Jayvantsinh N. Vaghela, Surendranagar V. The Income Tax Officer, Ward-2, Surendranagar

MA 13/RJT/2014

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4202 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Bad and doubtful debts
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT L LL LK KK KOZJH OZJH OZJH OZJH OLHE OLHE OLHE OLHE VGEN VGEN VGEN VGEN] YS[KK ] YS[KK ] YS[KK ] YS[KK LNL; ,O LNL; ,O LNL; ,O LNL; ,O EK/ EK/EK/ EK/KQFERK KQFERK KQFERK KQFERK JKW; JKW;JKW; JKW;] U; ] U;] U; ] U;KF KFKF KF;D ;D;D ;D LNL; DS LE{KA LNL; DS LE{KA LNL; DS LE{KA LNL; DS LE{KA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SMT MADHUMITA ROY, JUDICIAL MEMBER MISC. APPLICATION NO.13/RJT/2014 AND ./ I.T.A. NO. 584/RJT/2012 ( / ASSESSMENT YEAR : 2009-10) JAYVANTSINH NATUBHA VAGHELA, SHAHIBAUG SOCIETY, BLOCK NO.5, SURENDRANAGAR : 363 002. / VS. THE INCOME TAX OFFICER, WARD 2, SURENDRANAGAR. ./ ./ PAN/GIR NO. : AAPPV 2230 G ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI CHETAN AGARWAL, A.R. ! / RESPONDENT BY : SHRI PRAVEEN VERMA, SR. D.R. ' #$ % ! & / DATE OF HEARING 30/08/2018 '( ! & / DATE OF PRONOUNCEMENT 03/10/2018 )* / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED MISCELLANEOUS APPLICATION AND ITA NO.584/RJT/2012 HAVE BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEAL) -XVI, AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)-XVI/ITO.WD. 2/SNR/619/11-12 DATED 28-08-2012 ARISING IN THE MATTER OF ASSESSMEN T ORDER PASSED UNDER S.143(3) OF THE INCOME TAX ACT, 1961(HERE-IN-AFTER REFERRED TO AS 'THE ACT') DATED 28-12-2011 RELEVANT TO ASSESSMENT YEAR (AY) 2009-10. MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 2 - 2. THE ASSESSEE IN THIS MISC. APPLICATION IS PLEADI NG TO RECALL THE ORDER OF THE HONBLE TRIBUNAL IN ITA NO. 584/RJT/20 12 DATED 19-04-2013 DUE TO NON-ADJUDICATION OF THE ADDITIONAL GROUND RA ISED BEFORE THE TRIBUNAL INADVERTENTLY. 3. THE ASSESSEE BEFORE US SUBMITTED AS UNDER: (1) THE APPELLANT HAS BEEN SERVED WITH ORDER PASSE D FOR A.Y. 2009- 10 BY THE APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT W HERE THE APPEAL OF APPLICANT HAS BEEN PARTLY ALLOWED. (2.1) BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 4,76,121/-. THE ASSESSMENT HAD BEEN FINALIZED DETERMINING THE T OTAL INCOME AT RS.62,71,850/- U/S 143(3) OF THE I.T. ACT. THUS THE ADDITION WAS MADE OF RS. 57,95,727/-. THE ASSESSEE HAD PREFE RRED APPEAL AGAINST THIS ORDER. (2.2) THE AFORESAID APPEAL HAS BEEN DISPOSED OFF PA RTLY ALLOWING REDUCTION OF RS.20,000/- MERELY BY THE HON'BLE CIT( A) VIDE HIS APPELLATE ORDER APPEAL NO. CIT(A)-XVI/ITO/WD-2/SNN/ 619/11- 12 DATED 28-08-2012. THE HON'BLE CIT(A) HAD NOT AD MITTED THE ADDITIONAL EVIDENCES THOUGH THE APPELLANT HAD MADE REQUEST APPLICATION TO ENTERTAIN THE ADDITIONAL EVIDENCES V IDE REQUEST DATED 21-08-2012. HOWEVER, THE HON'BLE CIT(A) HAD C ONCLUDED AT 2.5 OF HIS APPELLATE ORDER HOLDING THAT THE ASSE SSEE DOES NOT DESERVE ANY VIEW & ADDITIONAL EVIDENCES SO FURNISHE D ARE REJECTED AT APPELLATE STAGE. (2.3) THE APPELLANT HAD PREFERRED APPEAL BEFORE THE HON'BLE TRIBUNAL AGAINST THE CIT(A)'S ORDER. THE TRIBUNAL HAD DISPOS ED OFF APPEAL VIDE ITS ORDER ITA NO. 584/RJT/2012 DATED 19-04-201 3. THE HON'BLE TRIBUNAL HAD THROUGH OVERSIGHT NOT GIVEN AN Y FINDING ON ISSUE OF ENTERTAINMENT OF ADDITIONAL GROUND AND CON FIRMED MAJOR ADDITION OF RS. 45,20,000/- U/S 69 AND DISALLOWANCE OF RS.8,69,727/- BEING BAD DEBTS & DISCOUNT EXPENSES. (2.4) THEREAFTER, THE APPELLANT HAD PREFERRED APPEA L BEFORE THE HON'BLE GUJARAT H.C. THE HON'BLE GUJARAT H.C. HAS D ISPOSED OFF THE APPEAL VIDE ITS ORDER TAX APPEAL NO. 784 OF 201 3. THE HON'BLE GUJARAT H.C. HAS HELD AS UNDER: ' AFTER SOM E MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 3 - DISCUSSION, LEARNED COUNSEL SHRI TUSHAR HEMANI FOR THE APPELLANT CONFINED HIS GRIEVANCE IN THE PRESENT TAX APPEAL TO THE QUESTION OF THE TRIBUNAL NOT CONSIDERING THE GROUND THOUGH RAISED. OF CIT(APPEALS) HAVING REJECTED THE PRAYER OF APPELLANT FOR ADDITIONAL EVIDENCE. IF THAT BE SO, IT WOULD BE OPEN FOR THE APPELLANT T O APPROACH THE TRIBUNAL WITH A RECTIFICATION APPLICATION.' (3) IN THE ABOVE CIRCUMSTANCES, THIS MISC. APP LICATION IS FILED BEFORE YOUR HONOUR SIRS. THEREFORE, IT IS HUMBLY REQUESTED TO RECTIFY THE ABOVE MISTAKE WHICH IS APPARENT ON RECORD AND OBLIG E. 4. THE LD. AR ACCORDINGLY SUBMITTED THAT THE ASSESS EE HAS FILED ADDITIONAL GROUND OF APPEAL BEFORE THE HONBLE ITAT VIDE DATED 23-10- 2012 ALONG WITH THE SUBMISSION DATED 14-12-2012. TH E ADDITIONAL GROUND OF APPEAL AND ITS SUBMISSIONS ARE PLACED ON PAGES 1 AND 2 OF THE PAPER BOOK, WHICH READS AS UNDER: ADDITIONAL GROUND OF APPEAL: LD. AO ERRED IN LAW AS WELL AS ON FACT IN MAKING A DDITION OF RS.45,20,000 U/S.69 IN RESPECT OF INVESTMENT IN PRO PERTY MADE FROM BANK ACCOUNT NO. 4050002100003386 DULY DISCLOSED IN BOOKS OF ACCOUNTS AND SOURCED FROM CONTRACT RECEIPTS AS EVID ENT FROM BANK ACCOUNT ITSELF. SUBMISSION APROPOSE TO ADDITIONAL GROUND OF APPEAL: 1. APPELLANT HAD MADE INVESTMENT IN PROPETY OF RS.45,20,000. IT WAS SUBMITTED TO LOWER AUTHORITIES THAT SAME WAS MADE OUT OF BOOKING DEPOSITS OBTAINED FROM TWEN TY PERSONS, WHICH WAS NOT ACCEPTED. 2. ON VERIFICATION OF RECORDS WHILE FILING APPEAL BEFORE HON. ITAT, IT WAS NOTICED THAT SAID INVESTMENT WAS MADE FROM B ANK ACCOUNT NO. 4050002100003386 DULY REFLECTED IN BOOKS OF ACC OUNTS AND SOURCED FROM CONTRACT RECEIPTS CREDITED IN SAID BAN K ACCOUNT. THUS, SUBMISSION MADE BEFORE LOWER AUTHORITIES WAS FACTUALLY WRONG. MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 4 - 3. SINCE THIS BEING FACTUAL ERROR, SAME GOES TO RO OT OF THE MATTER, HENCE WE REQUEST YOUR HONOURS TO ADMIT ADDITIONAL G ROUND OF APPEAL AND ADDITIONAL EVIDENCES IN THE FORM OF BANK ACCOUNT AND ALSO REQUEST YOUR HONOURS TO SET ASIDE MATTER FOR V ERIFICATION TO AO. 4. WE ENCLOSE HEREWITH COPIES OF CHEQUES AND BANK STATEMENT FOR YOUR HONOURS PERUSAL. 4.1 THE LD AR ALSO SUBMITTED THAT THE ADDITIONAL EV IDENCES WERE ALSO FILED BEFORE THE LD CIT(A) FOR JUSTIFYING THE INVES TMENT IN THE IMMOVABLE PROPERTY AMOUNTING TO RS.45,20,000/-. HOWEVER, THE LD. CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCES ON THE GROUND THAT T HE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY DURING THE ASSESSMENT PROCEE DINGS AND THERE WAS ALSO NO VIOLATION OF RULE 46A OF INCOME TAX RULE. 4.2 THE LD AR FOR THE ASSESSEE DREW OUR ATTENTION O N THE ADDITIONAL DOCUMENTS, WHICH ARE PLACED ON PAGES 32-166 OF THE PAPER BOOK. 4.3 IN VIEW OF ABOVE, THE LD. COUNSEL FOR THE ASSES SEE PRAYED BEFORE US TO RECALL THE ORDER OF THE HONBLE ITAT FOR THE LIM ITED PURPOSE OF THE ADJUDICATION OF ADDITIONAL GROUND OF APPEAL RAISED DURING THE APPELLATE PROCEEDINGS. 5. ON THE OTHER HAND, THE LD. DR BEFORE US SUBMITTE D THAT THE HONBLE ITAT HAS PASSED THE SPEAKING ORDER AFTER CONSIDERIN G ORIGINAL GROUNDS OF APPEAL FILED ALONG WITH THE MEMO OF APPEAL. THEREFO RE, THERE WERE NO MISTAKE APPARENT FROM RECORD AND ACCORDINGLY ORDER OF HONBLE ITAT CANNOT BE RECALLED. MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 5 - 5.1 THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF HO NBLE ITAT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO THE ADDITION MADE BY THE AO FOR THE INVESTMENT IN THE PROPERTY M ADE BY THE ASSESSEE AMOUNTING TO RS. 45,20,000/-. THE AO DURING ASSESSM ENT PROCEEDINGS HAS GIVEN SEVERAL OPPORTUNITIES TO THE ASSESSEE TO JUSTIFY THE SOURCE OF INVESTMENT MADE IN THE PROPERTY BUT THE ASSESSEE FA ILED TO AVAIL THE SAME. ACCORDINGLY THE ASSESSEE FAILED TO FURNISH THE REQU ISITE DETAILS AS DESIRED BY THE AO. THEREFORE, THE ADDITION WAS MADE BY THE AO. 7. THE ASSESSEE INDEED FILED VARIOUS ADDITIONAL DOC UMENTS BEFORE THE LD. CIT(A) BUT THE SAME WERE NOT ADMITTED AS THERE WAS NO VIOLATION OF RULE 46A OF INCOME TAX RULE. HOWEVER, THE LD. CIT(A ) EVEN AFTER REJECTING THE ADDITIONAL DOCUMENTS FILED BY THE ASS ESSEE ALSO DISBELIEVED THE DETAILS FOR THE SOURCE OF INVESTMENT FILED BY T HE ASSESSEE DURING THE APPELLATE PROCEEDINGS. HOWEVER, THE ASSESSEE BEFORE THE HONBLE ITAT HAS F ILED ADDITIONAL GROUNDS AS WELL AS ADDITIONAL EVIDENCES AS DISCUSSE D ABOVE. THERE WAS NO WHISPER IN THE ORDER OF HONBLE ITAT ABOUT THE ADDI TIONAL GROUND OF APPEAL AS WELL AS ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. THERE IS NO AMBIGUITY THAT THE ADDITIONAL GROUNDS AS WELL AS AD DITIONAL EVIDENCES CAN BE ADMITTED BY THE HONBLE ITAT AT ITS DISCRETION A FTER CONSIDERING THE FACTS OF THE CASE. MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 6 - HOWEVER, IT WAS THE DUTY OF THE HONBLE ITAT EITHER TO ADMIT OR TO REJECT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE BUT ON PERUSAL OF THE ORDER OF HONBLE ITAT WE NOTE THAT THERE IS NO WHISPER AN D MENTION REGARDING THE ADDITIONAL GROUND AND EVIDENCES FILED BY THE AS SESSEE. 8. IN OUR CONSIDERED VIEW NON CONSIDERATION OF THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AMOUNTS TO MISTAKE APPARENT FROM RECORD. IN THIS REGARD, WE FIND SUPPORT AND GUIDANCE FROM T HE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF JYTOSANA SURI VS. ITAT REPORTED IN 128 TAXMAN 33, WHEREIN IT WAS ALSO HELD AS UNDER : THE PENDING APPLICATION UNDER RULE 29 OF THE ITAT RULES, WAS REQUIRED TO BE DISPOSED OF FIRST, BEFORE THE TRIBUN AL HEARD THE APPEAL ON MERITS. THE APPELLANT HAD UNDERTAKEN TO WITHDRAW TH E PENDING APPLICATION BEFORE THE TRIBUNAL FOR MAKING A REFERE NCE UNDER SECTION 256(1) FOR THE ABOVE PURPOSE. IN VIEW THEREOF, IT W AS TO BE DIRECTED THAT THE TRIBUNAL SHOULD FIRST DISPOSE OF THE APPLICATIO N UNDER RULE 29 ON MERITS AND THEREAFTER PROCEED TO DISPOSE OF THE APP EAL. THE MATTER WAS TO BE REMITTED TO THE TRIBUNAL FOR DISPOSAL. 8.1 FROM THE ABOVE, IT IS CLEAR THAT THERE IS AN AP PARENT MISTAKE CREPT IN THE ORDER OF HONBLE ITAT INADVERTENTLY. THEREFORE, WE ARE INCLINED TO RECALL THE ORDER OF ITAT FOR THE LIMITED PURPOSE OF THE ADJUDICATION OF THE ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE D URING THE APPELLATE PROCEEDINGS. HENCE, MISC APPLICATION IS ALLOWED . 9. FURTHER THE LD. AR BEFORE US PRAYED TO HEAR THE MATTER ON MERIT FOR THE ISSUE RAISED IN THE ADDITIONAL GROUND OF APPEAL . THE POINT OF CONTENTION OF THE LD. AR WAS THAT THE ISSUE RAISED IN THE ADDITIONAL GROUND MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 7 - OF APPEAL NEEDS TO BE REMITTED BACK FOR FRESH ADJUD ICATION TO THE FILE OF AO IN THE LIGHT OF THE ADDITIONAL EVIDENCES. 10. THE LD. DR DID NOT OBJECT IF THE MATTER IS TO B E HEARD ON MERIT FOR THE ISSUE RAISED IN THE ADDITIONAL GROUND OF APPEAL . 11. IN VIEW OF ABOVE, WE DECIDED TO PROCEED TO HEAR THE MATTER RAISED IN THE ADDITIONAL GROUND OF APPEAL ON MERIT. NOW COMING TO ITA NO.548/RJT/2012. THE ASSESSEE RAI SED THE FOLLOWING ADDITIONAL GROUND OF APPEAL: 1. THE HON'BLE CIT(A)-XVI, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 57,75,727/- OUT OF TOTAL ADDITION MADE OF RS. 57,95,727/- AS AGAINST RETURNE D INCOME OF RS. 4,76,121/-. 2. THE HON'BLE CIT(A) HAS ALSO ERRED IN LAW AND ON FACTS IN NOT CONSIDERING THE ADDITIONAL EVIDENCES WHICH HAVE BEE N FURNISHED TO HIM DURING THE COURSE OF APPELLATE PROCEEDINGS A ND HE HAS EVEN NOT REMANDED THE CASE TO THE LD, A.O. FOR HIS OPINION & SIMPLY REJECTED THE CONTENTIONS OF THE APPELLANT. T HUS HE HAS ALSO FAILED TO GIVE THE JUSTICE AND SO THERE IS BREACH O F LAW OF NATURAL JUSTICE. 3. THE HON'BLE CIT(A) HAS ALSO ERRED IN LAW AND O N FACTS IN CONFIRMING THE ADDITION OF RS. 45,20,000/- U/S 69 T REATING THE INVESTMENT AS UNEXPLAINED AS AGAINST THE DETAILS FU RNISHED WERE NOT CONSIDERED SUFFICIENT TO ESTABLISH THE INVESTME NT. THE APPELLANT HAS ALSO FURNISHED THE ADDITIONAL EVIDENC ES WHICH HAVE ALSO NOT BEEN CONSIDERED PROPERLY. 4. THE HON'BLE CIT(A) HAS ALSO ERRED IN LAW AND ON FACTS IN NOT ALLOWING THE DISCOUNT EXPS. (WHICH WAS GRANTED TO G OVERNMENT CONCERNS) OF RS. 8,69,727/- WHICH HAS BEEN CONSIDER ED BY THE APPELLANT AS BAD DEBTS. MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 8 - 5. HONBLE CIT(A) HAS ALSO ERRED IN LAW & ON FACTS IN CONFIRMI NG THE ADDITION OF RS.1,00,000/ - MADE BY THE LD. A.O. FOR WANT OF CHECK OF EXPENSES WITHOUT SPECIFYING ANY PARTICULAR DEFECTS. 6. THE HON'BLE CIT(A) HAS ALSO ERRED IN LAW & ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS. 5,000/- ON ACCOU NT OF CERTAIN EXPENSES WERE NOT SUPPORTED BY EVIDENCES. 7. THE HON'BLE CIT(A) HAS ALSO ERRED IN LAW & ON F ACTS IN NOT DELETING THE TOTAL DISALLOWANCE OF RS. 50,000/- AND ONLY HAS GIVEN RELIEF OF RS. 20,000/-. 8. ANY OTHER GROUND OF APPEAL, WHICH MAY BE TAKEN AT THE TIME OF HEARING WITH THE KIND 1 PREVIOUS APPROVAL OF THE HO N'BLE I.T.A.T, BENCH, RAJKOT. 12. THE LD. AR AT THE TIME OF HEARING BROUGHT TO OU R NOTICE THAT THE ADDITIONAL GROUND OF APPEAL WAS RAISED BEFORE THE I TAT ALONG WITH THE ADDITIONAL EVIDENCE BUT THE SAME NOT ADJUDICATED IN ADVERTENTLY. 12.1 THE LD. AR FURTHER SUBMITTED THAT THE ADDITION AL GROUND NEEDS TO BE ADJUDICATED IN THE LIGHT FRESH EVIDENCES FILED BEFO RE THE HONBLE ITAT. THEREFORE IT WAS PRAYED BEFORE US TO REMIT THE MATT ER BACK TO THE FILE OF AO FOR THE FRESH ADJUDICATION AFTER CONSIDERING THE ADDITIONAL EVIDENCES FILED DURING THE APPELLATE PROCEEDINGS. 13. THE LD. DR HAS NOT RAISED ANY ADJUDICATION IF T HE MATTER IS REMITTED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION. 14. HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL S AVAILABLE ON RECORD. AT THIS JUNCTURE, WE FIND RELEVANT IN HAND TO IMPORTANT TO REPRODUCE THE PROVISION OF RULE 11 OF INCOME TAX AP PELLATE TRIBUNAL RULES 1963, WHICH READS AS UNDER: MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 9 - GROUNDS WHICH MAY BE TAKEN IN APPEAL. 11. THE APPELLANT SHALL NOT, EXCEPT BY LEAVE OF THE TRI BUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL, BUT THE TRIBUNAL, IN DECIDING THE APPEAL, S HALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN THE MEMORANDUM OF APPEAL O R TAKEN BY LEAVE OF THE TRIBUNAL UNDER THIS RULE : PROVIDED THAT THE TRIBUNAL SHALL NOT REST ITS DECISION ON A NY OTHER GROUND UNLESS THE PARTY WHO MAY BE AFFECTED THEREBY HAS HAD A SUFFICIENT OPPORTUNITY OF BEING HEARD ON THAT GROUN D . 14.1 FROM THE ABOVE PROVISIONS, WE NOTE THAT THE IT AT HAS BEEN EMPOWERED TO ADMIT THE ADDITIONAL GROUNDS OF APPEAL OF THE ASSESSEE AFTER CONSIDERING THE RELEVANT FACTS. IN THE CASE B EFORE US, THE ISSUE HAS ARISEN FROM THE ORDER OF LOWER AUTHORITIES. BOTH TH E LOWER AUTHORITIES HAVE CONFIRMED THE ADDITION ON ACCOUNT OF INVESTMEN T IN THE IMMOVABLE PROPERTY. 15. NOW THE FIRST ISSUE ARISES WHETHER TO ADMIT THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE. AS WE HAVE ALREAD Y HELD THAT THE ISSUE RAISED IN THE ADDITIONAL GROUNDS OF APPEAL IS ARISI NG FROM THE ORDER OF LOWER AUTHORITIES AND NO NEW FACTS REGARDING THE IS SUE NEEDS TO BE BROUGHT ON RECORD. THEREFORE, WE ARE INCLINED TO AD MIT THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE AFTER HAVIN G RELIANCE ON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF JU TE CORPORATION OF INDIA VS. CIT REPORTED IN 53 TAXMAN 85 WHEREIN IT W AS HELD AS UNDER: THE ACT DOES NOT CONTAIN ANY EXPRESS PROVISION DEB ARRING AN ASSESSEE FROM RAISING AN ADDITIONAL GROUND IN APPEAL AND THE RE IS NO PROVISION IN THE ACT PLACING RESTRICTION ON THE POWER OF THE APP ELLATE AUTHORITY IN ENTERTAINING AN ADDITIONAL GROUND IN APPEAL. IN THE ABSENSE OF ANY STATUTORY PROVISION, THE GENERAL PRINCIPLE RELATING TO THE AMPLITUDE OF MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 10 - APPELLATE AUTHORITY'S POWER BEING CO-TERMINUS WITH THAT OF THE INITIAL AUTHORITY SHOULD NORMALLY BE APPLICABLE. IF THE TAX LIABILITY OF THE ASSESSEE IS ADMITTED AND IF THE ITO IS AFFORDED OPP ORTUNITY OF HEARING BY THE APPELLATE AUTHORITY IN ALLOWING THE ASSESSEE'S CLAIM FOR DEDUCTION ON THE SETTLED VIEW OF LAW, THERE APPEARS TO BE NO GOO D REASON TO CURTAIL THE POWERS OF THE APPELLATE AUTHORITY UNDER SECTION 251 (1)( A ). EVEN OTHERWISE AN APPELLATE AUTHORITY WHILE HEARING APPE AL AGAINST THE ORDER OF SUBORDINATE AUTHORITY HAS ALL THE POWERS WHICH T HE ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS, IF ANY, PRESCRIBED BY THE STATUTORY PR OVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE APPEARED TO BE NO GOOD REASON TO JUSTIFY CURT AILMENT OF THE POWER OF THE AAC IN ENTERTAINING AN ADDITIONAL GROUND RAI SED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY THE ITO. THERE MAY BE SEVERAL FACTORS JUSTIFYING RAISING OF SUCH NEW PLEA IN APPEAL, AND EACH CASE HAS TO BE CONSIDERED ON ITS O WN FACTS. IF THE AAC IS SATISFIED HE WOULD BE ACTING WITHIN HIS JURISDIC TION IN CONSIDERING THE QUESTION SO RAISED IN ALL ITS ASPECTS. OF COURSE, W HILE PERMITTING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND, THE AAC SHO ULD EXERCISE HIS DISCRETION IN ACCORDANCE WITH LAW AND REASON. HE MU ST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD REASONS. THE SATISFACTION O F THE AAC DEPENDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND N O RIGID PRINCIPLES OR ANY HARD AND FAST RULE CAN BE LAID DOWN FOR THIS PURPOSE. 16. WE ALSO FIND SUPPORT AND GUIDANCE FROM THE JUDG MENT OF HONBLE MADHYA PRADESH IN THE CASE OF MEGHJI GIRDHAR (HUF) VS. CWT REPORTED IN 20 TAXMANN.COM 744 WHEREIN IT WAS HELD AS UNDER: HELD THAT NO ORDER WAS PASSED BY THE TRIBUNAL GRAN TING LEAVE TO THE REVENUE TO URGE THIS ADDITIONAL GROUND WHICH WAS NO T SET OUT IN THE MEMO OF APPEAL. THE ASSESSEE HAD ALSO OBJECTED TO R AISING OF THIS NEW PLEA AT HEARING STAGE. THEREFORE, IN TERMS OF PROVI SO TO RULE 11 OF RULES, 1963, THE ASSESSEE HAD NOT BEEN GIVEN ADEQUATE OPPO RTUNITY OF BEING HEARD ON THAT GROUND. THUS, THE TRIBUNAL WAS NOT RI GHT IN CONSIDERING AND ADJUDICATING UPON NEW FACTUAL PLEA RAISED FOR T HE FIRST TIME BEFORE IT. WHEN FOR ALL THE PRIOR INTERVENING AND SUBSEQUE NT YEARS UP TO 2000- 01 THE VERSION OF ASSESSEE THAT HE HAD ENTRUSTED 14 2 KGS. OF GOLD TO 'GH' HAD BEEN ACCEPTED, THEN IT FURNISHED AN ADDITIONAL REASON FOR HOLDING MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 11 - THAT THE TRIBUNAL SHOULD NOT HAVE ALLOWED THE REVEN UE TO CHALLENGE THE VERSION OF THE ASSESSEE IN RESPECT OF THE ENTRUSTME NT OF GOLD FOR THE FIRST TIME BEFORE THE TRIBUNAL FOR THE ASSESSMENT YEARS I N QUESTION. 16.1 IN VIEW OF ABOVE, WE HAVE NO HESITATION IN ADM ITTING THE ADDITIONAL GROUND OF APPEAL OF THE ASSESSEE. AS THE ASSESSEE I N SUPPORT OF HIS ADDITIONAL GROUNDS OF APPEAL HAS FILED THE ADDITION AL EVIDENCES, WHICH ARE PLACED ON PAGES 5 TO 11 WHICH NEED TO BE CONSIDERED BY THE AO. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION IN ACCORDANCE TO THE PROVISIONS OF LAW. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 17. IN THE RESULT MISC. APPLICATION OF THE ASSESSEE IS ALLOWED AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 03/10/2018 SD/- SD/- E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; E/KQFERK JKW; OLHE VGEN OLHE VGEN OLHE VGEN OLHE VGEN U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; U;KF;D LNL; YK S[KK LNL; (MADHUMITA ROY) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 03/10/2018 PRITI YADAV, SR.PS MA NO.13/RJT/2014 & ITA NO.584/RJT/2012 SHRI JAYVANTISINH NATHUBHAI VAGHELA A.Y. 2009-10 - 12 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. + & ' ,& / CONCERNED CIT 4. ' ,& () / THE CIT(A)-XVI, AHMEDABAD. 5. /$0 1 2&2# , , 45) + ) / DR, ITAT, AHMEDABAD. 6. 1 67 8 % / GUARD FILE. / BY ORDER, /& 2& //TRUE COPY// / ! '#$ ( DY./ASSTT.REGISTRAR) ! $%! &, / ITAT, AHMEDABAD 1. DATE OF DICTATION 05/08/2018(DICTATION PAGES 5 ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/08/2018 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 01/10/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER