Smt. Zulaikha Jaffar, Bangalore v. ITO, Bangalore

ITA 354/BANG/2010 | 2006-2007
Pronouncement Date: 28-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 35421114 RSA 2010
Assessee PAN AFZPJ3590E
Bench Bangalore
Appeal Number ITA 354/BANG/2010
Duration Of Justice 1 year(s) 6 month(s) 21 day(s)
Appellant Smt. Zulaikha Jaffar, Bangalore
Respondent ITO, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 28-09-2011
Date Of Final Hearing 28-09-2011
Next Hearing Date 28-09-2011
Assessment Year 2006-2007
Appeal Filed On 09-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BANGALORE BEFORE SHRI N.K.SAINI ACCOUNTANT MEMBER AND SMT. P.MADHAVI DEVI JUDICIAL MEMBER ITA NO.354(BANG)/2010 (ASSESSMENT YEAR: 2006-07 ) SMT. ZULAIKHA JAFFAR FLAT NO.1002 MARKESH (NEAR WOOD DCOR) NO.8/1 ST. MARKS ROAD BANGALORE-560001 PAN :AFZPJ3590E VS. APPELLANT INCOME-TAX OFFICER WARD 1(3) BANGALORE. RESPONDENT APPELLANT BY: SMT.SHEETHAL. RESPONDENT BY : SMT.SUSAN THOMAS JOSE. DATE OF HEARING: 28-09-2011 DATE OF PRONOUNCEMENT: 28-09-2011 O R D E R PER N.K.SAINI AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 11-12-2009 OF THE LD.CIT(A)-I BANGALORE. THE FOLL OWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS)-I BANGALORE ERRED IN PASSING THE ORDER IN THE MANNER IN WHICH IT WAS DONE. 2. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I GROSSLY ERRED IN NOT APPRECIATING THAT THE CAPITAL GAINS AROSE ONLY IN THE YEAR 2007-08 AND THEREFORE ITA 354(BANG)/2010 PAGE 2 OF 11 ASSESSING THE CAPITAL GAINS FOR THE YEAR UNDER CHALLENGE IS NOT JUSTIFIABLE. 3. WITHOUT PREJUDICE THE COMMISSIONER OF INCOME- TAX(APPEALS)-I OUGHT TO HAVE APPRECIATED THAT THE APPELLANT RECEIVED ONLY ` .36 11 111/- AS HER SHARE WHICH WAS TO BE TAXED IN THE ASSESSMENT YEAR 2007-08. 4. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I GROSSLY ERRED IN NOT APPRECIATING THAT THERE WAS A CLEAR UNDERSTANDING BETWEEN THE APPELLANT AND THE BUYER TO THE EFFECT THAT THE POSSESSION AND THE ORIGINAL TITLE DEEDS WOULD BE HANDED OVER ONLY AFTE R THE BUYER MAKING THE FULL PAYMENT WHICH WAS ALSO SUPPORTED BY THE CONFIRMATION LETTER ISSUED BY THE BUYER. THEREFORE THE CAPITAL GAINS AROSE ONLY DURING THE ASSESSMENT YEAR 2007-08 AND NOT FOR THE ASSESSMENT YEAR 2006-07. 5. THE COMMISSIONER OF INCOME-TAX(APPEALS)-I OUGHT TO HAVE DELETED THE INTEREST LEVIED UNDER SECTIONS 234A AND 234B. 2. FROM THE GROUNDS OF APPEAL IT APPEARS THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE ADDITION M ADE BY THE AO AND SUSTAINED BY THE LD.CIT(A) ON ACCOUNT OF CAP ITAL GAINS. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE WAS ENJOYING INCOME FROM HOUSE PROPERTY AND FILED RETUR N OF INCOME ON 31-3-2007 DECLARING INCOME OF ` 1 99 486/- WHICH WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT 1961 [H EREINAFTER REFERRED TO AS 'THE ACT']. LATER ON THE CASE WAS S ELECTED FOR SCRUTINY. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS THE AO NOTICED THAT THE ASSESSEE SOLD PROPERTY ON 20 TH MARCH 2006 FOR A SUM OF `95 20 900/-. HE CONSIDERED THE ENTIRE VAL UE AS LONG TERM CAPITAL GAIN AND ADDED TO THE INCOME OF THE AS SESSEE. ITA 354(BANG)/2010 PAGE 3 OF 11 3.1 THE ASSESSEE CARRIED THE MATTER TO THE LD.CIT(A ). THE SUM AND SUBSTANCE OF THE CONTENTIONS RAISED BEF ORE HIM WAS THAT THE AO SHOULD HAVE APPRECIATED THE FACT TH AT THE POSSESSION OF THE PROPERTY WAS WITH THE FOUR CO-OWN ERS JOINTLY AND NOT BY THE ASSESSEE ALONE AND THAT THE SAME FEL L IN THE ASSESSMENT YEAR 2007-08 AND NOT IN THE ASSESSMENT Y EAR 2006-07 BECAUSE THE POSSESSION OF THE LAND AND BUIL DING WAS HANDED OVER ON 16-4-2006. IT WAS ALSO PLEADED THAT THE BENEFIT OF INDEXATION SHOULD HAVE BEEN ALLOWED FROM THE SAL E CONSIDERATION. 3.2 THE LD.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE AO HAD NOT GIVEN THE BENEFIT OF INDEXATION WHILE COMPUTING LONG TERM CAPITAL GAIN A ND HAD TAKEN THE COST OF ACQUISITION AS ZERO. ACCORDING T O HIM THE AO SHOULD HAVE CONSIDERED THE ISSUE BECAUSE THE ASSESS EE IS LEGALLY ENTITLED FOR THE BENEFIT OF INDEXATION. HE DIRECTED THE AO TO EXAMINE AND FIND OUT IN WHICH MANNER THE PROPERT Y WAS DEVOLVED ON THE ASSESSEE BECAUSE SO FAR AS THE TERM S OF SALE DEED WAS CONCERNED IT DEMONSTRATED THAT IT HAD NOT DEVOLVED EITHER THROUGH GIFT OR WILL. NOW THE ASSESSEE IS IN APPEAL. 3.3 DURING THE COURSE OF HEARING THE ASSESSEE MOVE D AN APPLICATION UNDER RULE 29 OF THE INCOME-TAX APPELLA TE TRIBUNAL RULES 1963 [HEREINAFTER REFERRED TO AS THE ITAT R ULES] STATING THEREIN AS UNDER: IT IS SUBMITTED THAT THE FOLLOWING DOCUMENTS ARE N OT PRODUCED DURING THE ASSESSMENT PROCEEDINGS. THE COP Y ITA 354(BANG)/2010 PAGE 4 OF 11 OF SALE DEED EXECUTED ON 20/3/2006 COMPUTATION STATEMENT FOR THE AYR 2006-07 CONFIRMATION LETTER FROM THE PURCHASER OF THE PROPERTY WAS FURNISHED BEFORE THE ASSESSING AUTHORITY AND IT WAS BELIEVED THAT THE SA ID DETAILS WERE SUFFICIENT. IN THE CIRCUMSTANCES THE ACCOMPANYING DOCUMENTS COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER NOR BEFORE THE COMMISSIONER O F INCOME TAX (A) SINCE WE WERE UNDER A BONAFIDE INFORMATION THAT WHAT DETAILS WE HAVE FURNISHED EIT HER BEFORE THE ASSESSING OFFICER OR CIT(A) WERE ADEQUAT E. THE NON PRODUCTION OF THESE DOCUMENTS WAS ON ACCOUN T OF BONAFIDE MISTAKE AND NOT DUE TO ANY DELIBERATE O R MALAFIDE INTENTION. THESE DOCUMENTS ARE VERY MUCH ESSENTIAL IN ORDER TO PROVE THE ISSUE IN HAND AND T HESE DOCUMENTS WERE ONLY SUPPORTING THE SUBMISSIONS ALREADY MADE BEFORE THE ASSESSING AUTHORITY AND CIT(A). ACCORDINGLY THESE DOCUMENTS ARE BEING PLAC ED ON RECORD. IT IS THEREFORE PRAYED THE SAME MAY KIND LY BE ADMITTED AND KINDLY BE CONSIDERED WHILE DISPOSIN G THE APPEAL IN THE INTERESTS OF JUSTICE. THE ASSESSEE FURNISHED AN AFFIDAVIT WHEREIN IT HAS BEEN MENTIONED THAT THOUGH THE SALE TOOK PLACE ON 20-3-2 006 THE POSSESSION WAS HANDED OVER ONLY ON 15-4-2006. 3.4 LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED TH E ADMISSION OF ADDITIONAL EVIDENCE AND SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE FILED THOSE DOCUMENTS EITHER BEFORE THE AO OR BEFORE THE LD.CIT(A) AND SINCE THOSE DOCUMENT S WERE NOT FURNISHED EARLIER THEY SHOULD NOT BE ADMITTED AT T HIS STAGE. 3.5 WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN ITA 354(BANG)/2010 PAGE 5 OF 11 OUR OPINION ALTHOUGH THE DOCUMENTS WHICH ARE FURNI SHED ALONG WITH APPLICATION UNDER RULE 29 OF THE ITAT RULES FO R THE FIRST TIME BEFORE THE TRIBUNAL BY THE ASSESSEE BUT THESE ARE RELEVANT AND GO INTO THE ROOT OF THE PRESENT CONTROVERSY. N ON- PRODUCTION OF THOSE DOCUMENTS WAS BONAFIDE MISTAKE AND NOT DUE TO DELIBERATE OR MALAFIDE INTENTION OF THE ASSE SSEE. AS PER THE PROVISIONS CONTAINED IN RULE 29 OF THE ITAT RUL ES THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PROD UCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIB UNAL. THE PROVISIONS CONTAINED IN THE SAID RULE ARE PARI MATERIA WITH ORDER 41 RULE 27 OF THE CODE OF CIVIL PROCEDURE 1908 WH ICH ALSO DOES NOT ALLOW THE PARTY TO THE APPEAL TO ADDUCE AN Y ADDITIONAL EVIDENCE UNLESS AND UNTIL SUCH EXCEPTIONAL CIRCUMST ANCES ARE SET OUT. IN THE INSTANT CASE THE AFFIDAVIT NOW FU RNISHED BY THE ASSESSEE ALONG WITH MAP SHOWING THE DETAILS OF THE SHARES OF CO-OWNERS COULD NOT BE PRODUCED BY THE ASSESSEE EIT HER BEFORE THE AO OR BEFORE THE LD.CIT(A) UNDER THE BONA FIDE IMPRESSION THAT WHATEVER DOCUMENTS HAD BEEN FURNISHED BEFORE T HE AO OR THE LD.CIT(A) WERE ADEQUATE. IN OUR OPINION THE A SSESSEE COMMITTED BONA FIDE MISTAKE WITHOUT ANY DELIBERATE OR MALAFIDE INTENTION. WE THEREFORE ARE OF THE OPINION THAT THE EXPLANATION OF THE ASSESSEE THAT DUE TO OVERSIGHT THE DOCUMENTS IN THE SHAPE OF NEW EVIDENCE NOW FURNISHE D AS ADDITIONAL EVIDENCE COULD NOT BE FURNISHED EITHER B EFORE THE AO OR BEFORE THE LD.CIT(A) IS A PLAUSIBLE EXPLANATION. ACCORDINGLY WE ARE OF THE VIEW THAT THESE DOCUMENTS SHALL BE AD MITTED BUT ITA 354(BANG)/2010 PAGE 6 OF 11 AT THE SAME TIME OPPORTUNITY HAS TO BE GIVEN FOR T HE REBUTTAL TO THE OTHER PARTY. 3.6 AS REGARDS THE ADMISSION OF THE ADDITIONAL EVID ENCE THE HONBLE MADRAS HIGH COURT IN THE CASE OF ANAIKA R TRADE AND ESTATES (P) LTD (NO.2) VS. CIT 186 ITR 313 HAS HEL D AS UNDER: THE TRIBUNAL HAS DISCRETION TO ALLOW THE PRODUCTIO N OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE ITAT RULES 1963 IF THE TRIBUNAL REQUIRES ANY DOCUMENT T O BE PRODUCED OR AFFIDAVIT TO BE FILED TO ENABLE IT T O PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE IT MAY ALLOW THE DOCUMENT TO BE PRODUCED OR THE AFFIDAVITS TO BE FILED. EVEN IF THERE WAS A FAILURE TO PRODUCE THE DOCUMENTS BEFORE THE ITO AND THE A.A.C THE TRIBUNAL HAS THE JURISDICTION IN THE INTERESTS OF J USTICE TO ALLOW THE PRODUCTION OF SUCH VITAL DOCUMENTS. 3.7 IN THE PRESENT CASE ALSO THE DOCUMENTS FURNISHE D BY THE ASSESSEE ARE VITAL WHICH GO TO THE ROOT OF THE PRESENT CONTROVERSY SO THESE ARE TO BE ADMITTED IN THE INT EREST OF NATURAL JUSTICE BUT THESE DOCUMENTS ARE REQUIRED TO BE EXAMINED AND CONSIDERED AT THE LEVEL OF THE AO. WE THEREFORE SET ASIDE THE IMPUGNED ORDER AND REMAND THE PRESENT ISSUE BACK TO THE FILE OF THE LEARNED AO TO BE DECIDED AF RESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3.8 FOR THE AFORESAID VIEW WE ARE ALSO FORTIFIED B Y THE DECISION OF THE ITAT DELHI BENCH F IN THE CASE OF UOP LIC V ADDITIONAL DIRECTOR OF INCOME-TAX INTERNATIONAL TA XATION CIRCLE 2(2) NEW DELHI (2007) 108 LTD 186 WHEREIN RELEVANT FINDINGS GIVEN IN PARAS NO 30 31 33 48 52 READ AS UNDER: ITA 354(BANG)/2010 PAGE 7 OF 11 30. IT IS A SETTLED POSITION THAT PRODUCTION OF ADDITIONAL EVIDENCE AT THE APPELLATE STAGE IS NOT A MATTER OF RIGHT TO LITIGATING PUBLIC AND ALLOWING O F PRODUCTION OF ADDITIONAL EVIDENCE IS IN THE DISCRET ION OF THE TRIBUNAL. THE SAID DISCRETION HOWEVER IS TO BE EXERCISED JUDICIALLY AND NOT ARBITRARILY. AS HELD B Y HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CI T V. KUM. SATYA SETIA (1983) 143 ITR 486 IT IS WITHI N THE DISCRETION OF THE APPELLATE AUTHORITY TO ALLOW PRODUCTION OF ADDITIONAL EVIDENCE IF THE SAID AUTHO RITY REQUIRES ANY DOCUMENT TO ENABLE IT TO PASS ORDERS O R FOR ANY OTHER SUBSTANTIAL CAUSE. THE TRIBUNAL IS TH E FINAL FACT FINDING BODY UNDER THE SCHEME OF THE INC OME TAX ACT 1961 AND POWERS THEREFORE HAVE NECESSARILY TO BE EXERCISED BY IT FOR DECIDING THE QUESTIONS OF FACT. WHILE EXERCISING ITS POWERS IF THE TRIBUNAL IS OF THE OPINION THAT ADDITIONAL EVIDENCE IS MATERIAL IN THE INTEREST OF JUSTICE FOR DECIDING A PARTICULAR ISSUE ITS DISCRETION CANNOT BE INTERFERED WITH UNLESS IT HAS BEEN EXERCISED ON NON EXISTING OR IMAGINARY GROUNDS. IN THE CASE OR MAHAVIR SINGH (SUPRA) CITED BY THE LD. COUN SEL FOR THE ASSESSEE IT WAS HELD THAT SECTION 107 OF CP C ENABLES AN APPELLATE COURT TO TAKE ADDITIONAL EVIDE NCE OR TO REQUIRE SUCH OTHER EVIDENCE TO BE TAKEN SUBJE CT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBE D UNDER ORDER 41 OF RULE 27 OF CPC. IT WAS ALSO HELD THAT THE PARTIES ARE NOT ENTITLED AS OF RIGHT TO THE ADMISSION OF SUCH EVIDENCE AND THE MATTER IS ENTIRE LY IN THE DISCRETION OF THE COURT WHICH IS OF COURSE T O BE EXERCISED JUDICIALLY AND SPARINGLY. IT WAS OBSERVED THAT ORDER 41 RULE 27 OF CPC ENVISAGES CERTAIN CIRCUMSTANCES WHEN ADDITIONAL EVIDENCE CAN BE ADDUCED AND ONE OF SUCH CIRCUMSTANCES IS WHERE THE APPELLATE COURT REQUIRES ANY DOCUMENT TO BE PRODUCE D OR ANY WITNESS TO BE EXAMINED TO ENABLE IT TO PRONOUNCE JUDGMENT OR FOR ANY OTHER SUBSTANTIAL CAUSE. IT WAS ALSO CLARIFIED THAT THE EXPRESSION T O ENABLE IT TO PRONOUNCE JUDGMENT CONTEMPLATES A SITUATION WHEN THE APPELLATE COURT FINDS ITSELF UNA BLE TO PRONOUNCE JUDGMENT OWING TO A LACUNA OR DEFECT IN T HE EVIDENCE AS IT STANDS. IN THE CONTEXT IT WAS FURTHER CLARIFIED THAT THE ABILITY TO PRONOUNCE A JUDGMENT IS TO BE UNDERSTOOD AS THE ABILITY TO PRONOUNCE A JUDGMENT SATISFACTORY TO THE IT MIND OF COURT DELIVERING IT. THIS POSITION WAS REITERATED A GAIN BY THE HONBLE SUPREME COURT IN THE CASE OF SYED ABDUL KHADER VS. RAMI REDDY AIR 1979 S.C. 553 CITED BY THE LD.COUNSEL FOR THE ASSESSEE. IN THE CA SE OF MUNICIPAL CORP. OF GREATER BOMBAY VS. LALA PANCHAN AIR 1965 S.C. 1008 CITED BY THE LD. COUNSEL FOR THE ASSESSEE IT WAS OBSERVED BY THE HONBLE SUPREME ITA 354(BANG)/2010 PAGE 8 OF 11 COURT THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE D OES NOT ENTITLE THE APPELLATE COURT TO LET IN FRESH EVI DENCE ONLY FOR THE PURPOSE OF PRONOUNCING JUDGMENT IN A PARTICULAR WAY AND IT IS ONLY FOR REMOVING A LACUNA IN THE EVIDENCE THAT THE APPELLATE COURT IS EMPOWERED TO ADMIT ADDITIONAL EVIDENCE. IN THE CASE OF ARJAN SIN GH V. KARTAR SINGH AIR 1951 S.C. 193 IT WAS HELD THAT THE DISCRETION GIVEN TO THE APPELLATE COURT BY ORDER 41 RULE 27 OF CPC TO RECEIVE AND ADMIT ADDITIONAL EVIDENCE IS NOT AN ARBITRARY ONE BUT IS A JUDICIAL ONE CIRCUMSCRIBED BY THE LIMITATIONS SPECIFIED IN THAT RULE. IT WAS ALSO HELD THAT THE LEGITIMATE OCCASION FOR T HE APPLICATION OF THE SAID RULE IS WHEN ON EXAMINING T HE EVIDENCE AS IT STANDS SOME INHERENT LACUNA OR DEFEC T BECOMES APPARENT. TO THE SIMILAR EFFECT IS ANOTHER DECISION OF HONBLE SUPREME COURT IN THE CASE OF NA THA SINGH VS. FINANCIAL COMMISSIONER TAXATION ALR 1976 S.C. 1053. 31. AS PER RULE 29 OF THE APPELLATE TRIBUNAL RULES 1963 THE TRIBUNAL HAS THE POWER TO ALLOW ADDITIONA L EVIDENCE NOT ONLY IF IT REQUIRES SUCH EVIDENCE TO ENABLE IT TO PRONOUNCE JUDGMENT BUT ALSO FOR ANY OTHER SUBSTANTIAL CAUSE. THERE MAY BE CASES WHERE EVEN THOUGH THE TRIBUNAL FINDS THAT IT IS ABLE TO PRONOUNCE JUDGMENT ON THE STAGE OF RECORD AS IT IS AND SO IT CANNOT STRICTLY SAY THAT IT REQUIRES ADDITION AL EVIDENCE TO ENABLE IT TO PRONOUNCE JUDGMENT IT STIL L CONSIDERS THAT IN THE INTEREST OF JUSTICE SOMETHIN G WHICH REMAINS OBSCURE SHOULD BE FILED UP SO THAT I T CAN PRONOUNCE THE JUDGMENT IN A MORE SATISFACTORY MANNER. SUCH REQUIREMENT OF THE TRIBUNAL IS LIKELY TO ARISE ORDINARILY WHEN SOME INHERENT LACUNA OR DEFE CT BECOMES APPARENT UPON ITS APPRECIATION OF THE EVIDENCE. THE POWER OF THE TRIBUNAL TO ADMIT ADDITI ON EVIDENCE IN SUPPORT OF THE CLAIM IN APPEAL IS DISCRETIONARY AND NO FETTERS CAN BE IMPOSED ON THE EXERCISE OF SUCH POWER. HOWEVER AS HELD BY HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAM PRASAD SHARMA VS. CIT (1979) 119 ITR 867 AND BY THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF A. K. BABU KHAN VS. CWT (1976) 102 ITR 756 IT IS NOT AN ARBITRARY POWER BUT IT IS A JUDICIAL ONE CIRCUMSCRI BED BY THE LIMITATIONS GIVEN IN RULE 29 OF THE APPELLATE TRIBUNAL RULES 1963. THE CONDITIONS PRECEDENT FOR THE EXERCISE OF POWER UNDER RULE 29 MUST THEREFORE BE FOUND TO HAVE BEEN ESTABLISHED. HOWEVER WHERE THER E IS NO LACK OF EVIDENCE BUT YET THE PLEA IN SUPPORT OF ADMITTING THE EVIDENCE IS SO DECISIVE AND OF CLINCH ING VALUE WITH REFERENCE TO THE POINTS AT ISSUE IT IS OPEN TO ITA 354(BANG)/2010 PAGE 9 OF 11 THE TRIBUNAL TO INVOKE ITS POWER OF ALLOWING ADDITI ONAL EVIDENCE TO RENDER SUBSTANTIAL JUSTICE AND NOT TO DEPRIVE THE PARTY OF SUCH JUSTICE ON TECHNICAL GROU NDS. FURTHER AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF VELJL DOORAJ & CO. VS. CIT (1968) 68 ITR 70 8 WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND HAD NOT BEEN PRODUCED BY HIM THE MERE FACT THAT EVIDENCE SOUGHT TO BE PRODUCED IS VI TAL AND IMPORTANT DOES NOT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE. THE ADMISSIBILITY OF ADDITIONAL EVIDENCE DEPENDS ON WHETHER OR NOT THE SUBSTANTIAL CAUSE AND NOT TO ENA BLE THE ASSESSEE OR THE DEPARTMENT TO TENDER FRESH EVIDENCE TO SUPPORT A NEW POINT OR TO MAKE OUT A NE W CASE. IN THE CASE OF N. KAMALAM (SUPRA) IT WAS HELD THAT THE PROVISIONS OF RULE 27 OF ORDER 41 OF CPC 1908 ARE NOT DESIGNED TO HELP PARTIES TO PATCH UP WEAK POINTS AND MAKE UP FOR OMISSIONS EARLIER MADE. 33. IT IS ALSO WELL SETTLED THAT ONCE ADDITIONAL EV IDENCE IS TAKEN INTO CONSIDERATION IT HAS TO BE READ AS P ART OR THE RECORD AND BEFORE DRAWING ANY INFERENCE ON THE BASIS OF CONTENTS OF THAT DOCUMENT ADMITTED AS ADDITIONAL EVIDENCE AN OPPORTUNITY HAS TO BE GIVEN TO THE OTHER SIDE TO EXPLAIN OR REBUT THE SAME. AS HEL D BY HONBLE MADRAS HIGH COURT IN THE CASE OF RSS SHANMUGAM PILLAI & SONS (SUPRA) IF THE TRIBUNAL FI NDS THAT THE DOCUMENTS FILED ARE QUITE RELEVANT AND FOR THE PURPOSE OF DECIDING THE ISSUE BEFORE IT IT WOULD B E WELL WITHIN ITS POWERS TO ADMIT THE EVIDENCE CONSIDER T HE SAME ON MERITS OR REMIT THE MATTER TO THE LOWER AUTHORITIES FOR EXAMINING THE SAME. IN THE CASE OF SMT. URMILA RATILAL (SUPRA) HONBLE GUJARAT HIGH COURT HAS HELD THAT WHEN THE ADDITIONAL EVIDENCE FIELD BY THE REVENUE WAS ADMITTED BY THE TRIBUNAL OVERRULING THE OBJECTION RAISED BY THE ASSESSEE INTEREST OF JUSTI CE DEMANDED THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY TO EXPLAIN OR REBUT THE ADDITIONAL EVIDENCE BEFORE RELYING ON THE SAME. IN THE CASE OF CHARBHAI BIRI W ORKS VS. ASSTT CIT (2003) 87 ITO 189 CITED BY THE LD. COUNSEL FOR THE ASSESSEE IT WAS HELD BY THE PUNE BENCH OF ITAT IN IT THIRD MEMBER DECISION THAT WHEN THE DOCUMENTS WHICH WERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER WERE PRODUCED BEFORE THE TRIBUNAL FOR THE FIRST TIME AND THE SAME WERE ADMITTED AS ADDITI ONAL EVIDENCE BEING MATERIAL TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO VERIFY CORRECTNESS AND AUTHENT ICITY OF SUCH DOCUMENTS AND TO ADJUDICATE THE MATTER AFRE SH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSE E OF BEING HEARD. ITA 354(BANG)/2010 PAGE 10 OF 11 48. AS ALREADY NOTED THE ADDITIONAL EVIDENCE WOULD BE RELEVANT TO CONSIDER AND DECIDE THE CASE ALREADY MADE OUT BY THE REVENUE AND IT IS THEREFORE NOT A CASE OF TENDERING OF FRESH EVIDENCE BY THE DEPARTME NT TO SUPPORT A NEW POINT OR TO MAKE OUT A NEW CASE. ACCORDING TO US THE ADDITIONAL EVIDENCE FILED BY T HE REVENUE IS QUITE RELEVANT FOR THE PURPOSE OF DECIDI NG THE ISSUE BEFORE US AND THE SAME THEREFORE CAN BE ADMITTED AS PER RULE 29 OF APPELLATE TRIBUNAL RULES 1963 AS HELD BY HONBLE MADRAS HIGH COURT IN THE CA SE OF RSS SHANMUGAM PI1LAI & SONS (SUPRA). THE SAID ADDITIONAL EVIDENCE ALSO NEEDS TO BE TAKEN INTO CONSIDERATION IN THE INTEREST OF JUSTICE FOR DECIDI NG THE ISSUE RELATING TO THE PE. 52. AS ALREADY NOTED THE ASSESSEE WAS GIVEN AN OPPORTUNITY DURING THE COURSE OF HEARING TO ADVANCE THE ARGUMENTS ON THE ADMISSION OF ADDITIONAL EVIDEN CE AS WELL AS ON MERITS OF THE ISSUE TAKING INTO CONSIDERATION THE SAID ADDITIONAL EVIDENCE AND AVAI LING THIS OPPORTUNITY LD. COUNSEL FOR THE ASSESSEE HAS NOT ONLY RAISED ELABORATE ARGUMENTS ON BOTH THESE ASPEC TS BUT HAS ALSO FILED A DETAILED WRITTEN SUBMISSION. IN THE SAID WRITTEN SUBMISSION AN ATTEMPT HAS BEEN MADE BY HIM TO EXPLAIN EACH AND EVERY DOCUMENT SOUGHT TO BE FILED BY THE REVENUE AS ADDITIONAL EVIDENCE IN ORDE R TO REBUT THE CASE SOUGHT TO BE MADE OUT BY THE REVENUE RELYING ON THE SAME ON MERITS. KEEPING IN VIEW THE FACT THAT THE ADDITIONAL EVIDENCE SO PRODUCED BY THE REVENUE AS WELL AS ELABORATE EXPLANATION OFFERED BY HIM ASSESSEE TO REBUT THE SAME IS VOLUMINOUS RUNNIN G INTO SEVERAL PAGES WHICH REQUIRES IN-DEPTH EXAMINATION WE FIND THAT IT WOULD BE FAIR AND PROP ER AND IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE RELATING TO PE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER EXAMINING THE ADDITIONAL EVIDENCE AS WELL AS EXPLANATION OFFERED BY THE ASSESSEE WHILE REBUTTING THE SAME. THE ASSESSEE SHALL ALSO BE AT LIBERTY TO ADDUCE FURTHER EVIDENCE TO SUPPORT ITS CASE BEFORE THE ASSESSING OFFICER WHO S HALL TAKE INTO CONSIDERATION THE SAME IN ACCORDANCE WITH LAW. SINCE THE OTHER ISSUES RAISED IN THIS APPEAL R ELATED TO THE MAIN ISSUE OF PE WE DEEM IT APPROPRIATE TO RESTORE THESE ISSUES ALSO TO THE FILE OF THE ASSESS ING OFFICER FOR FRESH DECISION ALONG WITH THE MAIN ISSU E. IN SO FAR AS THE ISSUE RELATING TO THE LEVY OF INTERES T U/S 234B IS CONCERNED THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F DELHI SPECIAL BENCH OF ITAT IN THE CASE OF MOTOROLA INC. VS. DY. CIT (2005) 95 ITD 269. WE ITA 354(BANG)/2010 PAGE 11 OF 11 THEREFORE DIRECT THE ASSESSING OFFICER TO DECIDE T HE ISSUE RELATING TO LEVY OF INTEREST U/S 234B IN THE LIGHT OF THE DECISION OF SPECIAL BENCH IN THE CASE OF MOTORO LA INC (SUPRA). THE IMPUGNED ORDER OF THE LD. CIT(A) O N ALL THE ISSUES INVOLVED IN THE PRESENT APPEAL IS ACCORDINGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AS PER THE DIRECTIONS GIVEN HEREINABOVE. 3.9 IN VIEW OF THE ABOVE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 4. ANOTHER RELEVANT GROUND RAISED BY THE ASSESSEE R ELATES TO THE CHARGING OF INTEREST U/SS. 234A AND 234B OF THE ACT. DURING THE COURSE OF HEARING IT WAS THE COMMON CON TENTION OF BOTH THE PARTIES THAT THIS IS CONSEQUENTIAL IN NATU RE. WE ORDER ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2011 SD/- SD /- (SMT. P. MADHAVI DEVI) JUDICIAL MEMBER (N.K. SAINI) ACCOUNTANT MEMBER EKS COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT 5. DR ITAT BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE