Rajesh Paul Bansal, Solan V. ITO, Parwanoo

ITA 700/CHANDI/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 8750 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-02-2015
• Assessment Year: misc
• Appeal Filed On: 10-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 700/CHD/2013 (ASSESSMENT YEAR : 2005-06) RAJESH PAUL BANSAL, VS. THE INCOME TAX OFFICER, C/O M/S BRD MEDILABS, BADDI AT PARWANOO. INDL. AREA, BADDI, DISTT. SOLAN. PAN: ACHPB6964B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARIKSHIT AGGARWAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 10.02.2015 DATE OF PRONOUNCEMENT : 12.02.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS), SHIMLA DATED 8.4.2013 FOR ASSESSMENT YEAR 2005-06. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. 3. THE LEARNED COUNSEL FOR ASSESSEE STATED THAT GRO UND NO.1 IS GENERAL AND GROUND NO.2 IS NOT PRESSED. THESE GROUNDS ARE, THEREFORE, DISMISSED AS NOT PRESSED. 4. ON GROUND NO.3, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.1,06,047/- ON ACCOUNT OF CAPITAL CONTRIBUTION. T HE 2 ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS MADE ADDITION TO HIS CAPITAL AMOUNTING TO RS.1,06,047/-. THE AS SESSEE WAS ASKED TO FURNISH EVIDENCE OF THE SOURCE OF ADDITION MADE TO THE CAPITAL ACCOUNT. THE ASSESSEE, HOWEVER, FAILE D TO PRODUCE ANY EVIDENCE OR EXPLANATION IN THIS REGARD. THERE FORE, THE SAME AMOUNT WAS TREATED AS UNEXPLAINED INCOME UNDER SECTION 68 OF THE ACT AND ADDITION WAS ACCORDINGLY, MADE. 5. THE LEARNED CIT (APPEALS) NOTED THAT THE ASSESSE E HAS FAILED TO PRODUCE ANY EVIDENCE WITH REGARD TO THE A DDITION TO THE CAPITAL ACCOUNT DESPITE THE ASSESSING OFFICER G AVE SPECIFIC NOTICE TO THE ASSESSEE IN THIS REGARD. THEREFORE, THE ADDITION WAS CONFIRMED. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE IMPUGNED ORDER SHOWS THAT THE ASSESSEE SUBMITTED LE DGER ACCOUNT OF HIS PROPRIETARY BUSINESS AND BANK STATEM ENT TO EXPLAIN THE AVAILABILITY OF THE AMOUNT FOR THE PURP OSE OF MAKING ADDITION TO THE CAPITAL ACCOUNT AND IT WAS C LAIMED THAT OUT OF PAST SAVINGS THE CAPITAL HAVE BEEN FURT HER ENHANCED. HOWEVER, THE SAME WERE NOT FOUND ACCEPT ABLE TO THE LEARNED CIT (APPEALS) BECAUSE THE ASSESSEE WAS NOT HAVING ANY EVIDENCE TO SUPPORT THE CAPITAL INTRODUCTION IN THE CAPITAL ACCOUNT OF THE ASSESSEE. EVEN BEFORE US, NO EVIDE NCE HAS BEEN PRODUCED TO SHOW AS TO HOW THE CAPITAL HAS BEE N FURTHER ENHANCED IN THE CAPITAL ACCOUNT OF THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE OR EXPLANATION, WE DO NOT F IND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE A UTHORITIES 3 BELOW. THEREFORE GROUND NO.3 OF APPEAL OF THE ASS ESSEE IS ACCORDINGLY, DISMISSED. 7. ON GROUND NO.4, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.3,60,000/- ON ACCOUNT OF UNSECURED LOAN RECEIVED BY THE ASSESSEE FROM SHRI D.P.BANSAL. ON GROUND NO.5, TH E ASSESSEE HAS CHALLENGED ADDITION OF RS.1,97,500/- O N ACCOUNT OF UNSECURED LOAN RECEIVED FROM SMT.RENU BANSAL. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS DIREC TED TO FURNISH EVIDENCE TO PROVE THE GENUINENESS OF THESE LOANS. THE ASSESSEE WAS ASKED TO FURNISH CONFIRMATION OF T HESE PERSONS WHO HAVE ADVANCED THE LOANS TO THE ASSESSEE AND ALSO TO PRODUCE COPIES OF THEIR BANK ACCOUNTS, IF ANY, F ROM WHERE THE MONEY WAS WITHDRAWN FOR THE LOANS. DESPITE GI VING SUFFICIENT OPPORTUNITIES, THE ASSESSEE DID NOT FURN ISH ANY EVIDENCE BEFORE THE ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE LOANS IN THE MATTER. THE ADDITION OF RS.5, 57,5000/- WAS ACCORDINGLY, MADE AGAINST THE ASSESSEE. 8. THE ASSESSEE MOVED AN APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES BEFORE THE LEARNED CIT (APPEALS) F OR ADMISSION OF THE ADDITIONAL EVIDENCES AND FILED COP Y OF THE LEDGER ACCOUNT OF SHRI D.P.BANSAL, CONFIRMED BANK S TATEMENT OF AVAILABILITY OF THE FUNDS WITH HIM. SIMILAR AD DITIONAL EVIDENCES WERE FILED IN RESPECT OF LOAN TAKEN FROM SMT.RENU BANSAL. IT WAS CLAIMED THAT THE ASSESSEE WAS PREV ENTED BY SUFFICIENT CAUSE FROM PRODUCING EVIDENCE BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER, HOWEVER, OBJECTED TO THE ADMISSION OF THE ADDITIONAL EVIDENCE BECAUSE NO SUF FICIENT 4 CAUSE HAS BEEN EXPLAINED BY THE ASSESSEE FOR NOT FI LING THE DOCUMENTS BEFORE THE ASSESSING OFFICER. THE LEARN ED CIT (APPEALS) REFERRED TO THE LETTER ISSUED BY THE ASSE SSING OFFICER DATED 15.10.2007 SEEKING CONFIRMATION FROM THE ASSE SSEE OF THESE LOANS AND COPIES OF THE BANK ACCOUNT. BUT T HE ASSESSEE DID NOT RESPOND TO THIS NOTICE AS WELL. THE LEARNED CIT (APPEALS), THEREFORE, NOTED THAT SINCE ALL QUER IES LETTERS WERE ADDRESSED TO THE ASSESSEE ONLY, THEREFORE, NON - APPEARANCE OF THE LEARNED COUNSEL FOR ASSESSEE IS N OT RELEVANT AND ACCORDINGLY, REJECTED THE APPLICATION UNDER RUL E 46A OF THE ACT FOR ADMISSION OF THE ADDITIONAL EVIDENCES. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD, THE LEARNED CIT (APPEALS) CONFIRMED BOTH THE ADDITIONS AND DISMISSE D THE APPEAL OF THE ASSESSEE. 9. THE LEARNED COUNSEL FOR ASSESSEE REITERATED THE SUBMISSION MADE BEFORE THE AUTHORITIES BELOW AND AL SO MADE SEPARATE PRAYER FOR ADMISSION OF THE ADDITIONAL GRO UND THAT THE LEARNED CIT (APPEALS) WAS NOT JUSTIFIED IN NOT ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46A OF THE INCO ME TAX RULES. THE CERTIFICATE OF SHRI ASHOK JINDAL & ASS OCIATES, CHARTERED ACCOUNTANT IS FILED, IN WHICH IT IS CLARI FIED THAT HE IS TAKING THE CASE WITH THE ASSESSING OFFICER AND T HE ASSESSEE HAS PROVIDED THE DETAILS BUT DUE TO HIS ACCIDENT, H E COULD NOT ATTEND THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AND THE ORDER WAS PASSED EX-PARTE. THE LEARNED COUNSEL FO R ASSESSEE ALSO FILED APPLICATION UNDER RULE 29 OF THE I.T.A.T . RULES FOR ADMISSION OF THE ADDITIONAL EVIDENCES AND REFERRED TO PB-31 TO 34, WHICH ARE LEDGER ACCOUNT OF SHRI D.P.BANSAL GIV ING 5 LOAN TO THE ASSESSEE,, CONFIRMATION OF SHRI D.P.BAN SAL CONFIRMING GIVING LOAN TO THE ASSESSEE AND QUOTING HIS PAN NUMBER ON THE CONFIRMATION, COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY SHRI D.P.BANSAL FOR ASSES SMENT YEAR 2005-06 DECLARING INCOME OF RS.17,92,200/- WITH COM PUTATION OF INCOME. HE HAS ALSO REFERRED TO PB-35 TO 44, W HICH ARE COPIES OF THE LEDGER ACCOUNT OF SMT.RENU BANSAL AND ACKNOWLEDGEMENT OF FILING OF HER RETURN OF INCOME F OR TWO YEARS, COPY OF CONFIRMATION WITH PAN NUMBER CONFIRM ING GIVING OF LOAN TO THE ASSESSEE AND COPIES OF THE BA NK CERTIFICATE, ETC. THE LEARNED COUNSEL FOR ASSESSEE , THEREFORE, SUBMITTED THAT THESE EVIDENCES COULD NOT BE FILED B EFORE THE ASSESSING OFFICER BECAUSE OF THE ACCIDENT OF THE LE ARNED COUNSEL FOR ASSESSEE AND SUBMITTED THAT THE SAME AR E RELEVANT FOR THE PURPOSE OF DISPOSAL OF THE APPEAL AND THE S AME MAY BE ADMITTED AS ADDITIONAL EVIDENCES FOR THE PURPOSE OF DISPOSAL OF THE APPEAL. 10. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVE NUE OPPOSED THE REQUEST OF THE LEARNED COUNSEL FOR ASSE SSEE AND SUBMITTED THAT DESPITE GIVING SUFFICIENT OPPORTUNIT Y, THESE EVIDENCES COULD NOT BE FILED BEFORE THE ASSESSING O FFICER. THEREFORE, THE SAME MAY NOT BE ADMITTED FOR HEARING AND THE APPEAL OF THE ASSESSEE ON THIS GROUND MAY BE DISMIS SED. 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE ASS ESSEE HAS RAISED THE ADDITIONAL GROUND FOR NOT ADMITTING THE ADDITIONAL EVIDENCES BY THE LEARNED CIT (APPEALS) AS WELL AS F ILED SEPARATE APPLICATION FOR ADMISSION OF THE ADDITIONA L EVIDENCES 6 UNDER RULE 29 OF THE I.T.A.T. RULES. THE ADDITION AL EVIDENCES ARE FILED AT PAGES 31 TO 44 OF THE PAPER BOOK AS DE TAILED ABOVE, WHICH INCLUDES THE CONFIRMATION FROM BOTH TH E CREDITORS, BOTH THE CREDITORS ARE ASSESSED TO TAX A ND HAVE BEEN FILING INCOME TAX RETURN. THEREFORE, THESE A DDITIONAL EVIDENCES ARE RELEVANT AND NECESSARY FOR THE PURPOS E OF DISPOSAL OF THE APPEAL. THE ASSESSEE ALSO EXPLAIN ED THAT SINCE THE LEARNED COUNSEL FOR ASSESSEE MET WITH ACC IDENT, THEREFORE, THESE EVIDENCES COULD NOT BE FILED BEFOR E THE ASSESSING OFFICER. THEREFORE, CONSIDERING THE REL EVANCY OF THE ADDITIONAL EVIDENCES THAT SAME ARE ESSENTIAL FOR JU ST DISPOSAL OF THE APPEAL, IT WOULD BE NECESSARY TO ADMIT THESE ADDITIONAL EVIDENCES FOR THE PURPOSE OF HEARING. WE ACCORDIN GLY, ADMIT ALL THESE ADDITIONAL EVIDENCES FILED IN THE PAPER B OOK AT PAGES 31 TO 44 BECAUSE THE ASSESSEE WAS PREVENTED BY SUFF ICIENT CAUSE FROM PRODUCING THESE EVIDENCES BEFORE THE ASS ESSING OFFICER AND THE SAME ARE ALSO RELEVANT FOR THE PURP OSE OF DISPOSAL OF THE APPEAL. THE ADDITIONAL EVIDENCES ARE, THEREFORE, ADMITTED. SINCE THESE ADDITIONAL EVIDE NCES HAVE NOT BEEN PRODUCED BEFORE THE ASSESSING OFFICER, THE REFORE, THE GENUINENESS OF THE LOANS CANNOT BE SUBJECTED TO VER IFICATION AT THE LEVEL OF THE ASSESSING OFFICER. WE ACCORDINGL Y, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE SE ISSUES TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE BOTH THE GROUNDS AFRESH IN THE LIGHT OF THE ADDITIO NAL EVIDENCES SO ADMITTED ABOVE BY GIVING REASONABLE SU FFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FURNISH ALL THESE ADDITIONAL EVIDENCES BEFORE THE 7 ASSESSING OFFICER FOR VERIFICATION OF THE GENUINENE SS OF THE LOANS IN THE MATTER. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER AND SHALL NOT SEEK ANY U NNECESSARY ADJOURNMENT IN THE MATTER FOR ANY REASON, WHATSOEVE R, AND IN CASE THE ASSESSING OFFICER REQUIRES PRESENCE OF THE CREDITORS FOR PERSONAL EXAMINATION, THE ASSESSEE SHALL HAVE T O PRODUCE BOTH OF THEM BEFORE THE ASSESSING OFFICER FOR EXAMI NATION IN ACCORDANCE WITH LAW. WITH THESE OBSERVATIONS, BOT H GROUND NOS.4 AND 5 OF THE APPEAL OF THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF FEBRUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 TH FEBRURAY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH