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TMI Blog2014 (11) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee has been asking adjournments on most of the dates. From the last 4 occassions, request for adjournment has been made for one or the other reasons. On 2.8.2014, he sent a letter pointing out that these appeals are posted for hearing on 5.8.2014, since he is having ayurvedic treatment, he is not in a position to travel and represent the appeal. The Tribunal has adjourned the hearing for 10.09.2014. The learned Counsel for the assessee again sent a letter pointing out some social functions in the family. Hearing was adjourned to 30.10.2014. Today he made a request for adjournment on the ground that he has a back problem. No medical prescription is being attached with the application. No one has come present on behalf of the assessee or from the office of the learned C.A. We find that the learned CA took it granted that he will sent adjournment and hearing would automatically be adjourned. Considering this dialatory tactitics, we do not find any ground to adjourn the hearing and prceed to decide the appeal ex-part, qua the assessee. 3. All these appeals involve common issues, therefore, we heard them together and deemed it appropriate to dispose of them by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was claimed as a deduction. Therefore, section 40A(3) is not applicable. 6. Assessing Officer has observed that it may be true that these expenses are in the nature of capital expenses to acquire land for its "Celebration Project". However, these expenses are required to be claimed as a revenue expenses in its P&L a/c when the land/property will be sold to the buyer. Assessing Officer put reliance on the decision of the Hon'ble Supreme Court in the case of Attar Singh Gurmukh Singh. vs ITO(SC), reported in 191 ITR 667 and confronted the assessee that, on acquisition of stock in trade, if any expenditure is incurred in cash exceeding the limit provided u/s 40A(3), then such expenditure would be disallowed to the assessee. The assessee contended that it is not a stock-in-trade, but Assessing Officer has rejected the contention and observed that the assets which was acquired by Mohitsham Complexes (P) Ltd through the money provided by the assessee is nothing but closing stock/work in progress for the purpose of sale in future after making improvement/ developing it into residential/commercial units. Therefore, the cash payment clearly attracts the provisions of section 40 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emitted to the file of the first appellate authority for readjudication. 9. We have gone through the record carefully. Rule 46A has a direct bearing on the controversy. Therefore, it is a salutary upon us to take note of this rule. It read as under: "46A. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted ; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer] ; or (c) where the appellant was prevented by sufficient cause from producing before the [Assessing Officer] any evidence which is relevant to any ground of appeal ; or (d) where the [Assessing Officer] has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT (A) has not called for production of memorandum of understanding. It must have been filed by the assessee. The learned CIT (A) failed to give a opportunity of hearing to the Assessing Officer. She did not call for any remand report. Therefore, for this simple reason, her order is not sustainable. We set aside the order of the CIT (A) and remit the issue to the file of the learned first appellate authority for re-adjudication after providing opportunity of hearing to the Assessing Officer as well as the assessee. Our observation will not impair the case of the Assessing Officer nor will cause any prejudice to the assessee. 12. In the result appeal is partly allowed for statistical purposes. ITA No.1409/Bang/2013: 13. In this appeal the Revenue is impugning the deletion of Rs. 1,68,40,857. The brief facts are that the Assessing Officer has made an addition of this amount on protective basis. The additions are as under: 1 M/s Mohitsham Investments Ltd 1,12,980 2 M/s Mohitsham Investments Ltd 40,72,640 3 M/s Mohitsham Estates Pvt Ltd 1,09,09,277 4 M/s Mohitsham Realtors Pvt Ltd 18,45,960 The substantive addition of Rs. 1,09,09,277/- has been made in the han ..... X X X X Extracts X X X X X X X X Extracts X X X X
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