Shri Sanjeev Malhotra, New Delhi V. ITO, New Delhi

ITA 761/DEL/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2098 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 08-12-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 02-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Keywords: Additional evidence; Set aside
• Section: 142(1); 143(2)

Judgement Text

I.T.A. NO. 761/DEL/2009 1/4 IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH G BEFORE SHRI DEEPAK R. SHAH, ACCOUTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER ITA NO.761 /DEL/2009 (ASSESSMENT YEAR 2004-05) SHRI SANJEEV MALHOTRA, VS. ITO, WARD 22(4), C/O SATISH AGGARWAL & ASSOCIATES, NEW DELHI 4/5B, 1 ST FLOOR, ASAF ALI ROAD, NEW DELHI. (APPELLANTS) (RESPONDENTS) APPELLANT BY: SHRI SATISH AGARWAL, CA RESPONDENT BY: SHRI KISHORE B., SR. DR PAN / GIR NO. ABDPM9549C ORDER PER GEORGE MATHAN, JM: 1. THIS APPEAL BY THE ASSESSEE HAS BEEN PREFERRED A GAINST THE ORDER OF LD. CIT(A)-XXVIII, NEW DELHI IN APPEAL NO.66/2007-08 DATED 24.12.2008 FOR THE ASSESSMENT YEAR 2004-05. SHRI SATISH AGARWAL, CA REPRESENTED FOR THE ASSESSEE AND SHRI KISHORE B, SR. DR REPRESENTED FOR THE REVENUE. 2. AT THE TIME OF HEARING, IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS DOING BUS INESS OF EXPORT. IT WAS THE SUBMISSION THAT THE ASSESSEE WAS I.T.A. NO. 761/DEL/2009 2/4 OUT OF DELHI DURING THE PERIOD OCT., 2006 TO 31.12. 2006. IT WAS THE SUBMISSION THAT THE ASSESSMENT PROCEEDIN GS HAD BEEN INITIATED BY ISSUING THE NOTICE U/S 143(2) AND 142(1) OF THE ACT. HOWEVER, IT WAS THE SUBMISSION THAT THE ASSESSEE WAS UNABLE TO EFFECTIVELY RESPOND INTH E ASSESSMENT PROCEEDINGS AND WAS UNABLE TO GIVE ALL T HE DETAILS BEFORE THE A.O. IT WAS THE SUBMISSION THAT AS A CONSEQUENCE OF FAILURE ON THE PART OF THE ASSESSEE THOUGH HE WAS REPRESENTED BY HIS CA, VARIOUS ADDITI ONS HAD BEEN MADE. IT WAS THE SUBMISSION THAT DURING T HE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ASSESSEE HAD PRODUCED VARIOUS DETAILS BEFORE THE LD . CIT(A) BY PRODUCING THE EVIDENCES BEFORE THE CIT(A) THOUGH THE SAME COULD NOT BE PRODUCED BEFORE THE A. O. IT WAS THE SUBMISSION THAT THE CIT(A) DID NOT ENTER TAIN THE ADDITIONAL EVIDENCES PRODUCED ON THE GROUND THA T THE ASSESSEE HAD FAILED TO SHOW THAT THE FURNISHING OF EVIDENCES WAS COVERED BY THE PROVISIONS OF RULE 46A OF THE I T RULES. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD GIVEN PARTIAL RELIEF TO THE ASSESSEE ON MANY OF THE ISSUES. HOWEVER, IN RESPECT OF ISSUE RELATI NG TO THE EXPENDITURE WHICH HAD BEEN DISALLOWED BY THE A. O. AND CONFIRMED BY THE CIT(A) AS ALSO IN RESPECT OF T HE ADVANCE RECEIVED BY THE ASSESSEE FROM THE CUSTOMERS AND EXPENDITURE CLAIMED BY THE ASSESSEE IN HIS I.T.A. NO. 761/DEL/2009 3/4 PROPRIETORSHIP FIRM M/S. ALFA EXPORTS AS ALSO THE C APITAL INTRODUCTION BY THE ASSESSEE IN HIS PROPRIETORSHIP FIRM COULD BE SENT BACK TO THE A.O. FOR FRESH EXAMINATIO N. IT WAS THE UNDERTAKING GIVEN BY THE LD. A.R. THAT THE ASSESSEE WOULD PRODUCE ALL THE EVIDENCES TO THE SATISFACTION OF THE A.O. IN RESPECT OF THE ISSUES A S RAISED IN THE APPEAL. IT WAS THE SUBMISSION THAT IT WAS O NLY DUE TO THE FOREIGN TRAVEL FOR BUSINESS PURPOSE BY THE ASSESSEE DURING THE LATER PERIOD OF THE ASSESSMENT PROCEEDINGS THAT THE FAILURE TO PRODUCE THE EVIDENC ES HAD OCCURRED. 3. IN REPLY, THE LD. D.R. SUBMITTED THAT HE HAD NO OBJECTION IF THE ISSUES IN THE APPEAL WERE RESTORED TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION SUBJECTS TO THE CONDITION THAT THE ASSESSEE WOULD COOPERATE IN THE SET ASIDE PROCEEDINGS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE ASSESSEE WAS UNABLE TO PRODUCE THE DETAILS AS CALLED FOR BY THE A.O. IN THE COURSE OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF THE FACT THAT THE ASSESSEE WAS TRAVELLING IN CONNECTION WITH HIS EXPO RT BUSINESS DURING THE PERIOD OCT TO DEC 2006, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD BE GRATED AN OPPORTUNITY TO PRODUCE ALL SUCH EVIDENCES TO SUPPOR T HIS CLAIM. IN THESE CIRCUMSTANCES, THE ISSUES AS RAISE D IN I.T.A. NO. 761/DEL/2009 4/4 THE APPEAL BEFORE THIS TRIBUNAL ARE RESTORED TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO SUBSTANTIATE ITS C LAIM. THE ASSESSEE SHALL COOPERATE IN THE SET ASIDE PROCEEDINGS. THE A.O. SHALL HAVE THE LIBERTY TO DR AW ADVERSE INFERENCE IF THE ASSESSEE DOES NOT COOPERAT E IN THE SET ASIDE PROCEEDINGS. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 11 TH DEC., 2009. SD./- SD./- (DEEPAK R. SHAH) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:11 TH DEC., 2009 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI