2018 (8) TMI 1638 - AT - Income Tax

Non prosecuting the assessment - prevention from furnishing the evidences in the assessment and at First Appellate stages - admission of additional evidence - Held that - As perused the affidavit filed by the Managing Director of the company explaining the circumstances under which the assessee could not pursue the matters before the lower authorities and other documents, evidences produced before us which prevented the assessee to appear and adduce the evidences before the lower authorities. In the said affidavit dated 12. 12. 2017 executed by Mr. Navid Mohammed Ali Shaikh Director of the company it is averred and deposed that his father Mr. Mohammed Ali Abu Bakar Shaikh was detained in Judicial custody at Arthur road Jail for allegedly involved in a criminal conspiracy. It was deposed that his father was arrested on 21. 09. 2010 and was acquitted by Hon ble Special Judge of Greater Mumbai on 20. 03. 2015 and thereafter was released from prison on 01. 06. 2015. In this affidavit it is also averred that fresh additional evidences are being placed on record and prayer was made for admission of these additional evidences under Rule 29 of Income-tax Rules, 1963 and prayer is made for admission of these additional evidences. The assessee is also enclosing Paper Book, Judgement of the Trial Court in the case of his father dated 20. 03. 2015 acquitting him from the charges which were framed by the State against his father. We find that there is a plausible explanation given by the assessee for not prosecuting the assessment as well as the First Appellate proceedings. In the circumstances, in the interest of justice we are of the view that all the issues in appeal should be restored to the file of the Assessing Officer for denovo adjudication. Additional evidences produced before us should be considered by the Assessing Officer and decide all the issues afresh - Appeal of the assessee is allowed for statistical purpose.

Summary

Issues:
Appeal against order of Commissioner of Income Tax (Appeals) for Assessment Year 2011-12; Request for restoration of appeal to Assessing Officer due to inability to furnish evidence; Consideration of additional evidence and circumstances beyond control.

Analysis:
The appeal was filed by the assessee against the order of the Commissioner of Income Tax (Appeals) for the Assessment Year 2011-12. The counsel for the assessee contended that the order passed by the Commissioner was ex-parte, confirming the additions/disallowances made by the Assessing Officer. It was highlighted that the Tribunal had set-aside an appeal for a different director for a previous assessment year due to circumstances beyond their control, including judicial custody and other disruptions. The Managing Director of the company submitted an affidavit explaining the inability to furnish evidence due to his father's detention and subsequent legal proceedings causing extreme stress and disruptions. The counsel requested all issues in the appeal to be restored to the Assessing Officer for fresh adjudication, citing the interest of justice.

The Department had no serious objection to remitting the matter to the Assessing Officer. The Tribunal noted that in the current case, there were no representations made before the Assessing Officer or the First Appellate Authority, with the assessee failing to produce evidence and explanations. Considering the circumstances beyond the control of the directors and the desertion of the Chartered Accountant, the Tribunal referred to a previous case where an appeal was restored due to similar reasons. The Tribunal found the explanations provided by the assessee plausible and in the interest of justice, directed all issues in the appeal to be restored to the file of the Assessing Officer for fresh adjudication.

The Tribunal emphasized that the additional evidence produced should be considered by the Assessing Officer, and all issues should be decided afresh in accordance with the law after providing a fair opportunity for the assessee to be heard. The assessee was directed to cooperate with the Revenue for the completion of the fresh assessment. It was made clear that the assessee must produce all necessary evidence and explanations before the Assessing Officer to support their contentions. The appeal of the assessee was allowed for statistical purposes, with the order pronounced in open court on 24th August 2018.