DCIT, Bellary v. Sri Manish D Toliya, Hospet

ITA 735/BANG/2009 | 2006-2007
Pronouncement Date: 22-09-2011 | Result: Allowed

Appeal Details

RSA Number 73521114 RSA 2009
Assessee PAN ABQPT3516R
Bench Bangalore
Appeal Number ITA 735/BANG/2009
Duration Of Justice 2 year(s) 1 month(s) 30 day(s)
Appellant DCIT, Bellary
Respondent Sri Manish D Toliya, Hospet
Appeal Type Income Tax Appeal
Pronouncement Date 22-09-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 22-09-2011
Date Of Final Hearing 22-09-2011
Next Hearing Date 22-09-2011
Assessment Year 2006-2007
Appeal Filed On 23-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.K. SAINI ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI JUDICIAL MEMBER ITA NO.735/BANG/2009 ASSESSMENT YEAR : 2006-07 THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1 BELLARY.. VS SHRI MANISH D. TOLIYA PROP. ADITYA MINERALS NO.403 15 TH WARD CHIRANJIVI HOSPITAL ROAD AMARAVATHI HOSPET. PAN : ABQPT3516R APPELLANT RESPONDENT APPELLANT BY : SHRI G.V. GOPALA RAO CIT-(DR) RESPONDENT BY : SHRI P. DINESH ADVOCATE DATE OF HEARING : 22.09.2011 DATE OF PRONOUNCEMENT : 22.09.2011 O R D E R PER N.K. SAINI ACCOUNTANT MEMBER THIS IS AN APPEAL BY THE DEPARTMENT AGAINST THE OR DER DATED 30.03.2009 OF THE CIT(APPEALS) HUBLI FOR THE ASSES SMENT YEAR 2006-07. 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS A PPEAL : ITA NO.735/B/2009 PAGE 2 OF 11 2. THE CIT(APPEALS) ERRED IN HOLDING THAT THE PAYME NT MADE TO DISHA IMPEX PVT. LTD. AMOUNTING TO RS.2.19 CRORE S IS ONLY REFUND OF AMOUNT RECEIVED AND T.D.S. IS NOT REQUIRE D TO BE MADE. 3. THE CIT(APPEALS) ERRED IN HOLDING THAT T.D.S. PR OVISIONS ARE NOT APPLICABLE FOR THE YEAR UNDER CONSIDERATION . THE PAYMENTS MADE BY THE ASSESSEE FOR TRANSPORTATION AR E IN THE NATURE OF SUBCONTRACT FOR WHICH PROVISIONS OF SEC.1 94C(2) ARE APPLICABLE. THE ASSESSEE THOUGH AN INDIVIDUAL IS R EQUIRED TO DEDUCT TAX U/S. 194C(2) OF THE I.T. ACT AS THE PROV ISO HAS BEEN INTRODUCED W.E.F. 1.6.2002 ITSELF. 4. THE CIT(APPEALS) ERRED IN NOT CONSIDERING THE FA CT THAT THE ASSESSEE HAS DONE TRANSPORTATION WORK OF M/S. NAFED INDIA LTD. AND HAS RECEIVED PAYMENT FROM THEM FOR HAVING DONE THE JOB. IN THE ABSENCE OF ANY DIRECT EVIDENCE THE CIT(A)S FIN DING THAT THE SUM OF RS.2 19 56 872/- PAID TO DIPL IS NOT FREIGHT CHARGES AND IT IS ONLY A REFUND OF AMOUNT RECEIVED IS NOT CORRECT. 3. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THA T THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF IRON ORE TRADING AND TRA NSPORTATION OF THE IRON ORE AND ACCORDINGLY AN ARRANGEMENT WAS AGREED UPON TO TRANSPORT IRON ORE ON BEHALF OF M/S. DISHA IMPEX PVT. LTD. (DIPL) TO N ATIONAL AGRICULTURAL CO- OP. MARKETING FEDERATION OF INDIA LTD. (NAFED) AND STC LTD. (STCL). AS PER THE ARRANGEMENT BETWEEN NAFED AND STCL WITH DIP L DIPL WAS TO PROCURE EXPORT ORDER OBTAIN LC OF FOREIGN BUYERS PROCURE IRON ORE ARRANGE FOR TRANSPORTATION OF THE SAME TILL THE PORT AFTER ARRANGING FOR CLEARING AND FORWARDING FOR THE SHIPMENT. THE FUNDING WAS 80% F ROM NAFED AND STCL BALANCE OF 20% WAS FROM DIPL AS MARGIN MONEY. DIPL ENGAGED THE ASSESSEE FOR TRANSPORTATION OF IRON ORE TO THE NEW MANGALORE PORT BUT THIS ARRANGEMENT WAS STOPPED DUE TO SLOW PACE BY TH E ASSESSEE AND UNDER SUCH SITUATION THE ASSESSEE HAD TO REFUND RS. 2 19 56 872 RECEIVED FROM NAFED AND STCL ON BEHALF OF DIPL. THE ASSESSI NG OFFICER HOWEVER ITA NO.735/B/2009 PAGE 3 OF 11 WAS OF THE VIEW THAT THE AMOUNT REFUNDED TO DIPL RE PRESENTED FREIGHT CHARGES PAID TO DIPL. HE HELD THAT THE ASSESSEE HA D NOT DEDUCTED TAX AT SOURCE AS PER THE PROVISIONS OF SECTION 194C(1) AND 194C(2) OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERRED TO AS T HE ACT] ON SUCH PAYMENT AND DISALLOWED THE TRANSPORTATION CHARGES OF RS.2 1 9 56 872 PAID TO DIPL U/S. 40(A)(IA) OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A PPEALS) WHO HELD THAT THAT THE PAYMENT OF RS.2 19 56 872 TO DIPL IS NOT THE FREIGHT CHARGES BUT ONLY A REFUND OF THE AMOUNT RECEIVED AND HENCE PROVISIONS OF SECTION 194C WAS NOT ATTRACTED AND THUS DELETED THE ADDITIO N OF RS.2 19 56 872. NOW THE DEPARTMENT IS IN APPEAL. 5. DURING THE COURSE OF HEARING THE ASSESSEE MOVED AN APPLICATION UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES 1963 STATING THEREIN AS UNDER: IT IS SUBMITTED THAT THE DOCUMENT ENCLOSED WAS NOT PRODUCED DURING THE ASSESSMENT PROCEEDINGS. THE DOCUMENT ME NTIONED IN THE PAPER BOOK INDEX IN SL.NO.1 TO 5 AND 7 TO 10 WE RE FILED BEFORE A.O 6 TO 12 WERE PRODUCED BEFORE CIT(A) AND IT WA S BELIEVED THAT THE SAID DETAILS WERE SUFFICIENT. IN THE CIRC UMSTANCES THE ACCOMPANYING DOCUMENT COULD NOT BE PLACED BEFORE AS SESSING OFFICER NOR BEFORE THE COMMISSIONER OF INCOME TAX ( A) SINCE WE WERE UNDER A BONAFIDE INFORMATION THAT WHAT DETA ILS WE HAVE FURNISHED EITHER BEFORE THE ASSESSING OFFICER OR CI T(A) ADEQUATE. THE NON PRODUCTION OF THESE DOCUMENTS WAS ON ACCOUN T OF BONAFIDE MISTAKE AND NOT DUE TO ANY DELIBERATE OR M ALAFIDE INTENTION. THESE DOCUMENTS ARE VERY MUCH ESSENTIAL IN ORDER TO PROVE THE ISSUE IN HAND AND THESE DOCUMENTS WERE ON LY SUPPORTING THE SUBMISSIONS ALREADY MADE BEFORE THE ASSESSING AUTHORITY AND CIT(A). ACCORDINGLY THE DOCUMENT IS BEING PLACED ON RECORD. IT IS THEREFORE PRAYED THAT THE SAME MAY KINDLY BE ADMITTED AND KINDLY BE CONSIDERED WHILE DISPOSIN G THE APPEAL IN THE INTEREST OF JUSTICE. ITA NO.735/B/2009 PAGE 4 OF 11 6. THE LD. DR OPPOSED THE ADMISSION OF THE ADDITION AL EVIDENCE AND SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE FILED THO SE DOCUMENTS EITHER BEFORE THE AO OR BEFORE THE LD. CIT(APPEALS) AND SI NCE THOSE DOCUMENTS WERE NOT FURNISHED EARLIER THEY SHALL NOT BE ADMIT TED. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. THE DOCUMENTS FURNISHED BY THE ASSESSEE AS ADDITIONAL EVIDENCE AR E AS FOLLOWS: (1) LEDGER ACCOUNT OF M/S. DISHA IMPEX PVT. LTD. FOR TH E PERIOD 1.4.2005 TO 31.3.2006 IN RESPECT OF ADITYA MINERALS AND (2) LEDGER ACCOUNT OF M/S. DISHA IMPEX PVT. LTD. FOR TH E PERIOD 1.4.2005 TO 31.3.2006 IN RESPECT OF NAFED. IN OUR OPINION THE DOCUMENTS WHICH ARE FURNISHED A LONG WITH THE APPLICATION UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES 1963 ARE ALTHOUGH FURNISHED FOR THE FIRST TIME BEFORE THE TR IBUNAL BUT THESE ARE RELEVANT AND GO TO THE ROOT OF THE PRESENT CONTROVE RSY. NON-PRODUCTION OF THOSE DOCUMENTS WAS ON ACCOUNT OF BONAFIDE MISTAKE AND NOT DUE TO DELIBERATE OR MALAFIDE INTENTION OF THE ASSESSEE. AS PER THE PROVISIONS CONTAINED IN RULE 29 OF THE APPELLATE TRIBUNAL RULE S 1963 THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIO NAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL. THE PROVISIONS CO NTAINED IN THE SAID RULE ARE PARI MATERIA WITH THE ORDER 41 RULE 27 OF THE CODE OF CIVIL PRO CEDURE 1908 WHICH ALSO DOES NOT ALLOW THE PARTY TO THE AP PEAL TO ADDUCE ANY ADDITIONAL EVIDENCE UNLESS AND UNTIL SUCH EXCEPTION AL CIRCUMSTANCES ARE SET OUT. IN THE INSTANT CASE COPIES OF LEDGER AC COUNTS FOR THE PERIOD ITA NO.735/B/2009 PAGE 5 OF 11 1.4.2005 TO 31.3.2006 IN RESPECT OF ADITYA MINERAL S & NAFED COULD NOT BE PRODUCED BY THE ASSESSEE EITHER BEFORE THE AO OR BE FORE THE LD. CIT(A) UNDER THE BONAFIDE IMPRESSION THAT WHATEVER DETAILS HAD BEEN FURNISHED BEFORE THE AO OR THE LD. CIT(APPEALS) WERE ADEQUATE . IN OUR OPINION THE ASSESSEE COMMITTED A BONAFIDE MISTAKE WITHOUT ANY DELIBERATE OR MALAFIDE INTENTION. WE THEREFORE ARE OF THE OPINION THAT TH E EXPLANATION OF THE ASSESSEE THAT DUE TO BONAFIDE MISTAKE THE AFORESAID DOCUMENTS NOW SUBMITTED AS ADDITIONAL EVIDENCE COULD NOT BE FURNI SHED EITHER BEFORE THE AO OR THE LD. CIT(A) IS A PLAUSIBLE EXPLANATION. ACCORDINGLY WE ARE OF THE VIEW THAT THESE DOCUMENTS SHALL BE ADMITTED KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE BUT AT THE SAME TIME OPPORTUNIT Y IS TO BE GIVEN FOR REBUTTAL TO ANOTHER PARTY. 8. AS REGARDS TO THE ADMISSION OF THE ADDITIONAL EV IDENCE THE HONBLE MADRAS HIGH COURT IN THE CASE OF ANAIKAR TRADE AND ESTATES (P) LTD (NO.2) VS. CIT 186 ITR 313 HAS HELD AS UNDER: THE TRIBUNAL HAS DISCRETION TO ALLOW THE PRODUCTIO N OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE ITAT RULES 1963 IF T HE TRIBUNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR AFFIDAVIT T O BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTI AL CAUSE IT MAY ALLOW THE DOCUMENT TO BE PRODUCED OR THE AFFIDAVITS TO BE FILED. EVEN IF THERE WAS A FAILURE TO PRODUCE THE DOCUMENT S BEFORE THE ITO AND THE A.A.C THE TRIBUNAL HAS THE JURISDICTIO N IN THE INTERESTS OF JUSTICE TO ALLOW THE PRODUCTION OF SUC H VITAL DOCUMENTS. 9. IN THE PRESENT CASE ALSO THE DOCUMENTS FURNISHED BY THE ASSESSEE ARE VITAL WHICH GO TO THE ROOT OF THE PRESENT CONTR OVERSY SO THESE ARE TO BE ADMITTED IN THE INTEREST OF NATURAL JUSTICE BUT THE SE DOCUMENTS ARE REQUIRED TO BE EXAMINED AND CONSIDERED AT THE LEVEL OF THE A O. WE THEREFORE SET ITA NO.735/B/2009 PAGE 6 OF 11 ASIDE THE IMPUGNED ORDER AND REMAND THE PRESENT ISS UE BACK TO THE FILE OF THE LEARNED AO TO BE DECIDED AFRESH IN ACCORDANCE W ITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. 10. 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 ADDIT IONAL DIRECTOR OF INCOME-TAX INTERNATIONAL TAXATION CIRCLE 2(2) NEW DELHI (2007) 108 LTD 186 WHEREIN RELEVANT FINDINGS GIVEN IN PARAS NO 30 31 33 48 52 READ AS UNDER: 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 OF PRODUCTION OF ADDITIONAL EVI DENCE IS IN THE DISCRETION OF THE TRIBUNAL. THE SAID DISCRETION H OWEVER IS TO BE EXERCISED JUDICIALLY AND NOT ARBITRARILY. AS HELD B Y HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. KUM . SATYA SETIA (1983) 143 ITR 486 IT IS WITHIN THE DISCRETI ON OF THE APPELLATE AUTHORITY TO ALLOW PRODUCTION OF ADDITION AL EVIDENCE IF THE SAID AUTHORITY REQUIRES ANY DOCUMENT TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE. THE TRIB UNAL IS THE FINAL FACT FINDING BODY UNDER THE SCHEME OF THE INCOME TA X ACT 1961 AND POWERS THEREFORE HAVE NECESSARILY TO BE EXERC ISED BY IT FOR DECIDING THE QUESTIONS OF FACT. WHILE EXERCISING IT S POWERS IF THE TRIBUNAL IS OF THE OPINION THAT ADDITIONAL EVIDENCE IS MATERIAL IN THE INTEREST OF JUSTICE FOR DECIDING A PARTICULAR I SSUE ITS DISCRETION CANNOT BE INTERFERED WITH UNLESS IT HAS BEEN EXERCI SED ON NON EXISTING OR IMAGINARY GROUNDS. IN THE CASE OR MAHAV IR SINGH (SUPRA) CITED BY THE LD. COUNSEL FOR THE ASSESSEE IT WAS HELD THAT SECTION 107 OF CPC ENABLES AN APPELLATE COURT TO TA KE ADDITIONAL EVIDENCE OR TO REQUIRE SUCH OTHER EVIDENCE TO BE TA KEN SUBJECT TO SUCH CONDITIONS AND LIMITATIONS AS ARE PRESCRIBED U NDER ORDER 41 OF RULE 27 OF CPC. IT WAS ALSO HELD THAT THE PARTIE S ARE NOT ENTITLED AS OF RIGHT TO THE ADMISSION OF SUCH EVI DENCE AND THE MATTER IS ENTIRELY IN THE DISCRETION OF THE COURT W HICH IS OF COURSE TO BE EXERCISED JUDICIALLY AND SPARINGLY. IT WAS OBSER VED THAT ORDER 41 RULE 27 OF CPC ENVISAGES CERTAIN CIRCUMSTA NCES WHEN ADDITIONAL EVIDENCE CAN BE ADDUCED AND ONE OF SUCH CIRCUMSTANCES IS WHERE THE APPELLATE COURT REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED TO ENA BLE IT TO PRONOUNCE JUDGMENT OR FOR ANY OTHER SUBSTANTIAL CAU SE. IT WAS ITA NO.735/B/2009 PAGE 7 OF 11 ALSO CLARIFIED THAT THE EXPRESSION TO ENABLE IT TO PRONOUNCE JUDGMENT CONTEMPLATES A SITUATION WHEN THE APPELLA TE COURT FINDS ITSELF UNABLE TO PRONOUNCE JUDGMENT OWING TO A LACUNA OR DEFECT IN THE EVIDENCE AS IT STANDS. IN THE CONT EXT IT WAS FURTHER CLARIFIED THAT THE ABILITY TO PRONOUNCE A JUDGMENT IS TO BE UNDERSTOOD AS THE ABILITY TO PRON OUNCE A JUDGMENT SATISFACTORY TO THE IT MIND OF COURT DEL IVERING IT. THIS POSITION WAS REITERATED AGAIN 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 CASE 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 COURT THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE DOES NOT ENTITLE THE APPELLATE COURT TO LET IN FRESH EVIDENCE ONLY FOR T HE PURPOSE OF PRONOUNCING JUDGMENT IN A PARTICULAR WAY AND IT IS ONLY FOR REMOVING A LACUNA IN THE EVIDENC E THAT THE APPELLATE COURT IS EMPOWERED TO ADMIT ADDITIONA L EVIDENCE. IN THE CASE OF ARJAN SINGH V. KARTAR SING H 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 ARB ITRARY ONE BUT IS A JUDICIAL ONE CIRCUMSCRIBED BY THE LIMI TATIONS SPECIFIED IN THAT RULE. IT WAS ALSO HELD THAT THE L EGITIMATE OCCASION FOR THE APPLICATION OF THE SAID RULE IS WH EN ON EXAMINING THE EVIDENCE AS IT STANDS SOME INHERENT LACUNA OR DEFECT BECOMES APPARENT. TO THE SIMILAR EFFECT IS ANOTHER DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATHA 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 PRONOU NCE JUDGMENT ON THE STAGE OF RECORD AS IT I S AND SO IT CANNOT STRICTLY SAY THAT IT REQUIRES ADDITIONAL EVIDENCE T O ENABLE IT TO PRONOUNCE JUDGMENT IT STILL CONSIDERS THAT IN THE INTEREST OF JUSTICE SOMETHING WHICH REMAINS OBSCURE SHOULD BE FILED UP SO THAT IT CAN PRONOUNCE THE JUDGMENT IN A MORE SATISF ACTORY MANNER. SUCH REQUIREMENT OF THE TRIBUNAL IS LIKELY TO ARISE ORDINARILY WHEN SOME INHERENT LACUNA OR DEFECT BECOMES APPARE NT UPON ITS ITA NO.735/B/2009 PAGE 8 OF 11 APPRECIATION OF THE EVIDENCE. THE POWER OF THE TRIB UNAL TO ADMIT ADDITION EVIDENCE IN SUPPORT OF THE CLAIM IN APPEAL IS DISCRETIONARY AND NO FETTERS CAN BE IMPOS ED ON THE EXERCISE OF SUCH POWER. HOWEVER AS HELD BY HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RAM PRA SAD SHARMA VS. CIT (1979) 119 ITR 867 AND BY THE HONBLE ANDHR A 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 JU DICIAL ONE CIRCUMSCRIBED BY THE LIMITATIONS GIVEN IN RULE 29 O F THE APPELLATE TRIBUNAL RULES 1963. THE CONDITIONS PREC EDENT FOR THE EXERCISE OF POWER UNDER RULE 29 MUST THEREFORE BE FOUND TO HAVE BEEN ESTABLISHED. HOWEVER WHERE THERE IS NO L ACK OF EVIDENCE BUT YET THE PLEA IN SUPPORT OF ADMITTIN G THE EVIDENCE IS SO DECISIVE AND OF CLINCHING VALUE WITH REFERENCE TO THE POINTS AT ISSUE IT IS OPEN TO THE TRIBUNAL TO INVOKE ITS POWER OF ALLOWING ADDITIONAL EVIDENCE TO RENDER SUBSTANTI AL JUSTICE AND NOT TO DEPRIVE THE PARTY OF SUCH JUSTICE ON TECHNIC AL GROUNDS. FURTHER AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF VELJL DOORAJ & CO. VS. CIT (1968) 68 ITR 708 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 VITAL AND IMPORTANT DOES N OT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE. THE ADMISSIBILITY OF ADDITIONAL EV IDENCE DEPENDS ON WHETHER OR NOT THE SUBSTANTIAL CAUSE AND NOT TO ENABLE THE ASSESSEE OR THE DEPARTMENT TO TENDER FRESH EVIDENCE TO SUPPORT A NEW POINT OR TO MAKE OU T A NEW 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 W EAK 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 HELD 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 ITA NO.735/B/2009 PAGE 9 OF 11 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 WORKS 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 OFFIC ER WERE PRODUCED BEFORE THE TRIBUNAL FOR THE FIRST TIM E AND THE SAME WERE ADMITTED AS ADDITIONAL EVIDENCE BEING MATERIAL TO BE RESTORED TO THE FILE OF THE ASSESSIN G OFFICER TO VERIFY CORRECTNESS AND AUTHENTICITY OF S UCH DOCUMENTS AND TO ADJUDICATE THE MATTER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF B EING HEARD. 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 DEPARTMENT 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 HONBL E MADRAS HIGH COURT IN THE CASE 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 OPPO RTUNITY DURING THE COURSE OF HEARING TO ADVANCE THE ARGUMEN TS ON THE ADMISSION OF ADDITIONAL EVIDENCE AS WELL AS ON MERI TS OF THE ISSUE TAKING INTO CONSIDERATION THE SAID ADDITIONAL EVIDE NCE AND AVAILING 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 S AID WRITTEN SUBMISSION AN ATTEMPT HAS BEEN MADE BY HIM TO EXPLA IN EACH AND EVERY DOCUMENT SOUGHT TO BE FILED BY THE REVENUE AS ADDITIONAL EVIDENCE IN ORDER TO REBUT THE CASE SOUGHT TO BE MADE OUT BY THE REVENUE RELYING ON THE SAME ON MERITS. KEEPING IN V IEW THE FACT THAT THE ADDITIONAL EVIDENCE SO PRODUCED BY THE REV ENUE AS WELL AS ELABORATE EXPLANATION OFFERED BY HIM ASSESSEE TO RE BUT THE SAME IS VOLUMINOUS RUNNING INTO SEVERAL PAGES WHICH REQUIR ES IN-DEPTH ITA NO.735/B/2009 PAGE 10 OF 11 EXAMINATION WE FIND THAT IT WOULD BE FAIR AND PROP ER AND IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE RELATING T O PE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH AFTER EXAMINING THE ADDITIONAL EVIDENCE AS WELL AS EXPLAN ATION OFFERED BY THE ASSESSEE WHILE REBUTTING THE SAME. THE ASSES SEE SHALL ALSO BE AT LIBERTY TO ADDUCE FURTHER EVIDENCE TO SUPPORT ITS CASE BEFORE THE ASSESSING OFFICER WHO SHALL TAKE INTO CONSIDERA TION THE SAME IN ACCORDANCE WITH LAW. SINCE THE OTHER ISSUES RAISED IN THIS APPEAL RELATED 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 ISSUE. IN SO FA R AS THE ISSUE RELATING TO THE LEVY OF INTEREST U/S 234B IS CONCER NED THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED BEFORE US THAT THE SAME IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF DELHI SPECIAL BENCH OF ITAT IN THE CASE OF MOTOROLA INC. VS. DY. CIT (2005) 95 ITD 269. WE 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 MOTOROLA INC (SUPRA). THE IMPUGNED ORDER OF THE LD. CIT(A) O N ALL THE ISSUES INVOLVED IN THE PRESENT APPEAL IS ACCORD INGLY SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AS PER THE DIRECTIONS GIVEN HEREINABOVE. 11. IN VIEW OF THE ABOVE THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) IS SET ASIDE AND THE ISSUE IS REMANDED BACK TO THE FIL E OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDIN G DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORD ER ACCORDINGLY. 12. IN THE RESULT THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF SEPTEMBER 2011. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAIN I ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE DATED THE 22 ND SEPTEMBER 2011. DS/- ITA NO.735/B/2009 PAGE 11 OF 11 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE.