The ACIT,Bharuch Circle, Bharuch V. Shri Natwarlal M.Gohil, Bharuch

ITA 961/AHD/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1352 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILASH V SHINDE
• Keywords: Additional evidence
• Section: 40A(3); 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI R. P. TOLANI, JM, & SHRI MANISH BORA D, AM. ITA NO.961/AHD/2013 ASST. YEAR: 2009-10 ACIT, BHARUCH CIRCLE, BHARUCH. VS. SHRI NATWARLAL M. GOHIL, PROP. OF M/S DARSHAN CONSTRUCTION, A/5, WELCOME NAGAR, GADKHOL PATIA, ANKLESHWAR, DIST. BHARUCH. APPELLANT RESPONDENT PAN ADDPG 7981Q APPELLANT BY SHRI VILASH V. SHINDE, SR.DR RESPONDENT BY NONE. DATE OF HEARING: 2/6/2016 DATE OF PRONOUNCEMENT: 3/6/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . REVENUE IS IN APPEAL AGAINST THE ORDER OF LD. CIT( A)-VI, BARODA DATED 31.01.2013 IN APPEAL NO.CAB/VI-475/201 1-12, PASSED AGAINST ORDER U/S 143(3) OF IT ACT, 1961 (IN SHORT THE ACT) FOR ASST. YEAR 2009-10, ON 20.12.2011 BY ADDL. CIT, BHARUCH RANGE, BHARUCH. GROUNDS OF APPEAL RAISED BY REVENUE ARE AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN ITA NO. 961/AHD/2013 ASST. YEAR 2009-10 2 (I) RESTRICTING ADDITION MADE U/S 40A(3) OF THE ACT TO RS.3,11,950/- AS AGAINST RS.8,42,480/- ON FACTS OF THE CASE AND A LSO BY ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION TO P ROVISIONS OF RULE 46A OF IT RULES. (II) DELETING ADDITION OF RS..23,62,969/- ON ACCOUN T OF CASH DEPOSITED IN CASH BOOK ON VARIOUS DATES OUT OF UNDI SCLOSED SOURCES ON FACTS OF THE CASE AND IN CONTRAVENTION T O PROVISIONS OF RULE 46A OF IT RULES (III) DELETING ADDITION OF RS.4,00,000/- OUT OF ADD ITION OF RS.9,35,000/- BY ADMITTING ADDITIONAL EVIDENCE IN C ONTRAVENTION TO PROVISIONS OF RULE 46A OF IT RULES (IV) RESTRICTING ADDITION MADE ON ACCOUNT OF UNEXP LAINED AGRICULTURE INCOME TO RS.11,43,780/- AS AGAINST RS..28,60,480/- ON FACTS OF THE CASE AND IN CLEAR C ONTRAVENTION OF PROVISIONS OF RULE 46A OF IT RULES (IV) RESTRICTING ADDITION MADE ON A/C OF SUPPRESSION OF RECEIPTS TO RS.23,872 AS AGAINST RS.3,35,684/- (V) RESTRICTING DISALLOWANCE MA DE U/S 40(A)(IA) OF THE IT ACT TO RS.2,88,000/- AS AGAINST RS.7,60,112/- . 2. THE APPELLANT CRAVES TO ADD TO AMEND OR ALTER TH E ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. RELIEF CLAIMED IN APPEAL : THE ORDER OF THE CIT(A) ON THE ABOVE ISSUE BE SET A SIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. BRIEFLY STATED FACTS OF THE CASE AS CULLED OUT F ROM THE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGA GED IN THE BUSINESS OF CIVIL CONSTRUCTION UNDER PROPRIETARY CO NCERN, M/S DARSHAN CONSTRUCTION. RETURN OF INCOME WAS FILED ON 30.09.2009 DECLARING TOTAL INCOME AT RS.37,69,220/- . THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 21.09.2010 FOLLOWED BY NOTICE U/S 142(1) ITA NO. 961/AHD/2013 ASST. YEAR 2009-10 3 OF THE ACT ALONG WITH QUESTIONNAIRE. NECESSARY REPL Y WAS FURNISHED BY ASSESSEE AND BOOKS OF ACCOUNTS ALONG W ITH SUPPORTING DOCUMENTS WERE CALLED FOR AND VERIFICATI ON WAS DONE. ASSESSMENT WAS COMPLETED ON 20.12.2011 AFTER MAKING ADDITION OF RS.79,56,,225/- AND INCOME WAS ASSESSE D AT RS.1,17,25,450/-. 3. AGGRIEVED ASSESSEE WENT IN APPEAL BEFORE LD. CIT (A) AND ASSESSEES APPEAL WAS PARTLY ALLOWED. 4. NOW REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. 6. AT THE OUTSET LD. DR SUBMITTED THAT THE ORDER OF LD. CIT(A) NEEDS TO BE QUASHED AS THE SAME HAS BEEN PASSED BY ADMITTING ADDITIONAL EVIDENCE IN CONTRAVENTION OF R ULE 46A OF THE IT RULES, 1962, WITHOUT ALLOWING REASONABLE OPP ORTUNITY TO THE LD. ASSESSING OFFICER FOR EXAMINING THE EVIDENC E OR DOCUMENTS OR TO CROSS-EXAMINE THE WITNESS PRODUCED BY THE ASSESSEE IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRO DUCED BY THE ASSESSEE AND FOR THIS REASON ALL THE MATTER IN THIS APPEAL NEEDS TO BE RESTORED BACK TO THE FILE OF LD. CIT(A) WITH THE INSTRUCTION TO FOLLOW THE PROVISIONS OF RULE 46A OF THE IT RULE S. 7. WE HAVE HEARD THE CONTENTIONS RAISED BY THE LD. DR. THROUGH THIS APPEAL REVENUE HAS RAISED VARIOUS GROU NDS ITA NO. 961/AHD/2013 ASST. YEAR 2009-10 4 AGAINST THE ORDER OF LD. CIT(A) FOR PARTLY ALLOWING THE APPEAL OF ASSESSEE BY ADMITTING ADDITIONAL EVIDENCE IN CONTRA VENTION OF RULE 46A OF THE IT RULES WHICH READS 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, T HE COMMISSIONER (APPEALS)], ANY EVIDENCE, WHETHER ORAL OR DOCUMENTA RY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCEEDINGS BE FORE THE [ASSESSING OFFICER], EXCEPT IN THE FOLLOWING CIRCUMSTANCES, NA MELY : ( A ) WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT EVIDENCE W HICH 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 RELEVANT TO ANY GROUND OF APPEAL ; OR ( D ) WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDER APPEALED AGA INST WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE APPELL ANT TO ADDUCE EVIDENCE RELEVANT TO ANY GROUND OF APPEAL. (2) NO EVIDENCE SHALL BE ADMITTED UNDER SUB-RULE (1 ) UNLESS THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE MAY BE, T HE COMMISSIONER (APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. (3) THE [DEPUTY COMMISSIONER (APPEALS)] [OR, AS THE CASE 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 REASONABLE OPPORTUNITY ( A ) TO EXAMINE THE EVIDENCE OR DOCUMENT OR TO CROSS-EXA MINE THE WITNESS PRODUCED BY THE APPELLANT, OR ( B ) TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITNESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. ITA NO. 961/AHD/2013 ASST. YEAR 2009-10 5 (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE POWER OF THE [DEPUTY COMMIS-SIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT , OR THE EXAMINATION OF ANY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT O R PENALTY (WHETHER ON HIS OWN MOTION OR ON THE REQUEST OF THE [ASSESSING OFF ICER]) UNDER CLAUSE ( A ) OF SUB-SECTION (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.] 8. ON GOING THROUGH THE ORDER OF LD. CIT(A), WE FUR THER OBSERVE THAT THERE IS NO FINDING ON THE ACTION BEIN G TAKEN BY LD.CIT(A) UNDER RULE 46A OF THE IT RULES FOR CALLIN G REMAND REPORT FROM THE ASSESSING OFFICER TOWARDS ADDITIONA L EVIDENCE PRODUCED BY ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE HIM. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT ALL THE ISSUES CONNECTED WITH THIS APPEAL NEED TO BE RESTORED BACK TO THE FILE OF LD. CIT(A) WITH THE IN STRUCTION THAT LD. CIT(A) WILL ENSURE THAT, IF ANY, ADDITIONAL EVIDENC E WHICH HAS NOT BEEN PUT FORWARD BEFORE LD. ASSESSING OFFICER D URING ASSESSMENT PROCEEDINGS AND WAS THEREAFTER ENTERTAIN ED BY LD. CIT(A) THEN A REASONABLE OPPORTUNITY HAS TO BE GIVE N TO THE LD. ASSESSING OFFICER TO EXAMINE THE EVIDENCE OR DOCUME NTS OR TO CROSS-EXAMINE THE WITNESS PRODUCED BY THE ASSESSEE AND TO CALL FOR THE REMAND REPORT IN RELATION TO THE ADDIT IONAL EVIDENCE ENTERTAINED. ACCORDINGLY, WE ALLOW THE APPEAL OF RE VENUE FOR STATISTICAL PURPOSES. ITA NO. 961/AHD/2013 ASST. YEAR 2009-10 6 9. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JUNE, 2016 SD/- SD/- (R.P. TOLANI) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 3/6/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 2/06/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 3/06/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 3/6/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: