Shri Kanaiyalal M.Jinwala, Surat v. The Income tax Officer,Ward-2(3),, Surat

ITA 1226/AHD/2010 | 2006-2007
Pronouncement Date: 31-08-2010 | Result: Allowed

Appeal Details

RSA Number 122620514 RSA 2010
Assessee PAN AAVPJ2608J
Bench Ahmedabad
Appeal Number ITA 1226/AHD/2010
Duration Of Justice 4 month(s) 11 day(s)
Appellant Shri Kanaiyalal M.Jinwala, Surat
Respondent The Income tax Officer,Ward-2(3),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 31-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-08-2010
Assessment Year 2006-2007
Appeal Filed On 19-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D.AGRAWAL VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER DATE OF HEARING : 20/08/2010 DRAFTED ON:24/08 /2010 ITA NO.1226/AHD/2010 ASSESSMENT YEAR : 2006-07 SHRI KANAIYALAL M.JINWALA 3/548 MORQAS STREET ZAMPA BAZAR SURAT 395 003 VS. THE INCOME TAX OFFICER WARD-2(3) SURAT PAN/GIR NO. : AAVPJ 2608 J (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI JAIMINE GANDHI RESPONDENT BY: SHRI ANIL KUMAR SR.DR O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-II SURAT DATED 29/12/2009 AND THE SUBSTANTIAL GROUND WHICH IS ARGU ED BEFORE US IS GROUND NO.2; REPRODUCED BELOW:- (2) THE LEARNED CIT APPEAL OUGHT TO HAVE VERIFY T HE RECORDS OF THE ASSESSEE WITH THE ASSESSING OFFICER AS WHAT IS CONS IDERED BY HIM AS ADDITIONAL EVIDENCE WAS DULY SUBMITTED BY THE A SSESSEE TO THE ASSESSING OFFICER DURING ASSESSMENT PROCEEDINGS ALO NG WITH THE WRITTEN SUBMISSION. 2. FROM THE ORDER OF THE LEARNED CIT(APPEALS) IT IS EVIDENT THAT THIS APPELLANT HAS TRIED TO FURNISH CERTAIN EVIDENCES B UT THOSE WERE NOT ADMITTED BY ASSIGNING FOLLOWING REASONS:- ITA NO. 1266/AHD/2010 SHRI KANAIYALAL M.JINWALA VS. ITO ASST.YEAR - 2006-07 - 2 - DECISION 5. I HAVE CAREFULLY CONSIDERED BOTH THE POSITIONS. TO BEGIN WITH THE DOCUMENTARY EVIDENCES NOW FURNISHED CANNOT BE ADMIT TED IN APPELLATE PROCEEDINGS UNDER THE PROVISIONS OF RULE 46A OF THE IT RULES. THIS IS BECAUSE AS MAY BE SEEN FROM THE DETAILED ASSESSMEN T ORDER THE ASSESSEE WAS PROVIDED MORE THAN SUFFICIENT OPPORTUN ITY TO FURNISH THE RELEVANT DETAILS AND EVIDENCE. IT WAS NOT THAT TH E AO HAD REFUSED TO ADMIT ANY EVIDENCE OR THAT THE ASSESSEE HAD BEEN PR EVENTED BY SUFFICIENT CAUSE FROM PRODUCING SUCH EVIDENCE BEFOR E THE AO. THEREFORE THE ASSESSEES CASE IS NOT COVERED BY AN Y OF THE EXCEPTIONS PROVIDED IN CLAUSES (A) TO (D) TO RULE 46A. ON THE OTHER HAND THE AR HAS NOT MADE ANY REQUEST IN APPELLATE PROCEEDINGS F OR SUCH EVIDENCE TO BE ADMITTED AS ADDITIONAL EVIDENCE. NOR HAS IT BEE N SHOWN OR PROVED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE S FROM PRODUCING SUCH EVIDENCE IN ASSESSMENT PROCEEDINGS. THE DOCUM ENTS NOW FURNISHED ARE THEREFORE NOT ADMITTED. RELIANCE IS PLACED ON FOLLOWING CASE-LAWS: (I) ITO VS. MODI RUBBER LTD. 1993 45 TTJ 415 (DEL) (II) JUTE CORPORATION OF INDIA VS. CIT 1990 187 ITR 68 ( SC) (III) CIT VS. KAPPOR COAL SYNDICATE 1964 53 ITR 225 (SC) (IV) CIT VS. K.RAVINDRANATHAN NAIR 2004 265 ITR 217 (KER ) (V) SMT.PRABHAVATI S.SHAH VS. CIT 1998 231 ITR 1 (BOM) CONSEQUENTLY THE ADDITION OF THE SUM OF RS.2 95 84 0/- WILL STAND CONFIRMED. 3. HEARD BOTH THE SIDES. RULE46A OF THE I.T. RULES 1962 PRESCRIBES THAT ORDINARILY THE APPELLANT SHALL NOT BE ENTITLED TO PRODUCE BEFORE THE FIRST APPELLATE AUTHORITY ANY EVIDENCE OTHER THAN T HE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE PRESENT CASE THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESS EE HAS VEHEMENTLY CONTESTED THAT IT WAS NOT THE SITUATION THAT THE EV IDENCES WERE NOT FILED BEFORE THE ASSESSING OFFICER HOWEVER THE CORRECT POSITION IS THAT ALL THOSE DETAILS AND INFORMATION WERE FURNISHED BEFORE THE ASSESSING OFFICER WHEN THE CLARIFICATION WAS CALLED FOR HOWEVER NOT PROPERLY ADJUDICATED ITA NO. 1266/AHD/2010 SHRI KANAIYALAL M.JINWALA VS. ITO ASST.YEAR - 2006-07 - 3 - UPON BY THE ASSESSING OFFICER. WHEN THE APPELLANT HAD FURNISHED THOSE EVIDENCES ALONG WITH CERTAIN COGENT MATERIAL IN SUP PORT OF THE MAIN EVIDENCE THE SAME WERE REJECTED. WE FIND FORCE IN THE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESS EE BECAUSE THE SAID RULE 46A OF THE I.T. RULES 1962 ALSO PRESCRIBES C ERTAIN EXCEPTIONS; NAMELY WHERE THE ASSESSING OFFICER HAS REFUSED TO ADMIT THE EVIDENCE WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAU SE OR WHERE THE ASSESSING OFFICER HAD PASSED THE ORDER WITHOUT GIVI NG SUFFICIENT OPPORTUNITY TO ADDUCE THE RELEVANT EVIDENCE. SO IF AN APPELLANT IS SEEKING TO FILE EVIDENCE BEFORE THE LEARNED CIT(APP EALS) THEN HE CAN ADMIT THOSE EVIDENCES BUT AFTER PROVIDING A REASON ABLE OPPORTUNITY TO ASSESSING OFFICER. IN THE PRESENT CASE ALSO THE LEARNED CIT(APPEALS) COULD HAVE ALLOWED A REASONABLE OPPORTUNITY TO ASSE SSING OFFICER TO EXAMINE THOSE DOCUMENTS BUT INSTEAD HE HAS REFUSED ALTOGETHER TO ENTERTAIN THOSE EVIDENCES. IN THIS CONTEXT IT IS WORTH TO NOTE A DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF SMT. M OHINDER KAUR REPORTED AS 104 ITR 120 (ALLA.) WHERE THE ASSESSIN G OFFICER HAD MADE CERTAIN ADDITIONS DUE TO NON-PRODUCTION OF CONFIRMA TION LETTERS FROM THE CREDITORS BY THE ASSESSEE AND THE LEARNED CIT(APPEA LS) REFUSED TO ADMIT THE SAID LETTERS PRODUCED BEFORE HIM AS ADDITIONAL EVIDENCE. IT WAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE COMMISSIONER OUGHT NOT TO HAVE REJECTED THE ADDITIONAL EVIDENCE BUT S HOULD HAVE DIRECTED THE ASSESSING OFFICER TO CONSIDER THE CONFIRMATION LETT ERS. THUS THE TOTALITY OF THE CIRCUMSTANCES DEMANDS TO DIRECT THE LEARNED CIT(APPEALS) TO COMPLY THE PROVISIONS OF RULE 46A OF THE I.T. ACT 1961 AND CONSIDER THOSE EVIDENCES FOR THE PURPOSE OF ADMISSION NEED LESS TO SAY AFTER PROVIDING A REASONABLE OPPORTUNITY OF HEARING TO TH IS APPELLANT. ITA NO. 1266/AHD/2010 SHRI KANAIYALAL M.JINWALA VS. ITO ASST.YEAR - 2006-07 - 4 - 4. REST OF THE GROUNDS NEED NO INDEPENDENT DISCUSSI ON AT THIS POINT OF TIME BEING THE MATTER IS RESTORED BACK TO THE FILE OF LEARNED CIT(APPEALS) AS PER THE DIRECTIONS. 5. IN THE RESULT ASSESSEES APPEAL MAY BE TREATED AS ALLOWED ONLY FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 31/ 08 /2010. SD/- SD/- ( G.D.AGRAWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 31 / 08 /2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-II SURAT 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD