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Income Tax Appellate Tribunal, ‘B’ SMC BENCH, CHENNAI
Before: SHRI N.R.S. GANESAN
आदेश /O R D E R
This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) – 5, Chennai, dated 27.02.2017 and pertains to assessment year 2007-08.
Shri R. Padmanabhan, the Ld. representative for the assessee, submitted that the CIT(Appeals) called for remand report from the Assessing Officer. A copy of the remand report was also given to the assessee on 15.02.2017. The assessee could not furnish the objection before the Commissioner. The assessee has now filed additional evidence in the form of affidavit which needs to be examined. According to the Ld. representative, since the addition was made under Section 68 of the Income-tax Act, 1961 (in short 'the Act'), the Assessing Officer has to examine whether the claim made by the assessee with regard to borrowal of funds is substantiated. Therefore, according to the Ld. representative, an opportunity may be given to the assessee by remitting the matter back to the file of the Assessing Officer.
I have heard Shri B. Sahadevan, the Ld. Departmental Representative also. The Ld. D.R. submitted that the CIT(Appeals) called for remand report from the Assessing Officer and a copy was also given to the assessee giving an opportunity to file her objection, if any. The assessee had not filed any objection to the remand report. Therefore, the CIT(Appeals) completed the assessment on the basis of the material available on record. The affidavit filed before this Tribunal in the form of additional evidence was not available before the authorities below.
I have considered the submissions made by the Ld. representative for the assessee and the Ld. D.R. Admittedly, the CIT(Appeals) called for remand report and a copy of which was given to the assessee on 15.02.2017 asking for her comments, if any. The assessee had not filed any comments on the remand report and nobody appeared before the CIT(Appeals) on the date of hearing, i.e. on 21.02.2017. Therefore, the CIT(Appeals) completed the assessment on the basis of material available on record. Now the assessee has filed additional evidence in the form of affidavit from the person who was said to be lent money to the assessee.
This additional evidence needs to be examined. This Tribunal being a final fact finding authority, the facts have to be settled at the Tribunal level. The affidavit filed before this Tribunal was not examined by both the authorities below. Therefore, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, the orders of the authorities below are set aside and the addition made by the Assessing Officer under Section 68 of the Act is remitted back to the file of the Assessing Officer. The Assessing Officer shall re-examine the matter afresh in the light of the additional evidence filed by the assessee and thereafter decide the issue in accordance with law, after giving a reasonable opportunity to the assessee.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced on 18th August, 2017 at Chennai.