ACIT, New Delhi V. M/s. Soul, New Delhi

ITA 843/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69282 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 05-02-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 21-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: Y K KAPOOR
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Principle of natural justice; Additional evidence; Block assessment; Documents seized
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G: NEW DELHI) BEFORE SHRI. G.D.AGRAWAL, VICE PRESIDENT AND SHRI I.C. SUDHIR, JUDICIAL MEMBER ITA NO.319/DEL/ 2012 (ASSESSMENT YEAR :2002-03) M/S SOUL VS. DY. COMMISSIONER OF INCOME TAX 109, OKHLA INDUSTRIAL AREA CENTRAL CIRCLE-10 PHASE-III NEWDELHI NEW DELHI AABFS6868D ITA NO.843/DEL/ 2012 (ASSESSMENT YEAR :2002-03) ACIT VS. SOUL CENTRAL CIRCLE-10 109, OKHLA INDUSTRIAL AREA NEW DELHI PHASE-III NEW DELHI AABFS6868D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI Y. K. KAPOOR, ADV REVENUE BY : SMT. RAMESH CHANDRA. CIT, D.R ORDER PER I. C. SUDHIR, JUDICIAL MEMBER: THE ASSESSEE HAS QUESTIONED FIRST APP ELLATE ORDER ON THE FOLLOWING GROUNDS:- 1. THAT THE IMPUGNED ORDER PASSED BY THE LD. COMMI SSIONER OF TAX (APPEALS) IS BAD IN LAW, CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE EVIDENCES ADDUCED BY THE ASSESSEE. S.A NOS. 319 & 843.DEL.12 2 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN REFUSING TO CONSIDER THE APPLICATION UNDER SECTION 46A OF THE I.T RULES, IN ITS CORRECT SPIRIT DESPITE HAVING TAKEN T HE DOCUMENTS ON RECORD READ THE SAME DURING THE COURSE OF HEARING. (I) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) WHILE REJECTING THE APPLICATION UNDER RULE 46 AHAS WRONGLY OBSERVED THAT AS NO ADDITION IS BEING MADE ON ACCOUNT OF PURCHASE OF PEROERTYA ND THEREFORE FELT THE NECESSITY OF NOT TAKING THESE DOCUMENTS ON RECORD W HICH OBSERVATIONS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ARE CONTRARY TO THE DOCUMENTS FILED THROU GH ADDITIONAL EVIDENCES TO PROVE THAT NOT ONLY THE PRE MISES A-109 OKHLA INDUSTRIAL ESTATE WAS JOINTLY POSSESSED BY THE ASSESSEE AND ATLANTIC MULTIMEDIA. BUT THE DOCU MENT IN THE FORM OF ANNEXURE A-1 IF AT AL REFLECTS ANYTH ING DOES NOT IN ANY MANNER WHATSOEVER REFLECT THE AFFAIRS OF THE ASSESSEE THEREFORE THE EVIDENCES OUGHT TO HAVE BEEN TAKEN ON RECORD FOR THE PURPOSES OF ADJUDICATION OF THE ISSUE OR CONTROVERSY BEFORE THE COMMISSIONER OF INC OME TAX (APPEALS). (II) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS)WH ILE REJECTING THE APPLICATION UNDER RULE 46A HAS ERRED IN NOT APPRECIATING THAT THE AFFIDAVIT OF SURESH AND SHAIL ESH GOENKA WERE FILED TO SUBSTANTIATE THAT NO CASH MONE Y WAS EVER PAID TO THE ASSESSEE AND THEREFORE SUCH AN EVIDENCE WHICH WENT TO THE ROOT OF THE MATTER COULD NOT BE IGNORED. (III) THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FAILED TO APPRECIATE THE SPIRIT OF THE TWO APPLICAT IONS FILED ON 25/2/2010 AND 9/3/2010 WHEREIN IT WAS REQUESTED TO SUMMON CERTAIN PERSON SO MENTIONED IN THE APPLICATI ON, SHOULD BE COMMISSIONER OF INCOME TAX (APPEALS) DOUB T THE AFFIDAVIT OF SH. SURESH AND SH. SHAILESH GOENKA THROUGH WHICH AFFIDAVITS THEY HAD CATEGORICALLY STA TED OF HAVING MADE NO CASH WHICH DEMOLISHED THE CASE OF GENERATION OF CASH AND INDIRECTLY DEMOLISHED THE IMPUGNED DOCUMENTS. 3. THAT THE ORDER OF THE AUTHORITIES BELOW IS CON TRARY TO THE RULES OF NATURAL JUSTICE IN AS MUCH AS THE AUTHORIT IES HAVE RELIED S.A NOS. 319 & 843.DEL.12 3 UPON THE STATEMENT OF MR. S. S. KAUSHIK, ABOUT WHIC H THE ASSESSEE CAME TO KNOW ONLY THROUGH THE ASSESSMENT ORDER AND NOT BEFORE AND WHICH STATEMENT WAS NEITHER SUPPLIED TO, NOR TH E SAID PERSON WAS MADE AVAILABLE FOR CROSS EXAMINATION. 4. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIA TE THAT THE DOCUMENT ANNEXURE A-1 THOUGH FOUND FROM A-109 OKHLA INDUSTRIAL ESTATE, NEW DELHI, NEITHER REFLECTED THE AFFAIRS OF THE ASSESSEE NOR THE PREMISES EXCLUSIVELY WERE POSSESSED AND ENJOYED BY THE ASSESSEE AND THEREFORE THE PRESUMPTION U/S 132(4A) HAS BEEN WRONGLY INVOKED AGAINST THE ASSESSEE IN THIS CASE. 5. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIAT E THAT THE PRESUMPTION U/S 132(4A) OF THE I.T ACT, IS A PRESUM PTION REBUTTABLE IN LAW AND THE ASSESSEE IN THE PRESENT CASE HAD SUF FICIENTLY DISCHARGED ITS ONUS ON THE BASIS OF COGENT EVIDENCE THAT THE DOCUMENT DOES NOT BELONG TO THE ASSESSEE. 6. THAT THE AUTHORITIES BELOW HAVE ERRED IN MAKING ADD ITIONS TO THE INCOME OF THE ASSESSEE ON THE BASIS OF UNCORROBORAT ED AND UNSUBSTANTIATED EVIDENCE IN THE FORM OF ANNEXURE A- 5 & A-1, WHICH VIEWED AT FROM ANY ANGEL DOES GENERATE ANY AD VERSE INFERENCE AGAINST THE ASSESSEE, AND THEREFORE THE ORDERS OF THE AUTHORITIES BELOW ARE NOT SUSTAINABLE IN LAW. THE CONSEQUENT ADDITION THUS WRONGLY FRAMED AND SUSTAINED, NEEDS T O BE DELETED. 7. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIAT E THAT THE AGREEMENT WITH REMARK, WAS DATED 1/1/2002 AND THERE FORE THERE WAS NO QUESTION OF ANY UNACCOUNTED MONEY GENERATED BY THE ASSESSEE THROUGH THE OFFICES OF REMARK WHICH COULD BE PASSED ON TO THE ASSESSEE AND THEREFORE THE DOCUMENT AT ANNEX URE-A-5, DOES NOT REFLECT THE CORRECT STATE OF AFFAIRS AND IN ANY WAY IS A DUMB DOCUMENT. 8. THAT THE AUTHORITIES BELOW HAVE ERRED IN MAKING AN ADDITION/S ON THE BASIS OF ANNEXURE A-5 AND ANNEXURE A-1, WHICH A SSESSEE NOT SUSTAINABLE IN LAW. 9. BOTH THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN NOT APPRECIATING THAT THE LD. ASSESSING OFFICER HAS WRONGLY ADDED BOTH I.E THE ALLEGED UNACCOUNTED INCOME AND ITS UTI LIZATION AND THUS IT IS A CASE OF DOUBLE ADDITION AND THEREFORE THE ORDERS OF THE AUTHORITIES BELOW IS UNSUSTAINABLE IN LAW AND IS LI ABLE TO BE QUASHED ON THIS ACCOUNT. 10. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN SUSTAIN ING AN ADDITION OF RS.4,32,92,485/- AND RS.3,16,35,873/- LESS RS.89 ,50,000/- ON S.A NOS. 319 & 843.DEL.12 4 THE BASIS OF THE TWO DOCUMENTS WHICH UNDER NO CIRCU MSTANCES, LOOKING AT IT FROM ANY ANGLE, DISCLOSED THE UNDISCL OSED INCOME FO THE ASSESSEE OR IN ANY MANNER INDICATE THE UNDISCLO SED INCOME FO THE ASSESSEE. 2. WE HAVE HEARD AND CONSIDERED THE ARGUMENTS ADVAN CED BY THE PARTIES IN VIEW OF ORDERS OF THE AUTHORITIES BELOW, MATERIA L AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON. 3. WE FIND THAT SOME OF THE GROUNDS RAISED IN THE A PPEAL GO TO THE ROOT OF THE MATTER, ADJUDICATION OF WHICH REQUIRES FIRST PR EFERENCE. THESE GROUNDS ARE GROUND NOS 2 & 3. IN GROUND NO-2 THE ASSESSEE HAS QUESTIONED ORDER OF THE FIRST APPELLATE AUTHORITY WHEREBY THE LD. COMMI SSIONER OF INCOME TAX (APPEALS) HAS REFUSED TO CONSIDER THE APPLICATION U /S 46A OF THE I. T RULES FOR ACCEPTANCE OF ADDITIONAL EVIDENCE. IN GROUND NO-3, THE ASSESSEE HAS QUESTIONED THE ACTION OF THE AUTHORITIES BELOW ON P LACING RELIANCE UPON THE STATEMENT OF MR. S.S. KAUSHIK WITHOUT SUPPLYING HIS STATEMENTS TO THE ASSESSEE AND AFFORDING OPPORTUNITY TO THE ASSESSEE TO CROSS-EXAMINE HIM. 4. BEFORE PROCEEDING ON THE ABOVE MENTIONED GROUND NOS. 2 & 3 WE WOULD LIKE TO DISCUSS THE RELEVANT FACTS OF THE PRE SENT CASE. THE ASSESSEE IS A PARTNERSHIP FIRM WHICH WAS SUBJECTED TO SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT ALONG WITH ITS PARTNER MS. RUBY DHAWER, MRS. JOGINER KAUR AND SHRI SURJEET SINGH (FATHER OF MS. RUBY DHAWER). TH E PREMISES RAIDED S.A NOS. 319 & 843.DEL.12 5 INCLUDED AT A-1/1 PANCHSHEEL ENCLAVE, NEW DELHI & 4 9 HAUS KHAS, NEW DELHI. SEARCH AND SEIZURE OPERATIONS WERE SIMULTAN EOUSLY CARRIED OUT ALSO AT ATLANTIC MULTIMEDIA PVT. LTD WITH ITS REGISTERED OF FICE AT A-109 OKHLA INDUSTRIAL ESTATE, PHASE III, NEW DELHI. ATLANTIC MULTIMEDIA PVT. LTD WAS ALSO SUBJECTED TO THE BLOCK ASSESSMENT PROCEEDINGS FOR THE SAME YEARS AS ASSESSEE BY THE SAME ASSESSING OFFICER. M/S SOUL, T HE ASSESSEE A PARTNERSHIP FIRM, WAS SHARING THE PREMISES NO-A-109, OKHLA INDU STRIAL ESTATE, NEW DELHI WITH ATLANTIC MULTIMEDIA PVT. LTD, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956. 5. DURING THE SEARCH AND SEIZURE OPERATIONS AT THE ABOVE STATED PREMISES, SOME CASH AND DOCUMENTS WERE FOUND AND BEING SATISF IED WITH THE EXPLANATION OF THE ASSESSEE REGARDING THE CASH FOUN D, THE ASSESSING OFFICER ADJUSTED THE SAID AMOUNT TOWARDS TAXES BUT OUT OF T HE VARIOUS DOCUMENTS SEIZED, THE ASSESSING OFFICER WAS NOT SATISFIED WIT H THE EXPLANATION OF THE ASSESSEE THAT THE DOCUMENTS DO NOT PERTAIN TO THE A FFAIRS OF THE ASSESSEE AND MADE CERTAIN ADDITIONS BASED ON THOSE DOCUMENTS IN THE HANDS OF THE ASSESSEE PERTAINING TO THE ASSESSMENT YEAR 2002-03 AS UNDISCLOSED INCOME OF THE ASSESSEE IN THE ASSESSMENT FRAMED U/S 153A/143( 3) OF THE ACT. THIS ADDITION IN THE ASSESSMENT YEAR 2002-03 (OUT OF 6 ASSESSMENT YEARS BEGINNING A.Y 1999-2000 AND ENDING WITH ASSESSMENT YEAR 2005-06) WAS S.A NOS. 319 & 843.DEL.12 6 MADE BASICALLY ON THE PREMISES THAT THE ASSESSEE WH ICH IS ACTING AS A BUYING AGENT FOR TWO MAJOR PRINCIPAL LOCATED IN THE USA AN D WORKING UNDER THE NAME M/S WALLMART & M/S BLAIR AND THAT THE ASSESSEE RECEIVES ITS COMMISSION FROM THEM AND IS NOT REFLECTING ITS COMM ISSION IN ITS REGULAR BOOKS OF ACCOUNTS. THE ASSESSING OFFICER HELD THAT THE ASSESSEE RECEIVES COMMISSION INDIRECTLY THROUGH A FOREIGN CONCERN M/S TEXPORT. HE OBSERVED THAT THE UNDERLYING ARRANGEMENT IS THAT THE ASSESSE E MANAGES THE AFFAIRS IN SUCH A MANNER THAT THESE STORE PAY COMMISSION TO M/ S REMARK, WHO IN-TURN PAYS IT TO M/S TEXPORT, AND IT IS TEXPORT WHO IN TU RN PAYS MONEY TO THE ASSESSEE WHICH IS UNACCOUNTED BY IT IN THE FORM OF CASH AND CHEQUE WHICH MONEY ACCORDING TO THE AO IS INVESTED/UTILIZED IN A CQUIRING PROPERTY NO-A- 109, OKHLA INDUSTRIAL ESTATE, NEW DELHI. 6. BEING AGGRIEVED BY THE ORDER OF THE ASSESSMENT D ATED 29/12/2006 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION THAT 2002-0 3, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY BUT COULD NOT SUCCEED. 7. THE GRIEVANCES OF THE ASSESSEE IS THAT THE SEIZE D DOCUMENT MARKED ANNEXURE A-1 AND A 5 DO NOT PERTAIN TO THE AFFAIRS OF THE ASSESSEE AND THAT THE PREMISES A-109 IS NOT INTO THE EXCLUSIVE POSSES SION OF THE ASSESSEE BUT IS JOINTLY SHARED BY IT WITH ATLANTIC MULTIMEDIA PVT. LTD AND THEREFORE THERE WAS NO OCCASION TO INVOKE THE PROVISIONS OF SECTION 132(4A) OF THE ACT S.A NOS. 319 & 843.DEL.12 7 AGAINST THE ASSESSEE. BESIDES OTHER GRIEVANCES RAI SED IN THE OTHER GROUNDS THE GRIEVANCES OF THE ASSESSEE RAISED IN GROUND NOS . 2 & 3 AS DISCUSSED ABOVE I.E NON-CONSIDERATION OF APPLICATION U/S 46A OF THE I.T RULES BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND USER OF ST ATEMENT OF MR. S.S. KAUSHIK AGAINST THE ASSESSEE WITHOUT SUPPLYING COPY OF HIS STATEMENTS TO THE ASSESSEE BY THE ASSESSING OFFICER AND WITHOUT AFFOR DING OPPORTUNITY OF HIS CROSS-EXAMINATION BY THE ASSESSEE, HAVE BEEN CONTEN DED AS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE FOR ADJUDICATION OF TH ESE GRIEVANCES RAISED IN GROUND NOS. 2 & 3. 8. THE LD. AR HAS REITERATED THE CONTENTS OF GROUND NOS. 2 & 3 OF THE APPEALS IN THIS REGARD. HE SUBMITTED THAT LD. COMM ISSIONER OF INCOME TAX (APPEALS) WHILE REJECTING THE APPLICATION UNDER RUL E 46A HAS WRONGLY OBSERVED THAT AS NO ADDITION IS BEING MADE ON ACCOU NT OF PURCHASE OF PROPERTY HENCE THERE WAS NO NECESSITY OF TAKING THE SE DOCUMENTS ON RECORD WHICH AS PER THE LD. AR ARE CONTRARY TO THE DOCUMEN TS FILED THROUGH ADDITIONAL EVIDENCES TO ESTABLISH THAT NOT ONLY THE PREMISES A-109, OKHLA INDUSTRIAL ESTATE WAS JOINTLY POSSESSED BY THE ASSE SSEE AND ATLANTIC MULTIMEDIA BUT THE DOCUMENT IN THE FORM OF ANNEXURE A-1 DOES NOT IN ANY MANNER REFLECT THE AFFAIRS OF THE ASSESSEE. THE LD . AR SUBMITTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILE D TO APPRECIATE THAT THE S.A NOS. 319 & 843.DEL.12 8 AFFIDAVITS OF SRI SURESH AND SHRI SHAILESH GOENKA W ERE FILED TO SUBSTANTIATE THAT NO CASH MONEY WAS EVER PAID TO THE ASSESSEE AN D, THEREFORE SUCH EVIDENCE GOES TO THE ROOT OF THE MATTER. THE LD. C OMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO FAILED TO APPRECIATE THE SPI RIT OF THE APPLICATIONS FILED ON 25/2/2010 AND 9/3/2010 WHEREIN IT WAS REQUESTED TO SUMMONS CERTAIN PERSONS MENTIONED THEREIN IN CASE HE DOUBTS THE AFF IDAVITS OF SHRI SURESH AND SHRI SHAILESH GOENKA WHEREIN THEY HAD CATEGORIC ALLY STATED OF HAVING MADE NO CASH WHICH DEMOLISHED THE CASE OF GENERATIO N OF CASH AND INDIRECTLY DEMOLISHED THE IMPUGNED DOCUMENTS. THE L D. AR IN SUPPORT REFERRED THE DOCUMENTS FILED IN THE SHAPE OF PAPER BOOK WITH APPLICATION UNDER RULE 46A MADE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 9. IN SUPPORT OF GROUND NO. 3 THE CONTENTION OF TH E LD. AR REMAINED THAT IT IS AN ESTABLISHED PROPOSITION OF LAW THAT P LACING RELIANCE ON THE STATEMENT OF A PERSON WITHOUT SUPPLYING HIS STATEME NT TO A PERSON AGAINST WHICH IT IS USED AND WITHOUT AFFORDING OPPORTUNITY TO THAT PERSON TO CROSS- EXAMINE THE PERSON WHOSE STATEMENTS HAS BEEN USED A GAINST HIM, IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE AND PROCE EDINGS VITIATE ON THIS GROUND ALONE. S.A NOS. 319 & 843.DEL.12 9 10. THE LD. CIT-DEPARTMENTAL REPRESENTATIVE OBJECTE D THE ABOVE CONTENTIONS MADE ON BEHALF OF THE ASSESSEE AND PLAC ED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. HE SUBMITTED THAT MAKING OF APPLICATION UNDER RULE 46A OF THE I.T RULES BY THE ASSESSEE BEFORE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS AN AFTERTHOUGHT. HENCE IT WAS RIGHTLY REFUSED BY HIM. THE ASSESSEE WAS ALSO AWARE OF THE STATEMENTS OF MR. KAUSHIK AND THE GRIEVANCES IN GROUND NO-3 IN THIS REGARD HAS BEEN R AISED ONLY TO MEET OUT A TECHNICAL OBJECTION. HE SUBMITTED THAT MR. KAUSHIK WAS NOT AN STRANGER AND AT RELEVANT TIME HE WAS ACCOUNTANT OF MS. DHAWER, T HE PARTNER OF THE ASSESSEE FIRM. HE POINTED FURTHER THAT THE DOCUMENT S WERE FOUND FROM THE PREMISES AFTER SIX MONTHS MR. KAUSHIK LEFT THE JOB, HENCE THERE WAS NO QUESTION OF PLANTATION OF THESE DOCUMENTS IN THE PR EMISES OF THE ASSESSEE BY HIM. THE LD. CIT DEPARTMENTAL REPRESENTATIVE SUBMI TTED FURTHER THAT THE ADDITION IN QUESTION HAS BEEN MADE ON THE BASIS OF THE DOCUMENTS SEIZED WHICH CORROBORATE EACH OTHER, HENCE PREJUDICE IS CA USED TO THE ASSESSEE, DUE TO NON-SUPPLY OF STATEMENTS OF MR. KAUSHKI TO THE A SSESSEE TO ALLEGE VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. IN SUPP ORT HE PLACED RELIANCE ON THE DECISION OF HON'BLE A. P. HIGH COURT IN THE CASE OF MHD. IBRAHIM KHAN VS. U.O.I (1985) 155 ITR 10 (A.P) HOLDING THAT U9NLESS VIOLATION OF THE S.A NOS. 319 & 843.DEL.12 10 PRINCIPLES OF NATURAL JUSTICE RESULTED IN THE FAILU RE OF JUSTICE OR RESULTED IN PREJUDICE TO A CITIZEN, THE COURT WILL NOT INTERFER E. 11. CONSIDERING THE ABOVE SUBMISSION, WE ARE OF THE VIEW THAT THERE IS SUBSTANCE IN THE GRIEVANCE OF THE ASSESSEE SHOWN IN GROUND NOS. 2 & 3 OF THE GROUNDS. AS PER THE PROVISIONS LAID DOWN UNDER RULE 46A OF THE I.T RULES, THE APPLICATION OF THE ASSESSEE FOR ADMISSION OF AD DITIONAL EVIDENCES CAN BE ALLOWED ONLY WHEN THE ASSESSEE IS ABLE TO SHOW SUFF ICIENT CASUE FOR NON- FURNISHING OF THESE DOCUMENTS BEFORE THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND SECONDLY THE D OCUMENTS WHICH THE ASSESSEE WANTS TO FURNISH AS ADDITIONAL EVIDENCE AR E RELEVANT TO ANY GROUND OF APPEAL. IN OTHER WORDS THESE ADDITIONAL EVIDENCE IS GOING TO ASSIST THE AUTHORITIES IN ARRIVING AT JUST AND PROPER ADJUDIC ATION ON THE ISSUE RAISED WITHOUT CAUSING PRJUDICE TO THE OTHER SIDE. ACCORD INGLY WHEN WE EXAMINE THE APPLICATION OF THE ASSESSEE FILED UNDER RULE 46 A BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), WE FIND THAT THE ASSESSEE HAS SHOWN SUFFICIENT CAUSE FOR NON-FURNISHING OF THESE DOCUME NTS BEFORE THE ASSESSING OFFICER DUE TO FAILURE OF ASSESSING OFFICER TO CALL UPON THE ASSESSEE TO EXPLAIN THE SOURCE, YEAR AND MANNER OF ACQUISITION OF PROPERTY AND THE VALUE OF THE PROPERTY. THE FURTHER SUBMISSION OF THE ASS ESSEE/APPLICANT THEREIN WAS THAT HAD THE ASSESSING OFFICER CONFRONTED THE A SSESSEE WITH HIS QUERY IN S.A NOS. 319 & 843.DEL.12 11 THIS REGARD, THE ASSESSEE WOULD DEFINITELY HAVE UNE XPLAINED THE SAME AND CLEARED THE DOUBTS IN THE MIND OF ASSESSING OFFICER BUT THAT OCCASION NEVER CAME AND THE ASSESSEE FOR THE FIRST TIME CAME TO KN OW THROUGH THE ASSESSMENT ORDER, THE BASIS OF ADDITION TO ITS INCO ME ASSESSED BY THE ASSESSING OFFICER. THE SUBMISSION OF THE ASSESSEE REMAINED THAT THE PROPERTY NO A 109, OKHLA INDUSTRIAL AREA, INITIALLY BELONGED TO PIONEER SPORTS WHICH HAD TRANSFERRED THE SAME TO ATLANTIC M ULTIMEDIA PVT. LTD IN THE YEAR 2000 FOR A CONSIDERATION OF RS.48,00,000/-. T HIS TRANSACTION BETWEEN THE PIONEER SPORTS AND ATLANTIC MULTIMEDIA PVT. LTD STANDS ACCEPTED BY THE DEPARTMENT. THE FURTHER SUBMISSION OF THE ASSESSEE REMAINED THAT A PROPERTY WHICH WAS TRANSFERRED FOR RS.48,00,000/- I N A YEAR EARLIER ONLY,COULD BY NO STRETCH OF IMAGINATION FETCH THE A MOUNT AS INDICATED BY THE SUCCEEDING YEAR. REGARDING THE TRANSFER OF SHARES OF ATLANTIC MULTIMEDIA PVT. LTD, IT WAS SUBMITTED THAT THE SHARES WERE NOT TRANSFERRED TO THE ASSESSEE AND THUS NO ADDITION ON THESE GROUNDS CAN BE MADE I N THE HANDS OF THE ASSESSEE. THE FURTHER SUBMISSION OF THE ASSESSEE I N THIS REGARD REMAINED THAT AS FAR AS MS ROOBY DHAWER IS CONCERNED TO WHOM SHAR ES HAVE BEEN TRANSFERRED, NO ADDITION HAS BEEN MADE THOUGH AS FA R AS HER ASSESSMENT FOR THE YEAR UNDER CONSIDERATION IS FIRSTLY PROCESSED U /S 143(1) AND NOW U/S 143(3) READ WITH 153A OF THE ACT. THE CONTENTION O F THE ASSESSEE REMAINED S.A NOS. 319 & 843.DEL.12 12 THAT AS THEY WERE NEVER CALLED UPON TO EXPLAIN THE BASIS OF ACQUISITION OF PROPERTY NO-109, OKHLA INDUSTRIAL ESTATE, NEW DELHI WHICH BELONGED AND BELONGS TO ATLANTIC MULTIMEDIA, THEY HAVE BEEN DENI ED AN OPPORTUNITY TO PRESENT ITS CASE RESULTING IN ILLEGAL AND ARBITRARY ADDITION IN ITS HANDS. IN SUPPORT OF THE APPLICATION UNDER RULE 46A, FURTHER CONTENTION OF THE ASSESSEE REMAINED THAT HAD THE ASSESSING OFFICER GRANTED AN OPPORTUNITY TO EXPLAIN THE DOUBTS IN HIS MIND WHICH HAD ULTIMATELY TAKEN T HE SHAPE OF ADDITION AND HAD THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXP LAIN THE SOURCE OF ACQUISITION OF PROPERTY THEN THERE WOULD HAVE NO QU ESTION OF MAKING ANY ADDITION IN ITS HANDS. KEEPING IN MIND THESE FACTS IN ITS TOTALITY, WE ARE OF THE VIEW THAT THERE WERE SUFFICIENT CAUSE WHICH LED THE ASSESSEE/APPLICANT TO THE NON PLACING OF THE MATERIAL AND RELEVANT DOCUME NTS BEFORE THE ASSESSING OFFICER THEREBY CAUSING INJUSTICE AND PREJUDICE TO THE ASSESSEE FOR NO FAULT ON ITS PART. WE ALSO FIND THAT THE DOCUMENTS, MENT IONED BELOW FOR WHICH THE ASSESSEE SOUGHT PERMISSION OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) TO ADMIT THE SAME AS ADDITIONAL EVIDENCE WERE MATERIAL TO DECIDE THE ISSUE OF VALIDITY OF THE ADDITIONS QUESTIONED IN THE GROUNDS:- 1. RELEVANT PAPERS OF ATLANTIC MULTIMEDIA PVT. LTD . A) BALANCE SHEET & PROFIT & LOSS A/C FOR THE Y/E 31 /3/2001, 31/3/2002 B) ANNUAL RETURN FILED WITH ROC AS ON 10/8/2001, 30 /9/2002 S.A NOS. 319 & 843.DEL.12 13 C) COPY OF AGREEMENT TO SELL TD 3/8/2000 BETWEEN AT LANTIC MULTIMEDIA PVT. LTD AND PIONEER SPORTS INDIA PVT. L TD FOR PURCHASE OF PROPERTY. D) COPY OF LETTER DATED 8/11/2011 FROM THE COMMISSI ONER OF INDUSTRIES, DELHI GOVT. DEMANDING RS.20.36 LAKHS BE ING 50% SHARE OF UNEARNED INCREASE. E) STATEMENT OF A/C OF LOAN & REPAYMENT TO PREETI P UJARA AND GURPREET SANGLA (LEDGER COPY) F) RECEIPT OF LOAN-BANK STATEMENT SHOWING RECEIPT O F LOAND OF 48 LAKHS. 2. AFFIDAVITS OF:- A) MR. SHAILESH S. GOENKA B) MR. SURESH GOENKA C) REMARK 3. CONFIRMATION FROM VARIOUS PARTIES FOR TRANSACTIO N WITH ASSESSEE FIRM:- A) COPY OF A/C OF ATLANTIC MULTIMEDIA IN THE BOOKS OF JAIN MARBLE. B) MS SUDHIR GENSET C) G.S.C TOUGHENED GLASS PVT. LTD. D) OTIS E) OSWAL MARBLE F) COPY OF BILL OF BLUE STAR & STATEMENT OF A/C FR OM BLUE STAR. 12. WE ARE FULLY AWARE THAT PRIMARY POWER RATHER OB LIGATION OF THE TRIBUNAL IS TO DISPOSE OF THE APPEAL ON ITS MERITS AND THE INDUSTRIAL POWER TO REMAND, IS ONLY AN ACCEPTION AND SHOULD BE SPARINGL Y LOOSED WHEN IT IS NOT POSSIBLE TO DISPOSE OF THE APPEAL FOR WANT OF RELEV ANT EVIDENCE, LACK OF FINDING OR INVESTIGATION WARRANTED BY THE CIRCUMSTA NCES OF THE CASE. AS DISCUSSED ABOVE, THE ABOVE STATED DOCUMENTS ARE MAT ERIAL FOR THE JUST DECISION ON THE ISSUE AND AT THE SAME TIME THSES DO CUEMTNS CANNOT BE RELIED UPON UNLESS ITS VERACITY CAN BE EXAMINED. WE THUS WHILE HOLDING THAT THE S.A NOS. 319 & 843.DEL.12 14 LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT JU STIFIED IN REJECTING THE SAID APPLICATION FILED BY THE APPELLANT UNDER RULE 46 OF THE I.T RULES ALLOW THE APPLICATION AND SET ASIDE THE MATTER TO THE FIL E OF THE ASSESSING OFFICER TO EXAMINE THE VERACITY OF THE ABOVE STATED DOCUMENTS AND DECIDE THE ISSUE AFRESH ALSO CONSIDERING THE ADDITIONAL EVIDENCE FIL ED BY THE ASSESSEE AND AFTER AFFORDING OPPORTUNITY TO CROSS-EXAMINE SHRI S .S. KAUSHIK AND AFTER HEARING THE ASSESSEE IN THIS REGARD. WHILE DECIDIN G THE ISSUE THE ASSESSING OFFICER IS ALSO DIRECTED TO ASCERTAIN THAT ALL THE ADDITIONS IN QUESTION PERTAIN TO THE ASSESSMENT YEAR UNDER CONSIDERATION ONLY. T HE ASSESSING OFFICER WILL ALSO CONSIDER AS TO IN WHOSE HANDS THE ADDITION IF ANY, IS TO ASSESSED IF NOT IN THE HANDS OF THE ASSESSEE. 13. IN RESULT, GROUNDS AS WELL AS APPEAL ARE ALLOWE D FOR STATISTICAL PURPOSES. ITA NO. 843/DEL/2012 THE REVENUE HAS QUESTIONED FIRST APPELLATE ORDER O N THE FOLLOWING GROUNDS:- 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN LAW AND ON FACTS OF THE CASE IN ALLOWING RELIEF OF RS.89,50,000/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF UNDISCLOSED INCOME OF COMMISSION AND REIMBURSEMENT EXPENSES RECORDED IN VARIOUS SEIZED DOCUMENTS. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN LAW AND ON FACTS OF THE CASE IN ALLOWING THE RELIEF OF RS.89,50,000/- MENTIONED IN GROUP NO.(1) ABOVE BY H OLDING S.A NOS. 319 & 843.DEL.12 15 THAT IT WAS A DOUBLE ADDITION IGNORING THE FACT THA T THE AMOUNT OF RS.2,39,50,000/-(OF WHICH RS.89,50,000/- WAS A PART) MENTIONED AT PAGE-61 OF ANNEXURE-A-5 OF PARTY OP-1 WAS NOT ADDED BY THE ASSESSING OFFICER. 2. IN SUPPORT OF THE GROUND THE LD. DEPARTMENTAL RE PRESENTATIVE SUBMITTED THAT WHILE ALLOWING RELIEF OF RS. 89,50,0 00/- WHICH WAS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNDISCLOSED INC OME OF COMMISSION AND REIMBURSEMENT EXPENSES RECORDED IN VARIOUS SEIZED D OCUMENTS, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE AMOUNT OF RS.2,39,50,000/-( OF WHICH RS.89,50,000/- WAS A PART) MENTIONED AT PAGE NO. 61 OF ANNEXURE A5 OF PARTY OP-1 WAS NOT ADDED BY THE ASSESSING OFFICER. 3. THE LD. AR ON THE OTHER HAND TRIED TO JUSTIFY TH E RELIEF IN QUESTION GIVEN BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL S). 4. CONSIDERING THE ABOVE SUBMISSION WE FIND THAT TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS SUSTAINED AN ADDITION O F RS.4,32,92,485/- AND RS.3,16,35,873/- LESS RS. 89,50,000/- ON THE BASIS OF TWO DOCUMENTS ABOUT WHICH THE CONTENTION OF THE LD. AR IN THE ABOVE APP EAL PREFERRED BY THE ASSESSEE REMAINED THAT THESE DOCUMENTS UNDER NO CIR CUMSTANCES DISCLOSED THE UNDISCLOSED INCOME OF THE ASSESSEE. THE CONTEN TION OF THE ASSESSEE ALSO REMAINED THAT ADDITIONS MADE ON THE BASIS OF THESE DOCUMENTS I.E. ANNEXURE S.A NOS. 319 & 843.DEL.12 16 A5 & ANNEXURE A 1 ARE NOT SUSTAINABLE IN LAW. SINC E WE HAVE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRE SH ASSESSMENT ON THE ISSUE OF ADDITIONS MADE ON THE BASIS OF THESE DOCUEMTNS I N THE ABOVE APPEAL PREFERRED BY THE ASSESSEE WHICH IS ALSO CONNECTED T O THE ISSUE RAISED IN THE APPEAL PREFERRED BY THE REVENUE, WE FIND IT JUST AN D PROPER TO SET ASIDE THE ISSUE RAISED BY THE REVENUE IN ITS APPEAL AS WELL T O THE FILE OF THE ASSESSING OFFICER TO DECIDE IT AFRESH WHILE COMPLY WITH OUR O RDER IN THE ABOVE APPEAL OF THE ASSESSEE. THE GROUNDS ARE THUS ALLOWED FOR STATISTICAL PURPOSES. 5. CONSEQUENTLY, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN SUMMARY BOTH THE APPEALS ARE ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 13/09/2013. SD/- SD/- (G.D.AGRAWAL) (I.C. SUDHIR) (VICE PRESIDENT) (JUDICIAL MEMBER) DATED THE 13 TH DAY OF SEPTEMBER , 2013 R. NAHEED COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. CIT(ITAT), NEW DELHI. AR,ITAT NEW DELHI. S.A NOS. 319 & 843.DEL.12 17