA WAS NOT THE RESIDENTIAL ADDRESS OF THE AS SESSEE AND THE ASSESSEE STAYED AT THE PLACE WHERE SUMMONS HAVE BEEN DULY SERVED I.E. THE RESIDENTIAL ADDRESS AT DELHI A S MENTIONED IN THE PANCHANAMA. THE LD. DR REITERATED THAT THE SUMM ONS U/S 131 HAVE ALSO BEEN DULY SERVED AT THE RESIDENTIAL A DDRESS OF THE ASSESSEE. 50. WITH REGARD TO THE ADDITIONAL EVIDENCES, THE LD . DR ARGUED THAT THEY ARE NOT IN NATURE OF ANY ADDITIONAL EVIDE NCES THAT ONLY THE ARGUMENTS OF THE ASSESSEE. HE ARGUED THAT THE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 19 PANCHANAMA, THE BANK STATEMENT AND THE PROCEEDINGS PMLA COURT/ACCM SPECIAL ACT ARE NOT ANY ADDITIONAL EVIDE NCES WHICH HAS ANY MATERIAL IMPACT ON THE ADJUDICATION OF THE ISSUE BEFORE THE TRIBUNAL. ON MERITS, HE ARGUED THAT THE TOTAL R ECEIPTS OF THE ASSESSEE IN THE BANK STATEMENT IS RS.233.67 CRORES AND THE AO HAS RIGHTLY MADE ADDITION @10% OF THE GROSS RECEIPT S. HENCE, HE ARGUED THAT THE ADDITIONAL EVIDENCES HAVE NO IMP ACT ON THE ASSESSMENT PROCEEDINGS AND THE ADDITIONAL EVIDENCES ARE NOT EVIDENCES AS PER THE INDIAN EVIDENCE ACT AND HENCE NOT LIABLE TO THE CONSIDERED UNDER RULE 29. 51. HEARD THE ARGUMENTS OF BOTH THE PARTIES AND PER USED THE MATERIAL AVAILABLE ON RECORD. 52. RULE 29 OF THE ITAT RULES AS UNDER: [ PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL. 29. THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENT ARY 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.] 53. THE INSTANT CASE DOESNT MEET THE BASIC REQUIRE MENT OF ADMITTING OF ADDITIONAL EVIDENCES. THE ASSESSEE HAS BEEN ACCORDED SUFFICIENT OPPORTUNITIES WHICH HE FAIL TO MAKE USE OF. THE ADDITIONAL EVIDENCES IN THE FORM OF ANY DOCUMEN T ARE ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 20 EXAMINATION CAN BE ALLOWED TO BE PRODUCED UNDER THE FOLLOWING CIRCUMSTANCES: WHEN THE TRIBUNAL FEELS THAT IT IS NECESSARY TO ENA BLE IT TO PASS ORDERS OR FOR ANY SUBSTANTIAL CAUSE OR WHERE THE INCOME TAX AUTHORITY DID NOT PROVIDE SUFF ICIENT OPPORTUNITY TO THE ASSESSEE 54. IN THE PRESENT CASE, NONE OF THE THREE CONDITIO NS ARE FULFILLED. THE HONBLE HIGH COURT OF MADRAS IN RSSS PILLAI AND SONS 95 ITR 109 HELD THAT THE TRIBUNAL FINDS THAT T HE EVIDENCE ADDUCED AT THE STAGE OF APPEAL IS NOT QUITE RELEVAN T OR THAT IT IS NOT NECESSARY FOR THE PROPER DISPOSAL OF THE APPEAL BEFORE IT, IN THAT CASE THE TRIBUNAL COULD STRAIGHT AWAY REJECT T HE EVIDENCE WHICH WAS SOUGHT TO THE PRODUCED FOR THE FIRST TIME AT THE STAGE OF APPEAL. 55. THUS, WE FIND THAT THE PROCEEDINGS ADD PROCESSE S, BEFORE THE ACCM, PANCHANAMA AND THE BANK STATEMENT CANNOT BE TREATED AS ADDITIONAL EVIDENCES UNDER RULE 29 WHICH ARE REQUIRED FOR ADJUDICATION OF THE MATTER. HENCE, THE APPLICATION OF THE ASSESSEE UNDER RULE 29 IS HEREBY REJECTED. 56. REGARDING THE MERITS OF THE CASE, THE AO HAD DE TERMINED 10% OF THE GROSS RECEIPTS AS INCOME OF THE ASSESSEE FOR THE YEAR IN QUESTION. THE ASSESSEE IS IN THE BUSINESS O F MANUFACTURING AND TRADING OF PERFUMERY PRODUCTS. TH E ASSESSEE HAS NOT FURNISHED ANY DETAILS BEFORE THE ASSESSING OFFICER OR BEFORE THE LD. CIT(A). THE PURPORTED ADDITIONAL EVI DENCES PROPOSED TO BE FILED BY THE ASSESSEE BEFORE THE TRI BUNAL DO NOT MATERIALLY CHANGE THE PROFIT COMPUTED BY THE ASSESS ING OFFICER. ITA NOS. 6864 TO 6874/DEL/2017 SANJAY TYAGI 21 57. THE GROSS RECEIPTS HAS REFLECTED IN THE BANK ST ATEMENTS HAVE BEEN DULY CONSIDERED BY THE ASSESSING OFFICER WHILE DETERMINING THE PROFIT @10%. HENCE, WE HEREBY UPHOL D THE PROFIT DETERMINED BY THE AUTHORITIES BELOW. NO USEF UL PURPOSE WOULD BE SERVED BY ACCEPTING THE REQUEST OF THE LD. AR TO SET ASIDE THE CASE TO THE ASSESSING OFFICER FOR ALLOWIN G ANOTHER OPPORTUNITY FOR MAKING FURTHER INQUIRIES. 58. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/09/2020. SD/- SD/- (BHAVNESH SAINI) (D R. B. R. R. KUMAR) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED: 30/09/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR