ACIT, New Delhi v. Sh. Anil Gupta, New Delhi

ITA 1241/DEL/2011 | 2006-2007
Pronouncement Date: 03-02-2012 | Result: Allowed

Appeal Details

RSA Number 124120114 RSA 2011
Assessee PAN AAHPG8980A
Bench Delhi
Appeal Number ITA 1241/DEL/2011
Duration Of Justice 10 month(s) 23 day(s)
Appellant ACIT, New Delhi
Respondent Sh. Anil Gupta, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 03-02-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 03-02-2012
Date Of Final Hearing 30-01-2012
Next Hearing Date 30-01-2012
Assessment Year 2006-2007
Appeal Filed On 10-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER ITA NO.1241/DEL/2011 ASSESSMENT YEAR : 2006-07 ACIT CIRCLE 32 (1) ROOM NO.376A CR BUILDING IP ESTATE NEW DELHI. VS. ANIL GUPTA B-67 DEFENCE COLONY NEW DELHI. PAN : AAHPG8980A (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : MRS. ANUSHA KHURANA SR.DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE DEPARTMENT. IT IS DIR ECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 29 TH NOVEMBER 2010 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS U NDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE WHETHER THE LEARNED CIT (A) WAS JUSTIFIED IN ADMITTING ADDITIONAL E VIDENCE IN VIOLATION OF RULE 46A IN THE SHAPE OF ITR BANK STATEME NT AND BALANCE SHEET AND AFFIDAVIT FROM THE LOAN CREDITORS AND ON THAT BASIS DELETING ADDITION OF ` 8375000/- MADE ON A/C OF UNSECURED LOANS WHEN THE SAME WERE NOT AVAILABLE TO THE A.O. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS FOR VERIFICATION. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE WHETHER TH E LD. CIT (A) WAS JUSTIFIED IN DELETING ADDITION OF ` 12 00 000/- WHEN THE TRANSACTIONS OF INTEREST RECEIVED AND INTEREST PAID DI D NOT BEAR ANY RELATIONSHIP AND WERE INDEPENDENT ACTIVITIES O N THEIR OWN. ITA NO.1241/DEL/2011 2 2. THE NOTICE OF HEARING WAS SENT TO THE ASSESSEE HOWEVE R ON THE FIXED DATE OF HEARING NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE WE PROCEEDED TO DECIDE THE PRESENT APPEAL EX PARTE QUA THE ASSESSEE ON MERITS. 3. APROPOS GROUND NO.1 THE ASSESSING OFFICER OBSERVED FR OM THE ACCOUNTS OF THE ASSESSEE THAT CERTAIN LOANS WERE RAISED FR OM THE FAMILY AGGREGATING TO ` 83 75 000/- THE TOTAL OF WHICH IS A S FOLLOWS:- (1) M/S GHAKIMAL HUKAM CHAND 140 GOLF LINK NEW DELHI RS.7 00 000 (2) MS KRISHNA SHAM LAL BAJAJ 140 GOLF LINK NEW DELHI. RS.20 00 000 (3) MR. KUNAL BAJAJ 140 GOLF LINK NEW DELHI. RS.3 00 000 (4) MR. MANNU BAJAJ 140 GOLF LINK NEW DELHI. R S.3 50 000 (5) MS MEERA BAJAJ 140 GOLF LINK NEW DELHI. R S.22 25 000 (6) MR. RANJEET BAJAJ 140 GOLF LINK NEW DELHI. RS. 4 00 000 (7) M/S SHAM LAL R. BAJAJ 140 GOLF LINK NEW DELH I. RS.21 00 000 (8) MR. SHIV BAJAJ 140 GOLF LINK NEW DELHI. R S.3 00 000 RS.83 75 000 4. THE ASSESSEE WAS REQUIRED TO FURNISH THE PROOF TO PROV E THE GENUINENESS OF AFOREMENTIONED LOANS. THE ASSESSEE WAS ALSO REQUIRED TO PRODUCE SMT. KRISHNA SHAM LAL BAJAJ FOR VERIFICAT ION ABOUT THE GENUINENESS OF THESE LOANS. THE OPPORTUNITY WAS GIVEN T O THE ASSESSEE FOR 11 TH DECEMBER 2008 17 TH DECEMBER 2008 AND 22 ND DECEMBER 2008. THE LOAN CREDITORS WERE NOT PRODUCE D. HOWEVER THE ASSESSEE FILED CONFIRMATORY LETTERS SINGED BY SHRI CHARAN JEET SINGH FOR ALL THE ABOVE PERSONS AND THE ASSESSING OFFICER OBSERVED T HAT IT IS NOT KNOWN THAT HOW SHRI CHARANJEET SINGH WAS AUTHORIZED TO SIGN ALL THESE CONFIRMATIONS. THE ASSESSING OFFICER OBSERVED THAT IT IS N ECESSARY FOR THE ASSESSEE TO PROVE THE TRANSACTIONS OF CASH CREDITS IN H IS BOOKS WHICH INCLUDE PROOF OF IDENTITY OF THE CREDITOR CA PACITY OF SUCH CREDITORS TO ADVANCE THE MONEY AND THE GENUINENESS OF THE TRANSACTIONS. ON 26 TH DECEMBER 2008 THE ASSESSEE FILED A REPLY THAT SMT. KRISHNA SHAMLAL BAJAJ AND ALL THE MEMBERS OF HE R FAMILY ARE OUT ITA NO.1241/DEL/2011 3 OF THE COUNTRY. THE ASSESSING OFFICER OBSERVED THAT LIM ITATION TO ASSESS THE ASSESSEE WAS GOING TO EXPIRE ON 31 ST DECEMBER 2008 AND IN THE ABSENCE OF EVEN CONFIRMATIONS FROM THESE CONCER NED LOAN CREDITORS THE GENUINENESS OF THESE LOANS CANNOT BE ACCEP TED. 5. BEFORE CIT (A) IT WAS SUBMITTED THAT THE ASSESSING OFF ICER HAD MISREPRESENTED THE FACTS IN THE ASSESSMENT ORDER THAT CONF IRMATORY LETTERS WERE SINGED BY SHRI CHARANJEET SINGH WERE FIL ED IN RESPECT OF ALL THE EIGHT LOAN CREDITORS WHEREAS THE ASSESSEE AS PER REPLY DATED 26 TH DECEMBER 2008 HAD SUBMITTED THE FOLLOWING DOCUMENTS IN RESPECT OF LOANS RECEIVED FROM LOAN CREDITORS EXCEPT MR. MANU BA JAJ AND M/S GHAKI MAL HUKAM CHAND:- 1. ITR FOR ASSESSMENT YEAR 2006-07 IN SUPPORT OF PROOF O F IDENTITY. 2. BANK STATEMENT IN SUPPORT OF GENUINENESS OF TRANSACTI ON. 3. BALANCE SHEET IN SUPPORT OF CAPACITY OF THE LOAN CREDITOR. 6. IT WAS SUBMITTED THAT THESE DOCUMENTS WERE SUFFICIENT TO PROVE THE LOAN TRANSACTIONS AS THE LOANS RECEIVED WERE THROUG H ACCOUNT PAYEE CHEQUES FROM ALL THE EIGHT LOAN CREDITORS. IT WAS FURTHER SUBMITTED THAT ALL THE LENDERS WERE OUT OF THE COUNTR Y AS THEY HAD MIGRATED ON 22.06.1997 TO CANADA AS NRI AND HAD AUTH ORIZED MR. CHARANJIT SINGH. THE ASSESSEE ALSO FILED AFFIDAVIT OF AL L THE LENDERS BEFORE THE CIT (A) ALONG WITH COPY OF ITR BALANCE SHEET AND BANK STATEMENT OF THESE CREDITORS AND IT WAS SUBMITTED THAT T HESE WERE ALSO SUBMITTED TO THE ASSESSING OFFICER DURING THE COURSE OF A SSESSMENT PROCEEDINGS. COPY OF PASSPORT OF SMT. KRISHNA SHAMLAL BAJAJ AND MR. ANIL BAJAJ KARTA OF M/S SHAMLAL BAJAJ HUF AND PART NER OF M/S GHAKI MAL HUKAM CHAND WERE ALSO FILED TO SHOW THAT THOSE PERSONS W ERE OUT OF INDIA DURING DECEMBER 2008. ALONG WITH ALL THESE E VIDENCES IT WAS ITA NO.1241/DEL/2011 4 SUBMITTED THAT ALL THE LOAN RECEIPTS ARE MADE THROUGH ACCOUNT PAYEE CHEQUES FILED AND LOANS HAVE ALSO BEEN REPAID TO THE L ENDERS BY ACCOUNT PAYEE CHEQUES. AFTER GOING THROUGH ALL THESE DETAILS LEARNED CIT (A) HAS FOUND THAT THESE ARE THE CORRECT SUBMISSIONS OF THE ASSESSEE. 7. LEARNED CIT (A) HAS RECORDED A FINDING THAT THE A FOREMENTIONED ADDITIONAL EVIDENCES WERE PROVIDED TO THE ASSESSING OFFI CER FOR COMMENTS ON THEIR ACCEPTANCE IN THESE PROCEEDINGS. TH E ASSESSEE SUBMITTED THAT ALL THESE ADDITIONAL EVIDENCES ARE IN T HE NATURE OF SUPPORTING EVIDENCE AND THE ASSESSING OFFICER WAS PROVIDE D WITH THE COGENT EVIDENCES WHICH WERE NOT CONSIDERED BY HIM DUR ING THE ASSESSMENT PROCEEDINGS AND IF THOSE WERE CONSIDERED DURING THE ASSESSMENT PROCEEDINGS THE ADDITIONS WOULD NOT HAVE BEEN CALLED FOR. LEARNED CIT (A) ADMITTED THOSE ADDITIONAL EVIDENCES A ND AFTER ADMITTING THESE EVIDENCES LEARNED CIT (A) HAS DELETED THE ADDITION WITH THE FOLLOWING OBSERVATIONS:- 7.1 AS REGARDS THE DISALLOWANCE OF ` 83 75 000/- TH E AR HAS RELIED WHEREBY IT WAS HELD THAT THE CONSIDERATION OF ADD ITIONAL EVIDENCES WHICH AS A MATTER OF FACT COMPRISE OF FACTUAL STATEMENTS SUCH AS AFFIDAVIT BANK STATEMENTS ITR CAPITAL ACCOUNT OF THE LOANERS. I HAVE PERUSED A COPY OF PAS SPORT OF LOANERS SUBMITTED BY THE APPELLANT. IT SEEMS THAT THE LOA NS HAVE GIVEN UNSECURED LOANS FROM THEIR SUFFICIENT AVAI LABLE CAPITAL AND THEY WERE OUT OF COUNTRY DURING DECEMBER 2 008 AND IN THEIR ABSENCE THEIR ACCOUNTANT MR. CHARANJIT HAS SIGN ED THE CONFIRMATORY LETTERS ON THEIR BEHALF. THEREFORE IN VI EW OF THE FACTUAL POSITION AND THE CASE LAWS RELIED UPON BY THE A SSESSEE I FIND THAT THE DISALLOWANCE OF UNSECURED LOANS IS NOT CA LLED FOR. THE ASSESSEE HAD RECEIVED THE LOANS BY CHEQUES AND M ADE PAYMENT BY CHEQUES HENCE THERE NEED NOT BE ANY ADDITI ON ON THIS ACCOUNT. (STATEMENT OF RECEIPT & PAYMENT ENCLOSED) H ENCE ADDITION OF RS.83 75 000/- IS DELETED. 8. APROPOS GROUND NO.2 IT WAS OBSERVED BY THE ASSESSING O FFICER THAT THE ASSESSEE HAD PAID INTEREST OF ` 26 45 789/- ON THE LOAN TAKEN ITA NO.1241/DEL/2011 5 BY HIM AS AGAINST THE INTEREST RECEIPT OF ` 26 45 789/ -. THE INTEREST WAS STATED TO BE PAID TO VARIOUS PERSONS ON LOAN TAKEN B Y THE ASSESSEE. IT WAS SUBMITTED THAT ACTUAL INTEREST PAID IS ` 33 71 489/- BUT WAS CLAIMED ONLY TO THE EXTENT OF INTEREST RECEIV ED. THE ASSESSEE WAS REQUIRED TO ESTABLISH THE NEXUS BETWEEN THE INTEREST EXPENDITURE WITH THE INCOME EARNED. THE ASSESSING OFFICER OBSERVED THAT THE INVESTMENT OF THE ASSESSEE WAS IN THE FOLLOWING ASSETS:- (1) AGRICULTURAL LAND RS.50 50 000 (2) LAND AT BOMBAY RS. 7 37 179 (3) JEWELLERY RS. 5 28 622 (4) SELF OCCUPIED RESIDENTIAL HOUSE RS.92 12 841 AT B-66 DEFENCE COLONY NEW DELHI. (5) PLANT & MACHINERY (NOT IN USE) RS.62 40 000 (6) PROVIDENT FUND RS.11 08 338 (7) INVESTMENT INS HARES RS.2 90 22 000 RS.5 07 90 642 9. FROM THE PERUSAL OF THE ABOVE DETAILS IT WAS OBSERV ED THAT THE INVESTMENT WAS MADE BY THE ASSESSEE ON THE ASSETS THE INCOM E OF WHICH DO NOT FORM PART OF THE TOTAL INCOME AND THE REFORE THE ASSESSING OFFICER OBSERVED THAT SECTION 14A WAS APPLICABL E. VIDE LETTER DATED 26 TH DECEMBER 2008 THE ASSESSEE HAD GIVEN THE DETAILS OF UTILIZATION OF BORROWED FUNDS WHICH WAS UTILIZED FOR LOANS GIVEN ON INTEREST WHEREVER INTEREST INCOME WAS RECEIVED. THE L IST CONTAINED THE NAME OF 32 PARTIES FROM WHOM THE LOANS WERE TAKEN AND INTEREST WAS PAID BUT THE ASSESSING OFFICER OBSERVED THAT THE NEXUS O F THESE LOANS VIS-A-VIS LOAN GIVEN ON INTEREST WAS NOT GIVEN WITH RE SPECT TO ALL THE LOANS TAKEN. IT WAS SUBMITTED THAT THE NEXUS CAN BE GI VEN ABOUT THE LOANS RAISED DURING THE YEAR AND SUBSTANTIAL PART OF TH E LOANS WAS PAID ON THE LOANS RAISED IN EARLIER YEARS. HOWEVER TAKING INTO CONSIDERATION THE INVESTMENT OF THE ASSESSEE IN THE ASSETS FROM WHERE EAR NED ITA NO.1241/DEL/2011 6 INCOME WAS EXEMPTED THE ASSESSING OFFICER ESTIMATED THE DISALLOWANCE TO ` 12 LAC. THE ADDITION WAS AGITATED IN THE APPEAL FILED BEFORE THE CIT (A). RELIANCE WAS PLACED ON THE DECI SION OF ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. PREM ENGINEERING W ORKS PVT. LTD. 285 ITR 554 (ALL) TO CONTEND THAT WHERE SUFFICIENT I NTEREST FREE FUNDS WERE AVAILABLE WITH THE ASSESSEE DISALLOWANCE OUT OF IN TEREST PAID COULD NOT BE MADE. IT WAS THE SUBMISSION OF THE ASSESSEE TH AT THE FUNDS AVAILABLE WITH THE ASSESSEE WERE TO THE TUNE OF ` 4 58 06 500/- OUT OF WHICH LOANS WERE GIVEN. ON THESE SUBMISSIONS LEAR NED CIT (A) HAS DELETED THE DISALLOWANCE WITH THE FOLLOWING OBSERV ATIONS:- 7.2 THE APPELLANT HAS RECEIVED INTEREST INCOME OF RS.26 45 789/- AGAINST WHICH INTEREST EXPENSES OF RS.3 3 71 489/- HAVE BEEN PAID. AFTER SETTING OFF INTEREST EXPENSES TO TH E EXTENT OF INTEREST INCOME RECEIVED NIL INCOME HAS BEEN CLAIM ED UNDER THIS HEAD INCOME FROM OTHER SOURCES ACCORDINGLY. HOWEVER THE LD. A.O. HAS OBSERVED THAT BOTH TRANSACTIONS (INTEREST PAYMENT & INTEREST RECEIPT) DO NOT BEAR ANY RELA TION. THE A.O. SAYS THAT THE ASSESSEE COULD NOT PROVE ANY NEX US BETWEEN LOAN TAKEN AND GIVEN DURING THE YEAR. HOWEVER HE HAD ESTIMATED THE DISALLOWANCE OF INTEREST OF RS.12 00 000/- DURING THE YEAR WITHOUT CONSIDERING THE BOOKS OF ACCOUNTS MAINTA INED BY THE ASSESSEE OR REJECTING HIS BOOKS OF ACCOUNTS. THE ASSESSEE IS DOING REGULARLY MONEY LENDING BUSINESS AT THE RATE OF 8% 10% AND 15%. IN ONE WIDOW CASE INTEREST WAS 20% ON RS.2.50 LACS ON CHARITABLE GROUND FOR HER MAINTENANC E. THE CHART FOR BOTH GIVING AND RECEIVING LOANS IS ENCLOSED IN WRITTEN SUBMISSION. THE AR FURTHER ARGUED THAT THE ASSESSEE HA D NOT CLAIMED RS.7 25 700/- LOSS (INTEREST RECEIVED OF RS.2 6 45 789/-(-) INTEREST PAID OF RS.33 71 489/- IN THE COMPUTATION OF IN COME. CONSIDERING ALL THESE ASPECTS I FIND THE ESTIMATION MAD E BY A.O. WRONG AND INCORRECT WHEN THE ASSESSEE IS MAINTAINING COMPLETE SET OF BOOKS OF ACCOUNT. THEREFORE THE ADDITION OF RS.12 00 000/- MADE BY A.O. ON ESTIMATE BASIS ON DISA LLOWANCE OF INTEREST IS DELETED. 10. AFTER NARRATING THE FACTS IT WAS SUBMITTED BY THE LEARNED DR THAT IT HAS CLEARLY BEEN RECORDED IN THE ASSESSMENT ORDER THA T THE ASSESSEE EVEN DID NOT FURNISH THE CONFIRMATIONS FROM ALL THESE LOAN CREDITORS AND ITA NO.1241/DEL/2011 7 THE CONFIRMATION WAS FILED ONLY BY ONE SHRI CHARANJI T SINGH AND IT WAS NOT SHOWN THAT IN WHAT CAPACITY HE HAD SIGNED THOSE CO NFIRMATIONS. SHE SUBMITTED THAT AS PER REQUIREMENTS OF THE STATUTE TO PROVE THE GENUINENESS OF THE CASH CREDIT THE ASSESSEE IS UNDER AN OB LIGATION TO PROVE THE IDENTITY CREDIT WORTHINESS AND GENUINENESS O F THE TRANSACTION. SHE SUBMITTED THAT THE BASIC EVIDENCE RE QUIRED TO PROVE THE CASH CREDIT IS THE CONFIRMATION TO BE GIVEN BY TH E CREDITOR WHO ARE STATED TO BE ABSENT FROM INDIA. SHE SUBMITTED THAT BEF ORE CIT (A) VOLUMINOUS EVIDENCE WAS FILED AND THE SAME HAS BEEN ADM ITTED IN VIOLATION OF RULE 46A. REFERRING TO THE PROVISIONS O F RULE 46A IT WAS SUBMITTED BY HER THAT THERE IS A SET PROCEDURE WHICH H AS TO BE ADOPTED FOR ADMISSION OF ADDITIONAL EVIDENCE AND IN THE ORDER OF CIT (A) NOWHERE IT IS STATED THAT THE SET PROCEDURE WAS ADOPTED BY LEARNED CIT (A). SHE SUBMITTED THAT UNDER RULE 46A (2) IF ANY ADDITIONAL EVIDENCE IS ADMITTED BY LEARNED CIT (A) THEN HE IS UNDER AN OBLIGATION TO GIVE THE REASONS FOR ITS ADMISSION AND HE HAS ALSO TO PROVIDE T O THE ASSESSING OFFICER A REASONABLE OPPORTUNITY TO EXAMINE TH E EVIDENCE OR DOCUMENT OR TO CROSS EXAMINE THE WITNESS PRODUCED BY TH E ASSESSEE. SHE SUBMITTED THAT THE CASE OF THE ASSESSEE SHOULD FALL UN DER ONE OF THE INSTANCES MENTIONED UNDER RULE 46A(1) AND IT HAS N OT BEEN POINTED OUT BY LEARNED CIT (A) THAT UNDER WHICH INST ANCE THE CASE OF THE ASSESSEE FALLS. THUS IT WAS SUBMITTED BY HER THAT THE RE IS A VIOLATION OF RULE 46A AND THE MATTER SHOULD BE SENT B ACK TO THE FILE OF ASSESSING OFFICER TO PROVIDE THE ASSESSING OFFICER WITH THE OPPORTUNITY OF HEARING AND TO CROSS EXAMINE THE EVIDENCE SUBMITTED BY THE ASSESSEE. 11. APROPOS GROUND NO.2 IT WAS SUBMITTED BY HER THAT LEARNED CIT (A) IN HIS ORDER HAS NOT BROUGHT OUT AS TO HOW THE INT EREST PAID BY THE ASSESSEE HAD ANY BEARING ON THE INTEREST RECEIVED BY THE ASSESSEE. SHE SUBMITTED THAT THE ASSESSING OFFICER HAS RIGHTLY BROU GHT THE FACTS ITA NO.1241/DEL/2011 8 ON RECORD THAT THE INCOME OF THE ASSESSEE WERE EXEMPTED INCOME. SHE SUBMITTED THAT UNLESS THE ASSESSEE ESTABLISH THE NEXUS BE TWEEN THOSE TWO ACTIVITIES THE DISALLOWANCE CANNOT BE DELET ED. THUS SHE SUBMITTED THAT THIS ISSUE ALSO SHOULD BE RESTORED BACK TO THE FILE OF ASSESSING OFFICER FOR DETERMINATION THEREOF. 12. WE HAVE HEARD THE LEARNED DR AND WE HAVE GONE T HROUGH THE ORDER PASSED BY THE ASSESSING OFFICER AND CIT (A). FROM THE ORDER OF ASSESSING OFFICER IT IS CLEAR THAT AT THE ASSESSMENT STAGE T HE CONFIRMATIONS SIGNED BY THE LOAN CREDITORS WERE NOT F ILED. NO DOCUMENT WAS SUBMITTED TO SUPPORT THAT SHRI CHARANJIT SINGH WAS AUTHORIZED TO SIGN CONFIRMATIONS ON BEHALF OF THE LOA N CREDITORS. PROBABLY CONFIRMATIONS COULD NOT BE FILED DUE TO THE FACT THAT ALL THE LOAN CREDITORS WERE STATED TO BE OUT OF INDIA. THOUG H IT HAS BEEN MENTIONED IN THE ORDER OF THE CIT (A) THAT THOSE ADD ITIONAL EVIDENCES WERE PROVIDED TO THE ASSESSING OFFICER FOR HIS COMMENTS BUT LEARNED CIT (A) HAS NOT RECORDED THE OBJECTIONS OF THE ASSESSING OFFICER. THE ADDITIONAL EVIDENCES HAVE BEEN ADMITTED BY LEARNED C IT (A) AS PER PARA 6 WITH THE FOLLOWING OBSERVATIONS:- 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON THE IS SUE OF CONSIDERING THE ADDITIONAL EVIDENCES AND FIND THAT IT WI LL BE IN THE INTEREST OF NATURAL JUSTICE TO CONSIDER ADDITIONAL EVI DENCES WHICH AS A MATTER OF FACT COMPRISE OF FACTUAL STATEMENTS S UCH AS AFFIDAVIT BANK STATEMENTS ITR CAPITAL ACCOUNT OF THE LE NDERS. IN ADDITION THESE EVIDENCES ARE ONLY IN THE NATURE OF SUPP ORTING EVIDENCE TO SUBSTANTIATE THE EVIDENCE ALREADY FURNISHED DURING THE ASSESSMENT PROCEEDINGS. 13. FROM THE ABOVE OBSERVATIONS IT IS CLEAR THAT THESE EVIDENCES HAVE BEEN ADMITTED ONLY ON THE GROUND THAT IT WILL MEET THE INTEREST OF NATURAL JUSTICE. IT HAS NOT BEEN RECORDED THAT WHAT W ERE THE COMMENTS OF THE ASSESSING OFFICER ON THESE EVIDENCES. AS PER MANDA TE OF RULE 46A THOUGH THE EVIDENCE CAN BE ADMITTED BY THE LEA RNED CIT (A) AFTER ITA NO.1241/DEL/2011 9 RECORDING THE REASONS IN WRITING FOR ITS ADMISSION BUT AS PER MANDATE OF RULE 46A (3) LEARNED CIT (A) SHALL NOT TAKE INTO ACCOUNT ANY EVIDENCE PRODUCED UNDER SUB-RULE (1) UNLESS THE ASSESSING OFFICER H AS BEEN ALLOWED A REASONABLE OPPORTUNITY TO EXAMINE THE EVID ENCE OR DOCUMENT OR TO CROSS-EXAMINE THE WITNESS PRODUCED BY TH E APPELLANT OR TO PRODUCE ANY EVIDENCE OR DOCUMENT OR ANY WITN ESS IN REBUTTAL OF THE ADDITIONAL EVIDENCE PRODUCED BY THE APPELLANT. FROM THE ORDER OF CIT (A) IT IS NOT CLEAR THAT WHAT WERE THE OBJECTION S OF THE ASSESSING OFFICER ON THE ADDITIONAL EVIDENCE ADMITTED BY LEAR NED CIT (A) AND HOW THOSE OBJECTIONS WERE NOT VALID. 14. ON THE OTHER ISSUE ALSO THE ADDITION OF ` 12 LAC HAS BEEN DELETED BY LEARNED CIT (A) SIMPLY FOR THE REASON THAT THE DISALLOWANCE HAS BEEN ESTIMATED WITHOUT CONSIDERING THE BOOKS OF ACC OUNT MAINTAINED BY THE ASSESSEE OR REJECTING THE BOOKS OF ACC OUNT. IT HAS BEEN OBSERVED BY THE LEARNED CIT (A) THAT THE ASSESSEE I S REGULARLY DOING MONEY LENDING BUSINESS. THE ASSESSEE ALSO IN ITS REPL Y HAD SUBMITTED THAT IT HAD FUNDS TO THE TUNE OF ` 4 58 06 500/- BUT IT HAS NOT BEEN BROUGHT OUT THAT WHETHER THOSE FUNDS AVAILAB LE WITH THE ASSESSEE WERE INTEREST FREE FUNDS AND OWN FUNDS AND WHETHE R OR NOT THOSE WERE BEARING INTEREST. THE ASSESSING OFFICER IN HI S ORDER HAS BROUGHT OUT THE FACT THAT THE ASSESSEE HAD CERTAIN ASSETS OUT OF WHICH INCOME GENERATED WAS NOT TAXABLE. ACCORDING TO THE P ROVISIONS OF SECTION 14A REASONABLE DISALLOWANCE HAS TO BE MADE WI TH REGARD TO INTEREST. THEREFORE DELETION OF INTEREST IN ITS ENTI RETY WILL BE CONTRARY TO THE PROVISIONS OF SECTION 14A. IT HAS NOT BEEN DISTI NGUISHED BY THE LEARNED CIT (A) HOW THE PROVISIONS OF SECTION 14A WER E NOT APPLICABLE. 15. KEEPING IN VIEW THE ABOVE DISCUSSION AND THE ENTIR ETY OF FACTS WE ARE OF THE OPINION THAT IT WILL BE PROPER TO REST ORE BOTH THESE ISSUES TO THE FILE OF ASSESSING OFFICER FOR FRESH CONSIDERATION AFTER GIVING THE ITA NO.1241/DEL/2011 10 ASSESSEE A REASONABLE OPPORTUNITY OF HEARING IN THIS REGA RD. WE ORDER ACCORDINGLY. 16. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.20 12. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 03.02.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES