M/s Aishwarya Earthmovers, Hubli V. ACIT, Hubli

ITA 958/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51412 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 04-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMASE JOSE JT CITIDR
• Assessee Lawyers: PRASAD R SIRAMATH
• Keywords: Depreciation; Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER ITA NO.958/BANG/2010 ASSESSMENT YEAR : 2005-06 M/S. AISHWARYA EARTHMOVERS, NO.8, BALAGAR PLOTS, NEAR MAHIMA HOTEL, BHAIRIDEVARAKOPPA, P.B. ROAD, VIDYANAGAR, HUBLI. PAN : AACFA 8007F VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), HUBLI. APPELLANT RESPONDENT APPELLANT BY : SHRI PRASAD R. SIRAMATH, ADVOCATE RESPONDENT BY : SMT. SUSAN THOMASE JOSE, JT. CIT-I(DR) DATE OF HEARING : 21.12.2011 DATE OF PRONOUNCEMENT : 21.12.2011 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 28.05.2010 OF THE CIT(APPEALS), HUBLI. 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE ADDITION ON ACCOUNT OF COMMISSION ON WHICH TDS WAS NOT DEDUCTED. ITA NO.958/BANG/10 PAGE 2 OF 11 ANOTHER ISSUE RELATES TO THE DISALLOWANCE OF DEPREC IATION AND CHARGING OF INTEREST U/S. 234B AND 234C OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT]. 3. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE IS AN AUTHORIZED SALES AND SERVICE DEALERS OF M/S. JCB INDIA LTD., W HO MANUFACTURE AND SELL EARTH MOVING MACHINERY AND PARTS THEREOF. IT ALSO DEALS IN LUBRICANTS OF CASTROL INDIA LTD. FOR THE YEAR UNDER CONSIDERATIO N, THE ASSESSEE FILED THE RETURN OF INCOME ON 25.10.05 DECLARING A LOSS OF RS .7,72,276. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY. THE AO FRAMED THE A SSESSMENT AT AN INCOME OF RS.15,04,080 BY MAKING ADDITION OF RS.6,8 6,350 ON ACCOUNT OF DIFFERENCE IN COMMISSION AS PER THE TDS CERTIFICATE S AND AS REPORTED IN THE BOOKS OF ACCOUNTS AND BY DISALLOWING RS.45,455 ON A CCOUNT OF DEPRECIATION ON CARS. 4. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A PPEALS), WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE ASSESSEE FURNISHED AN APPLICATION FOR ADMITT ING ADDITIONAL EVIDENCE, WHICH IS A COPY OF CERTIFICATE ISSUED BY M/S. JCB INDIA LTD. RELATING TO THE COMMISSION AND SERVICES CLAIMED. T HE ASSESSEE ALSO FURNISHED AN AFFIDAVIT IN TERMS OF RULE 10 OF THE I NCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, STATING THEREIN AS UNDER: AFFIDAVIT IN TERMS OF RULE 10 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 I , UDAY PATIL , PARTNER OF THE ABOVE APPELLANT FIRM HAVING ITS THE REGISTERED OFFICE SITUATED AT # 8 , BALAGAR PLOTS , NEAR MAHIMA HOTEL , BHAIRIDEVARAKOPPA , P . B . ROAD , VIDYANAGAR , HUBLI-580 