Income Tax Appellate Tribunal - Chandigarh
Sh. Karanveer Singh Tiwana, Patiala vs Ito, W-4, Patiala on 28 November, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL
DIVISION BENCH'A', CHANDIGARH
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER
AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER
ITA Nos.1125/Chd/2017
(Assessment Year : 2009-10)
Sh. Karanveer Singh Tiwana Vs. ITO
Vill- Chhana Nathuwala Ward- 4
Patial a Patial a
PAN: ATAPS8515K
(Appellant) (Respondent)
Assessee by : Shri Ajay Jain
Departm ent by : Smt Chandrakanta
Date of hearing : 15.11.2017
Date of Pronouncement : 28/11/2017
O R D E R
PER DR. B.R.R. KUMAR, A.M :
The present appeal has been filed by the Assessee against the order of Ld. CIT(A), Patiala dt. 05/05/2017.
2. The Assessee has raised the following grounds of appeal:
1. That the Learned C.l.T. (A) Patiala has erred by not allowing the admission of additional evidences explaining the source of deposit in the Banks during course of first appellate authority & he failed to appreciate the fact that the appellant could not produce the evidence during the course of assessment proceedings as no notice was served upon him & assessment was framed u/s 144 of Income Tax Act.
2. That the Learned C.l.T. (A) Patiala has erred by not considering the direction of ITAT to decide the Ground no 3 with respect to addition of Rs 9415000/- made by assessing officer.
3. The Id CIT(A) has not even considered the withdrawals from Bank accounts which were re deposited in the bank accounts & failed to appreciate the fact that the Bank statements were available during the course of assessment proceedings & these bank statements are not in the nature of additional evidence.
4. That the Learned C.l.T. (A) Patiala has wrongly dismissed the appeal without appreciating the remand report submitted by assessing officer during the course of appellate proceedings particularly in the light of fact that the AO has 2 not objected the admission of additional evidence & requested to decide the appeal on merits .
5. That the Learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs 9415000/- on account of deposits in Bank account without appreciating the fact that addition on account of deposits in Bank account have been made by Id AO without affording opportunity to appellant.
6. That That the Learned Commissioner of Income Tax (Appeals) has erred in confirming the addition of Rs 9415000/- on account of deposits in Bank account without considering the withdrawal from the Bank accounts & sources .
7. That the appellant craves leave to add or amend the grounds of appeal before the appeal is finally heard and disposed off.
3. Brief facts of the case are that the assessment for the AY 2009-10 was completed under section 144 of the Income Tax Act, 1961 determining income at Rs. 95,65,000/- against the returned income of Rs. 1,50,000/-. The matter went before the Ld. CIT(A) and further travelled to ITAT, Chandigarh. Vide order dt. 08/12/2015 in ITA No. 40/CHD/2014 for the AY 2009-10 the Tribunal has directed the Ld. CIT(A) to adjudicate on ground no. 3. For the sake of convenience the ground no. 3 is being mentioned below:
" 3. That the Ld. CIT(A) has erred in confirming the addition of Rs. 9415000/- on account of deposits in Bank account without appreciating the fact that addition on account of deposits in Bank account have been made by Ld. Assessing Officer without affording opportunity to appellant."
4. The direction given by the Tribunal to the Ld. CIT(A) is as under:
.......Ground No. 3 of the appeal filed before him. It is true that while passing the impugned order, the Ld. CIT(A) has not adjudicated ground No. 3 of the appeal of the assessee. Accordingly, we set aside the order of the Ld. CIT(A) and remand the matter to him with a direction to decide the issue raised by the assessee vide ground no. 3 of the appeal in accordance with law after affording due and reasonable opportunity of being heard to the assessee.
5. The Ld. CIT(A) following the above directions of the ITAT held that "
The Hon'ble ITAT has only directed that the ground No. 3 of the appeal before CIT (A) be decided "in accordance with law after affording "due and reasonable opportunity of being heard to the assessee"
6. While adjudicating the Ld. CIT(A) has refused to admit the additional evidences produced by the assessee. The additional evidences are of (i) a copy of cashbook for the financial year 2007-08, ii) the copy of cashbook for the financial year 2008-09, iii) copies of bank statements from 01/04/2007 to 3 31/03/2009 in the books of the appellant, iv) copies of bank accounts from 01/04/2007 to 31/03/2009 v) Copy of sale deed of agricultural land sold by the appellant and his family members along with the English translation, and vi) copy of affidavits of father and brothers of the appellant.
7. The assessee has requested the Ld. CIT(A) to admit the additional evidences under Rules 46A of the IT rules, 1962 which reads as under:-
Production Production of additional evidence before the [Deputy Commissioner (Appeals)] [and Commissioner (Appeals)].
46A . (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :--
(a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted; or
(b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer] ; or
(c) where the appellant was prevented by sufficient cause from producing before the [Assessing Officer] any evidence which is relevant to any ground of appeal; or
(d) where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
It is clear from, a plain reading of Rule 46A(1) that it places a bar on the appellant to produce any fresh oral or documentary evidence before the appellate authorities mentioned therein. Unless he proves the existence of any of the four exceptional circumstances mentioned in clauses (a) to (d) of the sub-rule.
8. We find that the evidences that are being submitted by the assessee goes to the root cause of the issue involved, which makes these evidences relevant for the ground no. 3 of the appeal. In such conditions Rule 46A (c) is squarely applicable to decide the issue. Hence the matter is being remanded back to the Ld. CIT(A) to adjudicate the issue by providing due opportunity of being heard to the assessee. And we believe that the assessee will not belay the confidence reposed upon and will not abuse the opportunity given while submitting compliance before the Ld. CIT(A). Hence, the appeal of the assessee is remanded back to the file of Ld. CIT(A) to consider the submissions afresh.
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9. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court.
Sd/- Sd/- (DIVA SINGH) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 28/11/2017 AG Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR