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TMI Blog2014 (12) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that there is no reason to justify the curtailment of power of CIT(A) to entertain the additional grounds of appeal raised by assessee in seeking modification of assessment order passed by AO - CIT(A) has not given proper opportunity to the AO, thus, the order of the CIT(A) is reversed and the matter is remitted back to the CIT(A) for adjudication – Decided in favour of assessee. - ITA No.214/PNJ/2014, ITA No.286/PNJ/2014 - - - Dated:- 26-9-2014 - SHRI P. K. BANSAL AND SHRI D.T. GARASIA, JJ. For The Appellant : Shri Kishore B. Phadke, CA. For The Respondent : Smt. Asha Desai, Ld. DR. ORDER PER: D.T. GARASIA These cross appeals have been filed against the order of CIT(A)-Panaji dated 19.06.2014 for the Assessment Year 2010-11. 2. The following grounds are raised by the assessee. 1. The learned CIT(A)-Panaji, erred in law and on facts in holding that the 271D penalty order passed by the JCIT on 29/01/2014 was barred by limitation since passed beyond the permissible time limit as provided under the law; especially when in a similar case ITAT Jaipur bench has held it that way. 2. The learned CIT(A), Panaji erred in law and on facts in not holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Without Prejudice to any of the above grounds the learned CIT(A) erred in facts and law in sustaining the 271D penalty to a rounded ad-hoc amount of ₹ 20 CR. The learned CIT(A), Panaji ought to have sustained the 271D penalty at ₹ 16.95 CR considering the test method of objective filters used on the data-file . Wherein the department has raised the following grounds. 1. The Ld. CIT(A) has violated the provisions of Rule 46A of the IT Rules in admitting the new evidences on the issue that out of total number of 17419 records, the urban applicant records are 2885 and the remaining applicants are from rural areas where banks are not existing without giving any opportunity to the AO to verify the new evidence submitted by the assessee first time before the CIT(A). The AO was also not present for hearing before CIT(A) when this evidence was admitted by the CIT(A). 2. The Ld. CIT (A) has also violated the provisions of Rule 46A of the I.T. Rules in admitting the new evidence that the amount of deposits collected from urban area is only ₹ 16.95 crores and the balance amount of ₹ 106 crores relates to the deposits collected from rural areas where banking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO to verify the assessee?s submission on the above issue, which resulted in miscarriage of justice and therefore perverse in law. 2.1. The brief facts of the case are that the assessee has filed the return of income for the A.Y.2010-11 declaring the total income of ₹ 62,86,200/-. The assessee company is incorporated with business objective of establishing a business enterprise for buying and selling of properties and real estate having its Corporate Office situated at Pune and registered office at Sai Plaza Complex, 4th floor, No. 402, Gomantak Times, Panaji, Goa. The assessee has accepted cash deposits to the tune of ₹ 96 crores which is contradictory to the provisions of section 269SS of the I.T. Act and liable for penalty proceedings u/s. 27ID of the Act. 2.2. The matter carried to CIT(A) and CIT(A) has partly allowed the appeal. Therefore, the assessee is in appeal and department is also in appeal before us. 2.3. During the course of hearing learned DR submitted that the CIT(A) has admitted the fresh evidence. The CIT(A) has admitted the additional evidence regarding the addresses of the JV participants given in four (4) columns. These address column ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce analysis of addresses of the participants -The addresses of the JV participants are given in four (4) columns. These address columns contain the following data. (i) Address-1 -Information of village / Post of applicant (ii) Address-2 -Nearby Taluka/ Tehsil / known place (iii)Address-3-City/District and State (iv) Address-4 State In the analysis, the appellant has mapped the distance between village (Address-i) and Taluka (Address-2) and profiled the same as Primary distance. Further, the distance between Taluka and City is profiled as Secondary distance. There are totally 232 pages of listing. About 7-8 cases on each page were selected at random for the said Google mapping. The said exercise was based on Google Maps website. This exercise was carried out for 1887 cases (out of total 17,410 cases). About 10% cases were accordingly analyzed. Summary of such distances is enclosed herewith and marked as Annexure-21. Along with the said summary, printouts of all Google Maps downloaded for each such distance mapping is also enclosed. From the said summary, it will transpire that in about 1.32% cases are between 0-2 KM primary distance range, 1.70% cases are in 25 KM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is prevented by sufficient cause from being able to submit the details called for. In such cases when the matter comes up for appeal before first Appellate Authority, the additional evidence is required to be furnished at appellate stage. We find that in this case the assessee has submitted the additional evidence in support of distance analysis of addresses of the participants from the Google Maps that assessee could not submit before AO, therefore, this additional evidence was submitted before CIT(A). The CIT(A) in his order on page 77 has held that assessee has submitted the additional evidence. While disposing the appeal the CIT(A) has power either to confirm, reduce, enhance and annul the assessment and in case of penalty, he may confirm, cancel or vary the penalty and he has also power to pass an order as he thinks fit under section 251(1) of the IT Act. As per provisions of Section 250(4) and 250(5) of the Income Tax Act the CIT(A) may dispose of the appeal after making such enquiry as he thinks fit or may ask the AO to carry out certain further enquiry. The CIT(A) can also admit such other additional ground which is not specified in the ground of the appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee in seeking modification of assessment order passed by AO. Section 250(4) and 250(5) of the Income Tax Act permits the CIT(A) to make further enquiry on his own and direct AO to do so he may thinks fit. Therefore, CIT(A) is within his powers if he asks or allows to produce or file the additional evidence or papers in the matter he thinks fit. In the case of Smt. Prabhawati S. Shah vs. CIT (Bom) 231 ITR 01 had occasioned to consider whether Rule 46A is intended to put fetters on the right of the assessee to produce before CIT(A) any additional supporting evidence. After considering the Section 250 Rule 46A the Bombay High Court has held that if the certain evidence is necessary for deciding the controversy the CIT(A) has all the rights called for additional evidence. However before admitting the additional evidence the CIT(A) has to give opportunity to the Assessing Officer to consider or cross examine or rebut the additional supporting evidence furnished by the assessee. In the case of CIT vs Gani Bhai Wahab Bhai (MP) 232 ITR 900 , we find that the additional evidence can be admitted at any stage but while admitting the additional evidence CIT(A) should ensure that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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