C I T vs. AVINASH CHANDER GHAI

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ITA/571/2008HC Punjab & HaryanaPHHC01080577200815 November 2011Author: MR. JUSTICE HEMANT GUPTA,MR. JUSTICE GURMEET SINGH SANDHAWALIA4 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that the Revenue's contention lacked merit. A reading of Rule 29 of the Appellate Tribunal Rules, 1963, shows that parties are not entitled to produce additional evidence as a matter of right. The Tribunal can permit additional evidence only if it requires it to pass orders or for any substantial cause, or if the income-tax authorities decided the case without giving sufficient opportunity to the assessee to adduce evidence. In this case, the Tribunal did not find the necessity of the document sought to be produced. Furthermore, the second ground for admissibility (lack of opportunity to the assessee) was not applicable as the Revenue was seeking to adduce evidence, and there was no claim by the assessee that it was denied an opportunity to adduce evidence by the lower authorities. Therefore, the Tribunal's order declining the Revenue permission to lead additional evidence was found to be without illegality. In the absence of additional evidence, the findings of fact recorded by the Tribunal did not give rise to any substantial question of law.

What were the facts?

The Revenue is in appeal before the High Court under Section 260A of the Income Tax Act, 1961, against an order dated 22.02.2008 passed by the Income Tax Appellate Tribunal (Tribunal). The appeal arises from ITA No. 73(ASR)/2006 for the assessment year 2002-03. The Revenue's case was based on additional evidence it sought to produce before the Tribunal. The Tribunal had declined the Revenue's application for additional evidence, holding that such evidence was not considered by the lower authorities and therefore could not be admitted. The Revenue contended that Rule 29 of the Appellate Tribunal Rules, 1963, entitled it to adduce additional evidence.

What were the issues?

1. Whether the Tribunal was justified in declining the Revenue's application to adduce additional evidence, considering Rule 29 of the Appellate Tribunal Rules, 1963? (Question of law) Assessee's Contention (Implied by Tribunal's reasoning): The additional evidence sought to be produced was not considered by the authorities below and its admission would amount to a fresh assessment. The assessee argued that such evidence is not admissible. Revenue's Contention: The Revenue argued that in terms of Rule 29 of the Appellate Tribunal Rules, 1963, it was entitled to adduce additional evidence as such evidence was not considered by the Assessing Officer or the Commissioner of Income Tax in appeal.

Which sections of the Income-tax Act were involved?

Section 260A

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 15.11.2011 Commissioner of Income-Tax, Jalandhar-I, Jalandhar ........Appellant vs. Avinash Chander Ghai HUF .......Respondent I.T.A. No. 578 of 2008 The Commissioner of Income-Tax-III, Ludhiana ........Appellant vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building, Feroze Gandhi Market, Ludhiana .......Respondent I.T.A. No. 579 of 2008 The Commissioner of Income-Tax-III, Ludhiana ........Appellant vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building, Feroze Gandhi Market, Ludhiana .......Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G.S. SANDHAWALIA Present: Mr. Vivek Sethi, Advocate for the appellant HEMANT GUPTA, J.

This order shall dispose of three appeals i.e. I.T.A. No. 571 of 2008(Commissioner of Income-Tax, Jalandhar-I, Jalandhar vs. Avinash Chander Ghai HUF), I.T.A. No. 578 of 2008 (The Commissioner of Income-Tax-III, Ludhiana vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building, Feroze Gandhi Market, Ludhiana) and I.T.A. No. 579 of 2008 (Commissioner of Income-Tax-III, Ludhiana vs. M/s Ludhiana Stock Exchange Association Ltd., LSE Building, Feroze Gandhi Market, Ludhiana). The facts are being taken from I.T.A. No. 571 of 2008. The Revenue is in appeal under Section 260A of the Income Tax Act, 1961 (for short 'the Act') raising substantial question of law arising out of order dated 22.2.2008 passed by the Income Tax Tribunal,Amritsar Bench, Amritsar (for short 'the Tribunal) in revenue appeal bearing I.T.A. No. 73(ASR)/2006 for the assessment year 2002-03. Entire case of the revenue is based upon the additional evidence which was sought to be produced before Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal has returned the following findings, declining the said application:- “3. The department has filed an application for additional evidence. To contest this application, the assessee has submitted that such evidence is not admissible and that it is allowed to be admitted, it would amount to fresh assessment. It has been stressed that this evidence was not considered by the authorities below.

Admittedly, the evidence now sought to be produced by the department was not considered before the authorities below. Therefore, this cannot now be allowed to be produced. The application for additional evidence filed by the department is thus rejected.” The argument of learned counsel for the appellant is that in terms of Rule 29 of the Appellate Tribunal Rules, 1963, the appellant is entitled to adduce additional evidence, as such evidence was not considered by the Assessing Officer or by the Commissioner of Income Tax in appeal. We do not find any merit in the said contention.

Rule 29 of the Appellate Tribunal Rules, 1963 reads as under:- “29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.” A reading of the above said rule would show that parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal as a matter of right. But the Tribunal can permit additional evidence firstly if it requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or secondly, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them. A perusal of the order passed by the Tribunal shows that the Tribunal has not found the necessity of such document to be produced as sought to be produced by the revenue before the Tribunal.

The second ground on which additional evidence is admissible is only when Income Tax authorities have decided the case without giving opportunity to the assessee to adduce evidence. The revenue is in appeal before the Tribunal. The revenue has sought to adduce evidence and not the assessee. It is not the case of the assessee that any opportunity to adduce evidence was not granted to the assessee by the Assessing Officer or by the Commissioner of Income Tax. In view of the said facts, we do not find that there is any illegality in the order passed by the Income-Tax Appellate Tribunal declining the Revenue to permit to lead additional evidence. In the absence of additional evidence, it is finding of the fact recorded by learned Tribunal which does not give rise to any substantial question of law. Dismissed (HEMANT GUPTA) JUDGE

(G.S. SANDHAWALIA) 15.11.2011

JUDGE reena

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