ITA NO.958/BANG/10 PAGE 3 OF 11 025 , BEING CONVERSANT WITH THE FACTS OF THE CASE DO HERE BY SOLEMNLY AFFIRM AND STATE ON OATH AS UNDER : - [1] THAT I AM THE PARTNER OF M/S. AISHWARYA EARTH M OVE R S , THE APPELLANT HEREIN AND I AM CONVERSANT WITH THE FACTS OF THE CASE AND COMPETENT TO SWEAR TO THE CONTENTS OF THIS AFFI DAVIT . [2] THAT THE FIRM HAD INSTITUTED AN APPEAL BEFORE T HE LEARNED CIT[A] HUBLI BEING AGGRIEVED BY THE ORDER OF ASSESS MENT PASSED U/S.143[3] OF THE ACT DATED 28/05/2010 FOR THE ABOVE ASSESSMENT YEAR AND WHICH HAS BEEN UPHELD BY THE LEARNED CIT[A ] BY HIS ORDER IN ITA NO . 253/CIT(A) HBLL07-08 . [3] THAT THE APPELLANT IS ENCLOSING ADDITIONAL EVI DENCE IN THE SHAPE OF A CERTIFICATE FROM M/S. JCB INDIA LIMITED CONFIRMING THAT THE EXCESS OF PROVISION FOR THE ABO VE ASSESSMENT YEAR WAS WRITTEN BACK IN ITS BOOKS OF ACCOUNTS DURI NG THE RELEVANT PERIOD AS PER THE ACCOUNTING POLICY CONSISTENTLY FO LLOWED BY IT. HENCE THIS EXCESS PROVISION WAS NOT ACCOUNTED FOR B Y THE APPELLANT EVEN THOUGH THE TDS ON THIS EXCESS PROVIS ION WAS CLAIMED . THIS ADDITIONAL EVIDENCE GOES TO THE ROOT OF THE MA TTER OF THE CASE AND FURTHER FORTIFIES THE CASE OF THE APPE LLANT WHICH IS VITAL FOR THE APPRECIATION OF THE FACTS . [4] THAT THE ABOVE ADD I TIONAL EVIDENCE WAS NOT PRODUCED BEFORE THE LOWER AUTHORITIES EARL I ER DUE TO THE FACT THAT M/S. JCB INDIA LIMITED WAS EARLIER RELUCTANT TO GIVE THE SAI D CERTIFICATE SHOWING THAT THE EXCESS PROVISION MADE WAS WRITTEN BACK BY IT AND FURTHER ONLY WHEN OUR CHARTERED ACCOUNTANT WENT OVER TO ITS HO AT HARYANA, THE COMPANY FINALLY OBLI GED TO ISSUE THE SAID CERTIFICATE DATED 28/11/2011. [5] THAT THE FAILURE TO PRODUCE THE ADDITIONAL EVI DENCE WAS NEITHER WILLFUL NOR DELIBERATE AND THE NEED FOR THE SAME AROSE ONLY ON ACCOUNT OF THE CONCLUSION REACHED BY THE LEARNED CIT(A) AS HE DID NOT HAVE THE BENEFIT OF THE CERTIFICATE AND THA T THE ADDITIONAL EVIDENCE PRODUCED HEREIN IS VERIFIABLE. [6] THAT, THEREFORE, IT IS PRAYED THE ADDITIONAL E VIDENCE PRODUCED BY THE APPELLANT MAY KINDLY BE ADMITTED AN D APPEAL BE DISPOSED OFF ON MERITS FOR THE ADVANCEMENT OF SUBST ANTIAL CAUSE OF JUSTICE. WHATEVER STATED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. ITA NO.958/BANG/10 PAGE 4 OF 11 DATED THIS THE 15 TH DAY OF DECEMBER, 2011 AT HUBLI. SD/- DEPONENT. 6. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE AFORESAID ADDITIONAL EVIDENCE WA S NOT PRODUCED BEFORE THE LOWER AUTHORITIES EARLIER DUE TO THE FACT THAT M/S. JCB INDIA LTD. WAS EARLIER RELUCTANT TO GIVE THE SAID CERTIFICATE SHOW ING THAT EXCESS PROVISION MADE WAS WRITTEN BACK BY IT AND WHEN THE C.A. OF TH E ASSESSEE WENT TO THE HQ. OF M/S. JCB INDIA LTD., THE SAID COMPANY ISSUED THE CERTIFICATE DATED 28.11.11. IT WAS STATED THAT THE FAILURE TO PRODUC E THE ADDITIONAL EVIDENCE WAS NEITHER WILLFUL NOR DELIBERATE, THEREFORE THE S AME MAY BE ADMITTED. 7. IN HER RIVAL SUBMISSIONS, THE LD. DR ALTHOUGH OP POSED FOR ADMISSION OF ADDITIONAL EVIDENCE, HOWEVER, SHE COULD NOT CONT ROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE, HOW EVER, STATED THAT IF THE ADDITIONAL EVIDENCE IS TO BE ADMITTED, THE MATTER S HALL GO TO THE ASSESSING OFFICER FOR HIS CONSIDERATION. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE DOCUMENT PRODUCED BY THE ASSESSEE IS IN THE SHAPE O F A CERTIFICATE ISSUED BY M/S. JCB INDIA LTD. ON WHOSE BEHALF THE ASSESSEE WAS WORKING AS AUTHORIZED SALES AND SERVICE DEALERS. THE AO MADE THE ADDITION ON ACCOUNT OF COMMISSION SINCE THERE WAS DIFFERENCE IN THE FIGURES MENTIONED IN THE TDS CERTIFICATES AND IN THE BOOKS OF ACCOUN TS OF THE ASSESSEE. NOW THE FIGURES HAVE BEEN CERTIFIED BY THE COMPANY, M/S . JCB INDIA LTD. VIDE THE CERTIFICATE DATED 28.11.11. IN OUR OPINION, TH E NEW EVIDENCE FURNISHED ITA NO.958/BANG/10 PAGE 5 OF 11 BY THE ASSESSEE ALTHOUGH FURNISHED FOR THE FIRST TI ME BEFORE THE TRIBUNAL, BUT IT IS RELEVANT AND GOES TO THE ROOT OF THE PRES ENT CONTROVERSY. NON- PRODUCTION OF THE SAID CERTIFICATE BEFORE THE LOWER AUTHORITIES WAS NEITHER WILLFUL NOR DELIBERATE BECAUSE THE COMPANY, M/S. JC B INDIA LTD. WAS EARLIER RELUCTANT TO GIVE THE SAID CERTIFICATE AND ONLY ISS UED THE SAID CERTIFICATE WHEN THE C.A. OF THE ASSESSEE VISITED THE HQ OF THE SAID COMPANY. THE NON-PRODUCTION OF THE NEW EVIDENCE NOW FURNISHED WA S BEYOND THE CONTROL OF THE ASSESSEE AND WAS NOT DUE TO DELIBERATE OR MA LAFIDE INTENTION. 9. AS PER THE PROVISIONS CONTAINED IN RULE 29 OF TH E INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, THE PARTIES TO TH E APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL. THE PROVISIONS CONTAINED IN THE SAID RULE ARE PARI MATERIA WITH THE ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE , 1908, WHICH ALSO DOES NOT ALLOW THE PARTY TO THE APPEAL TO ADDUCE ANY ADD ITIONAL EVIDENCE UNLESS AND UNTIL SUCH EXCEPTIONAL CIRCUMSTANCES ARE SET OU T. 10. IN THE INSTANT CASE, THE CERTIFICATE ISSUED BY M/S. JCB INDIA LTD. COULD NOT BE PRODUCED EITHER BEFORE THE AO OR THE B EFORE THE LD. CIT(A) BECAUSE THE SAID COMPANY WAS EARLIER RELUCTANT TO I SSUE THE SAID CERTIFICATE, THEREFORE NON-PRODUCTION OF THE CERTIF ICATE BY THE ASSESSEE BEFORE THE AO OR THE LD. CIT(A) WAS WITHOUT ANY DEL IBERATE OR MALAFIDE INTENTION. WE, THEREFORE, ARE OF THE VIEW THAT THE NEW EVIDENCE NOW FURNISHED BY THE ASSESSEE, WHICH GOES TO THE ROOT O F THE MATTER SHALL BE ADMITTED KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, BUT AT THE SAME TIME, OPPORTUNITY IS TO BE GIVEN FOR REBUTTAL TO AN OTHER PARTY. ITA NO.958/BANG/10 PAGE 6 OF 11 11. AS REGARDS TO THE ADMISSION OF THE ADDITIONAL E VIDENCE, THE HONBLE MADRAS HIGH COURT IN THE CASE OF ANAIKAR TRADE AND ESTATES (P) LTD (NO.2) VS. CIT, 186 ITR 313 HAS HELD AS UNDER: THE TRIBUNAL HAS DISCRETION TO ALLOW THE PRODUCTIO N OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE ITAT RULES, 1963 IF T HE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR AFFIDAVIT T O BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTI AL CAUSE, IT MAY ALLOW THE DOCUMENT TO BE PRODUCED OR THE AFFIDAVITS TO BE FILED. EVEN IF THERE WAS A FAILURE TO PRODUCE THE DOCUMENT S BEFORE THE ITO AND THE A.A.C, THE TRIBUNAL HAS THE JURISDICTIO N IN THE INTERESTS OF JUSTICE TO ALLOW THE PRODUCTION OF SUC H VITAL DOCUMENTS. 12. IN THE PRESENT CASES ALSO, THE DOCUMENTS FURNIS HED BY THE ASSESSEE ARE VITAL WHICH GO TO THE ROOT OF THE PRESENT CONTR OVERSY, SO THESE ARE TO BE ADMITTED IN THE INTEREST OF NATURAL JUSTICE BUT THE SE DOCUMENTS ARE REQUIRED TO BE EXAMINED AND CONSIDERED AT THE LEVEL OF THE A O. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMAND THE PRESENT ISS UE BACK TO THE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 13. FOR THE AFORESAID VIEW, WE ARE ALSO FORTIFIED B Y THE DECISION OF THE ITAT DELHI BENCH F IN THE CASE OF UOP LIC V ADDIT IONAL DIRECTOR OF INCOME-TAX, INTERNATIONAL TAXATION, CIRCLE 2(2) NEW DELHI (2007) 108 LTD 186 WHEREIN RELEVANT FINDINGS GIVEN IN PARAS NO, 30 , 31 33, 48, 52 READ AS UNDER: 30. IT IS A SETTLED POSITION THAT PRODUCTION OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE IS NOT A MATTER OF RIGHT TO LITIGATING PUBLIC AND ALLOWING OF PRODUCTION OF ADDITIONAL EVI DENCE IS IN THE DISCRETION OF THE TRIBUNAL. THE SAID DISCRETION, H OWEVER, IS TO BE EXERCISED JUDICIALLY AND NOT ARBITRARILY. AS HELD B Y HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. KUM . SATYA ITA NO.958/BANG/10 PAGE 7 OF 11 SETIA (1983) 143 ITR 486, IT IS WITHIN THE DISCRETI ON OF THE APPELLATE AUTHORITY TO ALLOW PRODUCTION OF ADDITION AL EVIDENCE IF THE SAID AUTHORITY REQUIRES ANY DOCUMENT TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE. THE TRIB UNAL IS THE FINAL FACT FINDING BODY UNDER THE SCHEME OF THE INCOME TA X ACT , 1961 AND POWERS, THEREFORE, HAVE NECESSARILY TO BE EXERC ISED BY IT FOR DECIDING THE QUESTIONS OF FACT. WHILE EXERCISING IT S POWERS, IF THE TRIBUNAL IS OF THE OPINION THAT ADDITIONAL EVIDENCE IS MATERIAL IN THE INTEREST OF JUSTICE FOR DECIDING A PARTICULAR I SSUE, ITS DISCRETION CANNOT BE INTERFERED WITH UNLESS IT HAS BEEN EXERCI SED ON NON EXISTING OR IMAGINARY GROUNDS. IN THE CASE OR MAHAV IR SINGH (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE IT WAS HELD THAT SECTION 107 OF CPC ENABLES AN APPELLATE COURT TO TA KE ADDITIONAL EVIDENCE OR TO REQUIRE SUCH OTHER EVIDENCE TO BE TA KEN SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBED U NDER ORDER 41 OF RULE 27 OF CPC. IT WAS ALSO HELD THAT THE PARTIE S ARE NOT ENTITLED, AS OF RIGHT, TO THE ADMISSION OF SUCH EVI DENCE AND THE MATTER IS ENTIRELY IN THE DISCRETION OF THE COURT W HICH IS OF COURSE TO BE EXERCISED JUDICIALLY AND SPARINGLY. IT WAS OBSER VED THAT ORDER 41 RULE 27 OF CPC ENVISAGES CERTAIN CIRCUMSTA NCES WHEN ADDITIONAL EVIDENCE CAN BE ADDUCED AND ONE OF SUCH CIRCUMSTANCES IS WHERE THE APPELLATE COURT REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED TO ENA BLE IT TO PRONOUNCE JUDGMENT OR FOR ANY OTHER SUBSTANTIAL CAU SE. IT WAS ALSO CLARIFIED THAT THE EXPRESSION TO ENABLE IT TO PRONOUNCE JUDGMENT CONTEMPLATES A SITUATION WHEN THE APPELLA TE COURT FINDS ITSELF UNABLE TO PRONOUNCE JUDGMENT OWING TO A LACUNA OR DEFECT IN THE EVIDENCE AS IT STANDS. IN THE CONT EXT, IT WAS FURTHER CLARIFIED THAT THE ABILITY TO PRONOUNCE A JUDGMENT IS TO BE UNDERSTOOD AS THE ABILITY TO PRON OUNCE A JUDGMENT SATISFACTORY TO THE IT MIND OF COURT DEL IVERING IT. THIS POSITION WAS REITERATED AGAIN BY THE HONBLE SUPREME COURT IN THE CASE OF SYED ABDUL KHADER VS. RAMI REDDY AIR, 1979 S.C. 553 CITED BY THE LD. COUNSEL FOR THE ASSESSEE. IN THE CASE OF MUNICIPAL CORP. OF GREATER BOMBAY VS. LALA PANCHAN AIR 1965 S.C. 1008 CITED BY THE LD. COUNSEL FOR THE ASSESSEE , IT WAS OBSERVED BY THE HONBLE SUPREME COURT THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE DOES NOT ENTITLE THE APPELLATE COURT TO LET IN FRESH EVIDENCE ONLY FOR T HE PURPOSE OF PRONOUNCING JUDGMENT IN A PARTICULAR WAY AND IT IS ONLY FOR REMOVING A LACUNA IN THE EVIDENC E THAT THE APPELLATE COURT IS EMPOWERED TO ADMIT ADDITIONA L EVIDENCE. IN THE CASE OF ARJAN SINGH V. KARTAR SING H AIR 1951 S.C. 193, IT WAS HELD THAT THE DISCRETION GIVEN TO THE APPELLATE COURT BY ORDER 41, RULE 27 OF CPC TO ITA NO.958/BANG/10 PAGE 8 OF 11 RECEIVE AND ADMIT ADDITIONAL EVIDENCE IS NOT AN ARB ITRARY ONE BUT IS A JUDICIAL ONE CIRCUMSCRIBED BY THE LIMI TATIONS SPECIFIED IN THAT RULE. IT WAS ALSO HELD THAT THE L EGITIMATE OCCASION FOR THE APPLICATION OF THE SAID RULE IS WH EN ON EXAMINING THE EVIDENCE AS IT STANDS SOME INHERENT LACUNA OR DEFECT BECOMES APPARENT. TO THE SIMILAR EFFECT IS ANOTHER DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATHA SINGH VS. FINANCIAL COMMISSIONER TAXATION ALR 1976 S.C. 1053. 31. AS PER RULE 29 OF THE APPELLATE TRIBUNAL RULES , 1963, THE TRIBUNAL HAS THE POWER TO ALLOW ADDITIONA L EVIDENCE NOT ONLY IF IT REQUIRES SUCH EVIDENCE TO ENABLE IT TO PRONOUNCE JUDGMENT BUT ALSO FOR ANY OTHER SUBSTANTIAL CAUSE. THERE MAY BE CASES WHERE EVEN THOUGH THE TRIBUNAL FINDS THAT IT IS ABLE TO PRONOU NCE JUDGMENT ON THE STAGE OF RECORD AS IT I S AND SO IT CANNOT STRICTLY SAY THAT IT REQUIRES ADDITIONAL EVIDENCE T O ENABLE IT TO PRONOUNCE JUDGMENT IT STILL CONSIDERS THAT IN THE INTEREST OF JUSTICE, SOMETHING WHICH REMAINS OBSCURE, SHOULD BE FILED UP SO THAT IT CAN PRONOUNCE THE JUDGMENT IN A MORE SATISF ACTORY MANNER. SUCH REQUIREMENT OF THE TRIBUNAL IS LIKELY TO ARISE ORDINARILY WHEN SOME INHERENT LACUNA OR DEFECT BECOMES APPARE NT UPON ITS APPRECIATION OF THE EVIDENCE. THE POWER OF THE TRIB UNAL TO ADMIT ADDITION EVIDENCE IN SUPPORT OF THE CLAIM IN APPEAL IS DISCRETIONARY AND NO FETTERS CAN BE IMPOS ED ON THE EXERCISE OF SUCH POWER. HOWEVER, AS HELD BY HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAM PRA SAD SHARMA VS. CIT (1979) 119 ITR 867 AND BY THE HONBLE ANDHR A PRADESH HIGH COURT IN THE CASE OF A. K. BABU KHAN VS. CWT ( 1976) 102 ITR 756 IT IS NOT AN ARBITRARY POWER BUT IT IS A JU DICIAL ONE CIRCUMSCRIBED BY THE LIMITATIONS GIVEN IN RULE 29 O F THE APPELLATE TRIBUNAL RULES, 1963. THE CONDITIONS PREC EDENT FOR THE EXERCISE OF POWER UNDER RULE 29 MUST, THEREFORE, BE FOUND TO HAVE BEEN ESTABLISHED. HOWEVER, WHERE THERE IS NO L ACK OF EVIDENCE BUT YET THE PLEA IN SUPPORT OF ADMITTIN G THE EVIDENCE IS SO DECISIVE AND OF CLINCHING VALUE WITH REFERENCE TO THE POINTS AT ISSUE, IT IS OPEN TO THE TRIBUNAL TO INVOKE ITS POWER OF ALLOWING ADDITIONAL EVIDENCE TO RENDER SUBSTANTI AL JUSTICE AND NOT TO DEPRIVE THE PARTY OF SUCH JUSTICE ON TECHNIC AL GROUNDS. FURTHER AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF VELJL DOORAJ & CO. VS. CIT (1968) 68 ITR 708, WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND HAD NOT BEEN PRODUCED BY HIM, THE MERE FACT THAT EVIDENCE SOUGHT TO BE PRODUCED IS VITAL AND IMPORTANT DOES N OT ITA NO.958/BANG/10 PAGE 9 OF 11 PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE. THE ADMISSIBILITY OF ADDITIONAL EV IDENCE DEPENDS ON WHETHER OR NOT THE SUBSTANTIAL CAUSE AND NOT TO ENABLE THE ASSESSEE OR THE DEPARTMENT TO TENDER FRESH EVIDENCE TO SUPPORT A NEW POINT OR TO MAKE OU T A NEW CASE. IN THE CASE OF N. KAMALAM (SUPRA) IT WAS HELD THAT THE PROVISIONS OF RULE 27 OF ORDER 41 OF CPC, 1908 ARE NOT DESIGNED TO HELP PARTIES TO PATCH UP W EAK POINTS AND MAKE UP FOR OMISSIONS EARLIER MADE. 33. IT IS ALSO WELL SETTLED THAT ONCE ADDITIONAL EV IDENCE IS TAKEN INTO CONSIDERATION, IT HAS TO BE READ AS P ART OR THE RECORD AND BEFORE DRAWING ANY INFERENCE ON THE BASIS OF CONTENTS OF THAT DOCUMENT ADMITTED AS ADDITIONAL EVIDENCE, AN OPPORTUNITY HAS TO BE GIVEN TO THE OTHER SIDE TO EXPLAIN OR REBUT THE SAME. AS HELD BY HONBLE MADRAS HIGH COURT IN THE CASE OF RSS SHANMUGAM PILLAI & SONS (SUPRA), IF THE TRIBUNAL FI NDS THAT THE DOCUMENTS FILED ARE QUITE RELEVANT AND FOR THE PURPOSE OF DECIDING THE ISSUE BEFORE IT, IT WOULD B E WELL WITHIN ITS POWERS TO ADMIT THE EVIDENCE, CONSIDER T HE SAME ON MERITS OR REMIT THE MATTER TO THE LOWER AUTHORITIES FOR EXAMINING THE SAME. IN THE CASE OF SMT. URMILA RATILAL (SUPRA), HONBLE GUJARAT HIGH COURT HAS HELD THAT WHEN THE ADDITIONAL EVIDENCE FIELD BY THE REVENUE WAS ADMITTED BY THE TRIBUNAL OVERRULING THE OBJECTION RAISED BY THE ASSESSEE, INTEREST OF JUSTI CE DEMANDED THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN OR REBUT THE ADDITIONAL EVIDENCE BEFORE RELYING ON THE SAME. IN THE CASE OF CHARBHAI BIRI WORKS VS. ASSTT CIT (2003) 87 ITO 189, CITED BY THE LD. COUNSEL FOR THE ASSESSEE, IT WAS HELD BY THE PUNE BENCH OF ITAT IN IT THIRD MEMBER DECISION THAT WHEN THE DOCUMENTS WHICH WERE NOT AVAILABLE BEFORE THE ASSESSING OFFIC ER WERE PRODUCED BEFORE THE TRIBUNAL FOR THE FIRST TIM E AND THE SAME WERE ADMITTED AS ADDITIONAL EVIDENCE BEING MATERIAL TO BE RESTORED TO THE FILE OF THE ASSESSIN G OFFICER TO VERIFY CORRECTNESS AND AUTHENTICITY OF S UCH DOCUMENTS AND TO ADJUDICATE THE MATTER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF B EING HEARD. 48. AS ALREADY NOTED, THE ADDITIONAL EVIDENCE WOULD BE RELEVANT TO CONSIDER AND DECIDE THE CASE ALREADY MADE OUT BY THE REVENUE AND IT IS, THEREFORE NOT A CASE OF TENDERING OF FRESH EVIDENCE BY THE DEPARTMENT TO ITA NO.958/BANG/10 PAGE 10 OF 11 SUPPORT A NEW POINT OR TO MAKE OUT A NEW CASE. ACCORDING TO US, THE ADDITIONAL EVIDENCE FILED BY T HE REVENUE IS QUITE RELEVANT FOR THE PURPOSE OF DECIDI NG THE ISSUE BEFORE US AND THE SAME, THEREFORE, CAN BE ADMITTED AS PER RULE 29 OF APPELLATE TRIBUNAL RULES, 1963 AS HELD BY HONBL E MADRAS HIGH COURT IN THE CASE OF RSS SHANMUGAM PI1LAI & SONS (SUPRA). THE SAID ADDITIONAL EVIDENCE ALSO NEEDS TO BE TAKEN INTO CONSIDERATION IN THE INTEREST OF JUSTICE FOR DECIDI NG THE ISSUE RELATING TO THE PE. 52. AS ALREADY NOTED THE ASSESSEE WAS GIVEN AN OPPO RTUNITY DURING THE COURSE OF HEARING TO ADVANCE THE ARGUMEN TS ON THE ADMISSION OF ADDITIONAL EVIDENCE AS WELL AS ON MERI TS OF THE ISSUE TAKING INTO CONSIDERATION THE SAID ADDITIONAL EVIDE NCE AND AVAILING THIS OPPORTUNITY, LD. COUNSEL FOR THE ASSESSEE HAS NOT ONLY RAISED ELABORATE ARGUMENTS ON BOTH THESE ASPEC TS BUT HAS ALSO FILED, A DETAILED WRITTEN SUBMISSION. IN THE S AID WRITTEN SUBMISSION AN ATTEMPT HAS BEEN MADE BY HIM TO EXPLA IN EACH AND EVERY DOCUMENT SOUGHT TO BE FILED BY THE REVENUE AS ADDITIONAL EVIDENCE IN ORDER TO REBUT THE CASE SOUGHT TO BE MADE OUT BY THE REVENUE RELYING ON THE SAME ON MERITS. KEEPING IN V IEW THE FACT THAT THE ADDITIONAL EVIDENCE SO PRODUCED BY THE REV ENUE AS WELL AS ELABORATE EXPLANATION OFFERED BY HIM ASSESSEE TO RE BUT THE SAME IS VOLUMINOUS RUNNING INTO SEVERAL PAGES, WHICH REQUIR ES IN-DEPTH EXAMINATION, WE FIND THAT IT WOULD BE FAIR AND PROP ER AND IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE RELATING T O PE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER EXAMINING THE ADDITIONAL EVIDENCE AS WELL AS EXPLAN ATION OFFERED BY THE ASSESSEE WHILE REBUTTING THE SAME. THE ASSES SEE SHALL ALSO BE AT LIBERTY TO ADDUCE FURTHER EVIDENCE TO SUPPORT ITS CASE BEFORE THE ASSESSING OFFICER WHO SHALL TAKE INTO CONSIDERA TION THE SAME IN ACCORDANCE WITH LAW. SINCE THE OTHER ISSUES RAISED IN THIS APPEAL RELATED TO THE MAIN ISSUE OF PE, WE DEEM IT APPROPRIATE TO RESTORE THESE ISSUES ALSO TO THE FILE OF THE ASSESS ING OFFICER FOR FRESH DECISION ALONG WITH THE MAIN ISSUE. IN SO FA R AS THE ISSUE RELATING TO THE LEVY OF INTEREST U/S 234B IS CONCER NED, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF DELHI SPECIAL BENCH OF ITAT IN THE CASE OF MOTOROLA INC. VS. DY. CIT (2005) 95 ITD 269. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO DECIDE T HE ISSUE RELATING TO LEVY OF INTEREST U/S 234B IN THE LIGHT OF THE DECISION OF SPECIAL BENCH IN THE CASE OF MOTOROLA INC (SUPRA). THE IMPUGNED ORDER OF THE LD. CIT(A) O N ALL THE ISSUES INVOLVED IN THE PRESENT APPEAL IS ACCORD INGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ITA NO.958/BANG/10 PAGE 11 OF 11 ASSESSING OFFICER FOR FRESH DECISION AS PER THE DIRECTIONS GIVEN HEREINABOVE. 14. IN VIEW OF THE ABOVE, THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FIL E OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, AFTER PROVIDIN G DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15. IN THE RESULT, THE APPEALS BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF DECEMBER, 2011. SD/- SD/- ( GEORGE GEORGE K. ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST DECEMBER, 2011. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.