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Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI NARENDRA KUMAR BILLAIYA, HONBLE & SHRI RAHUL CHAUDHARY, HONBLE
PER RAHUL CHAUDHARY, JUDICIAL MEMBER
I have had the benefit of reading the opinion the Hon’ble Accountant Member, and I am agreement. However, I am setting out my perspective on the limited issue of admission of additional evidence. In relation to Ground No. 2 & 3 raised by the Revenue in ITA No. 6332/Mum/2017 for the Assessment Year 2013-14 it was contended on behalf of the Assessee that when the additional evidence was sent to the CIT(A) for comments/report thereon, the Assessing Officer did not raise any objections to the admission of additional evidence; and provided comments on merits of the additional evidence, therefore, now in appeal before the Tribunal the Revenue is barred from challenge the admission of additional evidence; and contend before the Tribunal that the same has been admitted without complying with the provisions contained in Rule 46A of the Income Tax Appellate Tribunal Rules, 1962 [for short ‘IT Rules’]. In principle we do not find any merit the submission advanced on behalf of the Assessee as Rule 46A(2) specifically provides that no additional evidence shall be admitted unless the CIT(A) records in writing the reasons for such admission. It would be pertinent to note that the Assessee cannot claim admission of
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ITA NO. 6332/MUM/2017 (A.Y: 2012-13) M/s. Sahara Q Shop Unique Products Range Ltd., ITA NO. 6333/MUM/2017 (A.Y: 2013-14) M/s. Sahara Q Gold Mart Ltd., additional evidence as a matter of right. Rule 46A(1) of the IT Rules, prescribes the circumstances in which additional evidence can be admitted. Therefore, on an application made by the Assessee, the CIT(A) is required to exercise his discretion to admit or deny admission of additional evidence and record reasons for the same in writing. In the present case the CIT(A) has not specifically recorded reasons for admission of additional evidence. However, I concur that the facts and circumstances of the present case warranted admission of additional evidence in terms of Rule 46A(1)(b) of the IT Rules as the Assessee was prevented by sufficient cause from producing the additional evidence before the Assessing Officer. The Assessee had placed on assessment record list of 2,83,067 persons from whom advance was received. As per the Assessment Order, the Assessing Officer randomly selected few persons; carried out inquiry and thereafter, show-cause notice was issued to the Assessee on 23/03/2015 and the Assessment Order was passed on 30/03/2015. Thus, leaving no time to the Assessee to adduce evidence to controvert the findings in the inquiry conducted by the Assessing Officer. From perusal of the Assessment Order, it also not clear whether the Assessee was actually confronted with the findings of the inquiry carried out by the Assessing Officer in case of randomly
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ITA NO. 6332/MUM/2017 (A.Y: 2012-13) M/s. Sahara Q Shop Unique Products Range Ltd., ITA NO. 6333/MUM/2017 (A.Y: 2013-14) M/s. Sahara Q Gold Mart Ltd., selected parties. Further, pursuance to report being sought by the CIT(A) from the Assessing Officer, in the remand proceedings the Assessing Officer carried out inquiry/verification on test check basis and returned findings which supported the claim of the Assessee. In the aforesaid facts, it cannot be said that the Revenue was deprived of the opportunity to examine the additional evidence. Thus, keeping in view the aforesaid peculiar facts of the case, we are of the view that setting aside the order passed by the CIT(A) on the ground that the CIT(A) has not recorded the reasons for admission of additional evidence would serve no purpose. Rule 46A of IT Rules enshrines the principle of natural justice that no one should be condemned unheard. In the case of State of UP Vs. Sudhir Kumar Singh: AIR 2020 Supreme Court 5215 it has been held by the Hon’ble Supreme Court that where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed unless some prejudice is caused to the person complaining of the breach of natural justice. In the present case, when applicable facts and circumstances are considered in totality, no prejudice can be said to have been caused to the Revenue. Therefore, we hold that in view of the aforesaid it is not necessary to strike down the action of the CIT(A)
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ITA NO. 6332/MUM/2017 (A.Y: 2012-13) M/s. Sahara Q Shop Unique Products Range Ltd., ITA NO. 6333/MUM/2017 (A.Y: 2013-14) M/s. Sahara Q Gold Mart Ltd., and refer the matter back to the CIT(A) to take fresh decision after complying with the procedural requirement of Rule 46 of the IT Rules as no prejudice has been caused to the Revenue. Accordingly, we concur that there is no merit in the grievance raised by the Revenue vide Ground No. 2 & 3 of its appeal and therefore, the same are dismissed.
In concurrence, both appeals preferred by the Revenue are dismissed.
In the result, appeal of the revenue in ITA No. 6332/MUM/2017 (A.Y. 2012-13) is dismissed.
As mentioned elsewhere, the underlying facts in ITA No. 6333/MUM/2017 (A.Y. 2013-14) are identical to the facts considered by us hereinabove, for our detailed discussion therein ITA No. 6333/MUM/2017 (A.Y. 2013-14) is also dismissed.
Order pronounced in the open court on 10th May, 2024.
Sd/- Sd/- (RAHUL CHAUDHARY) (NARENDRA KUMAR BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 10.05.2024 Giridhar, Sr.PS
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ITA NO. 6332/MUM/2017 (A.Y: 2012-13) M/s. Sahara Q Shop Unique Products Range Ltd., ITA NO. 6333/MUM/2017 (A.Y: 2013-14) M/s. Sahara Q Gold Mart Ltd., Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file.
//True Copy// BY ORDER
(Asstt. Registrar) ITAT, Mum
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