Income Tax Appellate Tribunal - Kolkata
Ito, Wd-33(2), Kolkata, Kolkata vs M/S Hind Supply Corporation, Kolkata on 1 September, 2017
ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 1
IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH : KOLKATA
[Before Hon'ble Sri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM]
I.T.A Nos. 835 to 837/Kol/2014
Assessment Years : 2003-04 to 2005-06
I.T.O., Ward-33(2) -vs.- M/s. Hind Supply Corporation
Kolkata Kolkata
[PAN : AABFH 9237K]
(Appellant) (Respondent)
C.O.Nos.67 to 69Kol/2014
(A/o I.T.A Nso. 835 to 837/Kol/2014 )
Assessment Years : 2003-04 to 2005-06
M/s. Hind Supply Corporation -vs- I.T.O., Ward-32(2)
Kolkata Kolkata
[PAN : AABFH9237K]
(Cross Objector) (Respondent)
For the Department : Shri David Z.Chawngthu, Addl. CIT(DR)
For the Assessee : Shri S.K.Dasgupta, AR
Date of Hearing : 28.08.2017.
Date of Pronouncement : 01.09.2017.
ORDER
Per Bench ITA No.835 to 837/Kol/2014 are appeals by the Revenue against 3 different orders all dated 17.2.2014 of CIT(A)-XIX, Kolkata, relating to AY 2003-04 to 2005-06. The Assessee has filed three cross objections against the very same order of the CIT(A).
2. The issue involved in all the appeals by the Revenue and the grounds raised in the cross objections are in relation to disallowance u/s.40A(3) of the Income Tax Act, 1961 (Act). Sec.40A(3) as it existed in AY 2003-04 to 05-06 reads thus:
"(3) Where the assessee incurs any expenditure in respect of which payment is made, after such date (not being later than the 31st day of March, 1969) as may be specified in this behalf by the Central Government by notification in the ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 2 Official Gazette , in a sum exceeding twenty thousand rupees otherwise than by a crossed cheque drawn on a bank or by a crossed bank draft, twenty per cent of such expenditure shall not be allowed as a deduction :
Provided that where an allowance has been made in the assessment for any year not being an assessment year commencing prior to the 1st day of April, 1969, in respect of any liability incurred by the assessee for any expenditure and subsequently during any previous year the assessee makes any payment in respect thereof in a sum exceeding twenty thousand rupees otherwise than by a crossed cheque drawn on a bank or by a crossed bank draft, the allowance originally made shall be deemed to have been wrongly made and the Assessing Officer may recompute the total income of the assessee for the previous year in which such liability was incurred and make the necessary amendment, and the provisions of section 154 shall, so far as may be, apply thereto, the period of four years specified in sub-section (7) of that section being reckoned from the end of the assessment year next following the previous year in which the payment was so made :
Provided further that no disallowance under this sub-section shall be made where any payment in a sum exceeding twenty thousand rupees is made otherwise than by a crossed cheque drawn on a bank or by a crossed bank draft, in such cases and under such circumstances as may be prescribed, having regard to the nature and extent of banking facilities available, considerations of business expediency and other relevant factors."
3. The provisions of Sec.40A(3) of the Act has been enacted as one of the measures for countering evasion of tax. It was found from experience, that deductions were being claimed for payment made from unaccounted money in the computation of business or professional income. This provision was enacted to enable the assessing authority to ascertain whether the payment was genuine or whether it was out of the income from undisclosed sources.
4. The second proviso lays down that sub-section (3) would not apply in the cases and circumstances to be notified in the IT Rules, 1962 (Rules) and they were so notified by insertion of rule 6DD in the said Rules after considering the views of several public bodies. For the present appeal, what is relevant is the provisions of Rule 6DD(f)(ii) of the Rules, which reads as follows:
"Rule 6DD: Cases and circumstances in which a payment or aggregate of payments exceeding twenty thousand rupees may be made to a person in a ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 3 day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft.
No disallowance under sub-section (3) of section 40A shall be made and no payment shall be deemed to be the profits and gains of business or profession under sub-section (3A) of section 40A where a payment or aggregate of payments made to a parson in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees in the cases and circumstances specified hereunder, namely :
(f) where the payment is made for the purchase of--
(i) ........ or
(ii) the produce of animal husbandry (including hides and skins) or dairy or poultry farming; or
(iii) ........... or
(iv) ..........."
5. Vide Circular No. 8/2006 dated 6.10.2006, the CBDT had also clarified that any person, by whatever name called, who buys animals from the farmers, slaughters them and then sells the raw meat carcasses to the meat processing factories or to the traders/retail outlets would be considered as producer of livestock and meat. It has also clarified that the benefit of rule 6DD of the Income-tax Rules, 1952 shall be available to any person, by whatever name called, who buys animals from the farmers, slaughters them and then sells the raw meat carcasses to the meat processing factories or to the traders/retail outlets would be considered as producer of livestock and meat subject to furnishing of the following :--
(i) A declaration from the person receiving the payment that he is a producer of meat;
(ii) A confirmation that the payment, otherwise than by an account payee cheque or account payee bank draft, was made on his insistence; and
(iii) A further confirmation from a veterinary doctor certifying that the person specified in the certificate is a producer of meat and that slaughtering was done under his supervision.
ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 4
6. The Assessee is a partnership firm. It is engaged in the business of supplying dressed meat to Defence/Military Authorities in different parts of the country on the strength of Annual Contracts entered into with those authorities. It is not in dispute that meat would be a product of animal husbandry falling within the ambit of Rule 6DD(f)(ii) of the Rules. In the course of assessment proceedings for AY 2003-04 to 2005-06, the AO noticed that the Assessee had made purchases of live goat and chicken from different local farmers and effected supplies to the Military Authorities. The Assessee paid the farmers in cash and each of such payments were above Rs.20,000 and fell within the ambit of Sec.40A(3) of the Act. The AO in his order of assessment for AY 2003-04 to 2005-06 disallowed 20% of the expenses on account of purchases claimed by the Assessee as deduction while computing income from business by invoking the provisions of Sec.40A(3) of the Act.
7. On appeal by the Assessee, the CIT(A) confirmed the orders of the AO. The plea of the Assessee in the appeals before CIT(A) was that it was a producer of meat and the persons from whom he effected purchase of livestock insisted on cash payment. The Assessee asked to submit a confirmation from a veterinary doctor certifying that he was a producer of meat and that slaughtering was done under his supervision. A remand report was called for from the AO and the CIT(A) after considering the remand report was of the view that the Assessee did not get certificate of a veterinary doctor even before the CIT(A) and therefore the benefit of Rule 6DD(f)(ii) of the Rules could not be extended to the Assessee. The CIT(A) therefore confirmed the order of the AO.
8. On further appeal by the Assessee, the ITAT in ITA No. 476 to 478/Kol/2009 for AY 2003-04 to 2005-06 by its order dated 9.3.2011 set aside the orders of CIT(A) on the issue of disallowance u/s.40A(3) of the Act and remanded the issue to the CIT(A) for a fresh consideration. The Assessee filed certificate of a Veterinary doctor (Military) before the Tribunal. The Tribunal found that this certificate was new evidence and required verification by the CIT(A) and for the said purpose the issue ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 5 was remanded to the CIT(A). Following were the relevant observations of the ITAT in this regard:
"4. At the time of hearing before us, the Id. 'Counsel appearing on behalf of the assessee while referring to page no.166 of the paper book which is the certificate issued by Military Authority regarding supervision of slaughtering of livestock further contended that the assessee is fully covered by CBDT Circular No.8 of 2006 dated 6.10.2006. Therefore, the Revenue is not justified in disallowing 20% of the payment made to the purchases u/s 40A(3) of the IT Act. He further submitted that the AO has disallowed even the self cheques drawn by the assessee for the utilization of cash for day-to-day requirements. Therefore, he requested to delete the addition made by the Revenue authorities.
5. On the other hand, the ld. DR relied on the orders of the Revenue authorities.
6. After hearing the rival submissions and on careful consideration of the materials available on record, it is observed that the certificate placed at page 116 of paper book on which the ld. AR relied upon, is not available with the ld. CIT(A). It is evident from the date of certificate that is 25th April, 2009 and the fact that the ld. CIT(A) has dismissed the appeal of the assessee by observing that the assessee has failed to furnish certificate before him., therefore, in the interest of justice, we set aside the matter to the file of the ld. CIT(A) for fresh consideration in view of the certificate on which the ld. AR has placed reliance upon. We further direct ld. CIT(A) to segregate the cash withdrawals made by the assessee for his day-to-day requirements from the disallowance made u/s 40A(3) of the IT Act."
9. The CIT(A) on remand by the Tribunal deleted the addition made by the AO by relying on the certificate of Military Veterinary Doctor certifying that the Assessee was a producer of meat. The following were the relevant observations of the CIT(A):
"5. In compliance to the direction of the Hon'ble ITAT, Kolkata the matter has been re-examined. During the appellate proceedings the case was discussed with the AR of the appellant who has filed written submission along with a paper book. On careful consideration of the remand report of the AO and the submissions filed by the appellant, my findings and decision thereon are as follows :-
5.1. The appellant is a supplier of meat to the Defense/Military Authorities. The appellant participates in tenders floated by the Military and is bound by the terms thereof. The appellant had filed the copies of the tender papers which are on pages 105 - 156 of the paper book filed before me. On page 132 I find that the terms and conditions of the tender mention that live stock shall be liable to ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 6 inspection of the local veterinary Officer. On page 157 that the Lt Col Major has issued a certificate that the slaughtering is carried on under his supervision in his capacity as Vet Officer. Similar certificates are issued from Veterinary officers from Kolkata, Bangalore, Trimulgherry, etc. Thus the live stock slaughter under the supervision of the Veterinary officer of the Army is established. The appellant has also filed certificates available on pages 26 to 55 of the paper book issued by the suppliers of live stock wherein it is stated by these suppliers that (1) they insisted for cash payments (2) The slaughtering of the live stock was done in the presences of the Army Veterinary officers (3) That they buy the live stock from the farmers and get it slaughtered in the presences of the Army Veterinary officers. The appellant has thus claimed that its case is covered by the CBDT Circular no. 8 of 2006 wherein the board has clarified that person who buys animal from farmers and slaughter them and then sells the raw meat is to be considered as a producer of live stock and meat for the purpose of Rule 6DD of the IT Rules 1962 and therefore the provisions of Section 40A(3) are not attracted when cash payments are made to such persons by the appellant.
5.2. I have considered the submissions, perused the assessment order, ITAT order and the paper book. I find that the appellant made cash payments to persons from whom he purchased meat and supplied the same to the Military. The persons have filed certificates that (1) they insisted for cash payments (2) the slaughtering of the live stock was done in the presences of the Army Veterinary officers (3) that they buy the live stock from the farmers and get it slaughtered in the presences of the Army Veterinary officers. The Army Veterinary officers have certified that the slaughter took place in their presences. I therefore find that the appellant has been able to prove that the payments made by him to the suppliers for live stock was covered by the provisions of Rule 6DD of the IT Rules 1962. This view is fortified by the CBDT Circular no.8 of 2006 wherein the board has clarified that person who buys animal from farmers and slaughters them and then sells the raw meat is to be considered as a producer of live stock and meat for the purpose of Rule 6DD of the IT Rules 1962 and therefore the provisions of Section 40A(3) are not attracted when cash payments are made to such persons by the appellant. In view of the above circumstances I hold that the payments made for the purchase of met incurred in cash cannot be disallowed u/s 40A(3) of the Act and therefore the disallowance of Rs.49,11,290/- u/s 40A(3) is hereby deleted."
10. Aggrieved by the order of the CIT(A), the Revenue has preferred the present appeal before the Tribunal. The common ground of appeal of the revenue in all these appeals reads thus:
"1. The Ld. CIT(A) erred in law by violating Rule 46A, as fresh evidence was introduced and no remand report was called for.
ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 7
2. The Ld. CIT(A) failed to appreciate the fact that no supporting documents to fulfill the conditions of Rule 6DD were produced at the assessment/first appellate/first remand stage. The documents were produced before the Hon 'ble ITAT & the case was restored back to the CIT(A). The Ld. CIT(A) erred in law in deleting the entire addition on account of violation of provisions of Sec 40A(3) of the I.T.Act, 1961 without calling for remand report from the A.O.
3. The revenue craves leave to add, alter or modify the grounds of appeal."
11. The Grounds raised in the cross objection are purely supportive of the order of the CIT(A) and these grounds read thus:
"1. For that the Learned CIT (Appeals) - XIX, Kolkata has passed the order in favour of the appellant at the instance of the ITAT, Kolkata Bench in compliance with the direction given thereof upon verification of documents submitted before the then Learned Members of the ITAT, Kolkata Bench: Hence, there was no violation of Rule 46A as fresh evidence.
2. That the then Learned Members of ITAT, Kolkata Bench did not direct the Learned CIT (Appeals), Kolkata to remand the verification procedure or otherwise to the Learned Assessing Officer, Ward -33(2), Kolkata. Therefore, the Learned CIT (Appeals) - XIX did not feel necessary to remand the matters to the Learned Assessing Officer. The Learned CIT (Appeals) - XIX, Kolkata carried out the verification of the said documents that were submitted before the then Learned Members of ITAT and accordingly passed the order under reference.
3. The claim of Assessing Officer to have remand report from the Assessing Officer is bad in law, an aspect of insubordination were the Learned CIT (Appeals) - XIX, Kolkata has complied with the direction of the then Learned Members of ITAT, Kolkata Bench and where upon being satisfied with the supporting documents that were filed before the then Learned Members of ITAT, Kolkata Bench. Thus, the Assessing Officer preferring the second appeal before the Learned Members of 'C' Bench, Kolkata has not only excided his given power of authority but also misused the same as a measure of his velour and defaulted himself under insubordination clause.
4. For that the Assessing Officer has erred in not giving appeal effect by way of ignoring the First Appellate Order passed by the CIT(Appeals)-XIX, Kolkata.
The respondent craves leave to add, alter and/or to modify the Ground or Grounds of Cross Objection either before or at the time of hearing."
12. We have heard the rival submissions. The learned DR reiterated the stand of the revenue as reflected in the grounds of appeal. The learned DR also placed reliance on ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 8 the decision of the Hon'ble Gujarat High Court in the case of CIT Vs. Valimohamed Ahmedbhai 134 ITR 214 (Guj.) wherein the Hon'ble Gujarat High Court held the mere fact that the notice of hearing of the appeal was given to the ITO would not meet the requirements of r. 46A. It is clear from the rule that the AAC should not have taken into account any evidence produced under sub-r. (1), unless the ITO had been allowed a reasonable opportunity to examine the evidence or to cross-examine the witness whose evidence was taken on record or to produce any evidence in rebuttal of the additional evidence produced by the assessee. Even if no such rule was in existence, ends of justice and fair play demand that when an assessee produces additional evidence in his appeal an opportunity is given to the ITO to test the evidence or to counter the effect of the evidence by producing evidence in rebuttal or otherwise.
13. The learned counsel for the Assessee on the other hand relied submitted that u/s.250(4) of the Act, the CIT(A) has power to make enquiries by himself or alternatively has power to direct the AO to make enquires and submit a remand report. While CIT(A) exercises powers to make enquiries on his own u/s.250(4) of the Act, the rigours of Rule 46A of the Rules do not come into play. He placed reliance on the order of the CIT(A) and further placed reliance on the decision of the Hon'ble Rajasthan high Court in the case of Silver & Art Palace Vs. CIT 206 ITR 501 (Raj) wherein the Hon'ble RajasthanHhigh court held while disposing of appeal under s. 251(1)(b), CIT(A) has no power to order further enquiry but while keeping the appeal pending, CIT(A) has power under s. 250(4) to order further enquiry. The Court held that CIT(A)'s order directing the Assessing Officer to summon D and afford an opportunity to petitioner-assessee to cross-examine him, is not without jurisdiction, more so when it was petitioner itself who raised argument not only before the CIT(A) but also before the Assessing Officer that no such opportunity was afforded. He also placed reliance on the decision of the Hon'ble Supreme Court in the case of CWT Vs. Shrenik Kasturbhai (HUF) 165 ITR 661 (SC) wherein it was held the WT Act, 1957, does not contain any provision like cl. (c) of s. 250(2) of the IT Act, 1961. In the absence of such a provision, it is doubtful whether the WTO would be entitled to a ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 9 notice relying on the principle of natural justice, though nothing prevents the WTO from appearing at the hearing or the AAC calling upon him for hearing. Reliance was also placed by him on the decision of Punjab & Haryana High Court in the case of CIT Vs. Kuldip Industrial Corporation 178 ITR 257 (P & H) wherein it was held that the question " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the CIT (A) could, under s. 250(4) of the IT Act, 1961, admit evidence of the death of Smt. Darshana Devi without giving any opportunity to the ITO to rebut the same as required under r. 46A of the IT Rules, 1962 ?" and the question " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the ITO was given reasonable opportunity to examine/rebut the evidence in the form of a death certificate of Smt. Darshana Devi ?"
gives rise to a question of law and a reference u/s.256(2) was directed to be made by the Tribunal to the Hon'ble High Court.
14. We have given a careful consideration to the rival submissions and are of the view that there is merit in the appeals of the revenue. Provisions of Rule 46A of the rules reads thus:
"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.
ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 10 (2) No evidence shall be admitted under sub-rule (1) unless the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission.
(3) The Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) shall not take into account any evidence produced under sub-rule (1) unless the Assessing Officer has been allowed a reasonable opportunity--
(a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or
(b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant.
(4) Nothing contained in this rule shall affect the power of the Deputy Commis- sioner (Appeals) or, as the case may be, the Commissioner (Appeals)] to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Officer) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271."
15. A perusal of Rule 3 would show that whatever may be the circumstance under which additional evidence is admitted by the CIT(A), the AO should be afforded an opportunity of being heard. The emphasis by the learned counsel for the Assessee was that the additional evidence in question was not produced under Rule 46A of the rules but was evidence admitted by the ITAT. We are of the view that the ITAT only directed the CIT(A) to consider the additional evidence in the form of certificate of veterinary doctor by the CIT(A) and that by itself will not make the evidence in question as one not falling within the ambit of Rule 46A(1) of the rules. As far as the contention of the learned counsel for the Assessee that u/s.250(4) of the Act, the CIT(A) has the power to make enquiries and that in exercise of such powers he has power to admit additional evidence even without confronting the same to the AO, is concerned, We are of the view that Sec.250(4) and Rule 46A of the Rules operate on totally different fields. While Sec.250(4) of the Act deals with power of the CIT(A) to make enquiries on his own before deciding an appeal, Rule 46A of the Rules lays down the manner in which or the restrictions subject to which the CIT(A) can exercise his power. We are of the view that while exercising such power u/s.250(4) of the Act, the CIT(A) would be subject to the restriction laid down in Rule 46A of the Act. In other words Sec.250(4) of the Act does not override the duty cast on the part of the CIT(A) to afford opportunity to the AO to have his say on the additional evidence ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 11 produced by an Assessee before the CIT(A). We are therefore of the view that the issue should be remanded to the CIT(A) for the limited purpose to enable the CIT(A) to afford opportunity to the AO for verifying the veracity of the Certificate filed by the Assessee as additional evidence before the CIT(A). The CIT(A) after such an opportunity and getting a remand report from the AO is directed to decide the validity or otherwise of the addition made u/s.40A(3) of the Act. The question whether the CBDT Circular No.8 of 2006 will apply to the facts of the case should also be left open for comments by the AO in his remand report. The said CBDT Circular talks of payment by purchaser of meat from a producer of livestock and meat. If applied to the facts of the present case, it might apply to the Military/Defence establishments making payment in cash to the Assessee. As to whether it will apply to payments made by a producer of meat or livestock for purchase of livestock and chicken is also an issue which needs to be decided. The scope of remand by the Tribunal includes all aspects of the disallowance u/s.40A(3) of the Act and since the AO was not afforded an opportunity on the additional evidence filed by the Assessee, this aspect also should be left open and cannot be construed as enlarging the scope of the proceedings before CIT(A) than what was contemplated by the Tribunal while remanding the issue vide its order dated 9.3.2011. The CIT(A) after taking into consideration the remand report of the AO and after affording opportunity of being heard to the Assessee is directed to decide the issue in accordance with law. The appeals of the revenue are thus treated as allowed for statistical purpose. The C.O.s are purely supportive of the order of the CIT(A) and do not call for any specific adjudication as such C.O.s are not maintainable.
16. As far as the case laws relied upon by the learned AR is concerned, in the decision of the Hon'ble Rajasthan high Court in the case of Silver & Art Palace Vs. CIT 206 ITR 501 (Raj), the Hon'ble Rajasthan high court held while disposing of appeal under s. 251(1)(b), CIT(A) has no power to order further enquiry but while keeping the appeal pending, CIT(A) has power under s. 250(4) to order further enquiry. We are of the view that the issue in the present appeal is not with regard to power of CIT(A) to make further enquiry but is confined only to the question whether ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 12 there was violation of Rule 46A of the Rules. The decision of the Hon'ble Supreme Court in the case of CWT Vs. Shrenik Kasturbhai (HUF) 165 ITR 661 (SC) is not relevant to the facts of the present case as in the said decision, the Hon'ble Court in the context of powers of an AO under the Wealth Tax Act, 1957, held that there was no provision under the said Act for the AO to insist on an opportunity of being heard. It cannot be said to be a precedent applicable to the proceedings before CIT(A) under the Act. The decision of Punjab & Haryana High Court in the case of CIT Vs. Kuldip Industrial Corporation 178 ITR 257 (P & H) is a case where it was held that the question " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the CIT (A) could, under s. 250(4) of the IT Act, 1961, admit evidence of the death of Smt. Darshana Devi without giving any opportunity to the ITO to rebut the same as required under r. 46A of the IT Rules, 1962 ?" and the question " Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the ITO was given reasonable opportunity to examine/rebut the evidence in the form of a death certificate of Smt. Darshana Devi ?"
gives rise to a question of law and a reference u/s.256(2) was directed to be made by the Tribunal to the Hon'ble High Court. The issue in the present case is identical but the decision cited does not decide the question but only holds that it is a substantial question of law. Therefore the said decision will not be of any assistance to the plea of the Assessee in the present case.
17. In the result, the appeals by the revenue are treated as allowed for statistical purpose while the C.O.s are dismissed.
Order pronounced in the Court on 01.09.2017.
Sd/- Sd/-
[Waseem Ahmed] [ N.V.Vasudevan ]
Accountant Member Judicial Member
Dated : 01.09.2017.
[RG PS]
ITA Nos.835 to 837 & CO.67to69/2014 M/s. Hind Supply Corporation A.Y.2003-04 to 2005-06 13 Copy of the order forwarded to:
1. M/s. Hind Supply Corporation, 4, Achambit Shah Road, Kolkata-700022.
2. I.T.O., Ward-33(2), Kolkata.
3. C.I.T.(A)-XIX, Kolkata. 4. C.I.T.- XI, Kolkata.
5. CIT(DR), Kolkata Benches, Kolkata.
True copy By Order
Senior Private Secretary
Head of Office/D.D.O., ITAT Kolkata Benches