2022 (4) TMI 896 - AT - Income Tax

Disallowance made for want of books of account as well as cash book of the assessee - Admission of additional evidences - assessee furnished two cash books in the form of additional evidence received by the Tribunal and submitted that these additional evidences could not be produced before the AO as well as before the Ld. CIT(A) as the relevant papers and documents and books of account in respect of M/s. Anu Reebok Stores were seized by the department and thereafter same materials were seized by CBI.HELD THAT - On a plain reading of the Rule 29, of I.T. Rules, we observe that if the income tax authorities have decided the issue without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. In the present case, as contended by Ld. A.R. the cash books and books of accounts were under the custody of the income tax department and later on was seized by the CBI. Therefore, these documents were not produced before the lower authorities while passing the orders. From the above, we are satisfied that the assessee was prevented by sufficient cause for not presenting the above documents before the AO as well as Ld. CIT(A). We admit the additional evidence in the form of cash book for the assessment year 2012-13 2013-14 and restore the matter back to the file of the AO to consider these additional evidences and pass fresh assessment orders for both the assessment years. Simultaneously, we direct the assessee to furnish the requires details such cash book as submitted before the Tribunal, and as other evidences required by the AO/to be submitted by the assessee for fresh consideration of the issue by the AO. The AO is directed to allow sufficient opportunity of being heard to the assessee - Appeal of assessee allowed.

Summary

Issues:
- Appeal against the order of CIT(A)-2, Bhubaneswar for assessment years 2012-13 & 2013-14.
- Grounds raised in ITA No. 158/CTK/2016 for A.Y. 2012-13.
- Grounds raised in ITA No. 159/CTK/2016 for A.Y. 2013-14.
- Admission of additional evidence in the form of cash book and books of account.
- Compliance with Rule 29 of I.T. Rules regarding additional evidence.

Analysis:

Appeal against CIT(A) Order:
- The appellant challenged the CIT(A) order for assessment years 2012-13 & 2013-14 on various grounds, including alleged arbitrary decisions, unexplained investments, non-disclosure of incentives, treatment of interest as undisclosed incentives, and holding unexplained investments as income under section 69 of the IT Act.
- The appellant also disputed additions related to unsecured cash credit, gifts, donations, and overall assessment methodology, claiming lack of proper verification and justification for initiating proceedings under section 147 of the IT Act.

Grounds Raised for A.Y. 2012-13:
- The appellant raised multiple grounds challenging the lower forum's orders as arbitrary, excessive, and lacking proper verification.
- Specific issues included unexplained investments in land, non-disclosure of correct incentives on sales, treatment of interest as undisclosed incentives, and holding an investment in a company as the appellant's income.
- The appellant also contested additions related to unsecured cash credit, gifts, and donations, criticizing the assessment process as whimsical and lacking justification.

Grounds Raised for A.Y. 2013-14:
- The appellant raised concerns regarding the arbitrary nature of the order, lack of proper satisfaction and element of escapement under section 143(3)/147 of the IT Act.
- Issues included the addition of alleged undisclosed incentives, disallowance of bank interest and unexplained deposits without proper confrontation, and routine disallowances without allowing furnished materials or providing opportunities for further information.

Admission of Additional Evidence:
- The appellant sought admission of additional evidence in the form of cash books and books of account, citing their unavailability due to seizure by tax authorities and subsequently by CBI.
- The Senior DR objected to the admission, citing Rule 29 of I.T. Rules and alleging the additional evidence was an afterthought prepared to suit the appellant.
- The Tribunal, after considering Rule 29, admitted the additional evidence based on the appellant's sufficient cause for non-presentation before lower authorities and directed the matter back to the AO for fresh assessment orders for both assessment years.

Compliance with Rule 29 of I.T. Rules:
- Rule 29 allows the Tribunal to admit additional evidence if the income tax authorities decided the case without giving sufficient opportunity to the assessee to adduce evidence.
- The Tribunal admitted the additional evidence of cash books based on the appellant's inability to present them earlier due to seizure, directing the AO to consider these for fresh assessment and ensuring the appellant is given a fair opportunity to be heard.

In conclusion, the ITAT Cuttack allowed the appellant's appeals, admitting additional evidence and directing a fresh assessment by the AO while ensuring compliance with Rule 29 of I.T. Rules.