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Income Tax Appellate Tribunal, DELHI BENCH ‘F’, NEW DELHI
Before: Sh. K. N. CharyDr. B. R. R. Kumar
Per Dr. B. R. R. Kumar, Accountant Member:
The present appeal has been filed by the assessee against the order of the ld. CIT(A)-37, New Delhi dated 26.10.2016.
Following grounds have been raised by the assessee:
“1. That in view of the facts and circumstances of the case the order passed by the CIT (A) and the assessment order is illegal, bad in law and without jurisdiction.
2. That the CIT (A) has erred in law and in facts not accepting the additional evidences filed by the Appellant through its application filed under rule 46A of the Income Tax Rules.
3. That the CIT (A) while not accepting the application under rule 46A has erred in not 2 Rishi Sehdev considering the provisions of Sub-rule (4) of rule 46A, the provisions of section 250 (4), 250 (5) of the Act and the fact that his power are wider and are coterminous with that of the AO and he needs to do a substantial justice.
That the order of the CIT (A) on the facts and circumstances of the case is perverse as it does not take into consideration the relevant documents brought on record and written submissions/rejoinder of the Appellant and therefore, the same is a non- speaking order.
5. That the CIT (A) has erred in law and on facts in confirming the addition of Rs. 13,91,398/- pertaining to business expenditure incurred by the Appellant.
6. That the CIT (A) has erred in law and on facts in confirming the addition of Rs. 27,85,332/- pertaining to exempt income claimed by the appellant U/s 10(38) of the Act.
7. That the CIT (A) has erred in law and on facts in confirming the addition of Rs. 10,34,469/- pertaining to deduction claimed by the Appellant U/s Chapter VI-A of the Act.
8. That the CIT (A) has erred in law and on facts in confirming the addition of Rs. 7,75,879/- pertaining to exempt income claimed by the Appellant.”
The assessee filed return of income on 24.08.2012 declaring net taxable income of Rs.1,89,21,610/- assessment u/s 143(3) has been completed on 27.03.2015 making additions on account of unaccounted business expenditure of Rs.13,91,398/-, disallowance of brought forward of loss of Rs.19,14,843/-, long term capital gain of Rs.27,85,332/- disallowance for deductions under Chapter-VIA of Rs.10,34,469/- and exempt income of Rs.7,75,879/-.
3 Rishi Sehdev 4. At the outset, the assessee argued that due opportunities have not been given while concluding the assessment and the ld. CIT(A) has also not accepted the application under Rules 46A in not considering the provisions of Section 250(4), Section 250(5) of the Income Tax Act, 1961.
We have examined the facts of the case. The ld. CIT(A) issued notice of hearing dated 21.07.2016 listing the case for hearing on 27.07.2016. On 26.07.2016, on said date vide letter dated 27.07.2016 , vide dak inward no. 302, the appellant requested for adjournment on plea of filing returns etc and hence the matter was rescheduled for hearing to 23.08.2016 vide notice dated 08.08.2016. Yet again, the appellant assessee vide its letter dated 26.08.2016 filed a request for adjournment vide dak inward no. 427 on plea of gathering details , hence another notice dated 01.09.2016 fixing matter for 13.09.2016 was issued , which on account of holiday of bakri-id was rescheduled to 14.09.2016 vide notice dated 07.09.2016. The appellant again filed a request for adjournment vide its letter dated 14.09.2016 by inward dak no. 475 stating that certain documents are needed to be presented which are being collated and hence another adjournment is requested. Vide order sheet entry dated 14.09.2016, at the request of the counsel Sh. R. Sinha the hearing was again adjourned to 07.10.2016 with a clear assertion that no further adjournments would be granted. On 07.10.2016, the appellant counsel attended before the ld. CIT(A) and filed part details vide dak no. 548 which are taken on record. Again another adjournment was sought by appellant to file details, matter was adjourned to 14.10.2016 with clear assertion by the ld. CIT(A) that no further opportunity would be 4 Rishi Sehdev granted on any plea. The appellant counsel Sh. R. Sinha attended on 14.10.2016 and filed application for additional evidence under Rule 46A vide dak inward no. 563 along with paper book of 44 pages.
The Ld. CIT(A) held that the plea raised by appellant that Assessing Officer was predetermined and biased to pass the order is unworthy of attention and devoid of merit and the of the Assessee was dismissed. The Ld. CIT(A) held that subjective perceptions are avoidable at best and are to be discarded in view of preceding factual notices issued to appellant by Assessing Officer. The ld. CIT(A) held that the appellant during appellate hearing has vehemently canvassed such fanciful baseless allegations aggrieved by the additions made by Revenue. Even otherwise, logical analysis of the process of writing of an assessment order indicates that Assessing Officer has to collate the facts as available on record, process it and then draft / write an order. So the conclusion that has to be delivered at the end as findings in any case, in any Assessment Order has to be arrived at, after ascertainment of raw facts as presented by appellant and conclusion derived therefrom, before commencing the actual process of penning so that entire Assessment Order presents a holistically smooth tenor of thought process.
The ld. CIT(A) denied the allegation by the assessee and held that, certainly in no logical rationale manner it can be stated that the Assessment Order to be in a predetermined manner and biased. It was held by the ld. CIT(A) that if the logic of appellant has to be accepted and taken to its logical 5 Rishi Sehdev conclusion, remarkable absurdity would flow there from as then every judgment / order would be rendered biased and predetermined which is preposterous.
Holding thus, the ld. CIT(A) refused to accept additional evidences under Rule 46A.
We have gone through the provisions of the said Rule which is 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 appeal. (2) No evidence shall be admitted under sub-rule (1) unless the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] records in writing the reasons for its admission.
6 Rishi Sehdev (3) The [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] shall not take into account any evidence produced under sub-rule (1) unless the [Assessing Officer] has been allowed a reasonable opportunity— (a) to examine the evidence or document or to cross- examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.]
Having gone through the entire facts and circumstances of the case, order of the ld. CIT(A) and the provisions of Rules 46A, we hereby direct the assessee to demonstrate the pre- requirements as per the Rule 46A(1)(a) to 46A(1)(d) before the revenue authorities. The revenue authorities shall examine the issue afresh with regard to admission of additional evidence and further adjudication on merits. Since, the entire issue has been remanded back to the file of the ld. CIT(A), adjudication on the other grounds taken up by the assessee is not resorted to.
7 Rishi Sehdev 11. In the result, the appeal of the assessee is allowed for statistical purpose. Order Pronounced in the Open Court on 15/02/2022.