Brij Mohan , Kurukshetra V. ITO, W-1, Kurukshetra

ITA 95/CHANDI/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4974 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 31-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Additional evidence
• Section: 69; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHB, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 95/CHD/2018 (ASSESSMENT YEAR: 2011-12) BRIJ MOHAN VS. THE I.T.O. S/O PALA RAM WARD-1, KURUKSHETRA VPO-JALBEHRA, TEHSIL-PEHOWA KURUKSHETRA, HARYANA PAN: BHBPM5463L (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI. MANJIT SINGH DATE OF HEARING : 02/05/2018 DATE OF PRONOUNCEMENT : 09/05/2018 O R D E R PER DR.B.R.R.KUMAR, A.M . : THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A), KARNAL DT. 01/12/2017. 2. IN THE PRESENT APPEAL THE ASSESSEE HAS RAISED FO LLOWING GROUNDS: 1. THAT ORDER OF LD. CIT(A) IS ARBITRARY, ILLEGAL AND AGAINST THE FACTS. 2. THAT THE LD. CIT(A) ERRED IN LAW IN REJECTING THE A PPLICATION OF THE APPELLANT UNDER RULE 46A OF THE INCOME TAX ACT. 3. THAT THE LD. CIT(A) KARNAL ERRED IN LAW IN CONFIRMI NG THE ORDERS OF INCOME TAX OFFICER, WARD-1 KURUKSHETRA MAKING ADDITION OF RS. 40,10,700/- IN THE INCOME OF THE APPELLANT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN EMPLOYEE OF M/S MALWA AUTOMOBILES LTD., WHEREIN ALL THE DEPOSITS IN HIS ICICI BANK ACCOUNT , PEHOWA, KURUKSHETRA HAVE BEEN TREATED AS UNEXPLAINED CASH DEPOSITS UNDER SECTION 69 OF THE INCOME TAX ACT,1961, VIDE ASSESSMENT COMPLET ED UNDER SECTION 144 OF THE ACT. 2 4. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THA T, AS BRANCH MANAGER OF THE COMPANY M/S MALWA AUTOMOBILES LTD., DEALING IN TATA MOTORS, HE IS TO COLLECT MONEY ON BEHALF OF THE CUSTOMERS, DEPOSIT I N HIS BANK ACCOUNT AND THEN TRANSFERS THE AMOUNT TO THE ACCOUNT OF THE COM PANY. IT WAS FURTHER SUBMITTED THAT THE COUNSEL ENGAGED BY HIM COULD NO T ATTEND THE HEARINGS BEFORE THE ASSESSING OFFICER AND REQUESTED FOR ADMI SSION OF ADDITIONAL EVIDENCES UNDER RULE 46A THAT ARE NECESSARY FOR PRO PER ADJUDICATION OF THE CASE WHICH HAS BEEN DECLINED BY THE LD. CIT(A). 5. BEFORE US THE LD. AR REITERATED THE FACTS ADVANC ED BEFORE THE LD. CIT(A) AND REQUESTED THAT THE ADDITIONAL EVIDENCES MAY BE ALLOWED. 6. THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A) . 7. WE HAVE GONE THROUGH THE FACTS OF THE CASE. 8. THE PROVISIONS AND REQUIREMENTS OF ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 46A ARE AS UNDER: PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE DEPUTY COMMISSIONER (APPEALS) AND COMMISSIONER (APPEALS) . 46A. (1) THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE DEPUTY COMMISSIONER (APPEALS)OR, AS THE CASE MAY BE, THE C OMMISSIONER (APPEALS), ANY EVIDENCE, WHETHER ORAL OR DOCUMENTARY, OTHER THAN T HE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BEFORE THE ASS ESSING OFFICER, EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NAMELY : (A) WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT EV IDENCE WHICH OUGHT TO HAVE BEEN ADMITTED ; OR (B) WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALLED UPON 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 RELEVAN T TO ANY GROUND OF APPEAL ; OR (D) WHERE THE ASSESSING OFFICER HAS MADE THE ORDER APPE ALED AGAINST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELLANT TO A DDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THEDEPUTY COMMISSIONER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS) RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE DEPUTY COMMISSIONER (APPEALS)OR, AS THE CAS E MAY BE, THE COMMISSIONER (APPEALS) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER HAS BEEN ALLOWED A REA SONABLE OPPORTUNITY (A) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS -EXAMINE THE WITNESS PRODUCED BY THE APPELLANT, OR (B) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE DEPUTY COMMISSIONER (APPEALS)OR, AS THE CASE MAY BE, THE C OMMISSIONER (APPEALS) TO 3 DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMI NATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTH ER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETH ER ON HIS OWN MOTION OR ON THE REQUEST OF THE (ASSESSING OFFICER) UNDER CLAUSE (A) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271. 9. WE HAVE GONE THROUGH THE PROVISIONS RELATING TO RULE 46A AND THE ARGUMENTS OF THE COUNSELS . 10. KEEPING IN VIEW THE FACT THAT THE ASSESSEE IS A SMALL EMPLOYEE OF M/S MALWA AUTOMOBILE PVT. LTD., EARNING 12,800/- PER MO NTH, THE ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 144, THE DEPOSITS HAV E BEEN PURPORTEDLY DONE AT THE BEHEST OF THE EMPLOYER AND SUBSEQUENTLY TRAN SFERRED TO THE ACCOUNT M/S MALWA AUTOMOBILE PVT. LTD., IT BECOMES ALL THE MORE IMPORTANT TO VERIFY THE TRANSFER OF FUNDS FROM THE ACCOUNT OF THE ASSESSEE TO THE ACCOUNTS OF HIS EMPLOYER BY CALLING THE BOOKS OF ACCOUNTS AND BANK STATEMENTS OF THE EMPLOYER. THE ASSESSEE WHO HAS DILIGENTLY ENGAGED T HE PROFESSIONAL TO REPRESENT THIS CASE CANNOT BE DENIED JUSTICE FOR LA CK OF COMPLIANCE ON THE PART OF THE COUNSEL ENGAGED. THESE FACTS INDICATE THAT THE ASSESSEE IS PREVENTED BY THE SUFFICIENT CAUSE TO PRODUCE EVIDENCES IN SUPPOR T OF HIS CONTENTION BEFORE THE ASSESSING OFFICER. HENCE WE HEREBY DIRECT THAT A SPEAKING ORDER MAY BE PASSED BY THE LD. CIT(A) AFTER DUE VERIFICATION AFT ER ADMITTING THE APPLICATION UNDER RULE 46A PERTAINING TO ADDITIONAL EVIDENCES . 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 09/05/2018 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A), 4. THE CIT, 5. THE DR