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Income Tax Appellate Tribunal, DELHI BENCH: ‘F’: NEW DELHI
Before: SHRI KULDIP SINGH & SHRI ANADEE NATH MISSHRA
This appeal by Revenue is filed against the order of Learned Commissioner of Income Tax (Appeals)-29, [“Ld. CIT(A)”, for short], New Delhi, dated 15.04.2015 for Assessment Year 2006-07, on the following grounds:
“1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the addition of Rs. 85,75,000/- made by AO on account of unexplained loans 2. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the disallowance made by AO of expenses of Rs. 21,78,267/- u/s 43B. Page 1 of 5 ITA No.-4390/Del/2015. M/s Triveni Motors, New Delhi.
3. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the disallowance made by AO of depreciation of Rs. 73,51, 344/-.
On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the disallowance made by AO of, 10% of direct and indirect expenses, of Rs. 5,76,067/-.
5. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in deleting the disallowance made by the AO of, 50% of administrative and selling expenses, of Rs. 79,26,400/- 6. On the facts and in the circumstances of the case and in law, the decision of CIT(A) is not acceptable in view of the bare fact and once a completed assessment is reopened the old assessment stands vitiated and de-novo assessment has to be made after considering all issues that come to the notice of the AO.
The order of the CIT(A) is erroneous and is not tenable on facts and in law.
The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal..”
2. At the time of hearing before us, both sides- Revenue represented by the Ld.CIT DR, Smt. Sulekha Verma and the assessee represented by Sh. Ramesh Goyal, CA submitted that Ld.CIT(A) accepted additional evidences from the assessee on the basis of which he allowed relief to the assessee. However, during the appellate proceedings before the CIT(A), any clear violation of Rule 46A(3) of the Income Tax Rules, 1962 did not allow reasonable opportunity to the AO to examine the evidences or documents or to cross-examine the witness produced by the assessee or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the assessee. Ld.CIT DR filed a copy of the order of Co-ordinate Bench of ITAT, Delhi in assessee’s own case for AY 2008-09 in vide order dated 19.11.2018 wherein, in similar circumstances, the matter was restored to the Ld.CIT(A)
ITA No.-4390/Del/2015. M/s Triveni Motors, New Delhi. with the direction to re-adjudicate the grounds. The relevant portion of the aforesaid order is reproduced here under:-
4.0. “Having heard the Ld. CIT DR and after having perused the material on record as well as the impugned order, we find that the averment of the Ld. CIT DR is correct inasmuch as the Ld. CIT (A) admitted additional evidence but did not call for a remand report from the Assessing Officer nor gave the Assessing Officer any opportunity to examine the evidence which were furnished before him by the assessee for the first time. This should not have been done and the Ld. CIT (A) should have followed the provisions of Rule
46A in this regard. Accordingly, in light of the factual matrix, we restore the file to the office of the Ld. CIT (A) with the direction to re-adjudicate the grounds raised before him after giving opportunity to the Assessing Officer to examine and comment on the additional evidences which have been earlier admitted by him and also after giving due opportunity to the assessee to rebut the observations of the AO.”
In view of the foregoing, both sides submitted, that for this year also all the disputed issues in the present appeal should be restored back to the Ld.CIT(A) for fresh order.
ITA No.-4390/Del/2015. M/s Triveni Motors, New Delhi. 4. After hearing both sides, we find that it is not in dispute that the Ld.CIT(A) admitted additional evidences from assessee’s side in the course of appellate proceedings before the Ld.CIT(A). It is also not in dispute that the Ld.CIT(A) did not give opportunity to the Assessing Officer though the AO was entitled to opportunity under Rule 46A(3) of Income Tax Rules. We also find that in Co-ordinate Bench of ITAT, Delhi has, in aforesaid order dated 19.11.2018 in restored the matter to the CIT(A). In view of the foregoing, and respectfully following the order of the Co-ordinate Bench of ITAT, Delhi in aforesaid appeal i.e. ITA No.6429/Del/2014 for AY 2008-09’ and as both sides agree to this; we set aside the order of the Ld. CIT(A) and restore all the disputed issues raised in the present appeal before us to the file of the Ld.CIT(A) for fresh order after giving opportunity to the AO to examine and comment on the additional evidences which have been earlier admitted by him and also after giving due opportunity to the assessee to rebut the observations of the AO. We direct Ld.CIT(A) to adhere the provisions of Rule 46A(3) of Income Tax Rules, 1962.
Thus, the present appeal is disposed off in accordance with the aforesaid directions.
In the result, the appeal of the Revenue is partly allowed for statistical purposes.
Order pronounced in the open court on 12th day of July, 2019.