Sri P. Harsha Vardhan Reddy, Hyd, Hyderabad V. DCIT, Central Circle-2, Hyderabad

ITA 698/HYD/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3236 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 20-04-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PARNEET SINGH SACHDEV
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NOS.697 & 698/H/2011 ASSESSMENT YEAR :2001-02 & 2002-03 SHRI P. HARSHA VARDHAN REDDY, HYDERABAD (PAN AALPLPR 2677 M) VS THE DCIT, CENTRAL CIRCLE 2, HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI P. MURALI MOHAN RAO: RESPONDENT BY : SHRI PARNEET SINGH SACHDEV, DR ORDER PER CHANDRA POOJARI, A.M. THESE TWO APPEALS PREFERRED BY THE ASSESSEE A RE DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) III HYDERABAD DATED 08-03-2011 AND PERTAINS TO THE ASSESSMENT YEARS 2001-02 & 2003-03. SINCE ISSUES INVOLVED IN THESE TWO APPEALS ARE COMMON IN NATURE, THEY ARE CLUBBED TOGETHER, HEARD TOGETHER AND DISPOSED O FF VIDE THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS PLACED PRELIMINARY OBJECTIONS THAT THE ASSESSEE HAS FILED CERTAIN ADDITIONAL EVIDENCE BEFO RE THE CIT(A) ON 28.06.2011 AND THESE WERE NOT ADMITTED B Y THE CIT(A). HE PRAYED THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE ON 28.6.2010 IS VERY IMPORTANT AND WILL GO TO THE ROUTE OF THE MATTER AND REQUESTED TO GIVE DIRECTIONS TO THE LOWER AUTHORITIES TO CONSIDER THE SAME AND RE-ADJUDICATE THE CASE AFRESH. ITA NOS.697 & 698 OF 2011-06-28 SHRI P. HARSHA VARDHAN REDDY, HYDERABAD 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT STRONGLY OPPOSED THE REQUEST OF THE ASSESSEE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THERE IS NO DISPU TE THAT THE ASSESSEE HAS FILED CERTAIN DOCUMENTS ON 28.6.20 11 BEFORE THE CIT(A) AND THE CIT(A) HAS NOT ADMITTED T HESE EVIDENCES ON THE REASON THAT THE CONDITIONS LAID DO WN IN RULE 46A(1) WERE NOT SATISFIED. THE RIGHT OF THE A SSESSEE IS NOT ENTIRELY TAKEN AWAY BY RULE 46A(1) AND THAT EVIDENCE WHICH HE FAILED TO PRODUCE BEFORE THE AUTH ORITIES BELOW COULD STILL BE PRODUCED BEFORE THE FIRST APPE LLATE AUTHORITY, SUBJECT TO THE SATISFACTION OF THE REQUI REMENTS OF LAW, PROVIDED IN RULE 46A OF THE INCOME TAX RULE S. BUT THE SAME RULE 46A DOES NOT PUT ANY FETTER UPON THE POWER OF THE FIRST APPELLATE AUTHORITY TO DIRECT TH E PRODUCTION OF ANY DOCUMENT ON THE EXAMINATION OF AN Y WITNESS TO ENABLE HIM TO DISPOSE OF THE APPEAL, TO ADMIT ADDITIONAL EVIDENCE FOR ANY OTHER SUBSTANTIAL CAUSE . THE LAW ENVISAGES CONSIDERATION OF THE RELEVANT EVIDENC E BEFORE ARRIVING AT A CONCLUSION AGAINST THE ASSESSE E RATHER THAN PROHIBITING HIM FROM PROVIDING ANY EVID ENCE. THEREFORE, THE CONCLUSION REACHED WITHOUT CONSIDERI NG THE EVIDENCE CANNOT BE SAID TO BE A PROPER AND JUST CONCLUSION. IT IS FOR THE LOWER AUTHORITIES TO EXA MINE THE EVIDENCE AND THEN GIVE THEIR FINDINGS THEREON RATHE R THAN REFUSING TO LOOK REASON WHY THE RIGHT OF THE ASSES SEE TO PRODUCE ADDITIONAL EVIDENCE WAS NOT TOTALLY ABRIDGE D. THE LAW HAS TAKEN A VERY STERN VIEW OF ATTEMPTS TO FABRICATE EVIDENCE BY PROVIDING STRICT PUNISHMENT F OR FABRICATION OF EVIDENCE. WHILE THE LAW HAD TAKEN CA RE TO ITA NOS.697 & 698 OF 2011-06-28 SHRI P. HARSHA VARDHAN REDDY, HYDERABAD SEE THAT THE FABRICATED EVIDENCE IS NOT MADE USE OF FOR GETTING RELIEF IN APPELLATE PROCEEDINGS, GENUINE HA RDSHIPS LIKE INABILITY TO PRODUCE RELEVANT EVIDENCE AT THE ORIGINAL STATE ARE PROVIDED FOR. THUS SHUTTING OUT OF EVIDE NCE MERELY ON THE GROUND THAT IT WAS NOT PRODUCED BEFOR E THE ITO WAS NOT CONTEMPLATED AT ALL. IT IS NOT A CASE WHERE THE EVIDENCE PRODUCED WAS FOUND TO BE CONCOCTED OR FABRICATED BUT IT WAS REFUSED ON THE GROUND THAT IT WAS NOT PRODUCED BEFORE THE ITO. THIS GROUND IS NOT JU ST AND PROPER TO REJECT THE CONSIDERATION OF EVIDENCE. THE PROPER COURSE OF JUSTICE IN THIS CASE WOULD BE TO DIRECT T HE CIT(A) TO LOOK INTO THE EVIDENCE THAT THE ASSESSEE HAD SOU GHT TO PRODUCE BEFORE HIM AND THEN TO ARRIVE AT A CONCLUSI ON AS TO WHETHER THAT EVIDENCE IS GENUINE AND WHETHER ON THE BASIS OF THE EVIDENCE, THE CASE OF THE ASSESSEE IS ESTABLISHED. FOR THIS PURPOSE, WE RELY ON THE FOLL OWING JUDGEMENTS: 1. CIT VS. BABU RAM CHANDER BHAN (1973) 90 ITR 230 (ALL) 2. CIT VS. NARANG & CO (98 ITR 462) (DELHI) 3. K.R.S. GURUMURTHY PATHAR VS. CIT (96 ITR 404) (M AD.) 4. CIT VS. K.T. THOMAS (123 ITR 31) (KER.) 5. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE, IN OUR OPINION, WHEN THE ASSESSEE HAS FIL ED THESE DOCUMENTS, IT IS FAIR TO CONSIDER THE SAME UN LESS THE INTENTION OF THE ASSESSEE IS MALA FIDE. THE DEPARTMENT HAS NOT DEMONSTRATED ANY NON BONA FIDENE SS ON THE PART OF THE ASSESSEE. IN OUR OPINION, THE DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE THE CIT( A) ON 28.6.2010 IS TO BE CONSIDERED BY THE CIT(A) AND IF ITA NOS.697 & 698 OF 2011-06-28 SHRI P. HARSHA VARDHAN REDDY, HYDERABAD REQUIRED HE IS DIRECTED TO CALL FOR THE REMAND REPO RT FROM THE ASSESSING OFFICER AND DECIDE THE ISSUE ACCORDIN GLY. AT THIS STAGE, WE REFRAIN FROM GOING INTO THE OTHER GROUNDS RAISED BY THE ASSESSEE. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL REASONS. ORDER PRONOUNCED IN THE OPEN COURT ON 28.6.2011 S D/ - G.C. GUPTA SD/ - CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT M EMBER DATED THE 28 TH JUNE, 2011 COPY FORWARDED TO: 1. SHRI P. MURALI MOHAN RAO, CA, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 2. THE DCIT, CENTRAL CIRCLE-2, HYDERABAD 3. THE CIT(A) III, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP