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Before: SHRI H.S. SIDHU
O R D E R PER H.S. SIDHU, JM
This appeal is filed by the Assessee is directed against the Order dated 25.3.2013 of the Ld. CIT(A)-XII, New Delhi relevant to assessment year 2004-05.
The facts narrated by the Revenue Authorities are not disputed by both the parties, therefore, no need to repeat here for the sake of convenience.
At the time of hearing, Ld. Counsel of the Assessee draw our attention towards the order passed by the AO as well as ld. CIT(A) and stated that both the authorities have not given sufficient opportunity for substantiating its claim. He further draw our attention to the impugned order and stated that additional evidences filed before the Ld. First Appellate Authority under Rule 46A of the Income Tax Rules, 1962 was accepted but was not considered at all.
He further stated that the ld. CIT(A) only mentioned that additional evidence filed by the assessee is accepted however mere filing of confirmation from parties i.e. PAN No., ITR and bank statement and other details are not sufficient to prove that condition of section 68 has been fulfill by relying upon the decision of the Hon’ble High Court of Delhi in the case of Nipun Builders & Developers Pvt. Ltd. In vide its order dated 7th January, 2013. We also note that AO in his Remand Report has requested the Ld. CIT(A) not to accept the additional evidence as the same is not resulting any results and genuineness of the transaction could not be verified at this stage also and the same were not submitted at the time of assessment proceedings. We further note that in response to Remand Report, the assessee has submitted that neither proper time nor opportunity was provided for filing the additional documents originally at the time of assessment and also that these documents are crucial to the dispensation of justice so as to constrain the admission and consideration in the interest of substantive justice. Hence, Ld. Counsel of the assessee has requested that the issue in dispute may be sent back to the AO for deciding the same afresh under the law, after giving adequate opportunity of being heard to the assessee.
On the other hand, Ld. DR opposed the request of the Ld. Counsel of the Assessee and stated that the Ld. First Appellate Authority has rightly confirmed the order of the AO, after calling the Remand Report from the AO.
We have heard both the parties and perused the relevant records available with us especially the evidences filed before the ld. CIT(A) with the Application under Rule 46A of the Income Tax Rules, 1962. We note that AO as well as Ld.CIT(A) have not given sufficient opportunity for substantiating its claim. We further note from the impugned order that Ld. CIT(A) only mentioned that additional evidence filed by the assessee is accepted however mere filing of confirmation from parties i.e. PAN No., ITR and bank statement and other details are not sufficient to prove that condition of section 68 has been fulfill by relying upon the decision of the Hon’ble High Court of Delhi in the case of Nipun Builders & Developers Pvt. Lted. In vide its order dated 7th January, 2013. We also note that AO in his Remand Report has requested the Ld. CIT(A) not to accept the additional evidence as the same is not resulting any results and genuineness of the transaction could not be verified at this stage also and the same were not submitted at the time of assessment proceedings. We further note that in response to Remand Report, the assessee has submitted that neither proper time nor opportunity was provided for filing the additional documents originally at the time of assessment and also that these documents are crucial to the dispensation of justice so as to constrain the admission and consideration in the interest of substantive justice. Hence, In our considered opinion, the issue involved in the present appeal needs to be adjudicated afresh under the law at the level of the Assessing Officer. Accordingly, we direct the AO to examine all the documents including the Application filed u/r 46A and decide the issues in dispute afresh under the law, after giving adequate opportunity of being heard to the assessee.
In the result, the Appeal of the assessee is allowed for statistical purposes.