Income Tax Appellate Tribunal - Delhi
Sanjay Tyagi, Delhi vs Dcit, Central Circle-1,, New Delhi on 30 September, 2020
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'G', NEW DELHI
Before Sh. Bhavnesh Saini, Judicial Member
Dr. B. R. R. Kumar, Accountant Member
(E-Court Module)
ITA No. 6864/Del/2017 : Asstt. Year : 2010-11
ITA No. 6865/Del/2017 : Asstt. Year : 2011-12
ITA No. 6866/Del/2017 : Asstt. Year : 2010-11
ITA No. 6867/Del/2017 : Asstt. Year : 2011-12
ITA No. 6868/Del/2017 : Asstt. Year : 2010-11
ITA No. 6869/Del/2017 : Asstt. Year : 2011-12
ITA No. 6870/Del/2017 : Asstt. Year : 2010-11
ITA No. 6871/Del/2017 : Asstt. Year : 2011-12
ITA No. 6872/Del/2017 : Asstt. Year : 2010-11
ITA No. 6873/Del/2017 : Asstt. Year : 2011-12
ITA No. 6874/Del/2017 : Asstt. Year : 2012-13
Shri Sanjay Tyagi, Vs Deputy Commissioner of
C/o- Shri Sankalp Anil Sharma, Adv. Income Tax, Central
C-4/129, 1st Floor, Safdarjung Circle-1,
Development Area, New Delhi
New Delhi-110016
(APPELLANT) (RESPONDENT)
PAN No. AEIPT1282R
Assessee by : Sh. Rajiv Saxena, Adv.
Revenue by : Sh. H.K. Choudhary, CIT DR
Date of Hearing: 28.09.2020 Date of Pronouncement: 30.09.2020
ORDER
Per Dr. B. R. R. Kumar, Accountant Member:
The present appeals have been filed by the assessee in ITA Nos. 6864 to 6871/Del/2017 against the orders of the ld. CIT(A)-11, New Delhi dated 06.11.2017, in ITA Nos. 6872 & 6873/Del/2017 against the order of the ld. CIT (A)-11, New 2 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi Delhi dated 05.07.2017 and in ITA No. 6874/Del/2017 against the order of ld. CIT (A)-31 dated 20.03.2017.
2. ITA Nos. 6864 & 6865/Del/2017 pertain to levy of penalty u/s 271(1)(b).
3. The appeal has been filed before the ld. CIT (A) with a delay of 12 days which has been condo ned and adjudicated on merits.
4. Aggrieve d with the o rde r of the ld. CIT (A), the assessee filed appeal before us.
5. The brief facts of the case are that a search u/s 132 of the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s 133A of the Act was conducted at the business premises of M/s HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, no tice u/s 153A of the Act was issue d on 08.02.2012 and notices u/s 142(1) o f the Act were issue d by the AO on various dates. There was no response from the assessee. As a result, the AO finalized the assessment u/s 153A r.w.s. 144 of the Act to the best o f his judgment.
6. During the course of assessment proceedings, the AO issued notice u/s 142(1) on various dates i.e. 28.09.2012, 21.11.2012, 24.12.2012, 04.01.2013 & 11.02.2013. The re was no re sponse from the assessee and therefore, the AO initiated 3 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi penalty proceedings u/s 271(1)(b). The AO issued a penalty notice u/s 271(1)(b) for failure to comply with the notices issues u/s 142(1). In response, the assessee requested the AO to stay the penalty proceedings till the finalization of the appeal filed by the assessee agai nst the assessment order before ld. CIT (A). The AO did not accept the request of the assessee as there is no such provision in the Act to stay the penalty proceedings initiated u/s 271(1)(b). After considering the re ply of the assessee, the AO levied a penalty of Rs.10,000/- u/s 271(1)(b) fo r failing to comply with the notices issued u/s 142(1) of the Act.
7. Before us during the hearing, the ld. AR argue d that the notices have not been received by the assessee and no notice has been sent to address at M/s HR Perfumery, 3 15, Industrial Area, Phase-II, Panchkula, Haryana. It was argued that there was no intention on the part of the assessee not to comply with the statutory notices issue d.
8. On the other hand, the ld. DR supported the orders of the authorities below.
9. Heard the arguments of bo th the parties and perused the material available on reco rd.
10. We find that the assessee has defaulted fo r compliance before the AO on 08.10.2012, 29.11.2012, 31.12.2012, 11.01.2013, 18.02.2013 inspite of issue of five notices. Summons under section 131 were also duly served but the assessed choose not to respond. However, in compliance to the 4 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi show cause notice issued for levy of penalty u/s 271(1)(b), the assessee seeks stay on the penalty proceedings.
11. Eve n before the ld. CIT (A), the assessee has not complied for the he arings fixed on 23.09.2013 and the adjournments were sought on 23.10.2013 and again defaulted for hearing fixed on 15.11.2013. Again notice was issued on 22.01.2014 fixing the date of hearing on 05.02.2014 for which the AR sought adjournment o n 17.02.2014 and on 28.0 2.2014. There was no compliance on the date fixed for hearing on 10.04.2014. The authorities issued notice again on 29.06.20 15 fixing the date of hearing on 06.07 .2015 and the case was adjourned at the request of the AR to 11.0 8.2015. The case was further adjourned on 23.05.2017 and on 29.06.2017. There was no compliance on the date of hearing fixed.
12. Thus, we find that the assessee is in habitual non- compliance to the statutory notices issued. Such conduct of the assessee cannot be encouraged.
13. The relevant provisions of Section 271(1)(b) are as under:
"271(1): If th e Assessing Officer in course of any proceedings under th is Act is satisfied th at any person,
(b) failed to comply with the notice under Sub -Section (1) of Section 142 or Sub -Section (2 ) of Section 143, he may d irect that such person sh all pay by way of pen alty a sum of R s.10,0 00 for each such failure."5 ITA Nos. 6864 to 6874/Del/2017
Sanjay Tyagi
14. On going through the provisions of Se ction 271(1)(b) and the conduct of the assessee with regard to the compliance to the notice s, we find that the AO has rightly levied the penalty.
15. We have gone through the provisions of Section 273B which reads as under:
"[Pe nalty not to be imposed in certain case s.
273B. Notwithstanding anythin g con tained i n th e provision s of [clau se (b) of sub-section (1) of] [section 271, secti on 27 1A, [section271AA,] section271B[, section271BA], [secti o 27 1BB,] section 27 1C, [secti on 271 CA,] section 27 1D, section 271E, [section 271F, [section 27 1FA,] [section27 1FAB,] [section271FB,] [section271G,]] [ section 271GA,] [section 27 1GB,] [section 271H,] [section 27 1-I,] [section 271 J,] clause (c) o r clause (d) of sub- section (1) o r sub-section (2) of section 272A, sub -secti on (1) of section 272AA] o r [section 272B o r] [sub -section (1) [o r sub -section (1A)] o f section 272BB o r] [sub -secti on (1) of section 2 72BBB o r] clause (b) of sub-section (1) or clause (b) or cl ause (c) of sub-sectio n (2) of section 273, no penalty shall b e imposable on the perso n o r the assessee, as th e case may be, for any failure referred to in the said provisions if he proves that there was reasonab le cause for the said failure.]"
16. We have go ne through the above provisions, so as to look into whether there was any reasonable cause for the failure to comply to the notices. We find that the notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be acce pted as the Panchkula address do not pertain to the residential address to the asse ssee. The no tices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notice s with any reasonable cause. He nce, we decline to inte rfere with the order of the ld.
6 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi CIT (A) and hold that the penalty has been rightly impo sed by the Assessing Officer.
17. ITA Nos. 6866 & 6867/Del/2017 pertain to levy of penalty u/s 271A.
18. The brief facts of the case are that a search u/s 132 of the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s 133A of the Act was conducted at the business premises of M/s HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, no tice u/s 153A of the Act was issue d on 08.02.2012 and notices u/s 142(1) o f the Act were issue d by the AO on various dates. There was no response from the assessee. As a result, the AO finalized the assessment u/s 153A r.w.s. 144 of the Act to the best o f his judgment.
19. During the assessment procee dings, the AO found that the assessee has not been maintaining books of accounts stipulated u/s 44AA of the Act and he nce levied penalty of Rs.25,000/- u/s 271A.
20. The ld. CIT (A) confirmed the addition holding that since the assessee has not maintained and produced books of accounts, the action of the Assessing Officer cannot be faulted with.
7 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi
21. During the hearing befo re us, the ld. AR argued that the assessee has duly maintained books of accounts in Tally Software and the same fact has been conve yed to the revenue authorities during the proceedings u/s 133A on 14.10.2011. He also argue d that since the Hard Disk of the computer has been crashed they could not reconcile the books of accounts.
22. The ld. DR relied on the orders of the autho rities below.
23. Heard the arguments of bo th the parties and perused the material available on reco rd.
24. The provisions of Section 271A are as under:
"[F ailure to keep, maintain or re tain books of account, documen ts, etc. 271A. Witho ut preju dice to the provision s of [section 27 0A or] section 27 1, if any person fails to keep and maintain any su ch books o f account an d o ther documents as requi red by secti on 44AA or th e rules made thereunder, in respect of any previous year or to retain such books of account and o ther documents for the peri od specified in the said rules, th e [Assessing ] Officer or the [Commission er (Ap peals)] may direct that such person shall pay, b y way o f penalty, [a su m of twen ty-five thou sand rupees].
25. We have gone through the provisions of Section 44AA, Section 271A and Section 273B. We have gone through the abo ve provisions, so as to look into whether the re was any reasonable cause for the failure to comply to non-maintenance of books of accounts. The notices have been rightly sent to the correct address and the asse sse e could not establish failure to comply to the provisions of the Act with any reasonable cause. Hence, we decline to interfere with the orde r of the ld. CIT (A) 8 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi and hold that the penalty has been rightly imposed by the Assessing Officer for non-maintenance of books of acco unts.
26. ITA Nos. 6868 & 6869/Del/2017 pertain to levy of penalty u/s 271B.
27. We find that the Asse ssing Officer has levie d penalty u/s 271A as well as Section 271B for the same years. The issue of levy of penalty u/s 271A as well as 271B has been adjudicated by the ITAT Delhi Bench in IT A No.3355/Del/2017 in the case of Sh. Mohit Garg vide order dated 23.06.2020. The relevant portion of the said order is as under:
"Havin g the facts of the case and th e p ro visions of the Act undisp uted, th e ld. AR argued on th e strength of the judgments of various cou rts:
• S.P. Todi Vs CIT 226 ITR 691 (Gau.) held , "that mainten ance of acco unts is envisaged under section 4 4AA and on failure to do so the assessee sh all be guilty an d liabl e to be penalized un der section 271A. Even after maintenance of books of account th e ob ligation of the assessee do es not come to an end. He is requ ired to do something more, i.e., by getting the boo ks of acco unt audi ted by an acco untan t. But when a person co mmits an offence by no t maintaining th e books of accounts as contemplated by Section 44AA th e o ffence is co mplete. After that there can be no possibility of any offence as contemplated by Section 44AB and, therefore, in ou r opinion, the imposition of penalty under section 271B is erroneous. Th e Trib unal has overlooked this aspect of th e matter. Of course, it is app arent from the records th at th e assessee failed to mai ntain the books of accounts as req uired under section 4 4AA an d for that penalty is prescribed under section 271 A".9 ITA Nos. 6864 to 6874/Del/2017
Sanjay Tyagi • CIT Vs S.K. Gupta and Co . 32 2 ITR 86 (All.) held, "th e submi ssion (o f counsel for revenu e ) is misconceived fo r th e reason that th e req uirement of getting the boo ks of accoun ts au dited could arise on ly where the books of accounts are maintain ed. If fo r some reaso n th e assessee has not maintain ed the books of accounts th e app ro priate provision under wh ich penalty p ro ceeding s can be initiated is un der section 271A of the Act which reco urse has also been taken b y the assessee as wou ld app ear from the order of the Trib unal."
• CIT Vs Bisauli Tractors 29 9 ITR 219 (All.) after hearing th e counsel for the revenu e in an ex-parte order held , "that separate p enalty h as b een provide for non -mainten ance of acco unts, i.e., under section 2 71A of the Act and for no getting the accounts audited and not fu rnishin g the au dit report i.e., under section 271 B of the Act. In th e present case, th e Assessing Officer did not i mpose penalty under section 27 1A of the Act and instead proceeded to impose penalty under section 27 1B of the Act. If a person has no t maintained the accoun ts book or any acco unts the question of its au dit does no t arise. In such an event the imposi tion of penalty under the provision contain ed in sectio n 271A of th e Act for the all eged non- comp liance."
9. On the other hand, the ld. DR veh emently arg ued that th e penalty u /s 271A and 271B are mutually exclu sive and operate under different do main s. Sh e argued that it is n ot correct to hold that on ce pen alty u/s 2 71A h as already been levied, the penalty un der Section 2 71B canno t stand. It was argued that it is a case of assessee b eing in th e business of trading of aluminum sheets & foils an d the ban k statement of th e assessee depicts turnover of more than Rs.3 cro res and th e conten tion of the assessee that he is in bu siness of earn ing of commissio n also canno t b e accepted. She 10 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi relied on the case of Abhay Kumar & Co. Vs Unio n of India 164 ITR 14 8 (Raj.). It was argu ed that while the pen alty u/s 271 A is Rs.25,000 /- for non-main tenan ce of boo ks of acco unts and Rs.1,50,000 /- th e maximum penalty u/s 271B for failure to get the acco unts audited, if the p ro position as canvassed by th e ld . AR is accepted it will only encourage the assessee's fo r non -mainten ance of books of accounts and getting away with a mino r p enalty of Rs.25,000 /- instead o f R s.1,50,000/-.
10 . Heard the arguments of bo th th e parties and perused th e material available on record.
11 . We fi nd that the d ecision of the ld. CIT (A) that the l egisl ature is clear abo ut mai ntenan ce of boo ks of accounts an d as well as getting th e books au dited is acceptab le to the extent that there has been a twin respo nsi bility casted up on th e shoulders of the assessee to,
a) Maintain the books of accounts u/s 44AA,
b) To get the accounts audited u/s 44AB.
12 . At th e same time, the leg islature i s also provid ed for separate levy of penalty fo r failure to meet each statu to ry requirement. In the instant case, the audi t could not have been conducted in the absence of boo ks of accoun ts. If a person has n ot maintai ned the books of acco unts, the question of au dit does no t arise. The i nfraction of Section 44AB gets attracted only when the assessee maintain s the books o f acco unts but fail to get them audited. Hence, th ere is no reason to in itiate penalty u/s 271B. Th e pen alty for non -mainten ance of books of accounts has alread y been rightly levi ed, hence th e offence has alread y been taken note of and the on ly recou rse is to levy p enalty U/s 2 71A fo r non-comp liance of Section 44AA. These two provisions op erate un der two different realms.
11 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi 13 . Hen ce, keeping in view the p ro visions of th e Act an d th e judicial pronouncemen ts on the subject matter, we hereby di rect that the penalty levied by the AO as con firmed by the ld. CIT (A) be ob literated.
14 . Wi th regard to the arguments of the ld. DR that owing to th e difference in the penalties, it p rima facie en cou rages non- maintenance of books of acco unts, at this jun cture, we refrain ou rselves from trespassing the domain of legi slature as to the difference of the qu antum o f penalty leviable u/s 271 A and 2 71B."
28. Following the ratio of the above order and the since the facts of the case are same, we hereby delete the penalty levied u/s 271B.
29. ITA Nos. 6870 & 6871/Del/2017 pertain to levy of penalty u/s 271F.
30. The brief facts of the case are that a search u/s 132 of the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s 133A of the Act was conducted at the business premises of M/s HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, no tice u/s 153A of the Act was issue d on 08.02.2012 and notices u/s 142(1) o f the Act were issue d by the AO on various dates. There was no response from the assessee. As a result, the AO finalized the assessment u/s 153A r.w.s. 144 of the Act to the best o f his judgment.
12 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi
31. The Assessing Officer initiated and levied penalty u/s 271F for failure to furnish return of income which has been confirmed by the ld. CIT (A).
32. Before us during the hearing, the ld. AR argue d that the notices have not been received by the assessee and no notice has been sent to address at M/s HR Perfumery, 3 15, Industrial Area, Phase-II, Panchkula, Haryana. It was argued that there was no intention on the part of the assessee not to comply with the statutory notices issue d.
33. On the other hand, the ld. DR supported the orders of the authorities below.
34. Heard the arguments of bo th the parties and perused the material available on reco rd.
35. Provisions of Sectio n 271F for failure to furnish return of income reads as under:
"[Pe nalty for failure to furnish return of income.
271F. If a person who is requ ired to furnish a return of his in come, as required under sub-section (1) of section 13 9 or by the p ro viso s to that sub-section , fails to furnish such return befo re the end o f the rel evant assessment year, the Assessin g Officer may d irect that su ch person shall p ay, by way o f penalty, a sum of five thousand rupees:] [Provided that nothing contained in this section sh all ap ply to and in relation to the return of income required to be furnished for any assessment year co mmenci ng on or after the 1 st day of April, 201 8.]"
36. We have gone through the provisions of Section 273B which reads as under:
13 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi "[Pe nalty no t to be imposed in certain case s.
273B. Notwithstanding anything contained in the provisions of [clause (b) o f sub-section (1) of] [sectio n 271, section 271A, [section271AA,] section271B[, section271BA], [section 271BB,] section 271C, [section 271CA,] section 27 1D, section 271E, [section 271F, [section 271FA,] [sectio n 271FAB,] [sectio n 271FB,] [section 271G,]] [sectio n 271GA,] [section 271GB,] [section 271H,] [sectio n 271-I,] [se ction 271J,] clause (c) or clause
(d) of sub-section (1) or sub-section (2) of section 272A, sub-sectio n (1) of section 272AA] o r [section 272B or] [sub-section (1) [o r sub-section (1A)] of section 272BB or] [sub-sectio n (1) of section 272BBB or] clause (b) of sub-section (1) or clause (b) or clause (c) of sub-section (2) of sectio n 273, no penalty shall be imposable on the person or the assessee, as the case may be , fo r any failure referred to in the said provisions if he proves that there was re asonable cause for the said failure.]"
37. We have go ne through the above provisions, so as to look into whether there was any reasonable cause for the failure to comply to the notices. We find that the notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be acce pted as the Panchkula address do not pertain to the residential address to the asse ssee. The no tices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notice s with any reasonable cause. He nce, we decline to inte rfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer.
14 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi ITA Nos. 6872 to 6874/Del/2017
38. These three appeals involve , a. Condo nation of delay b. Admission of additional evidences c. Adjudication on merits a. Condonation of delay:
39. The appeal for the Assessment Years 2010-11 and 2011-12 has been delayed by 70 days whereas the appeal for the Assessment Year 2012-13 has been delaye d by 139 days.
40. The ld. AR submitted that delay was not intentional but due to situations beyond the control of the assessee. He submitted that the assessee is facing severe financial crunch and after leaving the employment he could not avail proper legal assistance.
41. The ld. DR objected in pri nciple and argued that the assessee has been habitually non-complying to the notice s issued by the departme nt and hence, the delay is not fit to be condoned.
42. Having gone through the facts befo re us and keeping in view the facts as canvassed by the ld. AR, we hereby condone the delay.
b. Admission of additional evidences:
43. The assessee has sought to file the following as additional evidences under Rule 29 of the ITAT Rules:
15 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi
1. Panchanama
2. Bank state ment
3. Increment Ce rtificate issued to assessee by the Directo r, Surya Vinayak Group of companies
44. It was argued that these evidences are very much relevant for completing assessme nt in order to understand that assessee has earned no income but acted merely on the directions of the Directors or Suryavinayak group of Industries against whom huge income has been estimated /computed by the assessing office r. Infact, all the receipts in the bank have been immediately transferred to another person /company as may be seen from the bank statement thus the re was not fund available with the assesse e in the bank account who se cheque-book has been kept by the directors of Suryavinayak group of companies. It was submitted that aforesaid additional evidence is highly relevant to decide the instant appeal and in the absence of such order, Tribunal may not be able to decide the instant appeal. It was submitted that in the interest of justice and in order to do substantial justice and to decide the issue before it, Tribunal has vide discretion to admit the additional evidence.
45. The ld. AR placed reliance on the judgment of the jurisdictio nal High Court in the case of Commissioner of Income-tax v. Text Hundred India (P.) Ltd. re ported in [2013] 351 ITR 57 (Delhi), wherein Hon'ble High Court has held as unde r:
"13. The aforesaid case law clearly lays down a neat principle of law that discretion lies with the Tribunal to admit additional evidence in the interest of justice once the 16 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi Tribunal affirms the opinion that doing so would be necessary for prope r adjudication o f the matte r. This can be done e ven when application is filed by one of the parties to the appeal and it need not to be a.wo main action of the Tribunal. The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is well-settle d that the proce dure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to le ad evidence at the appropriate stage. Once it is found that the party intending to lead evidence befo re 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 Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect.
14. The next question which arises for conside ration is as to whether the exercise of discretion in the instant case permitting the additional evidence by the Tribunal, is apposite? It is undisputed that rule 29 of the Rule s 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 whethe r the Appellate Court is able to pronounce judgme nt on the materials before it without taking into conside ration the additional evidence sought to be adduced. T he legitimate occasion, therefore, for exercise of discretion under this rule is not before the Appellate Court hears and examine s the 17 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi case before it, but arises when on examining the evidence as it stands, some inherent lacuna or defect beco mes apparent to the Appellate Court coming in its way to pronounce judgme nt, the expression To enable it to pronounce judgme nt5 can be invoked. Reference is not to pronounce any judgme nt or judgment in a particular way, but is to pronounce its judgment satisfactory to the mind of Court delivering it. The provision does not apply where with existing e vidence on record the Appellate Court can pronounce a satisfactory judgment. It is also apparent that the require ment of the Court to enable it to pronounce judgme nt cannot refer to pronounce ment o f judgment in one way or the other but is only to the exte nt whether satisfactory pronouncement of judgment on the basis of material on reco rd is possible".
46. The ld. AR has also placed reliance on Braganza Construction (P.) Ltd. vs. ACIT [2020] 271 Taxman 173 (Bombay), wherein it has been held that under Rule 29, the Tribunal can conside r the additional evidences furnished before the Tribunal
47. It was argued that assessments were made ex-parte without providing opportunity to the assessee despite providing all the addresses and once assessee was not available at one place, the AO should have served the notice at Panchkula where survey was conducted by him also. In absence of any notice received, assessee was unable to appear before the assessing office r.
18 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi
48. The ld. AR concluded his arguments requesting that the assessments for AY 2010-11 to 2012-13 may kindly be se t aside to the Assessing officer with the direction for providing assessee reasonable and sufficient opportunity and also for making enquiry with the related companies of Surya Vinayak group, in order to understand whether any inco me earned by the assessee which is requi red to be taxed as per Income-tax Act when no inco me was ever earned by the assessee.
49. On the othe r hand, the ld. DR argued that the notices have been duly and rightly issued to the addresses mentioned in the Panchanama on various dates viz. 28.09.2012, 21.11.2012, 24.12.2012, 04.01.2013 and 11.02.2013. Further, summo ns were also issued u/s 131 and serve d by the Inspecto r on 04.02.2013 and 27.02.2013. Hence, it cannot be said that the ex-parte assessment have been completed without affording ade quate opportunity to the assessee. It was argue d that the assessee inspite of receipt of all the notices and the summons u/s 131 has never complied to the notices and summons. It was argued by the ld. DR that the premises of the survey at Panchkula was not the residential address of the assessee and the assessee stayed at the place where summons have been duly served i.e. the residential address at Delhi as mentioned in the Panchanama. The ld. DR reiterate d that the summons u/s 131 have also been duly served at the residential addre ss of the assessee.
50. With regard to the additional evidences, the ld. DR argued that they are not in nature of any additional evidences that only the arguments of the assessee. He argued that the 19 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi Panchanama, the bank statement and the proceedings PMLA Court/ACCM Special Act are not any additional evidences which has any material impact on the adjudication of the issue before the Tribunal. On me rits, he argued that the total receipts of the assessee in the bank statement is Rs.233.67 crores and the AO has rightly made addition @10 % of the gross receipts. He nce, he argued that the additional evidences have no impact on the assessment proceedings and the additional evidences are not evidences as per the Indian Evidence Act and hence not liable to the considered unde r Rule 29.
51. Heard the arguments of bo th the parties and perused the material available on reco rd.
52. Rule 29 of the ITAT Rules as under:
"[Production of additional evidence before the Tribunal.
29. Th e parties to the app eal shall not b e entitled to prod uce ad ditional eviden ce either oral o r documentary before the Tribunal, but if the Tribunal requires any do cument to be produ ced o r any witn ess to be examined or any affidavit to be filed to enable it to pass orders or for an y other sub stantial cause, or, if the income-tax au th orities have decided th e case without giving sufficient oppo rtun ity to the assessee to adduce evidence ei th er on points sp ecified b y them o r not specified by them, th e Tribunal, for reasons to b e reco rded, may al low su ch documen t to be produced or witness to be exami ned or affidavit to be filed or may allow such eviden ce to b e add uced.]"
53. The instant case doesn't meet the basic requirement of admitting of additional evidences. T he assessee has been accorded sufficient opportunities which he fail to make use of. The additional evidences in the form of any docume nt are 20 ITA Nos. 6864 to 6874/Del/2017 Sanjay Tyagi examination can be allowed to be produced under the following circumstances:
• When the Tribunal feels that it is necessary to enable it to pass orders or • For any substantial cause or • Whe re the Income Tax authority did not provide sufficient opportunity to the assessee
54. In the present case, none of the three conditions are fulfilled. T he Hon'ble High Court of Madras in RSSS Pillai and Sons 95 ITR 109 held that the Tribunal finds that the evidence adduced at the stage of appeal is not quite relevant or that it is not nece ssary for the proper disposal of the appeal before it, in that case the Tribunal could straight away re ject the evidence which was so ught to the produced for the first time at the stage of appeal.
55. Thus, we find that the proceedings add processes, before the ACCM, Panchanama and the bank statement cannot be treated as additional evidences under Rule 29 which are required fo r adjudication of the matter. He nce, the application of the assessee under Rule 29 is hereby rejected.
56. Regarding the merits of the case, the AO had determined 10% of the gro ss receipts as income of the assessee for the year in question. The assessee is in the business of manufacturing and trading of perfumery products. The assessee has not furnished any details before the Assessing Officer or before the ld. CIT(A). The purported additional evidences proposed to be filed by the assessee before the Tribunal do not materially change the profit compute d by the Assessing Office r.
21 ITA Nos. 6864 to 6874/Del/2017Sanjay Tyagi
57. The gro ss receipts has reflected in the bank statements have bee n duly considered by the Assessing Officer while determining the profit @10%. Hence, we he reby uphold the profit determined by the authorities belo w. No useful purpose would be served by accepting the request of the ld. AR to set aside the case to the Assessing Office r for allowing another opportunity for making further inquiries.
58. In the result, all the appeals of the assessee are dismissed.
Order Pronounced in the Open Court on 30 /09/2020.
Sd/- Sd/-
(Bhavnesh Saini) (Dr. B. R. R. Kumar)
Judicial Member Accountant Member
Dated: 30/09/2020
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR