Mr. Laxmikant S Kole, HUF, Pune V. Income-tax Officer,

ITA 728/PUN/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6735 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: S N DOSHI
• Keywords: Additional evidence; Reasonable cause
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.728/PN/2013 (ASST. YEAR: 2009-10) MR. LAXMIKANT S KOLE HUF ROW HOUSE NO.789, SANT DNYANESHWAR NAGAR, MHADA COLONY, MORWADI, PIMPRI, PUNE 411018 PAN: AABHL7203B APPELLANT VS. ITO, WARD 8(2), PUNE RESPONDENT APPELLANT BY : SHRI S.N. DOSHI RESPONDENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 03-06-2014 DATE OF PRONOUNCEMENT : 23-06-2014 ORDER PER R.S. PADVEKAR, JM: IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IM PUGNED ORDER OF THE LD CIT(A)-V, PUNE, DATED 21.02.2013 FOR THE A.Y . 2009-10. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS IN THE APP EAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LEARNED CIT(A) HAS ERRED IS NOT ADMITTING THE ADDIT IONAL EVIDENCES INSPITE OF SUBMISSION MADE IN THE LIGHT O F THE PROVISIONS OF RULE 46A OF THE I. TAX RULE 1960. 2. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D EVEN IN ABSENCE OF ADMISSION OF THE ADDITIONAL EVIDENCE, ON MERIT THE ASSESSING OFFICER HAS ERRED IN SUSTAINING THE A DDITION OF RS. 46 LAKHS DISREGARDING THE EXPLANATION PROVING T HE CONTRIBUTION MADE BY THE MEMBERS OF JOINT VENTURE A ND FURTHER ERRED IN SUSTAINING THE ADDITION MADE BY TH E ASSESSING OFFICER U/S. 68 OF THE I.T. ACT 1961. 2 3. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AN D EVEN IN ABSENCE OF ADMISSION OF THE ADDITIONAL EVIDENCE, ON MERIT THE LEARNED THE CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 55 LAKHS WHICH REPRESENTS THE ADVANCE RECEIV ED FROM THE PURCHASER OF LAND AGREED TO BE SOLD TO THEM AND FURTHER ERRED IN SUSTAINING THE ADDITION MADE BY THE ASSESS ING OFFICER U/S. 68 OF THE I.T. ACT 1961. 2. THE ASSESSEE IS A HUF AND FILED THE RETURN OF IN COME FOR THE ASSESSMENT YEAR 2009-10 DECLARING TOTAL INCOME AT 3,68,860/- ON 19.02.2010. THE ASSESSEES CASE WAS SELECTED FOR S CRUTINY AND THE ASSESSMENT HAS BEEN COMPLETED U/S.143(3) OF I.T. AC T. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THERE WERE CASH DEPOS ITS IN THE S.B. ACCOUNT OF THE ASSESSEE WITH THE BANK OF MAHARASHTR A TO THE EXTENT OF 1,01,65,000/-. IT WAS STATED BY THE ASSESSEE THAT HE HAS TAKEN ADVANCES / LOAN OF 46,00,000/- FROM THE EMPLOYEES / WORKERS AND ALSO TAKEN ADVANCES TO THE EXTENT OF 55,60,150/- AGAINST THE SALE OF LANDS FROM CLOSE RELATIVES. THE ASSESSING OFFICER HAS GI VEN THE DETAILS OF THE CASH RECEIPTS, MORE PARTICULARLY IN PARA NO.5 OF TH E ASSESSMENT ORDER AS STATED BY THE ASSESSEE. THE WORKERS / EMPLOYEES WE RE OF THE ASSESSEE AS WELL AS THE SPOUSE OF THE ASSESSEE. IT WAS CLAI MED BY THE ASSESSEE THAT THE AMOUNTS FROM THE EMPLOYEES / WORKERS WERE COLLECTED FOR PURCHASING OF PLOT AT PHURSUNGI IN PUNE AND AFTER S ELLING OF THE SAME, WHATEVER THE PROFIT WOULD BE THERE, THAT WOULD BE D ISTRIBUTED AMONG THE 260 EMPLOYEES / WORKERS. IT WAS STATED THAT OUT OF 260 EMPLOYEES / WORKERS, 129 WORKERS / EMPLOYEES WERE OF M/S. SHRIN IVAS ENGINEERING AND BALANCE WORKERS / EMPLOYEES WERE OF M/S. BALAJI ENGINEERING. 3. THE ASSESSEE HAS FILED THE CONFIRMATION LETTERS FROM SOME OF THE WORKERS / EMPLOYEES BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER ASKED FOR THE PURCHASE DEED OF THE LAND, BUT IT APP EARS THAT THE SAME WAS NOT FILED. THE ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM IN RESPECT OF 46,00,000/- WHICH WERE DEPOSITED IN THE BANK ACCOU NT BY GIVING THE FOLLOWING REASONS. THE ASSESSEE'S ABOVE CONTENTION IS NOT ACCEPTABLE FOR RAISING ADVANCES FOR PURCHASE OF PLOT FROM EMPLOYEES AND WO RKERS SINCE THERE WAS NO MENTION OF EMPLOYEES/WORKERS NAMES. IT MAY BE NOTED HERE THAT THE ASSESSEE'S AR WAS SPECIFICALLY REQUESTED TO PRODUCE THE EMPLOYEES /WORKERS IN ORDER TO VERIFY T HE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE EMPLOYEES / WORKERS. FURTHER, THE ASSESSEE'S AR WAS ALSO REQUESTED TO FI LE CONFIRMATION LETTERS OF THESE EMPLOYEES/WORKERS, PAN, STATEMENT OF BANK A/C 3 AND COPIES OF RETURNS OF INCOME. DURING THE COURSE OF HEARING, THE ASSESSEE'S AR STATED THAT' THE ASSESSEE HAS CONVEYE D THE MESSAGES TO THE EMPLOYEES/ WORKERS FOR GIVING THE R EQUIRED INFORMATION AND FURTHER STATED THAT AT THIS STAGE T HE ASSESSEE IS NOT IN A POSITION TO PRODUCE THEM. THE ASSESSEE'S A R COULD NOT FILE ANY OF THE ABOVE REQUIREMENTS NOR PRODUCED THESE PE RSONS FOR VERIFICATION IN ORDER TO VERIFY IDENTITY, GENUINENE SS AND CREDITWORTHINESS OF ADVANCES/LOANS TAKEN BY THE ASS ESSEE. NOW THE ONUS SHIFTED UPON THE ASSESSEE TO PROVE THE IDE NTITY, CREDITWORTHINESS AND GENUINENESS OF ADVANCES/LOANS TAKEN FROM THE EMPLOYEES/WORKERS. THE ASSESSEE HAS FAILED TO P RODUCE DOCUMENTARY EVIDENCE TO ESTABLISH THAT THOSE EMPLOY EES/WORKERS, AS MENTIONED IN THE LIST, HAVE GIVEN ADVANCES/LOANS TO THE ASSESSEE FOR PURCHASE OF PROPERTY WITH AN INTENTION EARN PROFIT ON SALE OF PROPERTY AND DISTRIBUTE TO THEM. IN THE ASS ESSMENT PROCEEDINGS ITSELF THE ASSESSEE HAS EXPRESSED ITS I NABILITY TO PROVE THE ADVANCES/LOANS TAKEN FROM EMPLOYEES/WORKERS. TH US, IT IS A FACT THAT THE ASSESSEE HAS NOT DISCHARGED THE BURDE N CASTS UPON IT TO PROVE THE ADVANCES WITH CORROBORATIVE EVIDENCE. IT IS VERY NECESSARY TO MENTION HERE THAT THE PLOT WAS PURCHAS ED BY THE ASSESSEE HUF JOINTLY WITH THREE CO-OWNERS AND IN TH E PURCHASE DEED NONE OF EMPLOYEES/WORKER'S NAME OR THEIR REPRE SENTATIVE NAMES WAS MENTIONED IT CAN ALSO BE PRESUMED THAT TH E EMPLOYEES/WORKERS ARE NOT AWARE THAT THEY HAVE GIVE N ADVANCES/LOANS TO THEIR EMPLOYERS FOR PURCHASE OF A PLOT IN PHURSINGI. SINCE THE ASSESSEE HAS NOT PROVED IDENTI TY, CREDITWORTHINESS AND GENUINENESS OF THE ADVANCES/LO ANS TAKEN FROM THE ALLEGED EMPLOYEES/WORKERS, THE ASSESSEE'S CLAIM THAT THE ASSESSEE HAD PURCHASED PROPERTY BY RAISING ADVANCES /LOANS IS NOT BASED ON LEGAL FOUNDATION. THEREFORE, NO CREDENCE C AN BE GIVEN TO THE ASSESSEE'S SOURCE FOR PURCHASE OF PLOT. IN VIEW OF THE FACTS DISCUSSED SUPRA, IT IS HELD THAT CASH OF RS. 46,00, 000/- DEPOSITED IN ITS BANK A/C ON 6 TH MAY, 2008 AND 14 TH MAY, 2008, IS ASSESSEE HUF UNDISCLOSED INCOME. THEREFORE, THE CASH DEPOSI T OF RS.46,00,000/- IS TAXED IN THE HANDS OF THE ASSESSE E HUF AS UNDISCLOSED INCOME ADDED TO THE TOTAL INCOME. 4. IN RESPECT OF THE LOANS AND ADVANCES CLAIMED TO BE TAKEN FROM THE RELATIVES TO THE EXTENT OF 55,60,150/- ON THE VARIOUS DATES AGAINST THE SALE OF THE PLOT THAT THE ASSESSEE HAS PURCHASED IN THE MONTH OF MAY, 2008, THE ASSESSEE FILED THE DETAILS BEFORE THE ASS ESSING OFFICER IN RESPECT OF THE NAME OF THE PERSONS, SOURCE OF INCOM E, PAN NUMBER AND AMOUNT TAKEN. THE ASSESSING OFFICER WAS NOT CONVIN CED WITH THE EXPLANATION OF THE ASSESSEE IN RESPECT OF THE SOURC E OF THOSE PERSONS FOR GIVING THE SAID AMOUNT TO THE ASSESSEE. THE EXPLAN ATION IN RESPECT OF THE MEANS OF SOURCE OF INCOME WAS SHOWN AS AGRICULT URAL INCOME THAT WAS REJECTED BY THE ASSESSING OFFICER. THE ASSESSI NG OFFICER OBSERVED THAT MERE FILING OF THE CONFIRMATION IS NOT A DOCUM ENTARY EVIDENCE TO PROVE THAT THEY HAVE GIVEN AN ADVANCE IN CASH AND T HEREFORE, MADE 4 ADDITION IN RESPECT OF 55,60,150/- IN THE HANDS OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD CIT( A). BEFORE LD CIT(A), THE ASSESSEE FILED THE ADDITIONAL EVIDENCE WITH PRAYER THAT THE SAME MAY BE ADMITTED. THE LD CIT(A) DECLINED TO AD MIT THE ADDITIONAL EVIDENCE BY GIVING THE FOLLOWING REASONS. (II) PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCES: THE APPELLANT VIDE ABOVE QUOTED REPLY HAS REQUESTED FOR ADMISSION OF UNSPECIFIED DOCUMENTS WHICH COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER IN THE INTEREST OF NAT URAL JUSTICE. THE REASON FOR NON PRODUCTION OF THE UNSPECIFIED EVIDEN CES ARE ATTRIBUTED TO IGNORANCE OF APPELLANT'S REPRESENTATI VE MRS. SARITA SINGH WHO WAS A FRESH CHARTERED ACCOUNTANT AND SHRI . BAPPA MAJUMDAR, COST ACCOUNTANT WHO WAS NOT WELL VERSED I N INCOME- TAX PROCEEDINGS, APPELLANT HAS CLAIMED THAT THE REA SONS ARE IN CONFORMITY WITH RULE 46A(L)(B) &(C) OF INCOME-TAX R ULES AND THE SAME GOES TO THE ROOT OF THE MATTER AND THEREFORE, SAME MAY BE ADMITTED. IN THIS CONNECTION, RELIANCE HAS BEEN P LACED ON HON'BLE BOMBAY HIGH COURT DECISION IN THE CASE OF PRABHAVAT I S. SHAH 231 ITR PAGE 1. AFTER CAREFULLY CONSIDERING THE FACTS OF THE CASE, IT IS SEEN THAT THE APPELLANT HAS REQUESTED FOR UNSPECIFIED DO CUMENTS TO BE ADMITTED AS ADDITIONAL EVIDENCE UNDER RULE 46A(L)(B ) & (C) OF INCOME-TAX RULES ON THE GROUND OF IGNORANCE OF MRS. SARITA SIGH WHO WAS A FRESH CHARTERED ACCOUNTANT. THE INDEX OF THE PAPER BOOK IS REPRODUCED FOR THE SAKE OF CLARITY : SR. NO. PARTICULARS PAGE NO. 1 WRITTEN SUBMISSION DATED 18/02/2013 ADDRESSED TO CIT(A)-V, PUNE 1 TO 6 2 PHOTOSTAT COPY OF STATEMENT OF BANK OF MAHARASHTRA. 7 3 PHOTOSTAT COPY OF MEMORANDUM OF UNDERSTANDING. 8 TO 34 4 PHOTOSTAT COPY OF PURCHASE DEED DATED 6/05/2008. 35 TO 54 5 PHOTOSTAT COPY OF AGREEMENT DATED 31/05/2009. 55 TO 71 6 PHOTOSTAT COPY OF CANCELATION DEED DATED 12/04/2012. 72 TO 86 7 PHOTOSTAT COPY OF CONFIRMATION LETTERS ALONGWITH RELEVANT EVIDENCES. 87 TO 106 8 COPY OF BALANCE SHEET ALONGWITH PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31/03/2009 OF THE APPELLANT. 107 TO 108 9 PHOTOSTAT COPY OF FOLLOWING AUTHORITIES:- A. CIT VS. DAULAT RAM RAWATMULL - SUPREME COURT - 87 ITR 349. B. SMT. PRABHAVATI SHAH - 231 ITR 1 - BOMBAY HIGH COURT. 111 112 TO 114 5 FOR THE SAKE OF CLARITY, RULE 46A(L)(B) & (C) AND ( 4) ARE REPRODUCED AS UNDER : '46A.(1) THE APPELLANT SHALL NOT BE ENTITLED, TO PR ODUCE BEFORE THE 60 [DEPUTY COMMISSIONER(APPEALS)] 'FOR, AS THE CASE MA Y BE, THE COMMISSIONER(APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HI M DURING THE COURSE OF PROCEEDINGS BEFORE THE '[ASSESSING OFFICE R], EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY :- (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPO N TO PRODUCE BY THE '[ASSESSING OFFICER] ; OR (C) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING BEFORE THE '[ASSESSING OFFICER] ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE 70 [DEPUTY COMMISSIONER (APPEAL)] 71 [OR, AS THE CASE MAY BE, THE COMMISSIONER(APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF ANY WITNESS, TO ENA BLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY WHETHE R ON HOW OWN MOTION OR ON THE REQUEST OF THE '[ASSESSING OFF ICER]) UNDER CLAUSE (A) OF SUB-SECTION(L) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.] 60. SUBSTITUTED FOR 'APPELLATE ASSISTANT COMMISSIONER' BY THE IT(FIFTH AMD.) RULES, 1989, W.R.E.F 1-4-1988 61. INSERTED BY THE IT(SEVENTH AMD.) RULES, 1978, W.E.F . 10-7- 1978. 62. SUBSTITUTED FOR 'INCOME-TAX OFFICER' BY THE IT(FIFT H AMDT.) RULES, 1989, W.R.E.F 1-4-1988. 63. SUBSTITUTED FOR 'INCOME-TAX OFFICER' BY THE IT(FIFT H AMDT. RULES, 1989, W.R.E.F. 1-4-1988. 70. SUBSTITUTED FOR 'APPELLATE ASSISTANT COMMISSIONER', IBID. 71. INSERTED BY THE IT (SEVENTH AMDT.) RULES, 1978, W.E .F. 10-7-1978. 72. SUBSTITUTED FOR 'INCOME-TAX OFFICER' BY THE IT(FIFT H AMDT.) RULES, 1989 W.R.E.F. 1-4-1988.' FROM THE PERUSAL OF INDEX AND AFTER GOING THROUGH T HE ASSESSMENT ORDER, DOCUMENTS MENTIONED IN SR. NO. 3,4,5 & 6 APP EAR TO BE ADDITIONAL EVIDENCE. THE APPELLANT HAS PUT THE BLAM E ON IGNORANCE OF CHARTERED ACCOUNTANT FOR FAILURE TO PRODUCE THE SAME BEFORE THE ASSESSING OFFICER. THIS CONTENTION OF THE APPEL LANT IS NOT ACCEPTABLE AS A CHARTERED ACCOUNTANT IS QUALIFIED T O BE AUTHORIZED REPRESENTATIVE U/S. 288 OF INCOME-TAX ACT. IT IS AL SO SEEN THAT THE 6 ASSESSING OFFICER HAS REPEATEDLY ASKED FOR COPY OF PURCHASE DEED AS WELL AS SALE DEED DURING THE COURSE OF ASSESSMEN T PROCEEDINGS. THEREFORE, PROVISIONS OF RULE 46A(L)(C ) & (D) ARE NOT SATISFIED IN THIS CASE. HON'BLE MUMBAI TRIBUNAL IN THE CASE OF SAGAR SARHADI VS. INCOME-TAX OFFICER REPORTED IN (2 012) 148 TTJ PAGE 86 HAS HELD THAT ASSESSEE THOUGH IN POSSESSIO N OF THE DOCUMENTS HAVING NOT REDUCED THE SAME BEFORE ASSESS ING OFFICER WHILE REPLYING TO RELEVANT QUERY MADE BY THE ASSESS ING OFFICER IS NOT ENTITLED TI|| PRODUCE THE SAME BEFORE CIT(A) EI THER IN SUB- RULED) OR SUB-RULE(4) OF RULE 46A AS ASSESSEE'S CASE DOES NOT FALL UNDER ANY OF THE EXPECTATIONS PROVID ED UNDER SUB- RULE(L) OF RULE 46A AND UNDER SUB-RULE(4) OF RULE 46(A), IT IS THE DISCRETION OF CIT(A) TO CALL FOR ANY ADDITIONAL E VIDENCE IF HE CONSIDERS IT NECESSARY FOR PROPER ADJUDICATION OF A PPEAL. FROM THE PERUSAL OF THE INDEX, IT IS CLEAR THAT DOCUMENTS IN SR. NO. 3,4 & 5 WERE SUPPOSED TO BE AVAILABLE WITH THE APPELLANT BU T THE SAME WERE NOT PRODUCED BEFORE ASSESSING OFFICER DESPITE REPEATED REQUEST IN THIS REGARD. FURTHER, THE DOCUMENT IN SERIAL NO. 3 IS A COPY OF MOU BETWEEN APPELLANT AND 260 EMPLOYEES/WORKERS OF BALAJI ENTER PRISES AND SHRINIVAS ENGINEERS AS A PROOF OF FORMATION OF AOP FOR DEVELOPMENT OF 'LAND AT PHURSUNGI. THIS AGREEMENT I S SIGNED BY 260 EMPLOYEES/ WORKERS WHO HAVE CLAIMED TO HAVE GIV EN 46,00,000/- IN CASH LOAN ADVANCE WHICH IS BELOW 20,000/-. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, TH E APPELLANT COULD FILE ONLY LIST OF SUCH EMPLOYEES AND EVEN CON FIRMATIONS COULD NOT BE FILED. THEREFORE, AUTHENTICITY OF THIS DOCUM ENT IS HIGHLY QUESTIONABLE AND BY TRYING TO PRODUCE THE SAME THE APPELLANT WANTS TO DODGE THE TAX AUTHORITIES. THEREFORE, THE SAME CANNOT BE ACCEPTED EVEN U/R 46A(4) OF INCOME-TAX RULES. DOCUM ENTS MENTIONED IN SR. NO. 5 IS COPY OF AGREEMENT DATED 31.03.2009(WRONGLY TYPED AS 31.05.2009 IN THE INDEX ) BETWEEN GADEWAR FAMILY AND THE APPELLANT FOR SALE OF LAND A T PHURSUNGI FOR WHICH 55,00,000/- IN CASH WAS CLAIMED TO HAVE BEEN RECEI VED. THIS DOCUMENT WAS ALSO NOT PRODUCED BEFORE ASSESSIN G OFFICER DESPITE REPEATED REQUESTS BY THE ASSESSING OFFICER. SECONDLY, THE AGREEMENT HAS BEEN CLAIMED TO BE SIGNED ON 31.03.20 09 WHILE THE MONEY IN CASH HAS BEEN RECEIVED AND DEPOSITED I N THE BANK A/C FROM 16.07.2007 TO 25.03.2009 WHICH IS PRIOR TO DATE / OF AGREEMENT. THEREFORE, AUTHENTICITY OF THIS AGREEMEN T IS QUESTIONABLE TOO. FURTHER, AGREEMENT DATED 12.04.20 12 MENTIONED IN SR. NO. 4 WHICH IS CANCELLATION AGREEM ENT BETWEEN APPELLANT AND GADEWAR FAMILY APPEARS TO BE SUPERFLU OUS IN THE SENSE THAT IT HAS BEEN BROUGHT INTO RECORD JUST TO GIVE COLOUR OF ACTUALITY TO THE SO CALLED TRANSACTION OF ADVANCE R ECEIVED IN CASH FOR SALE OF PLOT OF LAND AT PURSUNGI. SINCE, THIS D OCUMENT TOO HAS BEEN BROUGHT ON RECORD TO DODGE THE REVENUE AUTHORI TIES, IT CANNOT BE SAID THAT ADMISSIBILITY OF THE SAME GOES TO THE ROOT OF THE ISSUE. THEREFORE, THE SAME CANNOT BE ACCEPTED U NDER RULE 46A(4) OF THE INCOME-TAX RULES. THE LEARNED COUNSEL OF THE APPELLANT SHRI. S. N. DOSHI, C.A HAS PLACED RELIANC E ON HON'BLE JURISDICTIONAL HIGH COURT'S DECISION IN THE CASE OF PRABHAVATI S. SHAH 231 ITR 1 FOR THE PROPOSITION THAT ADDITIONAL EVIDENCE CAN BE ADMITTED UNDER RULE 46A(4)IF IT GOES TO ROOT OF THE MATTER. IT HAS 7 BEEN ALREADY STATED THAT DOCUMENTS IN QUESTION ARE NOT AUTHENTIC AND APPEARS TO BE AFTERTHOUGHT IN ORDER TO DODGE TH E REVENUE AUTHORITIES. THEREFORE, THE SAME CANNOT BE ADMITTED EITHER UNDER RULE 46A(1) OR 46A(4) OF THE INCOME-TAX RULES. 5. THE LD CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HEARD THE PARTIES AND PERUSED THE RECORD. TH E LD COUNSEL ARGUES THAT THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE DID NOT PROPERLY PLEADED THE CASE BEFORE THE ASSESSING OFFI CER AND THE ASSESSEE WAS NOT AWARE REGARDING THE INFORMATION ASKED BY TH E A.O. AS THERE WAS NO COMMUNICATION FROM HIS CHARTERED ACCOUNTANT / CO ST ACCOUNTANT WHO APPEARED BEFORE THE ASSESSING OFFICER. HE SUBM ITS THAT FOR THE FAULT OF THE ARS OF THE ASSESSEE IF THERE IS NO COM MUNICATION TO THE ASSESSEE, IT CAN BE SAID THAT THE ASSESSEE WAS PREV ENTED BY A REASONABLE CAUSE WITHIN MEANING OF RULE 46A AND IN THE INTEREST OF JUSTICE, THE LD CIT(A) SHOULD HAVE ADMITTED THE ADD ITIONAL EVIDENCE FILED BY THE ASSESSEE. HE PLEADS THAT THE HONBLE TRIBUN AL IS THE LAST FACT FINDING AUTHORITY AND IF THE EVIDENCE WHICH THE ASS ESSEE FILED BEFORE THE LD CIT(A), IS NOT ADMITTED, THEN THERE IS SERIOUS M IS-CARRIAGE OF THE JUSTICE. HE SUBMITS THAT BOTH THE AUTHORITIES BELO W HAVE DECIDED THE ISSUE WITHOUT CONSIDERING THE EVIDENCE AND HENCE, T HE ADDITIONAL EVIDENCE MAY BE ADMITTED WHICH WAS DECLINED TO BE A DMITTED BY THE LD CIT(A) AND THE MATTER MAY BE REMITTED BACK TO THE F ILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. WE HAVE ALSO HEARD THE LD DR. WE HAVE GONE THROUGH THE ASSESSMENT ORDER. IT APPEARS THAT THE ASSESSEE WAS REPRESENTED BY CHARTERED ACCOUNTANT AS WELL AS COST ACCOUNTANT AS NOTED BY THE ASSESSING OFFICER. HE ASKED FOR CERTA IN DOCUMENTS OR INFORMATION. THE ASSESSEE FILED THE CONFIRMATION L ETTERS FROM THE PERSONS FROM WHOM WHICH WERE RECEIVED BY THE ASSESS EE, WHICH WERE DEPOSITED IN THE SAVING BANK ACCOUNT. 7. THERE IS FORCE IN THE ARGUMENTS OF LD COUNSEL TH AT THE ASSESSEE WAS DEPENDING ON HIS AUTHORIZED REPRESENTATIVES AND IF THE AUTHORIZED REPRESENTATIVES DID NOT COMMUNICATE THE DOCUMENTS A ND EVIDENCE WHICH WERE ASKED BY THE ASSESSING OFFICER FROM THE ASSESSEE, THEN HOW THE ASSESSEE CAN FILE THE SAME BEFORE THE ASSESSING OFFICER. 8 8. IN OUR OPINION, THE TRIBUNAL IS THE LAST FACT FI NDING AUTHORITY AND ON THE TECHNICAL REASONS, THE ASSESSEE SHOULD NOT SUFF ER AND THERE SHOULD BE FULL JUSTICE TO THE ASSESSEE. WE, THEREFORE, AD MIT THE FOLLOWING DOCUMENTS AS EVIDENCE, FILED BY THE ASSESSEE. 1. MEMORANDUM OF UNDERSTANDING BETWEEN THE ASSESSEE AN D 260 WORKERS / EMPLOYEES DATED 01.04.2008 2. PURCHASE DEED DATED 06.05.2008 3. AGREEMENT DATED 31.05.2008 4. CANCELLATION DEED DATED 12.04.2008 5. CONFIRMATION LETTERS ALONG WITH RELATIVES EVIDENCE WHICH ARE PLACED IN THE PAPER BOOK AT PAGE NOS.84 TO 103 9. WE SET-ASIDE THE ORDER OF THE LD CIT(A) AND REMI T THE ENTIRE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FO R FRESH ADJUDICATION. THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISS UE AFRESH AFTER CONSIDERING THE EVIDENCE FILED BY THE ASSESSEE. WE MAKE IT CLEAR THAT WE ARE NOT EXPRESSING ANYTHING ON THE MERIT OF THE CASE. ACCORDINGLY, THE GROUNDS TAKEN BY THE ASSESSEE ARE ALLOWED FOR S TATISTICAL PURPOSES. 10. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF JUNE, 2014. SD/- SD/- (G.S. PANNU) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED 23 RD JUNE, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A) V, PUNE 4) THE CIT-V, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY ITAT PUNE BENCHES, PUNE