TMI Blog2014 (11) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO so as to submit the books of account - Such computer record ought to have been produced before the AO but it was no so - there is some doubt in assessee's activities - CIT(A) has not considered this relevant aspect and total relief has been granted to the assessee without appreciating the remand report properly – thus, the order of the CIT(A) is set aside and the matter is remitted back to the AO for fresh adjudication – Decided in favour of revenue. - ITA No.126 /JP/2011, C.O. No.80/JP/2011 - - - Dated:- 8-8-2014 - Shri R. P. Tolani And Shri T. R. Meena,JJ. For the Petitioner : Shri D.C. Sharma For the respondent : written submission ORDER Per R. P. Tolani, JM The Revenue has filed an appeal against order of the ld. CIT(A), Ajmer dated 10-12-2010 for the assessment year 2004-05 and the assessee has filed the cross objection. 2. The grounds raised by the Revenue in its appeal are as under:- On the facts and in the circumstances of the case, the ld. CIT(A) has erred in:- (i) deleting trading addition of ₹ 1,69,845/- in kerosene business. (ii) deleting addition of ₹ 1,79,666/- on account of less income shown in transportat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was the sole reason for issue of notice u/s 148 in view of binding judgement of Hon'ble Rajasthan High Court in the case of CIT vs. Shri Ram Singh 306 ITR 343. 32. The assessee made a specific request to the ld. C.I.T. (Appeals) for doing so in his written submission (PB -7). In the above referred judgment it was held- Held - dismissing the appeal, that the Tribunal was justified in holding that the proceedings for reassessment under section 148 of the Act were initiated by the Assessing Officer based on non-existing facts, because ultimately the assessee had been able to explain the income, which the Assessing Officer believed to have escaped assessment. The Assessing Officer was justified in initiating the proceedings under section 147 of the Act. But once the Assessing Officer reached the conclusion that the income which he believed to have escaped investment had been explained, the Assessing Officer did not continue to possess jurisdiction to tax any other income, which came to his notice subsequently in the course of the proceedings. This case has been consistently been followed by Hon'ble Rajasthan High Court and other judicial authorities. To quote few of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of record for impugned financial year 2003-04. It may be mentioned that the assessment order has been passed on 30-12-2008 rejecting the books of account. 14. The ld. DR contends that when the books of account of the assessee are mysteriously lost one month before the assessment then the AO was perfectly justified in putting the assessee's intention with regard to non-filing of the relevant information. The original assessment was summary assessment u/s 143(1) of the Act which does not amount to proper assessment in terms of Hon'ble Supreme Court judgement in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra). Despite these impediments and non-production of records, the ld. CIT(A) deleted the entire addition as under:- 8.3 Kerosene is a controlled item. The sale of Kerosene is also supervised by District Administration. Moreover, the accounts of appellant are audited and there are no adverse comments of auditor. No independent inquiry was made by AO to prove that sale and purchase declared by appellant is not correct. Regarding non-production of books of accounts, it was intimated that the same are lost in transit and FIR for the same was also lodged. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was admitted. These are the mandatory requirements in terms of Rule 46A of Income Tax Rules and without complying with the statutory conditions additional evidence cannot be admitted. Thus the admission of additional evidence by the ld. CIT(A) is contrary to the law and untenable. If the computer back was available with the assessee then in that case a request to that effect ought to have been made before the AO by the assessee. The assessee clandestinely did not produce the books of account before the AO. The judgement of Hon'ble Delhi High Court in the case of CIT vs. Manish Build Well (P) Ltd. (2011) 245 CTR 397 is placed to the effect that admission of additional evidence by the ld. CIT(A) in contravention of Rule 46A is bad in law. Consequently, the remand report submitted by the AO in this behalf is not in accordance with Rule 46A. 17. The ld. CIT(A) further deleted all the additions even though the remand report opposed the admission of additional evidence and controverted the assessee's submission, being after thought. The other additions deleted by the ld. CIT(A) are as under:- 9.3 As intimated by appellant, the receipts of ₹ 1,79,666/- are include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce between estimation of cost of DVO and the registered valuer is also on account of difference between CPWD and local PWD rates and non-allowance of deduction on account of self supervision. There is no material on record to indicate that the total investment declared by appellant on furniture and fixture is understated. Therefore, addition of ₹ 5,19,097/- is without any basis and the same is directed to be deleted. Ground No. 11 is thus allowed. 21. The Ground No. 6 of the Revenue is regarding deletion of addition of ₹ 1.00 lac made on account of unexplained cash credit wherein the ld. CIT(A) has observed as under:- 14.3 In this case no unsecured loans were accepted during the year. Balances of ₹ 60,000/- and ₹ 40,000/- in the name of above mentioned two creditors are opening balances and there are no transactions in their account during the year. Therefore, no addition u/s 68 is justified for this year. Addition of ₹ 1,00,000/- is directed to be deleted. Ground No. 12 is thus allowed. 22. We have heard the ld. DR and perused the materials available on record including the written submission filed by the ld. AR of the assessee. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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