TMI Blog2016 (5) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice, these additional evidences needs to be admitted to advance substantial justice in accordance with rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963, for the reasons and discussions as detailed above and the matter is set aside and restored to the file of the Assessing Officer for de novo determination of the matter on the merits after examination and verification of these aforestated additional evidences filed before the Tribunal - Appeal filled by assessee allowed for statistical purposes. - I. T. A. No. 4512/Mum/2015 - - - Dated:- 18-5-2016 - Saktijit Dey (Judicial Member) And Ramit Kochar (Accountant Member) For the Appellant : Sanjiv M. Shah For the Respondent : V. S. Jadhav, Departmental Representative ORDER Ramit Kochar (Accountant Member) 1. This appeal, filed by the assessee, being ITA No. 4512/Mum/2015, is directed against the order dated November 22, 2013, passed by the learned Commissioner of Income-tax (Appeals)-35, Mumbai (hereinafter called the CIT(A) ), for the assessment year 2009-10, the appellate proceedings before the Commissioner of Income-tax (Appeals) arising from the assessment order dated December 7, 2011, passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of appeal are independent and without prejudice to one another. (11) The appellant craves leave to add to and/or amend and/or delete and/or modify and/or alter the aforesaid grounds of appeal as and when occasion demands. 3. The brief facts of the case are that the assessee is an individual and the assessee's income comprises capital gains and income from other sources. During the course of assessment proceedings under section 143(3) read with section 143(2) of the Act, the assessee submitted details as called for by the Assessing Officer along with the computation of income and the bank statements, etc. It was observed by the Assessing Officer from the bank statement of Bank of India, Borivali Branch, Mumbai, that there was a cash deposits in the account to the tune of ₹ 1,44,000. The assessee was asked to furnish the details of cash deposits along with sources thereof and also was asked by the Assessing Officer to furnish cash book and bank book. In response to the explanations sought by the Assessing Officer, the assessee submitted that the said cash deposits were out of embroidery and knitting income in cash but the assessee failed to show any receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Roshan Di Hatti v. CIT [1977] 107 ITR 938 (SC). (c) Kale Khan Mohammad Hanif v. CIT [1963] 50 ITR 1 (SC). (d) CIT v. Devi Prasad Vishwanath Prasad [1969] 72 ITR 194 (SC). (e) Sumati Dayal v. CIT [1995] 214 ITR 801 (SC) ; [1995] 80 Taxman 89 (SC). (f) CIT v. M. Ganapathi Mudaliar [1964] 53 ITR 623 (SC). (g) A. Govindarajulu Mudaliar v. CIT [1958] 34 ITR 807 (SC). (h) CIT v. Calcutta Agency Ltd. [1951] 19 ITR 191 (SC). (i) CIT v. Transport Corporation of India Ltd. [2002] 256 ITR 701 (AP). (j) CIT v. Imperial Chemical Industries (India) (P.) Ltd. [1969] 74 ITR 17 (SC). 4. Aggrieved by the assessment orders dated December 7, 2011, passed under section 143(3) of the Act by the Assessing Officer, the assessee filed first appeal before the learned Commissioner of Income-tax (Appeals). 5. Before the learned Commissioner of Income-tax (Appeals), the assessee submitted that there are two additions made by the Assessing Officer. The assessee submitted additional evidences which were filed before the learned Commissioner of Income-tax (Appeals) in the form of customer lists purportedly maintained as sales register for the knitting and embroidery work done mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on account of cash deposit in the assessee's bank account, vide appellate orders dated November 22, 2013. Similarly, with respect to the loan amount of ₹ 3 lakhs from Mrs. Hansaben Khoshiya, the learned Commissioner of Income-tax (Appeals) rejected the contentions of the assessee and upheld the assessment orders dated December 7, 2011, passed under section 143(3) of the Act by the Assessing Officer holding that the assessee has failed to prove the cred itworthiness of the lender. The Commissioner of Income-tax (Appeals) observed that the disbursement of loan to the assessee by Mrs. Hansaben Khoshiya is preceded by deposit of cash in her bank statement. The asses see has not proved the creditworthiness of the lender, Mrs. Hansaben Khoshiya. The Commissioner of Income-tax (Appeals) held that the asses see has not produced the correct evidences during the assessment proceedings and has not given any cogent explanation for misrepresenting the facts before the Assessing Officer and in fact the assessee is misguiding the Revenue by providing false information even at the appellate proceed ings before the Commissioner of Income-tax (Appeals). The claim of the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Income-tax (Appellate Tribunal) Rules, 1963, and the matter may be set aside to the file of the Assessing Officer for de novo determination of the issues after considering the additional evidences on the merits. The learned counsel relied upon the following case law to contend that additional evidences should be admitted. 1. Rajmoti Industries v. ITO [1995] 52 ITD 286 (Ahd). 2. CIT v. GTL (Appeal No. 1675 of 2012, decided on December 4, 2014-Bombay High Court). 3. Mascon Global Ltd. v. Asst. CIT [2010] 133 TTJ (Chennai) 257 ((TM). 4. GE Energy Parts Inc. v. Addl. DIT, International Taxation [2014] 33 ITR (Trib) 411 (Delhi) ; [2014] 106 DTR 265 (Delhi). 5. Abhay Kumar Shroff v. ITO [1999] 237 ITR (AT) 75 (Patna) ; [1997] 63 ITD 144 (Patna) approving Rajmoti Industries v. ITO [1995] 52 ITD 286 (Ahd). 6. DCIT v. Oman International Bank SAOG [2006] 286 ITR (AT) 8 (Mum) ; [2006] 100 ITD 285 (Mum) [SB] following the decision of honourable Delhi High Court in P. C. Puri v. CIT [1985] 151 ITR 584 (Delhi). 7. Electra Jaipur (P.) Ltd. v. IAC [1988] 26 ITD 236 (Delhi). 8. Smt. Prabhavati S. Shah v. CIT [1998] 231 ITR 1 (Bom). 8. The learned Departmental repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls were sought at the fag-end of the assessment proceedings, the sufficient opportunity to the assessee to defend herself was not accorded by the Assessing Officer in filing the evidences before the Assessing Officer. Thus, in our considered view, the assessee's case falls within the ambit of rule 46A(1)(d) of the Income-tax Rules, 1962, and the assessee was not accorded sufficient opportunity by the Assessing Officer to adduce the relevant evidences before the Assessing Officer during the course of the assessment proceedings under section 143(3) read with section 143(2) of the Act, whereby details were called by the Assessing Officer on November 16, 2011, asking the assessee to file the same on November 27, 2011, while the assessment under section 143(3) of the Act was framed immediately thereafter on December 7, 2011. However, the assessee during the course of proceedings before the learned Commissioner of Income-tax (Appeals) submitted additional evidences by way of sale register with respect to the income from knitting and embroidery business, along with the loan confirmations with respect to the loan of ₹ 3 lakhs raised from Mrs. Hansaben Khoshiya, copy of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport from the Assessing Officer as provided under rule 46A(1), (3) of the Income-tax Rules, 1962, and, thereafter, the Commissioner of Income-tax (Appeals) should have decided the appeal on the merits, which has not been done in the instant case by the Commissioner of Income-tax (Appeals). Voluminous documents as additional evidences have been placed by the assessee in the paper book filed before the Tribunal ranging from pages 38 to 414 and a prayer has been made by the assessee that proper and adequate opportunity was not given by the authorities below before completing the assessment and during the first appellate proceedings as set out above and it was submitted before the Tribunal that these additional evidences be admitted under rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963, in the interest of substantial justice as the assessee was not accorded adequate, sufficient and proper opportunity by the Assessing Officer to file these additional evidences and the Commissioner of Income- tax (Appeals) did not admit these additional evidences during the first appellate proceedings as set out above, the appeal be decided by the Tribunal on the merits after admitting and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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