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TMI Blog2015 (3) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... t objected to by the ld. Departmental Representative. We, therefore, proceed to dispose of all the appeals by a consolidated order for the sake of convenience and thus proceed with the facts for Assessment Year 2007-08 in the case of Shri Mehul J Patel in ITA No. 2894/Ahd/2013. 3. The brief facts of the case, as culled out from the records for Assessment Year 2007-08 in the case of Shri Mehul J Patel in ITA No.2894/Ahd/2013, are as under:- 4. The assessee is an individual stated to be deriving income from salary. In this case, the assessee originally filed Return of Income for Assessment Year 2007-08 on 22.06.2007 declaring total income at Rs. 4,81,200/-. Subsequently, the revised return was filed on 06.07.2009 declaring the total income at Rs. 4,81,200/- and agriculture income of Rs. 9,85,000/-. The Assessing Officer has noted that the revised return was not within the stipulated time u/s 139(5) of the Act and, therefore, the revised return was not considered. Subsequently, the assessment was reopened by issuing notice u/s 148 of the Act and thereafter, the assessment was framed u/s 143(3) r.w.s. 147 of the Act, vide order dated 30.11.2012 and the total income was determined at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of Rs. 4,67,150/- which the assessee could not justify with evidences and previous years books of accounts. He further noted that no satisfactory and relevant evidence or confirmation were furnished with respect to the credits/deposits in the bank account and no cash flow or fund flow statement was furnished to establish the availability of cash. With respect to the submission that the income being agriculture income, he noticed that the assessee did not furnish copies of the sales bills of the agriculture product, bills for purchase of agriculture seeds, fertilizers, etc., and further from the copies of 7/12 uttaras, he noticed that the size of the land to be small and the assessee to be one of the joint owners. He, therefore, concluded that the assessee has failed to prove the agriculture income and the other deposits in the bank. He, therefore, considered the aggregate credit of Rs. 18,60,736/- as unexplained income and added u/s 69 of the Act. The Assessing Officer also noticed that the assessee had made insurance premium payments of LIC of Rs. 11,82,360/-, the details of which are listed at page nos. 3 & 4 of the assessment order. Considering the fact that the assessee wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been filed. Under such circumstances, such additional evidences are not admissible. 5.3.1. For this purpose, reliance is placed upon the decision of Hon'ble Gujarat High Court in the case of Fairdeal Filaments Ltd, 302 ITR 173 (Guj.). In this case the Assessing Officer made an addition on account of unexplained share capital to the tune of Rs. 18,40,200, disallowed the consultation fees of Rs. 75,000, and disallowed the claim under section 80-1 of the Act. The assessee carried the matter in appeal before the Commissioner (Appeals) who partly allowed the appeal on one another ground but confirmed the assessment order in relation to the aforesaid three items by refusing to admit additional evidence by stating that "5. I have gone through the case-records and find that the Assessing Officer has given more than adequate opportunity to the appellant to furnish the information regarding the names and addresses of the shareholders but the appellant has failed to file the same before him. The first notice calling for this information is found to have been issued by the Assessing Officer on March 2, 1993, and another notice calling for the same information was issued on March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this evidence should be admitted under rule 29 of the Income-tax (Appellate Tribunal) Rules. There is no doubt that rule 29 enables the Tribunal to admit additional evidence in certain cases and under certain circumstances but the benediction of rule 29 cannot be bestowed upon any party who is negligent, noncooperative and recalcitrant; nor should the Tribunal give another chance or opportunity to any party to cover up lacunae, laches and lapses. Taking into consideration the facts and circumstances of the case we do not consider the case of the assessee as fit for invoking rule 29 of the Income-tax (Appellate Tribunal) Rules." 5.3.3. On further appeal to Hon'ble Gujarat High Court, the Court held as follows: "The facts narrated hereinbefore go to show that before the Tribunal the limited question that was raised was whether the Commissioner (Appeals) had rightly turned down the request made by the assessee for production of additional evidence. Alternatively, it was contended on behalf of the assessee that the Tribunal may exercise discretion vested in the Tribunal vide rule 29 of the Income-tax (Appellate Tribunal) Rules and admit additional evidence. The Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes apparent that the Tribunal has approached the matter correctly and once the Tribunal has exercised discretion legally in accordance with law it is not possible to come to the conclusion that in the facts and circumstances of the case, such exercise of discretion is either coloured by irrelevant considerations or is capricious or arbitrary. In so far as rule 29 of the Income-tax (Appellate Tribunal) Rules is concerned in the case of Pari Mangaldas Girdhardas [1977] CTR (Guj) 647 this High Court, after setting out the text of the rule, has stated as under (page 667) : "The provisions of the said rule make it clear that the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal. However, in three classes of cases it permits production of additional evidence : (1) when the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders ; (2) when the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed for any other substantial cause ; or (3) when the income-tax authorities have decided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the finding of the Tribunal is supported by any material or any evidence on record. In the absence of such a question the court cannot, in the guise of referring to material on record, ignore the finding of fact recorded by the Tribunal in exercise of reference jurisdiction. Letter dated March 28, 1983, on which reliance is placed on behalf of the assessee is nowhere referred to in the order of the Tribunal and the court cannot go into the same as the said letter has also not been annexed to the statement of the case. In the aforesaid fact situation, the decisions cited on behalf of the asses-see cannot carry the case of the assessee any further, because admittedly in the said decisions the courts have found that there was material available on record which was referred to either by the Commissioner (Appeals) or the Tribunal but had not formed part of the statement of case. In the present case that is not the situation. Hence, in the absence of any infirmity in the exercise of discretion by the Tribunal all the three questions referred for the opinion of the High Court are answered in the negative, (affirmative?) i.e., in favour of the Revenue and against the assessee." 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had submitted that he is residing with his father, his wife and 2 children. Further, submission was that the appellant's family is a middle class family and expenses are very normal. Thus, the appellant had failed to provide the details as asked for by the AO during the course of assessment proceedings regarding household expenses. During the appellate proceedings also no such details has been furnished except making a submission that onus was on the AO to bring on record sufficient material to prove that expenses estimated by him are reasonable. This is also to mention here that the appellant has not given the details of drawings made by him for such purposes. He has only provided his ledger in the books of Anupam Industries to show some indirect expenses made on his behalf. The AO has already taken into account this ledger. I have also gone through this ledger copy in which no personal expenses could be detected. When the appellant had not furnished any details of the household expenditure, the drawings made by him for this purpose and the contribution made by other family members out of their drawings for this purpose, then the estimate made by the AO cannot be held to be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in making the additions. He, thus, supported the order of the Assessing Officer and the CIT(A). 10. We have heard the rival submissions and perused the material on record. We find that the addition has been made by the Assessing Officer on account of unexplained cash credit in the bank account, LIC premium payments, household expenses and agriculture income. We find that the assessee submitted the details before the ld. CIT(A) which is also placed on record at page Nos. 39 and 40 of the paper-book. From the details, it is seen that the assessee has furnished explanation and also the relevant page numbers of the evidences in support of his explanation. We find that the aforesaid submissions were not considered by ld. CIT(A) and it was considered as additional evidences to be not admissible. Here we find that the Hon'ble Gujarat High Court in the case of CIT vs. Scientific Chemicals, (2005) 278 ITR 199 (Guj.), after applying the ratio of decision of Hon'ble Apex Court in the case of Tin Box Co. Vs. CIT, (2001) 249 ITR 216 (SC) at para 10 and 11 has noted as under:- "As held by the apex court in the case of Tin Box Co. [2001] 249 ITR 216 once the Tribunal found that the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no explanation is tendered. In the present case, admittedly, it has been found by the Tribunal that though the explanation was tendered, the Income-tax Officer proceeded on the footing that no explanation was tendered and thus, it is established that the order stands vitiated for non-application of mind. If a statute invests a public officer with the authority to do an act in a specified set of circumstances, it is imperative upon him to exercise the authority in a manner appropriate to the facts and circumstances of the case when a party interested and having a right takes appropriate steps in that regard and circumstances for exercise of authority with the discretion are shown to exist. The exercise of discretion has to be in a judicial manner, namely, fairly and reasonably. Applying the aforesaid principles to the facts of the case, it is apparent that the assessee had tendered an explanation before the Income-tax Officer in response to the show-cause notice issued by him, such explanation has been ignored by the Income-tax Officer in entirety by stating that no explanation has been tendered and in the circumstances, the order levying penalty suffers from violation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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