9911796707
TMI Blog2021 (9) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on record by the assessee by way of additional evidences before the ld. CIT(A) are necessary to adjudicate the controversy between the parties - in case, the additional evidence so placed on record by the assessee is allowed then in that eventuality, no prejudice shall be caused to the rights of the Revenue. Whereas on the contrary, in case, the said additional evidences placed on record by the assessee is not considered then in that eventuality the rights of the assessee shall be prejudiced. Therefore, we direct the ld. CIT(A) to admit additional evidences so placed on record by the assessee. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... Metro Wine UCO Bank A/c. Keeping these facts in view, an addition of ₹ 221000/- so confirmed by the Ld. CIT(A) deserves to be deleted. 7. That the Learned CIT(A), Ajmer erred on facts and in law in confirming the following various disallowances made by the ITO & added in the total income of the appellant. a. Disallowed out of Conveyance Exp. 13700.00 (8500 + 5200) b. Disallowed out of Depreciation 3707.00 c. Disallowed out of Telephone Exp. 8990.00 d. Disallowed out of Shop Exp. 5300.00 The above disallowed expenses are totally wrong as the same have been incurred exclusively for business purpose. Thus disallowed expenses so confirmed by the Learned CIT(A), Ajmer deserves to be deleted. 8) That the Learned CIT(A), Ajmer erred on facts and in law in confirming the addition made at ₹ 95400/- on account of rent, whereas the appellant has paid rent for Bubani Shop at ₹ 1200/- P.M. & ₹ 6750/- for Ajmer Shop. Thus addition so made by the ITO & confirmed by CIT(A) on account of rent paid at ₹ 95400/- deserves to be deleted." 2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls filed in return of income vide PAN ADEPM6643E. The interest as credited in account have also been shown as income by Shri Sanjay Matai. (Typing mistake should be Ashok Matai) Only since the business of M/s Metro Filling Station proprietor Sanjay Matai started during' the year hence the personal loan was brought to books of firm & thus in earlier period was not verifiable. The Ld. CIT(A) requested to look into the merits of the facts before deciding the issue" (PB 77) 4. Treating creditors of ₹ 75,000/- as unexplained credit u/s 68. "The assessee has also filed copy of A/c & other details as per paper book page no. 41 to 42. Thus, the facts of the assessee are verifiable & may not be denied for, still requested to look into the merits of facts. (PB 78) 5. Addition of ₹ 2,21,000/- for cash deposit. "The assessee intends to justify his stand by stating that AO should himself examine the records whereas the onus is on the assessee. However, it is true that the details as per paper book page no. 44 to 56 justifies the statement of assessee but were since not explained earlier to addition made." (PB 79) 6. Addition of ₹ 95,400/- f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here did exist grounds (as submitted below), based on which, these additional evidences must have been admitted (therefore were rightly admitted by his Ld. predecessor). The relevant clauses of Rule 46A, which are applicable on the facts of the present case, are reproduced here under: (a) Where the AO has refused to admit evidence which outght to have been admitted. (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 appeal. 5.1 No reasonable opportunity given by the AO: 5.1.1 A perusal of the assessment order shall reveal that the AO provided very short time to the assessee to file the required documents or submit its explanations. It is not a case where sufficient and reasonable opportunities were granted to the assessee to defend the case in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the assessment after filing the return, considering the practical difficulties of both the side. This way, even though some opportunities might have been granted but were illusory and not effective. Kindly refer Harendra Singh Dhillon, Naagaon v/s ITO (2012) 32 CCH 103 (Del). Hence it is a case of gross violation of principle of natural justice which has vitiated the assessment proceedings. Consequently, the impugned assessment should be quashed. 5.2 The allegation of non-production of the Books of Accounts in hard form has been repeatedly made however, at the same time it has also been repeatedly admitted that the assessee did submit a CD containing the complete accounts in soft form, right from the very first assessment proceedings itself. What the assessee allegedly failed was only to produce the printed copies in Hard Form of the Books of Accounts. However, all concerned have completely ignored the prevailing legal position, at all the stages that: 5.2.1 the books of accounts now also include those maintained in soft form as defined u/s 2 (12A) "books or books of account" includes ledgers, day-books, cash books, account-books and other books, whether kept in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same in the written submissions filed before them (PB 89-97) but appears to have escaped kind attention. 5.3 Even Audited accounts is an admissible material and cannot be ignored as held in Addl. CIT v/s Jay Engineering Works Ltd. (1978) 113 ITR 389 (Delhi) (DPB-9-11). 5.4 Interestingly, S.145 does not specify any set of accounts to be maintained by an assessee. Also, Rule 6F of Income Tax Rules, 1962 prescribes certain set of books only for professionals and not for other assessee's or businesses or traders. 5.5 Even Rule 46A (b) & (c) were fully applicable. 6. Legal Position as regards Power of CIT(A): 6.1 It is submitted that the settled legal position is that proposition that the powers of the first appellate authority are very vide and co-terminus with those of the AO and what AO can do, he can do and what AO fail to do, that also he can do. Kindly refer Kanpur Coal Syndicate 53. ITR 225 (SC).Section 251 and 252 of the Act has also been worded keeping the same spirit, as also rule 46A. Section 250(4) empowers the CIT(A) to make further inquiries on its own or to direct the AO to make further inquiry and to report him. The embargo put on his power u/r 46A (1) & (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 293 ITR 0053 (Born.) (DPB 6-8) wherein it has been held: "Appeal [ClT(A)]-Additional evidence-Admissibility-Rule 46A(4) provides that notwithstanding r. 46A(1) the appellate authority can permit production of documents to enable him to dispose of the appeal-Finding recorded by the Tribunal that the documents produced by the assessee before the CIT(A) were necessary for disposal of the appeal on merits-It was justified in holding that the CIT(A) ought to have exercised its power to admit additional evidence-No question of law arises". 6.2.4 In the above case, the decision in the case of Smt. Prabhavati S. Shah v/s CIT(1998) 148 CTR (Born) 192 Pg 56, para 7, was followed. 6.2.5 CIT vs. Jind Co-Operative Sugar Mills Ltd. (2011) 51 DTR 121 (P&H) "Appeal [CIT(A)J-Additional evidence-Remand to AO vis-a-vis consideration by CIT(A)-It is not necessary that when additional evidence is furnished, the matter must be remanded to the AO-It depends on nature of issue and nature of evidence-In an appropriate case, without any prejudice to either of the parties, the evidence can be looked into by the appellate authority itself-In such a case, it may not be necessary to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
