ITO, New Delhi v. Mohd. Gulzar, Delhi

ITA 5001/DEL/2015 | 2011-2012
Pronouncement Date: 28-11-2019 | Result: Dismissed

Appeal Details

RSA Number 500120114 RSA 2015
Assessee PAN AGUPG8688A
Bench Delhi
Appeal Number ITA 5001/DEL/2015
Duration Of Justice 4 year(s) 3 month(s) 23 day(s)
Appellant ITO, New Delhi
Respondent Mohd. Gulzar, Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2019
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 28-11-2019
Assessment Year 2011-2012
Appeal Filed On 05-08-2015
Judgment Text
I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE JUDICIAL MEMBER . . /. I.T.A NO.5139/DEL/2015 / ASSESSMENT YEAR:2011-12 MOHD. GULZAR T-444 GALI PAHAR WALI AHATA KIDARA SADAR BAZAR DELHI. VS. ITO WARD 63(3) NEW DELHI. APPELLANT / RESPONDENT PAN NO. AGUPG8688A & . . /. I.T.A NO.5001/DEL/2015 / ASSESSMENT YEAR:2011-12 ITO WARD 63(3) NEW DELHI. VS. MOHD. GULZAR T-444 GALI PAHAR WALI AHATA KIDARA SADAR BAZAR DELHI. APPELLANT / RESPONDENT PAN NO. AGUPG8688A /REVENUE BY SHRI S.N. MEENA SR. DR /ASSESSEE BY SH. SALIL KAPOOR ADVOCATE SH. SUMIT LALCHANDANI ADV. MS. SONA ADVOCATE / DATE OF HEARING: 2 7 .11.2019 /PRONOUNCEMENT ON 2 8 .11.2019 I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 2 OF 9 /O R D E R PER N.K. BILLAIYA A.M. 1. THESE ARE CROSS APPEALS BY THE REVENUE AND THE A SSESSEE PREFERRED AGAINST THE VERY SAME ORDER OF THE LD. CIT (APPEALS )-20 NEW DELHI DATED 25.05.2015 PERTAINING TO AY 2011-12. BOTH THESE AP PEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE. 2. WE WILL FIRST TAKE UP THE REVENUES APPEAL IN IT A NO. 5001/DEL/2015 ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN REDUCING THE GROSS PRO FIT RATE FROM 2% TO 1.5%. 2. THE LD. CIT(A) HAS ERRED IN REDUCING THE DISALLOWAN CE OF EXPENSES FROM 20% TO 10%. 3. THE LD. CIT(A) HAS ERRED IN REDUCING THE ADDITION O N ACCOUNT OF UNLOADING CHARGES TO 50% OF TOTAL CLAIM I.E. (50 % OF RS. 11 02 626/-). 4. THE LD. CIT(A) HAS ERRED IN REDUCING ADDITION ON AC COUNT OF SALARY EXPENSES FROM 50% TO 25% OF TOTAL CLAIM. THAT THE APPELLANT CRAVES LEAVE TO ADD AMEND OR MO DIFY THE GROUND(S) OF APPEAL AT ANY TIME. 3. WE HAVE HEARD THE LEARNED CIT (D.R.) WHO HAS PO INTED OUT THE TAX EFFECT INVOLVED IN THIS APPEAL IS BELOW MONETARY L IMIT PRESCRIBED BY THE CBDT. WE FIND THAT THE CBDT VIDE CIRCULAR NO.17/201 9 DATED 8 TH AUGUST 2019 [F.NO.279/ MISC.142/ 2007-ITJ (PT)] BY AMENDIN G PARA 3 OF CBDT I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 3 OF 9 CIRCULAR NO.3/2018 DATED 11.07.2018 HAS ENHANCED TH E MONETARY LIMIT FOR FILING OF APPEAL BEFORE TRIBUNAL TO RS.50 LAKHS AND HAS ALSO REMOVED THE ANOMALY IN PARA 5 OF SAID CIRCULAR NO. 3/2018. WE FIND THAT THE PRESENT CASE DOES NOT FALL WITHIN THE EXCEPTIONS CL AUSE 10 OF SAID CBDT CIRCULAR NO. 3/2018. THEREFORE THE PRESENT APPEAL IS NOT MAINTAINABLE AS PER ABOVE CIRCULAR NO. 17/2019 HENCE DISMISSED. TH IS CIRCULAR IS APPLICABLE TO ALL PENDING APPEALS AS CLARIFIED BY C BDT LETTER DATED 20.08.2019 [F. NO. 279/MISC./M-93/2018-ITJ] AND IN THE LIGHT OF JUDGMENT OF HON`BLE SUPREME COURT IN THE CASE OF PR . CIT JAIPUR V. MEENAKSHI MODI SLP (CIVIL) DIARY NO. 25076 OF 2019- DATED 16.08.2019 WHEREIN THE HON`BLE SUPREME COURT HAS DISMISSED THE APPEAL OF REVENUE AS TAX INVOLVED WAS LESS THAN RS. 2 CRORES . HOWEVER THE REVENUE IS AT LIBERTY TO APPROACH TO THIS TRIBUNAL FOR RECALLING THIS ORDER IF IT IS COMES TO THE NOTICE OF THE AO THAT THE TAX EFFECT IS MORE THAN THE MONETARY LIMIT PROVIDED UNDER ABOVE CIRCULAR OR THE APPEALS IS FALL WITHIN AMBIT OF THE EXCEPTIONS PROVIDED UNDER THE SAID CIR CULAR. 4. IN THE RESULT APPEAL OF THE REVENUE STANDS DISM ISSED. 5. NOW WE WILL TAKE UP ASSESSEES APPEAL IN ITA NO. 5139/DEL/2015. THOUGH THE ASSESSEE HAS RAISED 12 SUBSTANTIVE GROUN DS OF APPEAL THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS T HAT DUE TO REASONS BEYOND THE CONTROL THE ASSESSEE COULD NOT FURNISH T HE NECESSARY I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 4 OF 9 DOCUMENTARY EVIDENCES BEFORE THE AO AND THE AO FRAM ED THE ASSESSMENT EX PARTE U/S 144 OF THE ACT. 6. BEFORE US THE APPLICATION UNDER RULE 29 OF THE ITAT RULES FOR ADMISSION OF ADDITIONAL EVIDENCE HAS BEEN FILED BY WHICH THE ASSESSEE EXPLAINED THAT BEFORE THE ASSESSMENT PROCEEDINGS CO ULD START THE COUNSEL SHRI SUBHASH GUPTA ADVOCATE DIED. SUBSEQUENT TO T HE DEATH OF SHRI SUBHASH GUPTA HIS SON CHARTERED ACCOUNTANT SH. SITI SH GUPTA TOOK OVER THE CHARGE BUT COULD NOT ATTEND THE ASSESSMENT PROC EEDINGS DUE TO LACK OF CONCENTRATION ON ACCOUNT OF HIS FATHERS DEATH. 7. THE ASSESSEE STRONGLY CONTENDS THAT THE ADDITION AL EVIDENCES NOW FURNISHED ARE NECESSARY FOR PROPER APPRECIATION OF THE ISSUE UNDER APPEAL AND FOR SUBSTANTIAL JUSTICE. 8. THE DR STRONGLY OPPOSED TO THE ADMISSION OF THE ADDITIONAL EVIDENCES. IT IS THE SAY OF THE DR THAT SUFFICIENT OPPORTUNITIES WERE GIVEN BY THE AO AND THE CIT(A) BUT THE ASSESSEE DID NOT A VAIL THOSE OPPORTUNITIES AND NOW FILING FRESH EVIDENCES WHICH SHOULD NOT BE ACCEPTED. 9. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS AND HAVE CAREFULLY PERUSED THE APPLICATION MADE UND ER RULE 29 OF THE ITAT RULES. THE UNDISPUTED FACT IS THAT THE DISCRE TION LIES WITH THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCE IN THE INTERE ST OF JUSTICE. IT IS ALSO I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 5 OF 9 NOT IN DISPUTE THAT RULE 29 OF THE ITAT RULES IS AKING TO ORDER 41 RULE 27(1) OF THE CPC. OUR VIEW IS FORTIFIED BY THE DEC ISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF CIT VS. TEXT HUN DRED INDIA PVT. LIMITED 351 ITR 57 THE RELEVANT OBSERVATIONS OF THE HONBLE DELHI HIGH COURT READ AS UNDER: 13. THE AFORESAID CASE LAW CLEARLY LAYS DOWN A NE AT PRINCIPLE OF LAW THAT DISCRETION LIES WITH THE TRIBUNAL TO AD MIT ADDITIONAL EVIDENCE IN THE INTEREST OF JUSTICE ONCE THE TRIBUNAL AFFIRMS THE OPINION THAT DOING SO WOULD BE NECESSAR Y FOR PROPER ADJUDICATION OF THE MATTER. THIS CAN BE DON E EVEN WHEN APPLICATION IS FILED BY ONE OF THE PARTIES TO THE APPEAL AND IT NEED NOT TO BE A SUO MOTO ACTION OF THE TRIB UNAL. THE AFORESAID RULE IS MADE ENABLING THE TRIBUNAL TO ADM IT THE ADDITIONAL EVIDENCE IN ITS DISCRETION IF THE TRIBUN AL HOLDS THE VIEW THAT SUCH ADDITIONAL EVIDENCE WOULD BE NECESSA RY TO DO SUBSTANTIAL JUSTICE IN THE MATTER. IT IS WELL-SETT LED THAT THE PROCEDURE IS HANDMADE OF JUSTICE AND JUSTICE SHOULD NOT BE ALLOWED TO BE CHOKED ONLY BECAUSE OF SOME INADVERTE NT ERROR OR OMISSION ON THE PART OF ONE OF THE PARTIES TO LE AD EVIDENCE AT THE APPROPRIATE STAGE. ONCE IT IS FOUND THAT TH E PARTY INTENDING TO LEAD EVIDENCE BEFORE THE TRIBUNAL FOR THE FIRST TIME WAS PREVENTED BY SUFFICIENT CAUSE TO LEAD SUCH AN EVIDENCE AND THAT THIS EVIDENCE WOULD HAVE MATERIAL BEARING ON THE ISSUE WHICH NEEDS TO BE DECIDED BY THE TRIBU NAL AND ENDS OF JUSTICE DEMAND ADMISSION OF SUCH AN EVIDENC E THE TRIBUNAL CAN PASS AN ORDER TO THAT EFFECT. I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 6 OF 9 14. THE NEXT QUESTION WHICH ARISES FOR CONSIDERATIO N IS AS TO WHETHER THE EXERCISE OF DISCRETION IN THE INSTANT C ASE PERMITTING THE ADDITIONAL EVIDENCE BY THE TRIBUNAL IS APPOSITE? IT IS UNDISPUTED THAT RULE 29 OF THE RUL ES IS AKIN TO ORDER 41 RULE 27(1) OF THE CODE OF CIVIL PROCEDURE. THE TRUE TEST IN THIS BEHALF AS LAID DOWN BY THE COURTS IS WHETHER THE APPELLATE COURT IS ABLE TO PRONOUNCE JUDGMENT ON TH E MATERIALS BEFORE IT WITHOUT TAKING INTO CONSIDERATI ON THE ADDITIONAL EVIDENCE SOUGHT TO BE ADDUCED. THE LEGI TIMATE OCCASION THEREFORE FOR EXERCISE OF DISCRETION UND ER THIS RULE IS NOT BEFORE THE APPELLATE COURT HEARS AND EXAMINE S THE CASE BEFORE IT BUT ARISES WHEN ON EXAMINING THE EVIDENC E AS IT STANDS SOME INHERENT LACUNA OR DEFECT BECOMES APPA RENT TO THE APPELLATE COURT COMING IN ITS WAY TO PRONOUNCE JUDGMENT THE EXPRESSION TO ENABLE IT TO PRONOUNCE JUDGMENT CAN BE INVOKED. REFERENCE IS NOT TO PRONOUNCE ANY JUDGMEN T OR JUDGMENT IN A PARTICULAR WAY BUT IS TO PRONOUNCE I TS JUDGMENT SATISFACTORY TO THE MIND OF COURT DELIVERING IT. T HE PROVISION DOES NOT APPLY WHERE WITH EXISTING EVIDENCE ON RECO RD THE APPELLATE COURT CAN PRONOUNCE A SATISFACTORY JUDGME NT. IT IS ALSO APPARENT THAT THE REQUIREMENT OF THE COURT TO ENABLE IT TO PRONOUNCE JUDGMENT CANNOT REFER TO PRONOUNCEMENT OF JUDGMENT IN ONE WAY OR THE OTHER BUT IS ONLY TO THE EXTENT WHETHER SATISFACTORY PRONOUNCEMENT OF JUDGMENT ON T HE BASIS OF MATERIAL ON RECORD IS POSSIBLE. IN ARJAN SINGH VS. KARTAR SINGH AIR 1951 SC 193 WHILE INTERPRETING THE PROVI SIONS OF ORDER 41 RULE 27 THE COURT REMARKED AS FOLLOWS: - THE LEGITIMATE OCCASION FOR THE APPLICATION OF ORD ER 41 RULE 27 IS WHEN ON EXAMINING THE EVIDENCE AS IT STANDS SOME INHERENT LACUNA OR DEFECT BECOMES I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 7 OF 9 APPARENT NOT WHERE A DISCOVERY IS MADE OUTSIDE TH E COURT OF FRESH EVIDENCE AND THE APPLICATION IS MADE TO IMPART IT. THE TRUE TEST THEREFORE IS WHETHER TH E APPELLATE COURT IS ABLE TO PRONOUNCE JUDGMENT ON TH E MATERIALS BEFORE IT WITHOUT TAKING INTO CONSIDERATI ON THE ADDITIONAL EVIDENCE SOUGHT O BE ADDUCED. [EMPHASIS SUPPLIED] [SEE ALSO NETHA SINGH V. FINANCIAL COMMISSIONER AIR 1976 SC 1053] 15. IN THE PRESENT CASE THE REASON WHICH WAS GIVEN BY THE ASSESSEE IN SUPPORT OF ITS PLEA FOR ADMISSION OF AD DITIONAL EVIDENCE WAS THAT THE ASSESSEE COULD NOT PRODUCE TH ESE RECORDS BEFORE THE LOWER AUTHORITIES DUE TO NON-RET RIEVABILITY OF E-MAIL ON THE DATE BECAUSE OF TECHNOLOGICAL DIFF ICULTIES. THIS REASON WAS SPECIFICALLY MENTIONED IN THE APPLI CATION FILED. NO REPLY TO THIS APPLICATION WAS FILED REFUTING THI S AVERMENT THOUGH THE DEPARTMENTAL REPRESENTATIVE HAD OPPOSED THE ADMISSION OF THE ADDITIONAL EVIDENCE. THE GROUND P LEADED BY THE ASSESSEE WAS NOT CONFRONTED. IN THIS BACKDROP THE TRIBUNAL LOOKED INTO THE ENTIRE MATTER AND ARRIVED AT A CONCLUSION THAT THE ADDITIONAL EVIDENCE WAS NECESSA RY FOR DECIDING THE ISSUE AT HAND. IT IS THUS CLEAR THA T THE TRIBUNAL FOUND THE REQUIREMENT OF THE SAID EVIDENCE FOR PROP ER ADJUDICATION OF THE MATTER AND IN THE INTEREST OF S UBSTANTIAL CAUSE. RULE 29 OF THE INCOME-TAX (APPELLATE TRIBUN AL) RULES CATEGORICALLY PERMITS THE TRIBUNAL TO ALLOW SUCH DO CUMENTS TO BE PRODUCED FOR ANY SUBSTANTIAL CAUSE. ONCE THE TR IBUNAL HAS PREDICATED ITS DECISION ON THAT BASIS WE DO NOT FI ND ANY REASON TO INTERFERE WITH THE SAME. AS A RESULT TH E QUESTIONS I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 8 OF 9 OF LAW ARE ANSWERED IN FAVOUR OF THE ASSESSEE AND A GAINST THE REVENUE RESULTING INTO DISMISSAL OF THESE APPEALS. NO COSTS. 10. AS MENTIONED ELSEWHERE WITH THE DEMISE OF THE C OUNSEL OF THE ASSESSEE THE ASSESSEE COULD NOT BE REPRESENTED PROP ERLY EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT(A). IN THE INTEREST OF JUSTICE THE ADDITIONAL EVIDENCES ARE ADMITTED. 11. THE ADDITIONAL EVIDENCES CONTAINED DOCUMENTS ES TABLISHING THAT THE APPELLANT IS ONLY AN AGENT OF ALLANA GROUP. IN OUR CONSIDERED OPINION THESE DOCUMENTS NEED THOROUGH INVESTIGATIO N/VERIFICATION AT THE ASSESSMENT STAGE. WE ACCORDINGLY RESTORE THE ENT IRE ISSUES TO THE FILES OF THE AO. THE ASSESSEE DIRECTED TO FURNISH ALL TH ESE EVIDENCES BEFORE THE AO AND THE AO IS DIRECTED TO EXAMINE THE SAME A ND DECIDE THE ISSUES AFRESH AFTER AFFORDING REASONABLE AND FAIR OPPORTU NITY OF BEING HEARD TO THE ASSESSEE. 12. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.11.201 9 SD/- SD/- (SUCHITRA KAMBLE) (N.K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 TH NOVEMBER 2019 *KAVITA ARORA SR. PS I.T.A.NO.5139/DEL/2015/A.Y.2011-12/MOHD. GULZAR VS. ITO & ITA NO. 5001/DEL/2015/AY 2011-12/ITO VS. MOD. GULZAR PAGE 9 OF 9 COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/GUARD FILE OF ITAT. BY ORDER ASSISTANT REGISTRAR ITAT: DELHI BENCHES-DELHI