Amit Arora, Rohtak V. ITO, Rohtak

ITA 883/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4169 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-04-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: NAVIN GOEL
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER ITA NO. 883/DEL/2011 ASSESSMENT YEAR: 2007-08 AMIT ARORA S/O SHRI ANAND PARKASH, VS. INCOME-TAX OF FICER, C/O M/S. SANIA SHOES, PALIKA BAZAR, WARD-1, ROHTAK. ROHTAK. (PAN: AFSPA9284M) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI NAVIN GOEL, CA RESPONDENT BY: SHRI ANUSHA KHURAN A, SR.DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LEARNED CIT(APPEALS) DATED 09.12.2010 PASSED FOR ASSESSMENT YEAR 2007-08. THE GROUNDS OF APPEALS TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF THE ITAT'S RULES, THEY ARE DESCRIPTIVE AND ARGUM ENTATIVE IN NATURE. IN BRIEF, THE GRIEVANCE OF ASSESSEE IS THAT LEARNED CI T(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.11,39,500 BY REFUSING TO ENTERTAIN ADDITIONAL EVIDENCE UNDER RULE 46A OF THE INCOME-TAX RULES, 19 62. 2. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECO RD THAT ASSESSEE IS AN 2 INDIVIDUAL. HE IS A PARTNER IN M/S.SANIA SHOES, PAL IKA BAZAR, ROHTAK. HE HAS INCOME FROM BUSINESS OR PROFESSION AS WELL AS INCOM E FROM HOUSE PROPERTY AND AGRICULTURAL INCOME. HE FILED HIS RETURN ON 17. 10.2007 DECLARING AN INCOME OF RS.89,010. AN ASSESSMENT HAS BEEN FRAMED UNDER SEC. 144 ON 30.12.2009. DURING THE COURSE OF ASSESSMENT PROCEED INGS, IT REVEALS TO THE ASSESSING OFFICER THAT A SUM OF RS.11,39,500 WAS DE POSITED DURING THE ACCOUNTING PERIOD RELEVANT TO ASSESSMENT YEAR 2007- 08 IN A BANK ACCOUNT MAINTAINED WITH AXIS BANK. THE ASSESSEE FAILED TO E XPLAIN SOURCE OF THIS DEPOSIT. 3. BEFORE THE LEARNED CIT(APPEALS), IT WAS CONTENDE D BY THE ASSESSEE THAT HE HAD ENTERED INTO AN AGREEMENT FOR SALE OF A GRICULTURAL LAND OF 40 CANALS AND 11 MARLAS WITH ONE SHRI HAWA SINGH. THE AGREEMENT WAS EXECUTED ON 3.1.2007. THE SALES CONSIDERATION WAS S ETTLED AT RS.81.10 LACS. A SUM OF RS. 8 LACS WAS RECEIVED IN CASH AS EARNEST MONEY. UNDER RULE 46A, ASSESSEE SOUGHT TO PRODUCE BANK PASSBOOK OF THE BUY ER, COPY OF THE AGREEMENT AND OTHER DETAILS. BUT THIS EVIDENCE WAS NOT ENTERTAINED BY THE LEARNED CIT(APPEALS) ON THE GROUND THAT ASSESSING O FFICER HAS GRANTED HIM SUFFICIENT OPPORTUNITIES. HE FAILED TO AVAIL THOSE OPPORTUNITIES. HIS CASE DOES NOT FALL WITHIN THE AMBIT OF SUB-RULE(1) OF RULE 4 6A. LEARNED CIT(APPEALS) 3 ALSO OBSERVED THAT ASSESSEE DID NOT FILE ANY INDEPE NDENT APPLICATION FOR PERMISSION TO ADDUCE ADDITIONAL EVIDENCE. 3. BEFORE US, IT WAS SUBMITTED BY THE LEARNED COUNS EL FOR THE ASSESSEE THAT ON 29.12.2009, ASSESSEE WAS OUT OF STATION. HE WENT TO GOA AND HE WAS NOT INFORMED ABOUT THE INQUIRIES OF THE ASSESSING O FFICER. IN SUPPORT OF HIS CONTENTIONS, ASSESSEE HAS FILED COPY OF HIS BOARDIN G PASS BEFORE THE LEARNED CIT(APPEALS). HE PRAYED THAT THE ASSESSEE BE PERMIT TED TO PRODUCE THESE EVIDENCES AND ISSUE BE READJUDICATED. ON THE OTHER HAND, LEARNED DR RELIED UPON THE ORDER OF THE LEARNED CIT(APPEALS). 4. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTAN CES, WE FIND THAT ASSESSEE WAS BIT NEGLIGENT IN CONDUCTING HIS INCOME -TAX PROCEEDINGS BEFORE THE ASSESSING OFFICER. ASSESSING OFFICER IN THE PRE SENT CASE INITIATED ASSESSMENT PROCEEDINGS WELL IN ADVANCE AND CALLED F OR NUMBER OF DETAILS. HOWEVER, HE COULD LAY HIS HANDS ON THE BANK ACCOUNT AT THE FAG END OF THE ASSESSMENT PROCEEDINGS AND CALLED FOR THE DETAILS F ROM THE ASSESSEE IN THE MONTH OF DECEMBER ONLY. HE HAS GRANTED THE FINAL OP PORTUNITY TO THE ASSESSEE ON 30.12.2009. BUT ON THAT DATE, ASSESSEE W AS ALREADY OUT OF STATION, HENCE COULD NOT SUBMIT THE DETAILS, WHICH LED THE ASSESSING OFFICER TO MAKE ADDITION. THE PUNISHMENT IN THE SHAPE OF TAX LI ABILITY ON THE ADDITIONS 4 CONFIRMED IS DISPROPORTIONATE TO THE NEGLIGENCE OF THE ASSESSEE. SUB-RULE (4) OF RULE 46A EMPOWERS THE LEARNED CIT(APPEALS) TO ENTE RTAIN ANY ADDITIONAL EVIDENCE FOR THE JUST DECISION OF THE APPEAL AND IN THE INTEREST OF JUSTICE. IN OUR OPINION, THE QUASI-JUDICIAL AUTHORITIES ARE BEING R ESPECTED NOT ON ACCOUNT OF THEIR POWERS TO LEGALIZE THE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE THEY ARE CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED T O DO SO. LEARNED CIT(APPEALS) OUGHT TO HAVE ENTERTAINED THIS EVIDENCE AND SILENCED THE CONTROVERSY ON MERIT. IN VIEW OF THE ABOVE DISCUSSIO N, WE SET ASIDE THE ORDERS OF LEARNED REVENUE AUTHORITIES BELOW AND RESTORE TH IS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. THE ASSESSEE W ILL BE AT LIBERTY TO SUBMIT ANY EVIDENCE IN SUPPORT OF HIS EXPLANATION. THE OBSE RVATIONS MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF THE ASSESSING OFFI CER OR WOULD NOT CAUSE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSE E. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 29.04.2011 (G.E. VEERABHADRAPPA ) ( RAJPAL YADAV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 29/04/2011 5 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR