Shri Ramesh Kumar Sharma, Indore V. The ITO 1(3), Indore

ITA 699/IND/2013

• Counselvise Citation: 69922714 RSA 2013
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 04-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 131; 68; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 699/IND/2013 A.Y. : 2007-08 SHRI RAMESH KUMAR SHARMA ITO, 1(3), INDORE INDORE. APPELLANT RESPONDENT P.A.N. NO BAOPS2535M APPELLANT BY SHRI S.N.AGRAWAL AND SHRI PANKAJ MOGRA RESPONDENT BY SHRI R. A. VERMA, SR. DR DATE OF HEARING : 17 .08.2015 DATE OF PRONOUNCEMENT : 30 .0 9.2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 21.10.2013 FOR THE ASSES SMENT YEAR 2007-08. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE FILED THE RETURN OF INCOME AND THE RE TURN WAS PROCESSED U/S 143(3). THE AO HAS MADE THE ADDIT ION IN HIS ASSESSMENT ORDER AS UNDER :- S.NO. NATURE OF ADDITION AMOUNT (RS.) 1. ON ACCOUNT OF SUNDRY CREDITORS 368500 2. OUT OF DIFFERENT EXPENSES 37,862 3. ON ACCOUNT OF CASH CREDIT U/S 68 OF THE ACT 26,32,000 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS DISMISSED THE APPEAL. 5. THE LD. SENIOR D.R. SUBMITTED THAT THE ASSESSEE DID NOT REMAIN PRESENT BEFORE THE AO, BUT THE ASSESSEE HAS FILED ONE DOCUMENTARY EVIDENCE BEFORE THE CIT(A) AND THE LD. CIT(A) -: 3: - 3 IN HIS ORDER HAS NOT ADMITTED THE ADDITIONAL EVIDEN CE. THEREFORE, THE MATTER WAS DISMISSED. 6. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT IF THE ADDITIONAL EVIDENCE IS ADMITTED, THEN THE ASSESSEE HAD ALL THE CHANGES TO GIVE JUSTIFICATION OF HIS ADDITION. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED THE DOCUMENTS, WHICH ARE T O BE ADMITTED AND IF IT IS ADMITTED, THE MATTER MAY BE S ET-ASIDE TO LD. CIT(A) OR THE AO AND MATTER MAY BE DECIDED ON M ERIT. 7. THE LD. SENIOR D.R. OBJECTED TO IT AND SUBMITTED TH AT WHEN THE ADDITIONAL EVIDENCE WAS GIVEN BEFORE THE C IT(A) AND THE LD. CIT(A) HAS GIVEN SUFFICIENT OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEE DID NOT REMAIN PRESENT. THEREFORE, THE MATTER CANNOT BE REMANDED TO THE AO. SIMILARLY, THE HON'BL E ALLAHABAD HIGH COURT HAS ALSO TAKEN A VIEW THAT WHE N THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE AS SESSING OFFICER AND IF THE ASSESSEE FAILED TO PRODUCE THE E VIDENCE BEFORE THE AO, IT CANNOT BE ADMITTED BEFORE THE TRI BUNAL. SIMILARLY, THE LD. SENIOR D.R. ALSO RELIED UPON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF N. B. SUR TI FAMILY TRUST VS. CIT, 288 ITR 523, AND SUBMITTED THAT WHEN ALL THE -: 4: - 4 EVIDENCE WHICH WERE NOT SUBMITTED BEFORE THE AO AND LD. CIT(A) , IT CANNOT BE ADMITTED BEFORE THE TRIBUNAL. SIMILARLY HON'BLE CALCUTTA HIGH COURT IN THE CASE OF RAJ KUMA R SHRIMAL VS. CIT, (1976) 102 ITR 525, WHEREIN SIMILAR VIEW H AS BEEN TAKEN BY THE HON'BLE CALCUTTA HIGH COURT. 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE THE AO IN RESPECT OF ADDITION MADE ON ACCOUNT OF SUNDRY CREDITORS AND NO EVIDENCE IN RESPECT OF E XPENSES AND NO EVIDENCE IN RESPECT OF ADDITION MADE U/S 68 AT R S. 26,32,000/- . BEFORE THE CIT(A), THE ASSESSEE HAS G IVEN THE DETAILS OF LAND PURCHASED, CHEQUE ISSUED FROM CANAR A BANK, COPY OF BANK STATEMENT WITH CANARA BANK AND XEROX D ETAILS WAS SUBMITTED BEFORE THE CIT(A) AS ADDITIONAL EVIDE NCE. THE ASSESSEE WANTED TO PROVE THAT THE ASSESSEE HAD MADE AN AGREEMENT FOR PURCHASE OF LAND AND THEREAFTER ON CA NCELLATION OF THIS AGREEMENT, THE ASSESSEE HAS RECEIVED SOME M ONEY. ALL THE DOCUMENTS WERE SENT TO THE AO FOR HIS COMMENTS. THE AO HAS ONLY OBJECTION THAT THE ASSESSEE DID NOT REMAIN PRESENT, THOUGH THE SUMMONS WAS ISSUED U/S 131 OF THE INCOME -TAX -: 5: - 5 ACT, 1961. THEREFORE, THE AO HAS OBJECTED TO THIS A DDITIONAL EVIDENCE. WE FIND THAT THE ASSESSMENT WAS COMPLETED U/S 144 AND ALL THE INFORMATION WHICH THE ASSESSEE DID NOT SUBMIT, WE ARE OF THE VIEW THAT THE SEVERAL OPPORTUNITY WAS GI VEN TO THE ASSESSEE, BUT NOW THE ASSESSEE HAS ADDUCED THE EVID ENCES. THEREFORE, WE ARE OF THE VIEW THAT THE ADDITIONAL E VIDENCE MUST BE ADMITTED AT THIS STAGE. THEREFORE, WE ADMIT THE ADDITIONAL EVIDENCE. W E ARE OF THE OPINION THAT IN THE INTEREST OF JUSTICE AND EQUITY THE LEARNED CIT(A) SHOULD HAVE A DMITTED THESE ADDITIONAL EVIDENCES FILED BEFORE HIM. THESE DOCUMENTS ARE VERY MUCH RELEVANT TO DECIDE THE ISSU E IN THESE APPEALS. WE ADMIT THESE ADDITIONAL EVIDENCES IN VIEW OF DECISION OF THE HON'BLE JURISDICTIONAL HIGH COUR T IN THE CASE OF UTTAM CONSTRUCTION COMPANY VS. CIT, M.P. I I REPORTED IN 156 ITR 459 WHEREIN THE HON'BLE HIGH CO URT HELD AS UNDER :- HELD, THAT THE TRIBUNAL SHOULD EITHER ITSELF HAVE T AKEN THE EXPLANATION AND ANY FURTHER MATERIAL PRODUCED B Y THE PARTIES AS EVIDENCE OR DIRECTED THE DEPARTMENTA L AUTHORITIES TO GIVE A FRESH FINDING AFTER TAKING IN TO -: 6: - 6 ACCOUNT THE ENTIRE MATERIAL INCLUDING THAT PRODUCED BY THE PARTIES FOR THE PURPOSE. THE TRIBUNAL WAS NOT JUSTIFIED IN REACHING ITS CONCLUSION WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN THE CIRCUMSTANCE RELIED ON AGAINST IT FOR THE FIRST TIM E. 9. WE, THEREFORE, SET ASIDE ALL THE APPEALS TO THE FIL E OF THE LEARNED A.O. WITH THE DIRECTION TO DECIDE THE S AME AFTER CONSIDERING THESE ADDITIONAL EVIDENCES AND AF TER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BO TH SIDES. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :30 TH SEPTEMBER, 2015. CPU* 30