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TMI Blog2015 (3) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... onal evidences to be not admissible. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand maiden to justice, should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. Considering the totality of the facts and relying of the aforesaid decision of CIT vs. Scientific Chemicals, (2005 (6) TMI 27 - GUJARAT High Court ), after applying the ratio of Tin Box Co. Vs. CIT, (2001 (2) TMI 13 - SUPREME Court) - Decided in favour of assessee for statistical purposes. - ITA No. 2892/Ahd/2013, ITA No.2893/Ahd/2013, ITA No.2895/Ahd/2013 ,ITA No 2896/Ahd/2013, ITA No.1164/Ahd/2014, ITA No.2894/Ahd/2013 - - - Dated:- 19-3-2015 - Shri Mukul Kr. Shrawat And Shri Anil Chaturvedi JJ. For the Appellant : Shri M.K. Patel, AR For the Respondent : Shri Nimesh Yadav, Sr. DR ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER: These six appeals filed by two different Assessees are against separate orders of the Commissioner of Income Tax (Appeals)-IV, Baroda for Assessment Years 2007-08, 2008-09 and 2009-10. 2. Before us, at the outset, the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36/- on account of unexplained bank deposit / credits. 4. That on facts, and in law, the learned CIT(A) has grievously erred in confirming the addition of ₹ 11,82,360/- made on account of unexplained LIC premium payments u/s 69 of the Act. 5. That alternatively, and without prejudice to above grounds, the benefit of telescoping of additions of deposits in bank and payment of LIC premium ought to have been granted to appellant. 6. That on facts, and in law, the learned CIT(A) has grievously erred in holding that the agricultural income of ₹ 9,85,000/- declared by appellant is not substantiated. 7. That on facts, and in law, the learned CIT(A) has grievously erred in confirming the estimated addition of house hold expenses of ₹ 3,00,000/-. 8. That, alternative, the benefit of telescoping of addition of perquisites made, ought to have been granted. 9. The appellant craves leave to add, alter, amend any ground of appeal. 5. Since all the grounds are interconnected, they are considered together. On the basis of the copy of the bank statement of Axis Bank account maintained by the assessee, it was noticed by the Assessing Officer that there were cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- and added the same to the income. Aggrieved by the aforesaid order of the Assessing Officer, the assessee carried the matter before the ld. CIT(A) who vide order dated 30.09.2013, with respect to the addition of unexplained credits, upheld the order of the Assessing Officer by relying on the decision of the Hon ble Gujarat High Court in the case of Fairdeal Filaments Ltd, 302 ITR 173 (Guj.), as under:- 5.3. I have considered the facts of the case and submission made by the AR of the appellant. The AO has mentioned in his order that vide para 3 of the notice u/s 142(1) of the IT Act dated 24.08.2012 and vide order notings sheet dated 08.10.2012 and 07.11.2012, the appellant was asked to explain the credits/deposits in the bank account with relevant evidences. In response to this, the appellant had filed a copy of the cash book. Regarding deposits in the bank, no satisfactory and relevant evidence or confirmation was furnished except salary. Thus, the appellant had been given sufficient opportunities by the AO to explain the sources of deposits made in the bank account, but the appellant failed to provide such details/explanations to the AO during the assessment proceedings. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 ( the ITAT Rules ). The Tribunal rejected the contention raised on behalf of the assessee in the following terms: 6. We have considered the rival submissions and perused the facts on record. A perusal of the assessment order reveals that the Assessing Officer gave adequate opportunity from time to time and asked the assessee to furnish the details/evidence in respect of the share capital as also the names, addresses and shareholdings of the holders but the assessee took it very lightly and made no compliance. The assessee thus showed no respect for law. It is an admitted fact that the evidence in respect of the share capital as detailed supra was furnished for the first time before the Commissioner of Income-tax (Appeals) vide letter dated December 28, 1993 (page 28 of the paper book). We have gone through this letter and find that the assessee submitted 'A detailed chart is enclosed to show what happened on various dates and the assessee remained under the impression that since it was not a time-barring assessment, the assessment would not be finalised'. This shows that the assessee took the whole thing very lightly and rather dictated to the Assessing Officer to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded, because the assessment was not getting timebarred. If both the appellate authorities have concurrently come to the conclusion that sufficient opportunities were granted to the assessee it is not possible to go behind the said findings which are primarily based on appreciation of evidence on record. Similarly, so far as admitting additional evidence under rule 29 of the Income-tax (Appellate Tribunal) Rules is concerned the Tribunal has come to the conclusion that the benefit under the said rule is not available to a person who is negligent, non-co-operative and recalcitrant; and the Tribunal is not required to give another chance or opportunity to a person to cover up its own lapses. Even on this ground it is not possible to hold that the Tribunal has committed any error in law so as to call for intervention. The position in law as regards admission of additional evidence, both in relation to rule 46A of the Income-tax Rules and rule 29 of the Income-tax (Appellate Tribunal) Rules is similar. No person is entitled to seek admission of additional evidence as a matter of right. In fact opening portions of both the rules are couched in negative terminology and place an embarg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to appreciate the nature and ambit of the power conferred under rule 29 upon the Tribunal in so far as the first two categories of cases are concerned. In so far as the said decision is concerned the court was not called upon to consider whether the case fell within the third category of exception, viz., when the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence. Therefore, the ratio laid down in the said decision is confined to the first two categories of exceptions as stated by the High Court. Though the learned advocate for the applicant-assessee submitted that the case of the assessee was also governed by the first two exceptions when one reads submissions made before the Tribunal and taking into consideration the contentions raised before this court it is not possible to accept the said submission. In fact the assessee's case all along has been that sufficient opportunity was not given to the assessee to bring on record material to show that no addition/disallowance was warranted; that despite the assessee having asked for adjournment, the Assessing Officer proceeded to complete the assessment wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of 7/12 uttaras for having land in Survey No.950/2 and 951 etc. The AO has stated that these lands were very small and there were lots of joint owners in the lands. Moreover, nowhere in the uttaras, the appellant s name appears as agriculturist. Besides this, no other details asked by the AO like agricultural expenses, sale bills of agricultural products and other details were submitted by the appellant. During the course of appellate proceedings also, the appellant has failed to submit these details. Hence, the action of the AO of treating the agricultural income as not genuine is correct. 6.3.3 So far as investments in LIC policies are concerned, the appellant had filed a cash book before the AO which he was unable to substantiate with supporting evidences. No evidences regarding opening balance could be furnished either during the assessment proceedings or during the appellate proceedings. IN fact the appellant has not submitted any copy of this alleged cash book during the appellate proceedings. Besides, as already discussed, the agricultural income claimed by the appellant and which was relied upon by him to explain the investments made in LIC policies could not be substa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes to pay in this regard only when the assessee furnishes the details of household expenses and the sources thereof and then the AO this disregards such details and makes the estimation without any basis. Hence, the appellant s contentions are not acceptable. The estimation made by the AO for a family of 6 persons who evidently belong to the upper class of the society as can be seen from the incomes earned by them in this year as well as in previous years, is quite reasonable and is accordingly upheld. 8. Aggrieved by the aforesaid order of the ld. CIT(A), the assessee is now in appeal before us. 9. Before us, the ld. Authorized Representative submitted that the assessee had filed additional evidences before the ld. CIT(A), but the same were not admitted by ld. CIT(A) for the reasons stated in his order. The ld. Authorized Representative pointed to the written submissions made before the ld. CIT(A) and pointed to the copy of submissions which were placed at page Nos. 39 and 40 of the paper-book. From the chart, he pointed out that the assessee had submitted various evidences and supporting which have been ignored by the ld. CIT(A). He, therefore, submitted that the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the assessing authority decides to pass an order. Section 271(1)(a) of the Act grants discretion to the Income-tax Officer to levy or not to levy penalty. This is clear from the phrase, he may direct that such person shall pay by way of penalty namely, the Income-tax Officer may direct or may not direct levy of penalty considering the fact that he is required to be satisfied whether any person has committed the stipulated default without reasonable cause. Such a satisfaction can be recorded only if proper and adequate opportunity is accorded to the assessee. Therefore, before the authority can exercise discretion vested in it, it is imperative for the authority to grant reasonable opportunity and this would take within its fold the right of being heard and the explanation tendered as to the existence of reasonable cause being taken into consideration before the order to levy penalty is made. The legal position in this regard is well settled and bears no repetition. The authority vested with discretion by a statutory provision is under a mandate to exercise such discretion in a judicial manner and not arbitrarily. When the explanation tendered by the assessee is ignored or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice, should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. Considering the totality of the facts and relying of the aforesaid decision of Hon ble Gujarat High Court Apex Court and in the interest of justice, we are of the view that the matter needs reconsideration at the end of the CIT(A). We, therefore, remit the issue back to the file of the ld. CIT(A) to decide the issue afresh after considering the submissions made by the assessee and any other evidences that may be required by the ld. CIT(A) to decide the issue. The assessee is also directed to furnish all the necessary details called for by the ld. CIT(A) promptly. In case of failure on the part of the assessee to furnish the necessary details, the ld. CIT(A) shall be free to decide the matter on the basis of material on record. Needless to state that the ld. CIT(A) shall grant adequate opportunity of hearing to both the parties. Thus, the grounds raised by the assessees are allowed for statistical purposes. In the result, the appeal of the assessee is allowed for statistical purposes. 12. With respect to other appeals, since it is admitted by both the parties that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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