Income Tax Officer-I, Faizabad V. Sri Harcharan Singh Sardar, Faizabad

ITA 783/LKW/2013

• Counselvise Citation: 78323714 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 16-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.783/LKW/2013 ASSESSMENT YEAR:2010-11 INCOME TAX OFFICER-I FAIZABAD V. SHRI. HARCHARAN SINGH SARDAR PROP. M/S SATGURU AGENCIES GURUNANAKPURA, FAIZABAD TAN/PAN:AFXPS6183E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AMIT NIGAM, D.R. RESPONDENT BY: NONE DATE OF HEARING: 17 06 2015 DATE OF PRONOUNCEMENT: 25 06 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THE LD. C.I.T. (A.)-I, LUCKNOW HAS ERRED ON FACTS AND IN LAW IN ALLOWING RELIEF TO THE ASSESSEE WITHOUT CONSIDERING THE FACTS THAT PAYMENTS MADE BY HIM IN EXCESS OF RS. 20,000/- IN CASH TO A PERSON IN A DAY ARE NOT MADE ON BEHALF OF HIS PRINCIPAL HINDUSTAN UNILEVER LIMITED (HUL) AS THE SAME WERE SHOWN NOWHERE AS RECEIVABLE OR RECEIVED FROM HIS PRINCIPAL (HUL). 2. LD. CIT(A)-I, LUCKNOW HAS ERRED ON FACTS AND IN LAW IN ALLOWING RELIEF TO THE ASSESSEE ON THE BASIS OF ADDITIONAL EVIDENCES WITHOUT REMANDING THE MAILER U/S 250(4) OF THE INCOME TAX ACT, 1961 READ WITH RULE 46A OF INCOME TAX RULES, 1962 TO THE A.O. :- 2 -: 2. THIS APPEAL IS FIXED FOR HEARING WITH LAST OPPORTUNITY ON 17.6.2015. AN APPLICATION FOR ADJOURNMENT WAS MOVED BY THE ASSESSEE ON THE GROUND THAT HIS COUNSEL IS UNABLE TO PREPARE HIMSELF FOR HEARING BECAUSE OF HIS ILLNESS, BUT NO MEDICAL CERTIFICATE IS PLACED ON RECORD. ON A CAREFUL PERUSAL OF THE ORDER SHEET, WE FIND THAT THIS APPEAL WAS LISTED FOR HEARING FOR MORE THAN FOUR TIMES WITH LAST OPPORTUNITY, BUT ALL THE TIME ADJOURNMENT WAS SOUGHT FOR ONE REASON OR THE OTHER. SINCE THE APPEAL WAS FILED IN DECEMBER, 2013 AND WAS LISTED FOR HEARING ON A NUMBER OF TIMES, BUT NO EFFORT WAS MADE BY THE LD. COUNSEL FOR THE ASSESSEE TO GET THIS APPEAL HEARD. WE, THEREFORE, FIND NO MERIT IN THE ADJOURNMENT APPLICATION AND WE REJECT THE SAME. ACCORDINGLY, THE REVENUE WAS HEARD. 3. THE LD. D.R. HAS RAISED AN OBJECTION THAT BEFORE THE ASSESSING OFFICER ASSESSEE HAS NOT FILED THE RELEVANT RECORD AS OBSERVED BY THE ASSESSING OFFICER IN PARA 3 OF HIS ORDER AND THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS.34,28,346/- HAVING INVOKED THE PROVISIONS OF SECTION 40A(3) OF THE ACT, BUT BEFORE THE LD. CIT(A) THE ASSESSEE HAS PRODUCED THE REGISTER CONTAINING DETAILS OF INCENTIVE PAID TO THE RETAILERS/CUSTOMER, LEDGER ACCOUNT OF HUL SHOWING DISBURSEMENT CLAIMED FROM IT, INCENTIVE RECEIVABLE ACCOUNT AND SUNDRY CUSTOMERS ACCOUNT AS APPEARING IN HIS BOOKS OF ACCOUNT. THESE ADDITIONAL EVIDENCE WERE NEVER CONFRONTED TO THE ASSESSING OFFICER AND THE LD. CIT(A), PLACING RELIANCE UPON THE SAME, HAS DELETED THE ADDITION. THE LD. D.R. HAS FURTHER CONTENDED THAT SINCE THERE IS A GROSS VIOLATION OF RULE 46A OF THE RULES, THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THE MATTER BE RESTORED TO HIS FILE FOR FRESH RE-ADJUDICATION AFTER CONFRONTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE TO THE ASSESSING OFFICER. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT FILED THE RELEVANT EVIDENCE AND THE ASSESSING OFFICER HAS MADE ADDITION UNDER SECTION 40A(3) OF THE ACT WHEREAS BEFORE THE LD. CIT(A) THE ASSESSEE HAS :- 3 -: FILED ADDITIONAL EVIDENCE, BUT THE SAME WERE NOT CONFRONTED TO THE ASSESSING OFFICER FOR HIS COMMENTS. WE ARE, THEREFORE, OF THE VIEW THAT THERE IS A VIOLATION OF PROVISIONS OF RULE 46A OF THE RULES AND ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH AFTER CONFRONTING THE ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER. ACCORDINGLY, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:25 TH JUNE, 2015 JJ:1706 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR