ITO, New Delhi v. Sh. Raminder Singh Bakshi, New Delhi

ITA 4292/DEL/2011 | 2008-2009
Pronouncement Date: 29-11-2011 | Result: Dismissed

Appeal Details

RSA Number 429220114 RSA 2011
Assessee PAN AFTPB7261E
Bench Delhi
Appeal Number ITA 4292/DEL/2011
Duration Of Justice 2 month(s) 1 day(s)
Appellant ITO, New Delhi
Respondent Sh. Raminder Singh Bakshi, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 29-11-2011
Date Of Final Hearing 29-11-2011
Next Hearing Date 29-11-2011
Assessment Year 2008-2009
Appeal Filed On 27-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F: NEW DELHI BEFORE SHRI U.B.S. BEDI JUDICIAL MEMBER AND SHRI B.K.HALDAR ACCOUNTANT MEMBER I.T.A.NO.4292/DEL/2011 ASSESSMENT YEAR : 2008-09 ITO VS. SHRI RAMINDER SINGH BAKSHI WARD 27(4) ROOM NO.214 A-180 3 RD FLOOR FATEH NAGAR D-BLOCK VIKAS BHAWAN NEW DELHI 110 018. NEW DELHI. (APPELLANT) (RESPONDENT) C.O NO.350/DEL/2011 ASSESSMENT YEAR : 2008-09 SHRI RAMINDER SINGH BAKSHI VS. ITO A-180 3 RD FLOOR FATEH NAGAR WARD-27 (4) ROOM NO. 214 NEW DELHI 110 018. D- BLOCK VIKAS BHAWAN NEW DELHI. PAN AFTPB7261E (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. PRATIMA KAU SHIK SR. DR RESPONDENT BY : SHRI ANIL KUMAR I. T.P ORDER ORDER ORDER ORDER PER U.B.S. BEDI J.M. PER U.B.S. BEDI J.M. PER U.B.S. BEDI J.M. PER U.B.S. BEDI J.M. THIS APPEAL OF THE DEPARTMENT AND CROSS OBJECTION OF T HE ASSESSEE ARISE OUT OF THE ORDER PASSED BY LD. CIT(A) XXIV NEW DELHI DATED 19.7.2011 RELEVANT TO ASSTT. YEAR 2008-09. 2. IN DEPARTMENTS APPEAL FOLLOWING GROUNDS ARE RAISE D :- ITA NO. 4292/DEL/11 AND CO NO. 350/DEL/11 ASSTT. YEAR 2008-09 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CI T(A) ERRED IN 1. DELETING THE ADDITION OF `. 24 02 231/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS AND `. 2 15 350/- ON ACCOUNT OF UNEXPLAINED EXPENDITURE IN CONTRAVENTION OF RULE 46 A OF THE INCOME TAX RULE. THE ADDITIONAL EVIDENCES WERE F ILED BY THE ASSESSEE BEFORE THE APPELLATE AUTHORITY THE ADMISSIBILITY OF WHICH WAS OBJECTED BY THE AO. 2. IN ACCEPTING THE SWEEPING SUBMISSIONS OF THE ASSESSEE ON THE FACT WHICH DO NOT STAND CORROBORATE BY EVIDENCES. 3. IN HOLDING THAT THE SOURCE OF CASH CREDIT WAS WITHD RAWALS FROM THE PROPRIETARY CONCERN EVEN THOUGH NO CASH FLO W STATEMENT WAS FILED EITHER BEFORE THE AO OR DURING APPELLATE PROCEEDINGS. 4. IN HOLDING THAT THE EXPENDITURE OF `. 2 15 350/- WA S MET OUT OF DRAWING FROM PROPRIETORSHIP CONCERN AND SAVING BANK ACCOUNT EVEN THOUGH IT WAS NOT SUPPORTED BY ANY MATERIAL EVIDENCES WHICH WOULD STAND THE TEST OF SCRUTINY. 3. WHEREAS CO OF THE ASSESSEE IS IN SUPPORT OF THE ORDER O F THE LD. CIT(A). 4. FACTS INDICATE THAT ASSESSEE FILED HIS RETURN ON 30 TH SEPTEMBER 2008 DECLARING INCOME OF ` 3 70 328/-. AIR INFORMA TION WAS RECEIVED IN THIS CASE BY THE AO SHOWING CASH DEPOSITED IN ICICI BANK AMOUNTING TO ` 15 02 231/- CASH DEPOSITED IN PUNJAB & SIND BANK AMOUNTING TO ` 9 LAC AND PAYMENT TO CITI BANK ON AC COUNT OF CREDIT CARD AMOUNTING TO ` 2 15 350/-. AO GAVE VARIOUS OPPO RTUNITIES TO THE ASSESSEE TO SUBMIT THE DETAILS AND TO PRODUCE BOOKS OF ACC OUNTS AND VOUCHERS ETC. HOWEVER IN THE ABSENCE OF DETAILS HE A DDED THE ABOVE ITA NO. 4292/DEL/11 AND CO NO. 350/DEL/11 ASSTT. YEAR 2008-09 3 AMOUNT TOTALING TO RS. 26 17 581/- TO THE INCOME DEC LARED BY THE ASSESSEE AND ASSESSED THE ASSESSEE AT AN INCOME OF ` 29 87 910/ - AGAINST WHICH ASSESSEE PREFERRED APPEAL. 5. BEFORE LD. FIRST APPELLATE AUTHORITY THE ASSESSEE SUB MITTED AN APPLICATION UNDER RULE 46A OF INCOME TAX RULES 1962 WITH FRESH EVIDENCE AND REQUESTING THAT SINCE HE WAS PREVENTED BY SUFFICIENT CAUSE TO PRODUCE THESE EVIDENCES BEFORE THE ASSESSING OFFI CER DURING ASSESSMENT PROCEEDINGS THE SAME MAY BE CONSIDERED DURING APPELLATE PROCEEDINGS. A REMAND REPORT WAS CALLED FOR FROM THE ASSESSING OFFICER WHO SUBMITTED THE SAME ON 30.05.2011 OBJECTING TO THE INTRODUCTION OF FRESH EVIDENCE AT THIS STAGE SIN CE SUFFICIENT NUMBER OF OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE AT THE ASSESSMENT STAGE. IN HIS REJOINDER DATED 10.06.2011 THE ASSESSEE REPLIED THAT HE WAS UNABLE TO SUBMIT THE REQUIRED EVI DENCE BEFORE THE AO SINCE HIS MOTHER HAD SUFFERED A PARALYTIC ATTACK AN D HE WAS IN SEVERE PERSONAL FAMILY PROBLEMS DURING THE PERIOD. HE AGAIN REQUESTED THAT THE ADDITIONAL EVIDENCE MAY KINDLY BE CONSIDERED. 6. LD. CIT (A) WHILE CONSIDERING THE FACTS OF THE CASE THE REMAND REPORT OF THE AO AND SUBMISSIONS AND REJOINDER OF THE A UTHORISED REPRESENTATIVE ADMITTED THE ADDITIONAL EVIDENCE PRO DUCED BY THE ASSESSEE IN APPEAL PROCEEDING AND DELETED ALL THE THRE E ADDITIONS MADE BY THE AO WHILE ACCEPTING AND CONSIDERING THE A DDITIONAL ITA NO. 4292/DEL/11 AND CO NO. 350/DEL/11 ASSTT. YEAR 2008-09 4 EVIDENCE AND SUBMISSIONS MADE BY THE ASSESSEE BY HOLDING TH AT ASSESSEE HAD SUFFICIENT CAUSE BY WHICH HE WAS PREVENTED TO PRODUCE SUCH EVIDENCE BEFORE THE AO DURING THE COURSE OF ASSTT. PROCEEDING. 7. AGGRIEVED BY THIS ORDER OF LD. CIT(A) DEPARTMENT HAS COME UP IN APPEAL AND IT WAS STRONGLY PLEADED THAT DESPITE AO S HAVING SPECIFICALLY OBJECTING TO THE ADMISSION OF ADDITIONAL EVIDENCE LD. CIT(A) HAS ACCEPTED SUCH EVIDENCE WHICH IS IN CONTRAVE NTION TO RULE 46A BECAUSE THERE IS NO CORROBORATIVE EVIDENCE OR MAT ERIAL TO JUSTIFY SUCH ADDITIONAL EVIDENCE AND MORE SO IN THE ABSENCE OF PROPER INQUIRY HAVING BEEN MADE IN THIS CASE. IT WAS ALSO SUBMI TTED THAT SOURCE OF CASH CREDIT STATED TO BE FROM WITHDRAWAL MAD E FROM THE PROPRIETARY CONCERN EVEN WHEN NO CASH FLOW STATEMENT WAS FILED EITHER BEFORE THE AO OR BEFORE LD. CIT(A). SIMILARL Y THE EXPENDITURE OF ` 2 15 350/- STATED TO HAVE BEEN MET OUT OF DRAWING FROM PROPRIETORSHIP CONCERN AND SAVING BANK ACCOUNT EVEN T HOUGH IT WAS NOT SUPPORTED BY ANY MATERIAL / EVIDENCE WHICH WOULD STAND THE TEST OF SCRUTINY. SINCE PROPER INQUIRY HAS NOT BEEN MADE B Y THE AO. THEREFORE IN THE INTEREST OF JUSTICE AND TO HAVE HA VE FAIR PLAY IN THE MATTER ORDER OF LD. CIT(A) SHOULD BE SET ASIDE AND MA TTER BE RESTORED BACK OF HIS FILE FOR MAKING A PROPER INQUIRY AND DEC IDING THE ISSUES AFRESH. LD. COUNSEL FOR THE ASSESSEE AT THIS JUNCTURE VE RY FAIRLY SUBMITTED THAT DUE TO UNAVOIDABLE REASON ON ACCOUNT O F ILLNESS OF THE ITA NO. 4292/DEL/11 AND CO NO. 350/DEL/11 ASSTT. YEAR 2008-09 5 MOTHER OF THE ASSESSEE NO EVIDENCE COULD BE PRODUCED BE FORE THE AO BUT ALL THE MATERIAL AND EVIDENCE ALONGWITH PROPER BOOKS OF ACCOUNTS HAVE BEEN PRODUCED BEFORE LD. CIT(A) WHO HAS RIGHTLY CONSIDERED THE SAME TO DELETE THE IMPUGNED ADDITIONS. THEREFORE ORD ER OF LD. CIT(A) SHOULD BE UPHELD AND THAT APPEAL OF THE DEPARTMENT SH OULD BE DISMISSED. IT WAS FURTHER SUBMITTED THAT EVEN THOUGH DOC UMENTS HAVE BEEN SUBMITTED BEFORE FIRST APPELLATE AUTHORITY YET R EMAND REPORT WAS ALSO OBTAINED FROM THE AO BEFORE DECIDING THIS APP EAL. THEREFORE THERE IS NO VIOLATION OF RULE 46A AND WHEN SPECIFICAL LY POINTED OUT WHETHER AO HAS BEEN ASSOCIATED WITH EXAMINATION OF BOO KS OF ACCOUNTS PRODUCED BEFORE LD. CIT(A) AS STATED BY LD. COUNSEL FOR THE ASSESSEE WHO VERY FAIRLY CONCEDED THAT THIS WAS NOT DONE BY LD. CIT. HOWEVER ALL MATERIAL AND EVIDENCE HAS BEEN PRODUCED BEFORE LD. CIT(A) WHOSE POWERS ARE CO TERMINUS WITH THE POWERS OF THE AO. THEREFORE HIS ACTION SHOULD BE UPHELD AND APPEAL TO THE DEPARTMENT SHOULD BE DISMISSED. 8. WE HAVE HEARD BOTH THE SIDES CONSIDERED THE MATERI AL ON RECORD AND FIND THAT CERTAIN ADDITIONAL EVIDENCE / MATERIAL WAS PLACED BEFORE THE LD. CIT(A). THE AO SPECIFICALLY OBJECTED TO THE ADMISSION OF SUCH ADDITIONAL EVIDENCE. THAT APART THE ASSESSEES C OUNSEL IS STATED TO HAVE PRODUCED BOOKS OF ACCOUNTS ALSO BEFORE L D. FIRST APPELLATE AUTHORITY. IT IS NOT IN DISPUTE THAT SUCH BO OKS OF ACCOUNTS ITA NO. 4292/DEL/11 AND CO NO. 350/DEL/11 ASSTT. YEAR 2008-09 6 HAVE NOT BEEN PRODUCED BEFORE THE AO AND AO HAD NO CHANCE TO EXAMINE SUCH BOOKS OF ACCOUNTS. THEREFORE IN VIEW OF THE FACTS AND CIRCUMSTANCES AND MATERIAL ON RECORD WE FIND IT JUST AND APPROPRIATE TO SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE M ATTER ON THE FILE OF THE AO WITH THE DIRECTION TO REDECIDE THE ISSUES DE NOVO AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACC ORDINGLY. 9. SINCE WE HAVE SET ASIDE THE ORDER OF LD. CIT(A) A ND CO OF THE ASSESSEE IS IN SUPPORT OF THE ORDER OF LD. CIT(A) THEREF ORE WE DISMISS THE CO OF THE ASSESSEE. ORDER PRONOUNCED AFTER THE CLOSURE OF HEARING ON 29 .11.2011. SD/- SD/- (B.K. HALDAR) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : 29.11.2011 VEENA COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR ITAT