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Income Tax Appellate Tribunal, BENGALURU BENCH C, BENGALURU
Before: SHRI. INTURI RAMA RAO
PER LALIT KUMAR, JUDICIAL MEMBER:
These are appeals by the Revenue, which are second round of litigation in respect of the addition made for the assessment years 1994-95 and 1995-96. The Revenue has raised the following grounds of appeal which are common for both the years :
ITA.394 & 395/Bang/2015 Page - 2 ITA.394 & 395/Bang/2015 Page - 3
The brief facts are as under. The Hon’ble jurisdictional High Court in dt.02.03.2010, has passed the following directions :
After receiving the directions from the Hon’ble jurisdictional High Court, the AO has given an opportunity to the assessee to furnish the required additional evidence in support of the credits alleged to have been given amounting to Rs.70,00,000/- approximately. However, despite that no additional evidence was filled and Ld AR made the identical submissions made earlier and as such the AO has confirmed the additions in the order giving effect to, dt.30.03.2014. Feeling aggrieved by the order, the assessee filed an appeal before the CIT (A).
The CIT (A) had summarised the case of the assessee based on the affidavits filed by the assessee, to the following effect which is on record :
ITA.394 & 395/Bang/2015 Page - 4 A. Y. 1994-95 :
Similar logic was followed by the CIT (A) for the A. Y. 1995-96, as is clear from the following paragraph :
ITA.394 & 395/Bang/2015 Page - 5 A. Y. 1995-96 :
Aggrieved by the above finding of the CIT (A) for the two years, the Revenue is in appeal before us, on various grounds mentioned herein above.
We will take up the ground in relation to section 46A, which was only ground argued by revenue taken before us. It was submitted that the CIT (A) has relied upon the affidavit dt.03.12.2014 for granting the relief to the assessee and it was the case of the Revenue that these documents were not forming part and parcel of the assessment order at the time of giving effect, as is discernible from the assessment orders.
ITA.394 & 395/Bang/2015 Page - 6
It was the case of the assessee before us that the affidavits were placed on record prior to 06.02.2014, which was the last date granted by the AO to file the evidence before him. However the AO has failed to consider these evidences while passing order giving effect to the order of the Hon’ble jurisdictional High Court.
On an earlier occasion the bench has directed the DR to produce the entire remand proceedings record including affidavits sought to be relied upon by the CIT (A), if they were on record. The Ld. DR has produced the assessment records before us. We have looked into the record filed by the assessee before the AO. From a perusal of the record, it is clear that copies of the affidavit dt.03.02.2014 are on record along with the covering letter dt.04.02.2014.
The AO on the noting sheet has recorded on 28.02.2014, as under :
The above noting was recorded by the AO on 28.02.2014 and it was also signed by Shri. B. N. Ramesh on 28.02.2014. However in the ITA.394 & 395/Bang/2015 Page - 7 above noting, the next date of hearing is mentioned as 06.02.2014. The order was finally passed by the AO on 30.03.2014 and the copy of the order was received by the assessee on 02.04.2014. Thus, from the order sheet, it is clear that the AO, instead of signing the order date of 28.01.2014 has wrongly recorded the date as 28.02.2014 and this mistake was also committed by the Ld. AR for the assessee. Therefore the noting in the order sheet dt.28.02.2014 is required to be read as 28.01.2014.
Further there is no order sheet entry after 28.01.2014, either of 06.02.2014 or the date of passing of the order giving effect to, i.e., 30.03.2014 in the assessment record.
We have gone through the record and heard the rival contentions. Prima facie we are of the opinion that the AO should have written the order sheet on 06.02.2014 i.e., the next date of hearing given on 28.01.2014 and order sheet on 30.3.2014. However there is no order sheet entry on 06.02.2014/30.3.2014. Moreover affidavits filed prior to 06.02.2014 i.e on 4.2.2014 are on record and were perused by us. In any case, the CIT (A) by relying upon these affidavits has deleted the additions made by the AO.
In our considered opinion, no new document or record was relied upon by the CIT (A) while passing the order hence the objection of revenue for violation of rule 46 is without any merit.
ITA.394 & 395/Bang/2015 Page - 8
Further from a bare perusal of the directions given in the jurisdictional High Court’s order (supra), it is clear that the assessee was required to give the details of the deposits received from the persons through his employees / agents. The assessee has given the affidavits contains the details of the persons from whom the deposits were received by the employee/ agent of the assessee therefore there is compliance of the order of Hon’ble High court.
In view of the affidavit filed by way of evidence before the AO, which were not considered by AO, the CIT (A) in appellate proceedings had deleted the addition as the AO failed to bring on record any contradictory evidence or document, after following the record filed before AO. Therefore the objection raised by the Revenue are not sustainable as the basic objection raised by the Revenue in ground nos.1 to 5 were with regard to violation of Rule 46A(1) of the IT Rules. In the result we do not find any reason to interfere with the conclusion drawn by the CIT (A) in para 4 (supra) for both the years. In view thereof, we dismiss the appeal.