Rama Rani Rathee, Gurgaon V. Addl. CIT, Gurgaon

ITA 703/DEL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2865 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 09-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RASMITA JHA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reasonable cause
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SMT. BEENA PILLAI, JM ITA NO. 703/DEL/2012 : ASSTT. YEAR : 200 8 - 09 RAMA RANI RATHI, D - 4/25, D LF CITY, PHASE - I, GURGAON VS ADDL. COMMISSIONER OF INCOME TAX , RANGE - II, GURGAON (APPELLANT) (RESPONDENT) PAN NO. A AXPR2798D ASSESSEE BY : SH. SANJAY AGARWAL , CA REVENUE BY : SMT. RASMITA JHA , SR. DR DATE OF HEARING : 09 .12 .2015 DATE OF PRONOUNCEMENT : 01.01 .201 6 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.11.2011 OF LD. CIT(A), FARIDABAD . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE APP ELLANT DENIES HER LIABILITY TO BE ASSESSED U/S 250(6) OF THE INCOME TAX ACT, 1961 AND ACCORDINGLY DENIES HER LIABILITY TO PAY TAX, INTEREST DEMANDED THEREON ON THE FOLLOWING POINTS OF LAW: - A) APPELLANT S RIGHT TO BE HEARD HAS BEEN INFRINGED. B) NON EXAMINATIO N OF WITNESSES WHEREAS THE CIT(A) WAS DUTY BOUND TO EXAMINE THE WITNESSES. ITA NO . 703 /DEL /2012 RAMA RANI RATHI 2 C) APPELLANT HAS DISCHARGED OUT HER LIABILITY BY PROVIDING THE DETAILS REGARDING THE WITNESSES BUT CIT(A) FAILED TO SUMMON THEM. D) FURTHER THE APPELLANT WAS NEVER ENTRUSTED WITH THE ONU S TO SERVE SUMMONS TO THE WITNESSES. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN LAW AND ON FACTS IN MAKING AN AGGREGATE ADDITION OF RS.47,49,822/ - OF SUB - BROKERAGE TO THE INCOME OF THE ASSESSEE WITHOUT GIVING SUF FICIENT OPPORTUNITY AND DOUBTING THE EXISTENCE OF THE SUB - BROKERS WHEREAS THE SAME WAS VERY MUCH CREDITED AS SUB - BROKERAGE TO THE SUB - BROKERS FOR JOBS CARRIED OUT BY THEM. 3. THAT HAVING REGARD TO THE FACT AND CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED I N LAW AND ON FACTS IN CHARGING INTEREST U/S 234B AND 234C. 4. THAT THE ASSESSEE HAS NO WHERE DONE ANY CONCEALMENT OF FACTS THEREFORE PROCEEDINGS U/S 271 INITIATED AGAINST THE ASSESSEE IS UNWARRANTED. 5. THAT THE APPELLANT CARVES TO LEAVE TO ADD, MODIFY, A MEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT ANY PREJUDICE TO EACH OTHER. 3. IN THIS CASE THE ASSESSEE FILED AN APPLICATION UNDER RULE 29 OF THE INCOME TAX ( APPELLATE TRIBUNAL ) RULES, 1963 STA T ING THEREIN AS UNDER: 1. THAT ASSESSEE REQUESTS TO ALLOW IT TO PRODUCE ADDITIONAL EVIDENCES WHICH ARE FACTUALLY RELATED TO THE CASE OF THE ITA NO . 703 /DEL /2012 RAMA RANI RATHI 3 ASSESSEE AND PRODUCTION OF EVIDENCE IS NECESSARY TO FACILITATE THE PRONOUNCEMENT IN THE TRUE SPIRIT OF LAW. IN THI S REGARD, IT IS HUMBLY SUBMITTED THAT AS PER RULE 29 OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, IF THE ASSESSEE IS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE ANY EVIDENCE BEFORE THE INCOME TAX AUTHORITIES, THAT MAY BE RELEVANT TO ANY GROUND OF APPEAL, A SSESSEE MAY BE ALLOWED TO PRODUCE SUCH ADDITIONAL EVIDENCE BEFORE HON BLE INCOME TAX APPELLATE TRIBUNAL. 2. THAT BELOW MENTIONED ARE THE FACTS AND REASONS UNDER WHICH ASSESSEE WAS PREVENTED TO BE REPRESENTED BEFORE THE ASSESSING OFFICER AND CIT(A) ON MERI TS AS WELL AS LEGALLY, DETAILS ARE AS UNDER: FACTS A. THAT DURING THE ASSESSMENT AND APPELLATE PROCEEDINGS, THE APPELLANT WAS UNABLE TO PRODUCE THE RELEVANT RECORDS IN RESPECT OF CLAIM OF COMMISSION PAID DURING THE YEAR UNDER CONSIDERATION AS REQUIRED BY THE LD. ASSESSING OFFICER AND CIT(A). AS A CONSEQUENCE TO WHICH THE AMOUNT IN RELATION TO THE SAME (RS.47,49,820/ - ) WAS ADDED VIDE ASSESSMENT ORDER DATED 22.12.2010 AND SUSTAINED BY THE FIRST APPELLATE AUTHORITY. REASONS B. THAT THE APPELLANT WAS UNABLE TO PRODUCE THE ABOVE REQUIRED DOCUMENTS FOR THE REASON THAT SH. LOVELY ARORA, WAS LOOKING AFTER ASSESSEE WORKS RELATING TO ACCOUNTS, FINANCE AND OTHER RELATED ACTIVITIES DURING THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2008 - 09 AND APPELLATE PROCEEDIN GS BEFORE THE INCOME TAX AUTHORITIES. SH. LOVELY ARORA LEFT THE JOB FROM 06.12.2010 FOR UNKNOWN REASONS. THERE WAS ONLY SH. LOVELY ARORA WHO WAS IN POSSESSION OF ITA NO . 703 /DEL /2012 RAMA RANI RATHI 4 REQUISITE KNOWLEDGE FOR THE CASE AND FOR THAT REASON ASSESSEE WAS UNABLE TO PROVIDE COMPLETE D ETAILS BEFORE THE INCOME TAX AUTHORITIES AT THE RELEVANT TIME. (AFFIDAVIT ENCLOSED FOR YOUR KIND PERUSAL AT PAGE NO. OF PAPER BOOK .30 - 31 ) 3) DOCUMENTS TO BE PRODUCED 1. COPIES OF APPOINTMENT LETTER OF SUB - BROKERS ALONG WITH THE CHECKLIST OF WORK TO BE PERFORMED BY THEM. (PAPER BOOK PAGE NO .1 - 27 ..) 2. A BRIEF NOTE ON NATURE OF SERVICES PERFORMED BY THE ASSESSEE AND SUB - BROKERS. (PAPER BOOK PAGE NO .28 - 29 .) 4) IN THIS REGARD ASSESSEE PLACED RELIANCE ON BELOW MENTIONED JUDICIAL PRO NO UNCEMENT: COMM ISSIONER OF INCOME - TAX - IV V. TEXT HUNDRED INDIA (P.) LTD., (2011) 197 TAXMAN 128 (DELHI) IN VIEW OF SEVERAL DECISIONS, A DISCRETION LIES WITH THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE, ONCE THE TRIBUNAL AFFIRMS OPINION THAT DOIN G SO WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER AND THIS CAN BE DONE EVEN WHEN APPLICATION IS FILED BY ONE OF PARTIES TO APPEAL AND IT NEED NOT TO BE A SUO MOTU ACTION OF THE TRIBUNAL. THE AFORESAID RULE IS MADE FOR ENABLING THE TRIBUNAL TO A DMIT THE ADDITIONAL EVIDENCE IN ITS DISCRETION, IF THE TRIBUNAL HOLDS THE VIEW THAT SUCH AN ADDITIONAL EVIDENCE WOULD BE NECESSARY TO DO SUBSTANTIAL JUSTICE IN THE MATTER. IT IS WELL - SETTLED THAT THE PROCEDURE IS HANDMADE FOR JUSTICE AND SHOULD NOT BE ALLO WED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTENT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LEAD EVIDENCE AT THE APPROPRIATE STAGE. ONCE IT IS FOUND ITA NO . 703 /DEL /2012 RAMA RANI RATHI 5 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 SAID EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDED TO BE DECIDED BY THE TRIBUNAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SUCH AN EVIDENCE, THE TRIBUNAL CAN PASS AN ORDER TO THAT EFFECT . (COPY OF THE JUDGMENT IS ENCLOSED ON PAGE NO. ( . 1 - 7 ) 5. THAT THE ADDITIONAL EVIDENCES BEING VITAL DOCUMENTS IN THE CASE OF APPELLANT ARE NECESSARY TO BE ADMITTED IN THE INTEREST OF JUSTICE AND FOR PROPER ADJUDICATION OF THE DISPUTE INVOLVED IN THE GROUNDS OF APPEAL. IT IS FURTHER REQUESTED THAT THE APPELLANT MAY PLEASE BE ALLOWED AN OPPORTUNITY OF BEING HEARD ON MERITS TO PRESENT THE ABOVE MENTIONED DOCUMENTS OR DETAILS BEFORE THE HON BLE COURT. PRAYER IN VIEW OF ABOVE MENTIONED CIRCUMSTANCES, IT IS PRAYED THAT THE ADDITIONAL EVIDENCE FORWARDED UNDER RULE 29 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, MAY PLEASE BE ACCEPTED. FOR THIS ACT OF KINDNESS THE APPLICANT SHALL EVER BE GRATEFUL. 4. THE ASSESSEE FURNISHED THE DOCUMENTS STATED IN TH E AFORESAID APPLICATION AND ALSO FILED AN AFFIDAVIT GIVING THE REASON FOR NOT FURNISHING THE SAME BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH READ AS UNDER: I, RAMA RANI RATHEE, W/O RANBIR SINGH RATHEE, RESIDING AT D - 4/25, DLF CITY, P HASE - I, GURGAON, DO HEREBY ON SOLEMNLY AFFIRM AS UNDER: ITA NO . 703 /DEL /2012 RAMA RANI RATHI 6 1. THAT SH. LOVELY ARORA, WAS WORKING FOR ME THROUGH CONSULTANT AND HE WAS LOOKING AFTER MY WORKS RELATING TO ACCOUNTS, FINANCE AND OTHER RELATED ACTIVITIES DURING THE ASSESSMENT PROCEEDINGS FOR ASSESSM ENT YEAR 2008 - 09 BEFORE THE INCOME TAX AUTHORITIES. 2. THAT SH. LOVELY ARORA LEFT THE JOB FROM 6/12/2010 FOR SOME UNKNOWN REASONS. 3. THAT THERE WAS ONLY SH. LOVELY ARORA WHO WAS IN POSSESSION OF REQUISITE KNOWLEDGE FOR THE CASE AND FOR THAT REASON I WAS UNABL E TO PROVIDE COMPLETE DETAILS BEFORE THE INCOME TAX AUTHORITIES DUE TO THIS REASON. (DEPONENT) I, THE ABOVE NAMED DEPONENT, DO HEREBY VERIFY ON THIS DAY OF 22.05.2013, AT GURGAON, THAT THE CONTENTS OF MY AFFIDAVIT ARE TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF AND NOTHING MATERIAL FACT HAS BEEN CONCEALED THERE FROM. (DEPONENT) 5 . DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATION AND THE AFFIDAVIT, HE REQUESTED TO ADMIT THE ADDITIONA L EVIDENCES BECAUSE THE ASSESSEE WAS PREVENTED BY A REASONABLE CAUSE IN FURNISHING THE SAME BEFORE THE LOWER AUTHORITIES. IT WAS STATED THAT THE AO BY ISSUING THE SHOW CAUSE NOTICE ON 20.12.2010 ASKED THE ASSESSEE AS TO WHY THE EXPENSES OF RS. 47,49,820/ - MAY NOT BE DIS ALLOWED AS THE SAME WERE NOT VERIFIABLE AND FIXED THE CASE FOR HEARING ON 22.12.2010. IT WAS FURTHER STATED THAT T HE ASSESSEE ITA NO . 703 /DEL /2012 RAMA RANI RATHI 7 REQUESTED THE AO TO ALLOW MORE TIME BUT THAT REQUEST WAS NOT ACCEPTED AND THE ASSESSMENT ORDER WAS PASSED ON 22.12.2 010. THEREFORE, A PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO THE ASSESSEE AND THERE WAS A REASONABLE CAUSE IN NOT FILING THE DOCUMENTS BEFORE THE AO WHICH NOW HAVE BEEN FILED AS NEW EVIDENCES UNDER RULE 29 OF THE ITAT RULES, 1963. THE LD. COUNSE L FOR THE ASSESSEE REQUESTED TO REMAND THE CASE BACK TO THE FILE OF THE AO. 6 . IN HER RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUPPORTED THE ORD E RS OF THE AUTHORITIES BELOW BUT DID NOT OBJECT IF THE CASE BE REMANDED BACK TO THE AO. 7 . WE HAVE CONSIDERED TH E SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE AO HAS NOT GIVEN A SUFFICIENT TIME TO THE ASSESSEE TO FURNISH THE RELEVANT DOCUMENTS IN SUPPORT OF THE CLAIM. THE ASSESSEE NOW HAVE FUR NISHED THE NEW EVIDENCES AND ALSO FILED AN AFFIDAVIT STATING THE REASONS OF HER FAILURE IN FILING THOSE DOCUMENTS BEFORE THE AUTHORITIES BELOW. IN OUR OPINION, THE NEW EVIDENCES FURNISHED BY THE ASSESSEE GO TO THE ROOT OF THE MATTER AND THESE ARE RELEVANT TO RESOLVE THE CONTROVERSY INVOLVED. WE, THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE ADMIT THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE AND REMAND THE MATTER BACK TO THE FILE OF THE AO TO BE DECIDE D AFTER CONSIDERING THESE ITA NO . 703 /DEL /2012 RAMA RANI RATHI 8 DOCUMENTS, IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 01/01/2016 ) SD/ - SD/ - (B EENA PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 01/01 /201 6 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR