Sh. Vijay Kumar Sharma, Amritsar. v. The Income-tax Officer, Amritsar.

CO 12/ASR/2011 | 2004-2005
Pronouncement Date: 28-10-2013 | Result: Dismissed

Appeal Details

RSA Number 1220923 RSA 2011
Assessee PAN ADDPS2145Q
Bench Amritsar
Appeal Number CO 12/ASR/2011
Duration Of Justice 2 year(s) 3 month(s) 3 day(s)
Appellant Sh. Vijay Kumar Sharma, Amritsar.
Respondent The Income-tax Officer, Amritsar.
Appeal Type Cross Objection
Pronouncement Date 28-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 28-10-2013
Date Of Final Hearing 09-10-2013
Next Hearing Date 09-10-2013
Assessment Year 2004-2005
Appeal Filed On 25-07-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU JUDICIAL MEMBER AND SH. B.P. JAIN ACCOUNTANT MEMBER I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 PAN: ADDPS2145Q INCOME TAX OFFICER VS. SHRI VIJAY KUMAR SHARMA WARD 5(4) AMRITSAR M/S NATIONAL MOTORS 10/11 COURT ROAD AMRITSAR (APPELLANT) (RESPONDENT) WITH CROSS OBJECTION NO. 12(ASR)/2011 [ARISING OUT OF I.T.A. NO. 218(ASR)/2011] ASSESSMENT YEAR: 2004-05 PAN: ADDPS2145Q INCOME TAX OFFICER VS. SHRI VIJAY KUMAR SHARMA WARD 5(4) AMRITSAR M/S NATIONAL MOTORS 10/11 COURT ROAD AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARSEM LAL DR RESPONDENT BY: SH. P.N. ARORA ADVOCATE DATE OF HEARING: 09.10.2013 DATE OF PRONOUNCEMENT: 28.10.2013 ORDER PER BENCH 1. THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 20.01.2011 PASSED BY LEARNED CIT(A) AM RITSAR FOR THE ASSESSMENT YEAR 2004-05. CROSS OBJECTION HAS ALSO B EEN FILED BY THE 2 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 ASSESSEE. THE GROUNDS OF APPEAL TAKEN BY THE REVENU E IN THE PRESENT APPEAL ARE AS UNDER: 1. THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN LA W AND ON FACTS IN ALLOWING RELIEF TO THE ASSESSEE ON THE FOL LOWING ISSUES WITHOUT APPRECIATING THAT THE ASSESSEE DID NOT FURNISH THE REQUISITE EVIDENCE AT THE ASSESSMENT STAGE BEFORE THE A.O. DESPITE SUFFIC IENT TIME ALLOWED. (I). ADDITION OF RS. 16.62 LAC. IN THE NAME OF M.R. BOGA & FAMILY MEMBERS. (III). ADDITION OF RS. 9.00 LAC ON ACCOUNT OF UN-EX PLAINED CREDITS IN THE NAME OF SHRI R.L. BHATIA. (III). ADDITION OF RS. 4.40 LAC. ON ACCOUNT OF COMM ISSION ON SALE OF CARS IN THE CASE OF M/S NATIONAL MOTORS. (IV). ADDITION OF RS. 3.21 LAC. AND RS. 11.97 LAC. ON ACCOUNT OF SALE OF PLOTS AND TO CONSTRUCTION ACCOUNT OF M/S SH REE VIJAY BUILDERS & DEVELOPERS. 2. THAT THE LEARNED CIT(APPEALS) HAS NOT RECORDED ANY REASONS IN WRITING FOR ADMISSION OF THE ADDITIONAL EVIDENCE. IN THE ABSENCE OF SATISFACTION OF ABOVE MENTIONED PRIMARY REQUIREMENT THE FURTHER PROCESS OF CALLING REBUTTAL OF SUCH ADDITIO NAL EVIDENCE FROM THE ASSESSING OFFICER IS THEREFORE UNCALLED FOR. 3. THAT THE MERE FACT THAT THE EVIDENCE SOUGHT TO BE PRODUCED IS VITAL AND IMPORTANT DOES NOT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE ESPECIA LLY WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND HAD NOT BEEN PRODUCED BY HIM WITHOUT ANY SUFFICIENT CAUSE. THERE IS NO REASON FOR NOT PRODUCING THE ADDITIONAL EVIDENCE BEFORE TH E LOWER AUTHORITIES. THE PROVISIONS OF RULE 46A ARE NOT FULFILLED IN THI S CASE AND AS SUCH APPLICATION FOR ADMISSION WAS REQUIRED TO BE REJECT ED. 2. FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE THERE IS NO NEED TO RE PEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 3. AT THE TIME OF HEARING LEARNED DR STATED THAT T HE ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY IS BAD IN LAW AS HE HAS ADMITTED ADDITIONAL EVIDENCE WITHOUT RECORDING HIS SATISFACT ION UNDER RULE 46A OF THE INCOME TAX RULES 1962 (IN SHORT THE RULES). HE FURTHER STATED THAT THE ASSESSEE DID NOT EVEN FILE ANY FORMAL APPLICATI ON UNDER RULE 46A OF THE RULES AND THE LEARNED FIRST APPELLATE AUTHORITY HAS ONLY FORWARDED THE ASSESSEES PAPER-BOOK TO THE ASSESSING OFFICER FOR HIS COMMENTS WHICH IS CONTRARY TO THE PROVISIONS OF RULE 46A OF THE RULES. LEARNED DR ALSO STATED THAT THE ASSESSEE IS NOT ENTITLED TO PR ODUCE ADDITIONAL EVIDENCE UNTIL ONE OF THE CONDITIONS SPELT OUT IN CLAUSE (A) TO (D) OF SUB-RULE (1) OF RULE 46A OF THE RULES IS SATISFIED. IN CASE SUCH CONDITION IS SATISFIED THE LEARNED CIT(A) IS REQUIRED TO RECORD REASONS IN WRI TING FOR ADMISSION OF SUCH ADDITIONAL EVIDENCE. IN SUPPORT OF HIS ARGUMEN T LEARNED DR RELIED UPON THE JUDGMENT OF HON'BLE PUNJAB AND HARYANA HIG H COURT IN THE CASE OF SARDARNI UTTAM KAUR EDUCATIONAL SOCIETY VS. CIT REPORTED IN 173 TAXMAN 229. ON MERIT LEARNED DR STATED THAT THE LE ARNED FIRST APPELLATE AUTHORITY HAS DELETED THE ADDITION IN DISPUTE ON TH E BASIS OF ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE AND HE WRONGLY AD MITTED THE SAME AS SUCH THE IMPUGNED ORDER DESERVES TO BE SET ASIDE. 4 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 4. AS REGARDS TO THE CROSS OBJECTION FILED BY THE A SSESSEE LEARNED DR STATED THAT THE ASSESSEE HAS FILED CROSS OBJECTI ON IN SUPPORT OF THE ORDER OF CIT(A) BUT NO GROUND IN CROSS OBJECTION HAS BEEN TAKEN ON THE CIT(A)S FAILURE TO COMPLY WITH THE PROVISIONS OF R ULE 46A OF THE RULES. AT LEAST HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE ALLOWED AND THE CROSS OBJECTION FILED BY THE ASSESS EE MAY BE DISMISSED. 5. ON THE CONTRARY SH. P.N. ARORA ADVOCATE LEARN ED COUNSEL FOR THE ASSESSEE APPEARED AND RELIED UPON THE ORDER PAS SED BY LEARNED CIT(A) AND STATED THAT CROSS OBJECTION FILED BY THE ASSESS EE IS IN SUPPORT OF IMPUGNED ORDER PASSED BY CIT(A) BUT AS REGARDS TO T HE ARGUMENT ADVANCED BY LEARNED DR HE STATED THAT LEARNED FIRS T APPELLATE AUTHORITY HAS ADMITTED THE ADDITIONAL EVIDENCE UNDER RULE 46A IN COMPLIANCE OF THE SAID RULES AFTER OBTAINING THE REMAND REPORT F ROM THE ASSESSING OFFICER. THEREFORE THERE IS NO INFIRMITY IN THE IM PUGNED ORDER AND HE REQUESTED THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORD AVAILABLE WITH US ESPECIALLY THE ORDERS PASSED BY THE REVENUE ON THE ISSUE OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE UNDER RULE 46A OF THE RULES. WE ARE OF THE VIEW THAT LEARNED FIRST APPELL ATE AUTHORITY HAS DELETED THE ADDITION IN DISPUTE ON THE BASIS OF ADD ITIONAL EVIDENCE 5 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 ADMITTED BY HIM DURING THE COURSE OF APPELLATE PROC EEDINGS. IT IS AN ADMITTED POSITION THAT THE ASSESSEE HAS NOT FILED A NY APPLICATION UNDER RULE 46A OF THE RULES FOR ADMISSION OF ADDITIONAL E VIDENCE. AS RIGHTLY STATED BY LEARNED DR THE LEARNED FIRST APPELLATE A UTHORITY HAS NOT RECORDED HIS SATISFACTION WHICH IS REQUIRED UNDER R ULE 46A OF THE RULES. PRIMA FACIE WE FINE THAT LEARNED FIRST APPELLATE A UTHORITY HAS FORWARDED THE ASSESSEES PAPER BOOK TO THE ASSESSING OFFICER FOR HIS COMMENTS AND THE ASSESSING OFFICER HAS GIVEN HIS COMMENTS IN COM PLIANCE OF THE SAME. BUT AS PER RULE 46A OF THE RULES THE APPELLANT SHA LL NOT BE ENTITLED TO PRODUCE BEFORE [DEPUTY COMMISSIONER (APPEALS)] [OR AS THE CASE MAY BE THE COMMISSIONER (APPEALS)] ANY EVIDENCE WHET HER ORAL OR DOCUMENTARY OTHER THAN THE EVIDENCE PRODUCED BY HI M DURING THE COURSE OF PROCEEDINGS BEFORE THE [ASSESSING OFFICER] EXC EPT WHERE THE [ASSESSING OFFICER] HAS REFUSED TO ADMIT THE EVIDEN CE WHICH OUGHT TO HAVE BEEN ADMITTED; OR WHERE THE APPELLANT WAS PREV ENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE WHICH HE WAS CALL ED UPON TO PRODUCE BY THE [ASSESSING OFFICER]; OR WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BEFORE THE [ASSESSI NG OFFICER] ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL; OR WHERE THE [ASSESSING OFFICER] HAS MADE THE ORDER APPEALED AGA INST WITHOUT GIVING 6 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 SUFFICIENT OPPORTUNITY TO THE APPELLANT TO ADDUCE E VIDENCE RELEVANT TO ANY GROUND OF APPEAL. IN VIEW THE RULE 46A(2) NO EVIDE NCE SHALL BE ADMITTED UNDER SUB-RULE (1) UNDER THE [DEPUTY COMMISSIONER(A PPEALS)] [OR AS THE CASE MAY BE THE COMMISSIONER(APPEALS)] RECORDS IN WRITING THE REASONS FOR ITS ADMISSION. AFTER GOING THROUGH THE IMPUGNED ORDER WE ARE OF THE VIEW THAT THE CIT(A) HAS NOT RECORDED THE REASONS I N WRITING FOR THE ADMISSION OF ADDITIONAL EVIDENCE PRODUCED BY THE AS SESSEE BEFORE HIM WHICH IS CONTRARY TO RULE 46A(2) OF THE RULES. WE ALSO FIND THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS NOT MADE THE COMPLIANCE OF RULE 46A OF THE RULES BEFORE ADMISSION OF ADDITIONAL EVI DENCE FILED BY THE ASSESSEE AND DELETED THE ADDITION IN DISPUTE ON THE BASIS OF ADDITIONAL EVIDENCE AS STATED IN THE IMPUGNED ORDER. IN OUR VI EW THE IMPUGNED ORDER DESERVES TO BE CANCELLED. CONSEQUENTLY WE CA NCEL THE IMPUGNED ORDER AND KEEPING IN VIEW THE VALUE OF THE ADDITION AL EVIDENCE WHICH IS VERY MUCH RELEVANT TO THE DECISIONS ON THE ISSUE IN DISPUTE WE ARE OF THE VIEW THAT THESE EVIDENCES DESERVE TO BE THOROUGHLY EXAMINED AT THE LEVEL OF ASSESSING OFFICER. ACCORDINGLY WE SET ASIDE THE ISSUE IN DISPUTE TO THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH UNDER T HE LAW AND IN VIEW OF ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE TH E LEARNED FIRST 7 I.T.A. NO. 218(ASR)/2011 ASSESSMENT YEAR: 2004-05 APPELLATE AUTHORITY AFTER AFFORDING FULL OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER 2013 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH OCTOBER 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SHRI VIJAY KUMAR SHARMA M/S NATIONAL MOTORS 10/11 COURT ROAD AMRITSAR 2. THE INCOME TAX OFFICER WARD 5(4) AMRITSAR 3. THE CIT(A) AMRITSAR 4. THE CIT AMRITSAR 5. THE SR DR I.T.A.T. ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: AMRITSAR.